RECONSIDERATION DECISION
Before: Sarah Guergis, Adjudicator
Licence Appeal Tribunal File Number: 23-003314/AABS
Case Name: Bruno Fragomeni v. Aviva General Insurance
Written Submissions by:
For the Applicant: Hufriz Turel, Paralegal
For the Respondent: Christina Chiu, Counsel
OVERVIEW
1On May 16, 2025, the Respondent requested reconsideration of the Tribunal’s decision dated April 24, 2025 (“decision”).
2To summarize the outcome of the decision, I found that the Applicant is entitled to two treatment plans, i.e., the outstanding amount of $1,919.82 for a psychological services treatment plan and $12,904.59 for a chronic pain management program plan, plus interest. I found the Applicant is not entitled to a treatment plan for $11,035.00 for dental services.
3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or
c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
4In its request for reconsideration, the Respondent relies on Rule 18.2(b) and argues that the Tribunal made an error of law and fact such that the Tribunal would likely have reached a different result had the error not been made.
5The Respondent requests reconsideration in relation to the determination of entitlement to the disputed psychological services and chronic pain management program. The Respondent requests that the decision be varied to conclude that the Applicant is not entitled to these treatment plans.
6The Applicant submits that the reconsideration submissions of the Respondent provide no evidence that any of the grounds under Rule 18.2(b) have been met.
RESULT
7The Respondent’s reconsideration request is dismissed.
ANALYSIS
8The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
9The Respondent has not established that a reconsideration under Rule 18.2 is warranted.
Psychological Services Treatment Plan in the Amount of $1,919.82 ($3,585.98 less $1,566.15 approved)
10I find the Respondent has not established grounds for reconsideration as it relates to the psychological services treatment plan.
11In paragraphs 19 and 20 of the decision, I found that the Applicant provided sufficient case law to establish that the treating psychotherapist is entitled to the higher hourly rate.
12In its request for reconsideration, the Respondent submits that the Tribunal erred in law in finding that an hourly rate of $149.61 is reasonable and necessary for the treating registered psychotherapist. It submits that the Tribunal erred by overlooking that the Applicant has not provided sufficient evidence that Gajan Santhireswaran provided treatment under the active supervision of a psychologist. It also submits that it requested the psychotherapist’s curriculum vitae which was not provided.
13The Respondent cites several Tribunal decisions which outline that the onus is on the Applicant to prove that a higher hourly rate is reasonable.
14The test for determining entitlement to medical benefits, including those from partially approved treatment plans, is whether they are reasonable and necessary. The guidance for hourly rates is set out in the Professional Services Guideline (“PSG”).
15In the OCF-18, it is indicated that Mr. Santhireswaran (PRR) was being supervised by Dr. Jacqueline Brunshaw, psychologist. His designation is also listed on the last page of the OCF-18, which establishes that he is a registered psychotherapist. Further, the work he provided is listed, which includes ccounselling, mental health and addictions services.
16The psychotherapists mentioned in the medical records of the Applicant, Mr. Santhireswaran and Helen Ilios, are registered psychotherapists who were working under the supervision of a psychologist, Dr. Brunshaw. This is indicated on page 2 of the Applicant’s psychological report, dated July 6, 2021, as well as the OCF-18, dated December 8, 2021.
17In paragraph 20 of the decision, I agreed with the Applicant that past decisions indicate that $149.61 per hour is a reasonable and necessary hourly rate for psychotherapists. My reasoning included that the treatment the Applicant received is analogous to that of the services provided by a psychotherapist, that they were being supervised, and that they are registered.
18In the decision, I addressed the Tribunal case of Johnson v. Aviva Insurance Company of Canada, 2023 ONLAT 21-007105/AABS, which outlines that psychotherapy is a regulated profession in Ontario, overseen by the College of Registered Psychotherapists of Ontario. Further, that psychotherapists must undergo extensive training to earn their designation and incur costs to maintain their designation. Therefore, the services that psychotherapists provide are not limited to the unregulated rate of the PSG.
19In J.V. v Intact Insurance Company, 2019 CanLII 130366 (ON LAT), cited by the Applicant in their written submissions, the Tribunal recognized that the psychotherapist in question was registered in psychotherapy and acting within their scope and expertise. Accordingly, the decision found that the psychotherapist ought to be entitled to the same rate as otherwise afforded to a psychologist or psychological associate.
20In A.S. v. Aviva Insurance Company, 2020 CanLII 12787 (ON LAT), cited by the Applicant in their written submissions, the Adjudicator acknowledged that psychotherapists have been regulated since April 1, 2015, under the Ontario association of Mental Health Professionals. In rendering his decision, the Adjudicator stated:
Both Psychologists and Psychotherapists provide the same behaviour therapy. If they are providing the same cognitive behaviour therapy services, why is the rate different. I find that the hourly rates should be the same for the same services provided. I find that the Applicant’s Psychotherapist, should be paid at the rate of $149.61 per hour for the work completed.
21On page 132 of the Applicant’s reply submissions, it is stated that the services recommended in this OCF-18 are based on recommendations made by Dr. Brunshaw following a psychological assessment with the patient.
22The Respondent submits that the applicant did not provide the curriculum vitae of the psychotherapist. While this would have been helpful to my analysis, the respondent has not shown that my choice to find in favour of the applicant without the curriculum vitae was an error under Rule 18.2(b).
23As the treating psychotherapists were being supervised, they were registered, and they were performing work analogous to that of the psychologist, I find that the higher hourly rate is justified.
24I find that Respondent has not established grounds for reconsideration as it relates to this treatment plan.
Chronic Pain Management Program Treatment Plan in the Amount of $12,904.59
25I find the Respondent has not established grounds for reconsideration as it relates to the treatment plan.
26The Respondent claims the Tribunal made errors in both fact and law. I will address them in turn.
a) Error of Fact – Dr. Alborz Oshidari’s Credentials
27The Respondent submits that the Tribunal made an error of fact by stating no professional designations for Dr. Oshidari were included in his report, and that the Adjudicator’s acknowledgement of his credentials would have changed the result.
28I agree with the Respondent that in paragraph 38 of the decision I stated that no professional designations for Dr. Oshidari were included in the report. However, Dr. Oshidari’s professional designations were included on page 30 of his report, dated July 15, 2022, as follows:
Dr Oshidari is a physician duly licensed to practice medicine in the province of Ontario. He has his certification in physical medicine and rehabilitation from the Royal College of Physicians and Surgeons of Canada and is currently a staff physiatrist at the Toronto Rehabilitation Institute, Lyndhurst Site and a consultant physiatrist at Mount Sinai, West Park Health Care, Toronto General Hospital and Toronto Western Hospital. Dr. Oshidari is an instructor in the Department of Medicine at the University of Toronto. His area of expertise is neuromusculoskeletal impairment and spinal cord injuries. He has received certification in impairment and disability rating in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th Edition and has been performing assessments for catastrophic impairment determination since 1999.
29In paragraph 38 of the decision, I acknowledge that Dr. Oshidari is a physiatrist. However, the professional designation text includes other details of his education including his area of expertise is in neuromusculoskeletal impairment and spinal cord injuries.
30Despite this, I find that the Respondent has not established that correcting this omission would likely have changed the outcome of my decision.
31Dr. Oshidari is a physiatrist, as stated in the decision, and, as such, is not more qualified than Dr. Grigory Karmy to assess the Applicant regarding chronic pain and treatment. Dr. Karmy is a chronic pain specialist and has been practicing in this field for more than 10 years with extensive experience in investigating and managing patients with all forms of musculoskeletal pain.
32I find that, pursuant to Rule 18.2(b), had Dr. Oshidari’s extended professional designations been included in the decision, it would not have likely impacted my decision.
33Based on my reasoning above, I find that the Respondent has not established grounds for reconsideration based on Dr. Oshidari’s credentials.
b) Errors of Law
34I find the Respondent has not established grounds for reconsideration based on any of the alleged errors of law detailed below.
i. Reasonable and necessary test
35The Respondent submits that the Tribunal’s finding about this plan suggests that any medical benefit would be considered reasonable and necessary if there was a chance that it may result in improvement, despite how speculative that chance might be. According to the Respondent, this sets a dangerous precedent, given that it could apply to virtually any medical benefit applied for. As such, the error is significant, and it could be reasonably expected that the Tribunal would have reached a different conclusion had the error not been made.
36In my decision, I stated that I found the treatment recommended by Dr. Karmy to be reasonable and necessary based on his expertise, as well as his diagnosis, prognosis, recommendations, and the goals for the Applicant.
37As noted above, Dr. Karmy is a chronic pain specialist. He stated that the Applicant’s condition is unlikely to improve completely, and treatment remains necessary to manage ongoing pain. Dr. Karmy stated optimal pain control would allow the Applicant to reintegrate to a normal life, and that is the main goal of the treatment plan in dispute. I found that, on a balance of probabilities, the Applicant demonstrated the reasonableness and necessity of this treatment.
38Therefore, I find that the Respondent has not established grounds for reconsideration as it relates to this treatment plan.
ii. The weight and consideration of Dr. Oshidari’s report
39The Respondent submits that Tribunal failed to consider Dr. Oshidari’s opinion and assigned little weight to his report, which constitutes a significant error of law. It further submits that the Tribunal has previously concluded that a failure to consider relevant evidence constitutes a violation of procedural fairness.
40Dr. Oshidari’s report was referenced in the decision at paragraphs 38, 39 and 40. I acknowledged the primary finding of his assessment which concluded that the above treatment was not reasonable or necessary.
41Once again, the test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence.
42Therefore, I do not find that the Respondent has established grounds for reconsideration on this point.
iii. Concerns regarding Dr. Karmy’s report
43I find that the Respondent has not established grounds for reconsideration based on its arguments about Dr. Karmy’s report.
44The Respondent submits that it raised several issues with respect to the report of Dr. Karmy, and yet the Tribunal did not address any of these issues. The Respondent addresses its concerns with Dr. Karmy’s report in paragraphs 38 and 39 of its written submissions. It submits that “his report should be given limited weight as the assessor did not review the clinical notes and records of the family doctor and numerous insurer’s assessment reports.”
45When analysing the reasonableness and necessity of the treatment proposed by Dr. Karmy, multiple factors were taken into consideration, including his expertise, as well as his diagnosis, prognosis, recommendations, and the goals for the Applicant.
46Additionally, the Respondent submits that “any diagnosis of psychological impairment by Dr. Karmy is outside his area of practice.” As the treatment plan in dispute was for chronic pain treatment, the Applicant’s psychological impairment was not a core consideration in determining the treatment’s reasonableness and necessity. As stated in paragraph 44 and 45 of the decision, optimal pain control and allowing the Applicant to reintegrate to a normal life are the main goals of the treatment plan in dispute.
47In paragraph 39 of its reconsideration request, the Respondent submits that “the Applicant fails to discuss the AMA Guides to establish chronic pain syndrome in their submissions and Dr. Karmy does not endorse any of these criterion in his report”. As stated in paragraph 43 of the decision, I do not find that the Applicant needs to meet the AMA Guides criteria of Chronic Pain Syndrome to receive a diagnosis of chronic pain. The Respondent has not established that this finding is incorrect.
48The Respondent submits that the decision relies heavily, if not exclusively, on a passage from Dr. Karmy’s report to conclude that the disputed chronic pain management program is reasonable and necessary. This is not the case. The whole report was taken into consideration, as demonstrated in paragraphs 32-36 of the decision.
49I considered both parties’ evidence, as well as the Respondent’s concerns about Dr. Karmy’s report. It is well-established that the Tribunal is not required to address every argument that a party raises. Rather, it is important that I address the central issues raised by the parties.
50Therefore, I do not find that the Respondent has established grounds for reconsideration on this point.
CONCLUSION & ORDER
51The Respondent’s request for reconsideration is dismissed.
Sarah Guergis Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: October 2, 2025