Citation: Campbell v. Aviva General Insurance, 2025 ONLAT 23-011683/AABS

Licence Appeal Tribunal File Number: 23-011683/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:

Michael Boliver Campbell

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Greg Witt

APPEARANCES:

For the Applicant: Michael Boliver Campbell, Applicant Sareena Samra, Counsel

For the Respondent: Cara Boddy, Counsel

HEARD: In Writing

OVERVIEW

1Michael Boliver Campbell, the applicant, was involved in an automobile accident on August 9, 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 Aviva General Insurance, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided are:

i. Is the applicant entitled to $4,623.90 for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan dated December 1, 2021?

ii. Is the applicant entitled to $1,590.72 ($4,150.56 less $2,559.84 approved) for psychological services, proposed by Somatic Assessments and Treatment Clinic in a plan dated August 15, 2023?

iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic on an OCF-21 dated December 15, 2023?

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?

v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is not entitled to a treatment plan for $4,623.90 for physiotherapy services.

4The applicant is not entitled to a treatment plan for $1,590.72 for psychological services.

5The applicant is not entitled to a treatment plan for $2,200.00 for a psychologist assessment.

6The respondent is not liable to pay an award or interest.

ANALYSIS

7To 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.

8I find that the treatment plan for physiotherapy services completed by Georgia Palantzas, chiropractor, is not reasonable and necessary. The treatment plan consists of acupuncture, different exercises and strength training, with goals of recovery for the applicant.

9The applicant submits that the treatment plan is reasonable and necessary as he suffered injuries to his shoulder, neck and back as a result of the accident and has had ongoing pain. The applicant relies on the hospital notes from Rouge Valley Centenary Hospital, where he was transported after the accident, and the attending physician noted the applicant was experiencing pain in his left shoulder that radiates to his neck. The clinical notes and records (“CNRs”) of Dr. Hunaina Mirza, physician, dated January 4, 2021, and Dr. Ali Ansari, physician, dated October 31, 2022, reveal complaints of ongoing neck and shoulder pain. The applicant does not make submissions as to the diagnosis or treatment recommended by the physicians.

10The respondent submits that the treatment plan is not reasonable or necessary, and that the applicant has not established the three elements to meet his burden on a balance of probabilities. The respondent submits that the applicant did not establish that the treatment goals are reasonable, that the goals will be met to a reasonable degree and the overall cost of achieving these goals are reasonable.

11I find that the applicant has not met his onus of proving on a balance of probabilities that the physiotherapy services are reasonable and necessary. The applicant does not provide sufficient evidence to demonstrate entitlement. I find that the applicant has made claim of ongoing physical pain, but the submissions lack documents to support this claim of ongoing physical pain. In reviewing the applicant’s evidence, I find that there are numerous CNRs from physicians but only the two as cited in paragraph 9 make reference to physical complaints. Based on the evidence, I find that the applicant has not met his burden of an ongoing physical pain nor that the goals of the treatment plan.

12I find that the applicant is not entitled to the treatment plan completed by Somatic Assessments and Treatment Clinic, for psychological services in the amount of $1,590.72 ($4,150.56 less $2,559.84 approved) nor the psychological assessment in the amount of $2,200.00.

13The goal of the proposed treatment plans is to allow the applicant to return to activities of normal living.

14The applicant submits that the treatment plan is reasonable and necessary. The applicant relies on the CNRs of Dr. Mirza and Dr. Ansari revealing complaints of ongoing depression and anxiety. The applicant also relies on a consult with Dr. Harinder Mrahar, psychologist, dated August 8, 2023. Dr. Mrahar diagnosed the applicant with Adjustment Disorder with anxiety, and depressed mood, persistent; specific (isolated) phobia, as well as somatic symptom disorder.

Psychological Services in the amount of $1,590.72

15The respondent acknowledges that the treatment plan is reasonable and necessary but disputes the denied portions due to the excessive hourly rates being sought by the service providers. The hourly rate for the treatment plan was set for a psychologist at $149.61 per hour, while the applicant’s sessions were being provided by a social worker, and as a result the respondent only agreed to fund $100.00 per hour for treatment. The applicant did not provide submissions on the hourly rate.

16I find that the fee for services provided through the Schedule is governed by the Professional Services Guideline (“PSG”) as outlined in section 49(1) of the Schedule. Pursuant to the PSG, the respondent is not liable to pay for expenses related to professional services rendered to an insured person that exceeds the maximum hourly rates set out in it. The PSG states that hourly rate for services provided by a professional not listed in the PSG are to be determined between the parties. A social worker is not listed. Further, the PSG provides that the maximum hourly rate for psychologists is $149.61 per hour, however a psychologist did not provide this service and as a result the respondent only agreed to pay $100.00 per hour for the treatment.

17While I am persuaded by the evidence that the treatment plant for psychological services was reasonable and necessary, I find that the treatment plan was not costed accordingly. The psychological services were approved by the respondent at a rate of $100.00 per hour, and the applicant has not met his burden of proving the $149.61 hourly rate. I find that the applicant did not make any submissions on the service provider fees in the written submissions, and therefore failed to meet the burden of proof.

Psychological Assessment in the amount of $2,200.00

18The respondent acknowledges that the treatment plan is reasonable and necessary but submits that the applicant failed to establish that enough time was spent by the service provider during the delivery of the services to warrant the amount claimed. The applicant did not make any submissions as to the time spent by the service provider, Dr. Mrahar.

19In reviewing the evidence, I find that the underlying treatment plan for a psychological assessment was approved by the respondent. However, on January 12, 2024, the respondent requested additional information from the applicant regarding the hours spent on the assessment, who conducted the assessment and the format of the assessment. The respondent followed up again on May 7, 2024, and based on the information provided by Somatic Assessments and Treatment Clinic issued payment to the applicant in the amount of $1,496.10 allowing 10 hours of Dr. Mrahar’s time spent on the assessment at the rate of $149.61 per hour. Furthermore, I find that the applicant has not made any submissions that Dr. Mrahar spent more than 10 hours on the assessment or that that rate of $149.61 per hour was incorrect.

20While I am persuaded by the evidence that the treatment plant for psychological assessment was reasonable and necessary, I find that the treatment plan was not costed accordingly. In light of the above, I find that the applicant has not met his onus to demonstrate that he is entitled to the unapproved amount for the assessment. Therefore, the applicant is not entitled to the unapproved amount for the treatment plan in dispute.

Interest

21Interest applies on the payment of overdue benefits pursuant to Section 51 of the Schedule. The applicant is not entitled to interest as there is no overdue payment for the treatment plans.

Award

22The applicant seeks an award under section 10 of Regulation 664. The applicant has not provided persuasive arguments to be granted an award.

ORDER

23For the reasons outlined above, I find that:

i. The applicant is not entitled to any of the treatment plans.

ii. The respondent is not liable to pay an award or interest.

iii. The application is dismissed.