Licence Appeal Tribunal File Number: 23-000943/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:
Ryan Enaya
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Nadia Mauro
APPEARANCES:
For the Applicant:
John Chui, Paralegal
For the Respondent:
Melanie Sousa, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Ryan Enaya, the applicant, was involved in an automobile accident on June 22, 2018, 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 Insurance Company, 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 treatment plans (“OCF-18”) proposed by Elite Specialist Group Inc., as follows:
a) $1,196.64 ($4,239.55 less $3,042.91 approved) for psychological services, in an OCF-18 submitted March 30, 2021;
b) $747.90 ($2,893.03 less $2,145.13 approved) for psychological services, in an OCF-18 submitted September 27, 2021;
c) $1,513.85 ($4,257.50 less $2,743.65 approved) for psychological services, in an OCF-18 submitted June 29, 2022;
d) $1,455.51 ($3,750.32 less $2,294.81 approved) for psychological services, in an OCF-18 submitted October 24, 2022; and
e) $1,352.31 ($3,243.13 less $1,890.82) for psychological services, in an OCF-18 submitted March 29, 2023?
ii. Is the applicant entitled to $2,635.26 for an orthopaedic assessment, proposed by Elite Specialist Group Inc. in an OCF-18 dated October 2, 2020?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
3The OCF-18 for psychological services dated March 29, 2023, is incorrectly dated. The evidence indicates that the proposed treatment plan for psychological services was completed on March 20, 2023, and submitted for consideration by the respondent on May 29, 2023.
RESULT
4The applicant is not entitled to the treatment plans, interest, or an award.
ANALYSIS
The applicant is not entitled to psychological services at a rate of $149.61 per hour
a) The OCF-18s for psychological services dated March 30, 2021, September 27, 2021, June 29 ,2022, and October 24, 2022
5I find that the applicant has not proven, on a balance of probabilities, that the balance of the OCF-18s for psychological services are reasonable and necessary.
6To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating 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.
7The applicant addressed his claim for these treatment plans altogether in his submissions, and relied upon the same evidence and arguments to establish that these treatment plans are reasonable and necessary.
8The OCF-18s were completed by psychologist, Dr. Jaqueline Brunshaw, and identified treatment goals of decreasing psychological problems and return to activities of normal living. The OCF-18s sought funding for the following:
i. The OCF-18 dated March 30, 2021 sought funding for 16 1.5-hour sessions of therapy at a cost of $224.42 per session, an assessment, and documentation support activity;
ii. The OCF-18 dated September 27, 2021 sought 10 1.5-hour sessions of therapy at a cost of $224.42 per session, an assessment, and documentation support activity;
iii. The OCF-18 dated June 29, 2022 sought 14 1.5-hour long therapy sessions at a cost of $224.42 per session, an assessment, and documentation support activity; and
iv. The OCF-18 dated October 24, 2022, sought 12 1.5-hour long sessions of therapy at a cost of $224.42 per session, an assessment, and documentation support activity.
9The applicant submits that the respondent partially approved the psychological services at an hourly rate of $99.75 per hour and did not agree to fund the “preparation and service amount, the cost of the progress report, and the education material.” The applicant submits that the psychological treatment that the applicant received was provided by a registered psychotherapist, under the supervision of Dr. Jacqueline Brunshaw, registered psychologist. The applicant argues that the rate charged for psychotherapy is $224.24 for 1.5 hours of counselling sessions, amounting to $149.61 per hour.
10The respondent submits that all of the treatment in the OCF-18s was approved in full, but at the rate of $99.75 per hour, as opposed to the proposed $149.61 per hour. The respondent argues that there is no reference in the Superintendent’s Guideline No. 03/14 (“Guideline”) to fees that apply to a psychotherapist, however, the Guideline states that amounts payable by an insurer related to services not covered by the Guideline are to be determined by the parties involved.
11I find that the evidence indicates that the respondent has approved all the goods and services listed on the OCF-18s, however, has not approved the therapy sessions in the amount of $224.24 per session.
12I am not bound by Tribunal decisions; however, I find that the cases relied on by both the applicant and respondent to be helpful in this matter given that the dispute is based on a quantum of services that is not explicitly prescribed by any legislation.
13The applicant relies on the Tribunal decision in A.S v Aviva General Insurance, 2021 CanLII 22034 (ON LAT) (“A.S”), where it was held that the treating psychotherapist was performing the same services as a psychologist and was thus entitled to payment at the same rate of a psychologist at $149.61 per hour. However, I distinguish A.S. from the present case because I find that it is unclear what specific treatment the psychotherapists will be performing and whether it would compare to the treatment the applicant would receive from a psychologist. The applicant has not directed me to evidence that would support that, in this case, the applicant would be receiving equivalent treatment from a psychotherapist as he would from a psychologist warranting payment at the rate of a psychologist.
14The applicant further relies on the decision in I.B. v Aviva Insurance Company of Canada, 2020 CanLII 40329 (ON LAT) (“I.B.”), where the Tribunal found that the psychologist’s rate was most appropriate for a psychotherapist based on the fee guide of the Ontario Psychological Association and the similarity between services provided by psychotherapists and psychologists. I am not persuaded by I.B., as the applicant in the present case has not directed me to any comparator, such as the Ontario Psychological Association, and the applicant has also not put forward any other compelling evidence to suggest that a registered psychotherapist should be paid at the higher rate of a psychologist.
15I am persuaded by the respondent’s reliance on the Tribunal decision in Kucheran-Grenier v. The Co-operators, 2023 CanLII 96326 (ON LAT), wherein the applicant provided no information regarding the treating psychotherapists credentials and training, and therefore, the higher rate requested was not awarded. I have reviewed the OCF-18s, and each state that “the proposed psychological treatment will be conducted by Registered Psychotherapists available at the time of approval.” While the OCF-18s indicate that Dr. Brunshaw supervised the psychological report, it is clear from the description of services that the therapy would be conducted by a registered psychotherapist, rather than a psychologist. The applicant has not provided the credentials of the treating practitioners for the proposed treatment plans to confirm the range and breadth of their experience. More importantly, the applicant has not provided any of the treating psychotherapist’s credentials as it would relate to the proposed treatment plans.
16With respect to the quantum of services, the respondent relies on the Tribunal decision in Baranov v Aviva General Insurance, 2020 CanLII 87933 (ON LAT), where it was found that $99.75 was appropriate given the psychotherapist’s education level and experience. As I have stated above, I am not pointed to the qualifications of the treating psychotherapists in the present case. Given that the respondent has approved the treatment in this amount and the applicant has not put forward evidence that would support a higher payment in the circumstances, I find $149.61 to not be reasonable and necessary.
17In sum, I find that the applicant has not proven, on a balance of probabilities, that the balance of the partially approved treatment plans is reasonable and necessary.
b) The OCF-18 for psychological services dated March 20, 2023
18I find that the applicant has not proven, on a balance of probabilities, that the psychological services, dated March 20, 2023, are reasonable and necessary.
19The OCF-18 dated March 20, 2023, completed by Dr. Jaqueline Brunshaw, psychologist, sought funding for:
i. Line 1: Therapy, mental health and addictions for ten 1.5-hour sessions in the amount of $224.42 per session;
ii. Line 2: Assessment, mental health and addition in the amount of $448.83; and
iii. Line 3: Documentation, support activity for claim form in the amount of $200.00.
20The OCF-18 identifies treatment goals of decreasing psychological complaints and a return to activities to normal living. The respondent partially approved the treatment plan in the amount of $1,890.82.
21The applicant submits that he requires ongoing psychotherapy and has continued to seek treatment despite the respondent’s denials.
22While the respondent submits that it has approved the plan in full, except for the full cost of the therapy sessions, the explanation of benefits (“EOB”), dated May 30, 2023, states:
“Aviva is agreeable to funding this treatment for a cost not to excess $1,890.82. Aviva agrees to fund psychotherapist at a rate of $99.75 per hour. As advised in our letter dated May 9, 2023, your claim coverage ends June 22, 2023. As such we will not fund the progress report as this report will not be necessary for ongoing management of your claim or any therapy past June 22, 2023 as Aviva cannot consider any medical, rehabilitation, or attendant care benefits after this date.”
23For the same reasons as I have indicated above, I do not find that the cost of psychotherapy services at $149.61 to be reasonable and necessary.
24The evidence shows that the ‘progress report’ the respondent identifies in the EOB is listed as Line 2: Assessment on the OCF-18. I find that the OCF-18 does not comment on or explain the purpose of the assessment (progress report) and how it would meet the overall goals of the proposed treatment plan. Additionally, the applicant does not make any submissions regarding the reasonableness and necessity of the progress report.
25The applicant bears the onus to prove that the proposed treatment is reasonable and necessary. I find that the applicant has not proven, on a balance of probabilities, that the balance of the treatment plan is reasonable and necessary.
The applicant is not entitled to the orthopaedic assessment
26I find that the applicant has not proven, on a balance of probabilities, that the orthopaedic assessment is reasonable and necessary.
27The applicant did not provide the treatment plan for the OCF-18 for an orthopaedic assessment in his submissions. Therefore, this treatment plan was not before to allow me to consider its goals, whether they would be met to a reasonable degree, and the overall costs of the OCF-18.
28In any event, the applicant submits that the orthopaedic assessment is reasonable and necessary as the respondent has removed the applicant from the MIG.
29The respondent submits that the applicant’s family doctor’s clinical notes and records (“CNRs”) do not support that an orthopaedic assessment is reasonable and necessary. The respondent relies on the s.44 general practitioner report of Dr. Hashmat Khan, dated November 19, 2020, wherein the proposed orthopaedic assessment was found to be not reasonable and necessary.
30The applicant has not directed me to compelling evidence that would support the proposed treatment plan is reasonable and necessary. While I acknowledge that the applicant was removed from the MIG, that does not mean that he is thereafter entitled to all the treatment plans he submits to the respondent. The applicant bears the onus of proving, on a balance of probabilities, that the proposed treatment is reasonable and necessary. In the present case, the applicant has fallen short of meeting his burden.
31I find that the evidence does not support the proposed treatment plan for an orthopaedic assessment. While the applicant reported to various practitioners of Holly Medical Clinic with complaints of neck pain on July 9, 2020, and April 26, 2020, these CNRs do not reference the accident, nor do the practitioners make any investigative recommendations or referrals. Moreover, while the OCF-3 completed by Mr. Abhishek Gupta, physiotherapist at Alpha Physiotherapy and Rehab (“Alpha”), dated September 20, 2020, recommends a number of further investigations, Mr. Gupta does not make a recommendation for an orthopaedic assessment.
32I am also unpersuaded by the evidence of Alpha because even though the applicant reported neck pain during treatment sessions, the CNRs provided by the applicant do not support a recommendation for any further accident-related assessment, other than a “reassessment” for what appears to be further physiotherapy treatment. Moreover, I give little weight to the CNRs of BMC Pain Clinic (“BMC”) as these CNRs begin in 2022, and I do not find that this speaks to the applicant’s need for an orthopaedic assessment in 2020.
33I give significant weight to the s. 44 report of Dr. Khan, as this assessor was asked to opine on the treatment plan in dispute. Dr. Khan subsequently found the proposed treatment plan to not be reasonable and necessary as “objective, clinical examination was overall unremarkable in that [the applicant] demonstrated essentially normal ranges of motion and a normal neurological examination.”
34For the sake of completeness, the respondent also argues that the applicant filed his application more than two years after the denial of this benefit, and he is therefore barred pursuant to s. 56 of the Schedule from proceeding with entitlement to this benefit. The applicant did not make any submissions in response to this argument. Having found that the treatment plan to not be reasonable and necessary, I need not consider this argument.
35Given that the applicant has not put the proposed OCF-18 into evidence for me to consider, nor has he pointed me to any compelling contemporaneous evidence supporting the need for an orthopaedic assessment, I find that the orthopaedic assessment is not reasonable and necessary.
Interest
36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, the applicant is not entitled to interest.
Award
37The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
38As there are no benefits owing, the applicant is not entitled to an award.
ORDER
39I find that:
i. The applicant is not entitled to the treatment plans or interest pursuant to s. 51 of the Schedule;
ii. The respondent is not liable to pay an award; and
iii. The application is dismissed.
Released: January 7, 2025
Nadia Mauro
Adjudicator