Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-008308/AABS
In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Rajwinder Bahra
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Melanie Malach
APPEARANCES:
For the Applicant: Alim Ramji, Counsel
For the Respondent: Kathleen Mertes, Counsel
HEARD: By way of written submissions
OVERVIEW
1Rajwinder Bahar, the applicant, was involved in an automobile accident on November 24, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Aviva General Insurance, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from June 25, 2022, to date and ongoing?
ii. Is the applicant entitled to the treatment and assessments proposed by Complete Rehab, as follows:
a. $1,713.51 for chiropractic and massage therapy services, in a treatment plan dated May 4, 2022;
b. $1,533.01 for chiropractic and massage therapy services, in a treatment plan dated July 11, 2022;
c. $2,894.70 for an orthopaedic assessment, in a treatment plan dated August 19, 2022; and
d. $704.33 ($2,765.21 less $2,060.88 approved) for psychological services, in a treatment plan dated January 24, 2024?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
3The Case Conference Report and Order (“CCRO”) lists the date of issue ii(i) as June 25, 2022, and that the treatment plan is for physiotherapy. The actual date of the treatment plan is May 4, 2022, and the treatment plan is for chiropractic and massage therapy services. The CCRO lists the date of issue ii(ii) as July 29, 2022, and that the treatment plan is for physiotherapy. The actual date of the treatment plan is July 11, 2022, and is for chiropractic and massage therapy services. The CCRO lists the date of issue ii(iii) as August 19, 2022. The actual date of the treatment plan is August 19, 2022. The CCRO lists the date of issue ii(iv) as February 6, 2024. The actual date of the treatment plan is January 24, 2024. Therefore, I have amended the issues in dispute to reflect these dates and services, as listed on the treatment plans in dispute.
RESULT
4The applicant is entitled to an IRB in the amount of $400.00 per week, from June 25, 2022 to November 23, 2023.
5The applicant is entitled to the treatment plans for chiropractic and massage therapy, dated May 4, 2022 and July 11, 2022.
6The applicant is not entitled to the treatment plan for an orthopaedic assessment, dated August 19, 2022.
7The applicant is not entitled to the unapproved amount of the treatment plan for psychological services, dated January 24, 2024.
8The applicant is entitled to interest on overdue payment of benefits.
ANALYSIS
The applicant is entitled to IRBs in the amount of $400.00 per week from June 25, 2022 to November 23, 2023
Background:
9At the time of the accident, the applicant was employed full-time as a Production Line Worker at A-One Samosas & Snacks. She worked 40 hours per week. The OCF-2 Employer’s Confirmation Form, dated December 29, 2021, indicates that the applicant’s essential tasks of employment include “mostly required to stand and fill samosas, put trays on a rack”. The applicant submits that her essential tasks of employment include driving to work two to three days per week, moving items, preparing food and assisting with production.
10Following the accident, the applicant was off work and received an IRB of $400.00 per week. Based on the s. 44 Insurer’s Examination (“IE”) Multidisciplinary assessments, the respondent terminated the applicant’s entitlement to an IRB on June 25, 2022. The applicant claims entitlement to an IRB from June 25, 2022 and ongoing.
Pre-104 Period
11I find that the applicant is entitled to IRBs for the pre-104-week period because she suffers a substantial inability to perform the essential tasks of her employment.
12Section 5(1) of the Schedule provides that an insurer shall pay an IRB to an insured person who sustains an impairment as a result of an accident if they were employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.
13The applicant submits that she has met the test for the pre-104 period for IRB, as she was diagnosed with an adjustment disorder with anxiety, major depressive disorder and specific phobia (vehicular: driver, passenger) moderate to severe, and features of somatic symptom disorder with predominant pain persistent type, in the report by Dr. Jacqueline Brunshaw, psychologist, dated August 31, 2022. Dr. Brunshaw notes in her report that the applicant’s significant levels of pain and emotional trauma greatly contribute to a poor emotional and psychological state, which in turn acts as a barrier to return to work. The report also notes that the applicant is experiencing difficulty with concentration, memory, processing information, and decision-making which also make it likely that she would be unable to perform her essential work duties.
14The applicant further relies upon the IE Psychological Addendum report of Dr. Jonathan Siegel, psychologist dated October 4, 2022. Dr. Siegel stated: “if the term “substantial inability” includes Rajwinder driving to and from work then I agree with Dr. Brunshaw’s opinion that Rajwinder suffers a substantial inability to perform the essential tasks of her employment due to her specific phobia for driving.” He further stated: “Rajwinder may have additional difficulties to consistently maintain energy levels while working, from a psychological perspective.” The applicant submits that her driving anxiety has prevented her from driving to work since the accident, as she drove 2-3 days a week prior to the accident and her husband drove her the remaining days.
15The applicant relies upon the Tribunal decision in K.Y. v. Aviva Insurance Company, 2022 CanLII 151 (ON LAT), where the Tribunal found that driving was an essential task of the insured’s employment as a contractor, and he therefore suffered a substantial inability to perform the essential tasks of his employment.
16The applicant further submits that the IE Report of Dr. Pankaj Bansal, physician, dated June 6, 2022, should be given very little evidentiary weight, as he did not conduct any functional abilities tests with respect to her job duties, to see if she had any restrictions in performing her job functions. The applicant further submits that Dr. Bansal’s opinion that her limits or reduction in mobility are consistent with Polio are unsupported. The applicant submits that there is no evidence demonstrating that the numbness or weakness in her extremities were caused or related to her childhood Polio instead of the accident.
17The respondent submits that the applicant has not met her burden of meeting the test for the pre-104 period because the medical evidence does not support a physical or psychological impairment. The respondent submits that the applicant has not submitted any evidence to support that the physical requirements of her pre-accident employment were very physically demanding. The respondent submits that, to date, the applicant has not obtained any worksite or vocational assessment, nor has she obtained any reports that specifically address her ability to engage in her pre-accident employment in relation to her accident-related injuries. The respondent argues that neither the applicant’s family physician, Dr. Sidharth Dutta, or Dr. Davar Nikneshan, neurologist, have concluded that the applicant is physically unable to return to her pre-accident employment.
18The respondent relies upon the s. 44 IE Multidisciplinary Assessment reports of Dr. Bansal, physician, and Dr. Siegel, psychologist, dated June 6, 2022, which concluded that the applicant did not suffer a substantial inability to perform the essential tasks of her pre-accident employment as a direct result of the accident. It further relies upon the Addendum reports of Dr. Bansal and Dr. Siegel, dated October 4, 2022, which confirmed the assessors’ initial findings. The respondent also relies upon the Letter of Clarification by Dr. Siegel, dated October 6, 2022, where Dr. Siegel confirmed that the essential tasks of the applicant’s employment as outlined on the OCF-2 Employer’s Confirmation form were standing and filling samosas and putting them on trays. He confirmed that, from a psychological perspective, the applicant was not substantially unable to complete these essential tasks of employment.
19Based on the applicant’s psychological complaints, I find that she has proved on a balance of probabilities that she suffers a substantial inability to perform her pre-accident employment for the following reasons.
20I find the report of Dr. Brunshaw, psychologist, is persuasive evidence of the applicant’s substantial inability to perform the tasks of her previous employment, given the findings of adjustment disorder with anxiety, major depressive disorder, specific phobia (vehicular: driver, passenger) and features of somatic symptom disorder. The report notes that given the applicant’s difficulties with concentration, memory, processing information and decision-making abilities, she will be unable to perform her essential job tasks and duties as required. In addition, the applicant noted that she had not driven since the accident because of fear and specific phobia. This is substantiated by Dr. Siegel’s Addendum report, which cites her specific phobia for driving as a barrier to returning to work.
21I also give weight to the Addendum report of Dr. Siegel, where he notes: “It is likely that Ms. Bahra has psychological issues that are significantly complicating the clinical picture and contributing to a protracted recovery as well as the maintenance, intensification and perpetuation of pain.” He further stated that, “There is reference in the file to issues of fatigue and given that Ms. Bahra has not yet received psychological counselling, there are potential concerns that Ms. Bahra might have difficulties, from a psychological perspective, mobilizing psychological resources to consistently maintain energy levels while working on a full-time basis.” This reasoning by Dr. Siegel further supports that the applicant suffers a substantial inability to resume her pre-accident employment from a psychological perspective.
22As I have found that the applicant is entitled to pre-104-week IRBs based on her psychological impairments, I will not deal with her entitlement based on her physical impairments.
23For the reasons stated above, I find that the applicant has met her onus of proving, on a balance of probabilities, that she is entitled to IRBs for the pre-104-week period.
Post-104 Period
24I find that the applicant is not entitled to IRBs for the post-104 period.
25Pursuant to section 6 of the Schedule, the legal test for the post-104-week IRB is that the applicant must demonstrate on a balance of probabilities that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.
26The applicant submits that she suffers a complete inability to engage in any employment for which she is suited by education, training or experience and thus is entitled to post-104-week IRBs. The applicant submits that she continues to struggle in returning to her pre-accident daily life and working ability because of her ongoing physical and psychological impairments. She relies upon the Psychological Progress report, prepared by Munish Malik, psychotherapist, dated December 26, 2023. She further submits that she has limited English capacity, historically worked in physically labour-intensive work and does not have an educational background for other work. She relies upon the Tribunal decision in R.R. v. Aviva Insurance Canada, 2019 CanLII 94127 (ON LAT) (“R.R.”) to support her position that she is suffers a complete inability to engage in any employment because she is limited by her education, training or experience.
27The respondent submits that the applicant has not proven on a balance of probabilities that she is suffering from a complete inability to engage in any employment for which she is reasonably suited as a result of the accident. The respondent argues that the applicant has not provided any medical evidence to suggest she suffers from accident-related physical impairments beyond April 2023, and she has effectively stopped attending pre-approved psychological treatment beyond February 7, 2024, despite there being 9 approved sessions that have not been incurred. In addition, the respondent argues that despite being advised on both Explanation of Benefit letters concerning the IRB that Dr. Siegel had recommended in-vehicle driving anxiety therapy, and that the respondent would approve treatment upon receipt of a treatment plan, to date the applicant has failed to submit such a treatment plan to the respondent.
28I find that the applicant is not entitled to post-104-week IRBs because she has not demonstrated that she suffers from a complete inability to engage in any employment or self-employment for which she is suited by education, training or experience. I find that the applicant has provided limited submissions regarding her entitlement to post-104 IRBs. I am not persuaded that the Psychological Progress report, dated December 26, 2023, has established that the applicant is entitled to post-104-week IRBs, because the report does not discuss the applicant’s current limitations as it relates to her ability to return to her pre-accident employment or discuss the complete inability test. The report does not support that the applicant suffers a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. I therefore find that the applicant has not provided sufficient medical evidence to support that she suffers a complete inability.
29I also find it persuasive that the applicant stopped attending for psychological treatment on February 7, 2024, with approved sessions not incurred. Similarly, despite the recommendations of both Dr. Brunshaw and Dr. Siegel for the applicant to undergo in-vehicle driving anxiety therapy, there is no evidence that the applicant pursued this treatment to deal with her driving anxiety. I find that the applicant did not file reply submissions or explain why treatment was stopped or not pursued.
30In addition, while the applicant relies upon the Tribunal decision in R.R., I find that the applicant has not provided sufficient evidence as to her educational or employment background that would prevent her from engaging in any employment for which she is reasonably suited, as required by s. 6 of the Schedule.
31For the reasons stated above, I find that the applicant has not met her onus of proving, on a balance of probabilities, that she is entitled to post-104-week IRBs.
The applicant is entitled to the treatment plans for chiropractic and massage therapy
32I find that the applicant has proven on a balance of probabilities that she is entitled to the treatment plans for chiropractic and massage therapy services.
33To receive payment for medical and rehabilitation benefits under sections 15 and 16 of the Schedule, the applicant has the onus of proving on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
34The applicant claims entitlement to $1,713.51 for 14 chiropractic sessions and 5 massage therapy sessions, proposed by Complete Rehab Centre in a treatment plan, dated May 4, 2022. The functional goals of the treatment plan are to return to normal living and to return to pre-accident work activities. The underlying goals include pain reduction, increase in range of motion, increase in cardiovascular fitness levels, increase in strength, endurance and flexibility and improve motor control of lumbopelvic and cervicothoracic muscles.
35The applicant also claims entitlement to $1,533.01 for 12 chiropractic sessions and 5 massage therapy sessions, proposed by Complete Rehab Centre in a treatment plan, dated July 11, 2022. The functional goals of the treatment plan are to return to normal living and to return to pre-accident work activities. The underlying goals include pain reduction, increase in range of motion, increase in cardiovascular fitness levels, increase in strength, endurance and flexibility and improve motor control of lumbopelvic and cervicothoracic muscles.
36The applicant submits that she is entitled to the treatment plans in dispute because they are reasonable and necessary based on her ongoing physical and psychological limitations. The applicant submits that the Clinical Notes and Records (“CNRs”) of Dr. Dutta, family physician, the psychological progress reports of Mr. Malik, psychotherapist, and the CNRs of Complete Rehab Centre, remark on the applicant’s progress with physiotherapy and the continuous struggles with pain and impairments on range of motion due to the accident. The applicant further submits that the fact that she continued to report her restrictions and pain demonstrated that she is entitled to the disputed treatment plans. The applicant further argues that Dr. Bansal’s findings in his IE report, dated June 6, 2022, should not be given evidentiary weight, as his assessment did not address the ongoing pain and impairments experienced by the applicant.
37The respondent submits that the treatment plans in dispute are not reasonable and necessary. The respondent relies on the IE report of Dr. Bansal dated June 6, 2022, which concluded that a previous treatment plan, dated March 17, 2022, was not reasonable and necessary. The respondent submits that the applicant has not provided any evidence from a treating physician to support the need for the proposed primarily passive therapy. It argues that Dr. Dutta, family physician, recommended physiotherapy for the applicant. However, the treatment plans in dispute are for chiropractic and massage therapy, both of which were not recommended.
38I find that the applicant is entitled to the treatment plans in dispute. I find that the CNRs of Dr. Dutta support the applicant’s ongoing pain complaints at the time of submission of the treatment plans and the need for ongoing facility-based treatment. While the respondent argues that Dr. Dutta recommends physiotherapy and not chiropractic or massage therapy, I find the fact Dr. Dutta recommended further facility-based treatment is sufficient to support that the treatment proposed was reasonable and necessary. The treatment plans note that services would be provided by a chiropractor, physiotherapist, and massage therapist which is in line with the recommendation for physiotherapy made by Dr. Dutta. I find that the goals of the treatment, to reduce pain, increase strength, endurance and flexibility, would be met by providing ongoing treatment.
39Upon review of the treatment plan dated May 4, 2022, I find that under Additional Comments, the plan notes that “Ms. Bahra reports that therapy has been progressing. She feels better when attending therapy and therapy is advised to continue to tolerance.” The treatment plan dated July 11, 2022, further states that “She feels better when attending therapy.” I further find on review of the CNRs of Complete Rehab that the applicant reported relief with the therapy and found it helpful. She continued to attend on a regular basis following the submission of the treatment plans in dispute which is in line with the recommendations made by Dr. Dutta.
40I give little weight to the IE report of Dr. Bansal, physician, which states that the prognosis for recovering from soft tissue type injuries is a maximum three months from the time of injury and therefore there would be no reason why the applicant would currently have physical impairment in relation to the accident. The applicant reported to Dr. Bansal that she had ongoing pain in her neck, shoulder, left knee and lower back. The CNRs of Dr. Dutta and Complete Rehab support that the applicant continued to report ongoing pain complaints and restrictions more than three months post-accident and that her physical complaints had not resolved within three months.
41For the reasons stated above, I find that the applicant has met her onus of proving, on a balance of probabilities, that the treatment plans in dispute are reasonable and necessary as a result of the accident.
The applicant is not entitled to an orthopaedic assessment
42I find that the applicant has not proven on a balance of probabilities that she is entitled to the treatment plans for an orthopaedic assessment.
43The applicant claims entitlement to $2,894.70 for an orthopaedic assessment, proposed by Complete Rehab Centre in a treatment plan, dated August 19, 2022. The treatment plan seeks an orthopaedic assessment, documentation, support activity for claim form, transportation to the assessment and interpretation services. The functional goals of the treatment pan are to return to activities of normal living and to help objectify subjective complaints/dysfunction in order to conceptualize current condition.
44The applicant submits that the treatment plan for an orthopaedic assessment is reasonable and necessary due to her ongoing pain and functional impairments.
45The respondent submits that the treatment plan for an orthopaedic assessment is not reasonable or necessary as there is no evidence in the medical file that supports the need for the orthopaedic assessment. The respondent further submits that the post-accident diagnostic reports are negative for any orthopaedic injuries. It argues that the CNRs of Dr. Dutta confirm that he facilitated neurological and physiatrist referrals post-accident and that he had no concerns that necessitated an orthopaedic assessment.
46I agree with the respondent that the treatment plan for an orthopaedic assessment is not reasonable or necessary. I find that the applicant has not submitted sufficient evidence to support the need for an orthopaedic assessment. I further find that Dr. Dutta referred the applicant for a neurological and physiatrist assessment. As the applicant’s treating practitioner, had he opined that an orthopaedic assessment was required, he would have made a referral for such an assessment.
47For the reasons stated above, I find that the applicant has not met her onus of proving, on a balance of probabilities, that the treatment plan for an orthopaedic assessment is reasonable and necessary as a result of the accident.
The applicant is not entitled to the unapproved amount of the treatment plan for psychological services
48I find that the applicant has not proven on a balance of probabilities that the unapproved amount of the treatment plan dated January 24, 2024, for psychological services, is reasonable.
49The applicant claims entitlement to the outstanding balance of the treatment plan for psychological services, proposed by Dr. Brunshaw, psychologist, of Complete Rehab Centre, dated January 24, 2024. The plan recommends ten, 1.25-hour psychological sessions with Peggy-Gail DeHal Gunraj, psychotherapist, at the rate of $149.61 per hour. Mr. Malik, psychotherapist, subsequently provided the services in the proposed treatment plan.
50The unapproved portion of the treatment plan in dispute relates to the hourly rate payable for services provided by a psychotherapist. The applicant claims that the hourly rate should be $149.61 per hour and the respondent claims that the hourly rate should be $99.75 per hour.
51The fee for services provided through the Schedule is governed by the Professional Services Guideline issued as Superintendent’s Guideline No. 03/14 (the “Guideline”). The Guideline establishes the maximum expenses payable for a range of health care services, medical benefits and case management services. The maximum hourly rate for psychologists and psychological associates is $149.61 per hour.
52The Guideline does not specify a rate for psychotherapists. Rather, the rate stipulated for unregulated providers, such as counsellors and psychometrists, is $58.19 per hour. Given the Guideline is silent on the maximum hourly rate for a psychotherapist, it is left to the parties to determine what the acceptable hourly rate would be. The applicant must prove that the higher hourly rate is reasonable on a balance of probabilities.
53The applicant submits that Mr. Malik, psychotherapist, is entitled to the hourly rate of $149.61, because she was providing the same type of psychological services that a psychologist provides, specifically Cognitive Behavioural Therapy (“CBT”). The applicant further submits that the applicant kept a pain journal, which is a known technique of CBT. The applicant cites three Tribunal decision: J.V. v. Intact Insurance Company, 2019 CanLII 76995 (ON LAT) (“J.V.”), I.B. v. Aviva Insurance Company of Canada, 2020 CanLII 40329 (ON LAT) (“I.B.”), and A.S. v. Aviva General Insurance Company, 2020 CanLII 12787 (ON LAT) (“A.S.”), where the Tribunal determined that a psychotherapist who was providing CBT was entitled to be paid the same rate as a psychologist.
54The respondent submits that it approved $99.75 per hour based on the treatment being provided by a psychotherapist and not a psychologist. The respondent submits that the applicant has not provided any information as to the psychotherapist’s qualifications aside from his registration with the College of Registered Psychotherapists of Ontario. The respondent further submits that the applicant has not provided any evidence that Mr. Malik’s qualifications are so specialized to be akin to that of a registered psychologist or that he provided services under the supervision of a registered psychologist. The respondent cites the Tribunal decision in Moran v. Aviva Insurance, 2024 CanLII 83749 (ON LAT) (“Moran”).
55I find the applicant’s submission that Mr. Malik, psychotherapist, is providing similar services to a psychologist, is not persuasive for the following reasons.
56The Tribunal decisions that the applicant relies on relate to registered psychotherapists who specialized in CBT. I find that the authority in J.V. is distinguishable from the factual scenario before me. In J.V., the adjudicator found that a registered psychotherapist was doing the same work as a psychologist in providing CBT and should be paid at the same rate. The adjudicator found that the psychotherapist had specialized training to conduct CBT and was therefore qualified to provide CBT. I agree with the respondent’s submission and its reliance on the decision in Moran, that the applicant has not provided any evidence indicating that Mr. Malik has specialized training or is qualified in CBT. I find that the applicant has not provided any submissions or evidence on the qualifications of Mr. Malik to support that her experience warrants being paid at an hourly rate similar to a psychologist. For instance, no Curriculum Vitae was provided by the applicant.
57I further find that A.S. is not binding on me and I do not find it persuasive, because the Guideline distinguishes hourly rates based on the health care profession and provider. In my view, the type of services provided is not a sole determinate of the hourly rate payable to a profession.
58Finally, I find that while the applicant states that CBT techniques have been used in her treatment, aside from noting that the applicant kept a pain journal, no particulars of these techniques have been provided. I find that the applicant has not provided evidence that Mr. Malik has specialized training within the area of CBT nor that the services provided were the same as those provided by a psychologist.
59As a result, I find that the applicant has not met her onus of proving on a balance of probabilities, that Mr. Malik, psychotherapist, should be paid at the enhanced hourly rate for a psychologist. As such, the applicant has not demonstrated entitlement to the unapproved amount of the treatment plan for psychological services.
Interest
60Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that the applicant is entitled to interest on the overdue benefits of IRB and the treatment plans for chiropractic and massage therapy.
ORDER
61For the reasons outlined above, I find:
i. The applicant is entitled to an IRB in the amount of $400.00 per week, from June 25, 2022 to November 23, 2023;
ii. The applicant is entitled to the treatment plans for chiropractic and massage therapy, dated May 4, 2022 and July 11, 2022;
iii. The applicant is not entitled to the treatment plan for an orthopaedic assessment, dated August 19, 2022;
iv. The applicant is not entitled to the unapproved amount of the treatment plan for psychological services, dated January 24, 2024; and
v. The applicant is entitled to interest on overdue payment of benefits.
Released: May 16, 2025
Melanie Malach
Adjudicator