Heffernan v. Heartland Farm Mutual Inc., 2025 CanLII 92261

Citation: Heffernan v. Heartland Farm Mutual Inc., 2025 ONLAT 23-013366/AABS

Licence Appeal Tribunal File Number: 23-013366/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:

Gregory Heffernan

Applicant

and

Heartland Farm Mutual Inc.

Respondent

DECISION

ADJUDICATOR: Kathleen Wells

APPEARANCES:

For the Applicant: Brent McQuestion, Counsel

For the Respondent: Rohan Haté, Counsel

HEARD: By way of written submissions

OVERVIEW

1Gregory Heffernan, the applicant, was involved in an automobile accident on August 28, 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, Heartland Farm Mutual Inc., and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Psychology Health Solutions in a treatment plan dated June 27, 2022?
2. Is the applicant entitled to $2,189.08 ($4,389.08 less $2,200.00 approved) for psychological services, proposed by Storrie Velkonja & Associates in a treatment plan dated September 9, 2022?
3. Is the applicant entitled to $2,355.00 for chiropractic services, proposed by Pursuit Athletic Centre in a treatment plan dated January 9, 2023?
4. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
5. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

1. The applicant is not entitled to $2,200.00 for a psychological assessment in the treatment plan dated June 27, 2022.
2. The applicant is not entitled to the remaining $ 2,189.08 for psychological in the treatment plan dated September 9, 2022.
3. The applicant is not entitled to $2,355.00 for chiropractic services in the treatment plan dated January 9, 2023.
4. As no payments are owing, no interest is due.
5. The applicant is not entitled to an award.
6. The application is dismissed.

ANALYSIS

4To 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.

Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by in a treatment plan dated June 27, 2022?

5I find that the applicant has not established that he is entitled to the treatment plan dated June 27, 2022.

6The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

7The treatment plan, prepared by Dr. Sean Shahrokhnia, psychologist, seeks funding of $2.000.00 for a psychological assessment, and $200.00 in documentation/support fees. The treatment plan identifies “problems related to life management difficulty” and “limitation of activities due to disability.” The goals of the treatment plan are listed as “to be determined.” Further details of the purpose of the treatment plan were included in the attached pre-screening report, which concluded that an assessment was necessary to determine a diagnosis, causation, and treatment recommendations.

8The applicant submits that the treatment plan should be payable because the respondent scheduled a s.44 examination, which indicates that the respondent believed that an assessment was warranted. The applicant relies on the treatment plan which included the pre-screening report of Etti Daskal, psychological associate, and Tribunal decisions: 16-004375 v. State Farm Mutual Insurance Company, 2017 CanLII 82014 (ON LAT) and 18-00838 v. Aviva Insurance Company, 2019 CanLII 14396 (ON LAT)

9The respondent counters that the applicant has not met his onus to prove that a psychological assessment is reasonable and necessary, and relies on the clinical notes and records (CNRs) of the applicant’s family doctor, Samuel Chippin, as well as the s.44 report of Dr. Sarah Tabibzadeh, psychologist, dated September 15, 2022.

10At the pre-screening assessment, which was conducted by videoconference, the applicant told Ms. Daskal that he was experiencing pain and memory problems, which were interfering with his work and household responsibilities as a result of his accident-related injuries. He reported that he was worried about his finances and felt more helpless about the future. I assign little weight to the pre-screening assessment as it is not corroborated by contemporaneous medical evidence.

11The applicant did not direct me to any medical evidence that would corroborate and support the recommendations of the treatment plan.

12The respondent submits the CNRs of Dr. Chippin, the applicant’s family doctor, and the CNRs of Shift Concussion Rehabilitation reveal no contemporaneous complaints of pain, or cognitive or psychological symptoms. The evidence reveals that the applicant last complained of cognitive issues to a treatment provider at Shift Concussion Rehabilitation in November, 2021, and reported that his memory was improving in December, 2021, six months before the treatment plan was submitted.

13I also place little weight on the s.44 report of Dr. Tabibzadeh because the applicant participated in the video clinical interview by telephone and completed only one of the two psychometric tests administered. Dr Tabibzadeh also conducted a review of the applicant’s medical records. She opined that the treatment plan was not reasonable and necessary as the applicant did not meet any DSM-5 diagnostic criteria for any psychological diagnosis.

14The applicant argues that the Tribunal has previously decided that a respondent’s decision to schedule a s.44 examination is relevant to whether a treatment plan for an assessment is reasonable and necessary. 16-004375 v. State Farm Mutual Insurance Company and 18-00838 v. Aviva Insurance Company are Tribunal decisions and are not binding on me. While I agree that the respondent’s decision to schedule a s.44 examination may be relevant, I note that it was only one of several reasons that the Tribunal found that the treatment plans were reasonable and necessary in those cases. Therefore, I find that neither decision is helpful to my analysis.

15In the present case the applicant has not submitted any contemporaneous medical evidence to corroborate the treatment plan. Absent medical or other evidence to corroborate the treatment plan, the applicant’s self-reports to assessors is not persuasive evidence to support a finding that the treatment plan is reasonable and necessary.

16Based on the evidence before me, I find that the applicant has not met his onus to prove on a balance of probabilities that the treatment plan is reasonable and necessary.

17Accordingly, the applicant is not entitled to $2,200 for the treatment plan dated June 27, 2022.

Is the applicant entitled to $2,189.08 ($4,389.08 less $2,200.00 approved) for a psychological services, in a treatment plan dated September 9, 2022?

18I find that the applicant has not established that he is entitled to the remaining amount in the treatment plan dated September 9, 2022.

19The treatment plan, prepared by Dr. Cherise McKay of Storrie Velkonja & Associates was partially approved for $2,200.00, which included a brain test, psychological assessment and documentation. The remaining amount in dispute is $2,189.08 and is comprised of the following items:

i. Service Preparation -Review of medical files (e.g., physician notes, ER notes, OT/rehab notes, etc.) that is required to ascertain neurotrauma indicators, comorbid injuries, and medical history.-6 Hours

ii. (Facilitation of Cognitive and Learning)- Provision of feedback and follow-up with client, including recommendations for cognitive/compensatory strategies, additional treatment and providing psychoeducation about cognitive skills. 1 hours

iii. Documentation support Documentation of cognitive and psychological functioning by way of completion of a comprehensive Neuropsychological report. 8 hours

20The goals of the treatment plan were identified as “not applicable, assessment,” and no details of the applicant’s symptoms or conditions were included in the treatment plan. In the additional comments section, it was noted that the applicant had participated in an intake interview with Dr. McKay, but no further details were provided.

21The applicant submits that he is entitled to the full amount requested because the treatment plan was seeking funding for a neuropsychological assessment, which comprises two assessments. The applicant relies on a letter from Dr. McKay to the respondent dated February 27, 2022, which contained further explanation of the content and cost of a neuropsychological assessment, and requested direction from the insurer with respect to re-submitting the request as two separate assessments. Neither party has submitted any further submissions or evidence with respect to any response or further communication from the respondent.

22In his reply submissions, the applicant argues that the respondent’s partial approval of $2,200.00 for the treatment prevents the applicant from receiving either one of the component parts of a neurological assessment, because the respondent agreed to fund part of the psychological assessment and part of the neurological assessment without approving the necessary medical records and testing review to complete either assessment.

23The respondent argues that Section 25 of the Schedule sets out the maximum amount payable for any assessment as $2,000.00, and that the additional amounts requested are excessive.

24The applicant argues that the Tribunal and FSCO both held that a neuropsychological assessment consists of two separate assessments and is therefore eligible be funded as two assessments. The applicant relies on Tribunal decisions, 17-003290 v. State Farm Insurance, 2017 CanLII 87153 (ON LAT) and C.C. vs. Aviva Insurance Canada, 2020 CanLII 57410 (ON LAT), Financial Services Commission of Ontario (“FSCO”) decisions, Breadner v. Co-operators General Insurance Co., 2017 CarswellOnt 1005 and Kolapully and Toronto Transit Commission Ltd., Re, 2018 CarswellOnt 4989.

25I am not bound by Tribunal decisions or FSCO decisions. I find that the decisions cited by the applicant are not helpful to my analysis because in the present case, the applicant has not established that the remaining amount for the proposed neuropsychological assessment is reasonable and necessary, despite the respondent’s partial approval of the treatment plan.

26Neither the treatment plan, nor Dr. MacKay’s letter provide any detail or rationale as to why the applicant requires a neuropsychological assessment, or either of its component parts. Further, the applicant has not directed me to any medical or other evidence to corroborate the applicant’s self reports of psychological or cognitive symptoms to his assessors. As such, I find that the applicant has not met his onus to prove on a balance of probabilities that the remaining amount of the treatment plan is reasonable and necessary.

27Accordingly, I find that the applicant is not entitled to $2,189.08 for the remaining amount of the treatment plan dated September 9, 2022.

Is the applicant entitled to $2,355.00 for chiropractic services, proposed by Pursuit Athletic Centre in a treatment plan dated January 9, 2023?

28I find that the applicant has not established that the treatment plan dated January 9, 2023 is reasonable and necessary.

29The treatment plan, prepared by Xsenia D'Abramo, physiotherapist, of Pursuit Athletic Centre, identifies low back pain and sprain and strain of the sacrocilliac joint. The goals of the treatment plan are: pain reduction, increased range of motion, increase in strength, and a return to the activities of normal living, including the ability to unload a truck full of supplies.

30The treatment plan seeks a total of $2,355.00 and sets out:

i. Mobilization, sacroiliac joint: 12 one- hour sessions at $105.00 per hour

ii. Manipulation, sacroiliac joint: 12 one-hour sessions at $80.00 per hour

iii. Initial assessments: 1 hour at a rate of $135.00 per hour

31The applicant submits that he experiences chronic pain and has experienced a decline in function that has impacted his work and household maintenance activities as a result of his accident-related injuries. He argues that the treatment plan is reasonable and necessary because pain relief is a legitimate goal of treatment. However, the applicant has not directed me to any medical or other evidence to corroborate his submissions or the treatment plan.

32The respondent submits that the applicant has not met his onus to prove that the treatment plan is reasonable and necessary as a result of his accident-related injuries. The respondent argues that the treatment plan does not set out how its goals will be met, and that the applicant has complained to his family doctor once of lower back pain, seven months after the accident. Dr. Chippin’s CNRs reveal that the applicant reported that the pain had started two and a half weeks earlier, while he was playing hockey, and Dr. Chippin did not indicate that the injury was accident-related or recommend chiropractic treatment.

33The respondent also relies on the s. 44 of Dr. Bonsal, dated September 13, 2023, who conducted a thorough physical examination and review of the applicant’s medical records. Dr. Bonsal opined that the applicant had sustained uncomplicated soft tissue injuries to his neck and lower back and that as of the July 25, 2023 examination there were “no valid signs of musculoskeletal, orthopaedic or neurological injury” as a result of the accident.

34In his reply submissions, the applicant argues that Dr. Bonsal placed too much emphasis on his objective findings, and did not rely sufficiently on the applicant’s reports of pain, the goals of the treatment plan, or a “diagnosis” of chronic pain. I disagree. Dr. Bonsal noted the applicant’s complaints of pain in his neck and lower back, but opined that they were not consistent with the physical examination. As noted above, the goals of the treatment plan included pain relief and improved range of motion. Dr. Bonsal noted that the applicant had a full or normal range of motion, and that he “reported ‘a little’ tenderness along the left cervical paraspinal region,” during his physical examination, but did not note any additional complaints of pain during the examination.

35For the reasons above, I find that the applicant has not met his onus to prove on a balance of probabilities that the treatment plan is reasonable and necessary. Accordingly, the applicant is not entitled to $2,355.00 for the treatment plan dated January 9, 2023.

Interest

36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are owing, no interest is due.

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. As no payments were unreasonably withheld or delayed, the applicant is not entitled to an award.

ORDER

38I find that:

1. The applicant is not entitled to $2,200.00 for a psychological assessment in the treatment plan dated June 27, 2022.
2. The applicant is not entitled to the remaining $ 2,189.08 for psychological services in the treatment plan dated September 9, 2022.
3. The applicant is not entitled to $2,355.00 for chiropractic services in the treatment plan dated January 9, 2023.
4. As no payments are owing, no interest is due.
5. The applicant is not entitled to an award.
6. The application is dismissed.