Licence Appeal Tribunal File Number: 24-010228/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:
Homayoon Rafigh
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
VICE-CHAIR: Julian DiBattista
APPEARANCES:
For the Applicant: Carlos Ortiz, Paralegal
For the Respondent: Hilary Doyle, Counsel
HEARD: In Writing
OVERVIEW
1Homayoon Rafigh, the applicant, was involved in an automobile accident on August 19, 2019, 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 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 $5,250.22 for psychological services, proposed by Imperial Medical Assessment in a treatment plan/OCF-18 (“plan”) submitted July 17, 2024?
ii. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Imperial Medical Assessment in a plan submitted July 17, 2024?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant is not entitled to the disputed treatment plans, interest or an award under s.10 of Reg 664.
4This application is dismissed.
PROCEDURAL ISSUES
5I note the respondent’s submissions and evidence brief reference Tribunal file number 24/009435/AABS, which is different from the file number of this application (24-010228/AABS).
6Upon reviewing all submissions and evidence, it is clear that while the respondent references a different file number, the substantive content of their submissions and evidence references this application.
7Therefore, I find that this is a clerical error on the part of the respondent and will be proceeding using the submissions and evidence filed before the Tribunal under the incorrect file number.
ANALYSIS
8I find that the disputed treatment plans are not reasonable nor necessary.
9To 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.
The applicant is not entitled to psychological treatment
10I find the applicant has not proven entitlement to psychological treatment.
11The applicant submits that a treatment plan dated July 17, 2024 for psychological services proposed by Mr. C Eriksen, psychologist, is reasonable and necessary.
12The plan proposes for the following:
i. Eighteen 1.5 hour sessions of counselling;
ii. One hour of assessment;
iii. One hour of progress support;
iv. Educational Materials; and
v. The cost of completing the OCF-18.
13Mr. Eriksen identifies the goals of the treatment plan as “return to activities of normal living” and “other(s)/not applicable (please specify): Please see additional comments for details”.
14However, there are no further details about the goals of treatment provided in the additional comments.
15In submissions, the applicant identifies the goals of the treatment plan as:
i. Pain reduction;
ii. Increased range of motion;
iii. Strength improvement; and
iv. Return to normal activities or modified work.
16The respondent submits that the goals of the treatment plan are not properly identified, and therefore the treatment plan is not reasonable or necessary.
17I agree with the respondent, the goals of the treatment plan have not been properly identified.
18The treating provider has only listed a vague goal of returning to activities of daily living. The applicant has not made submissions connecting the treatment proposed to his activities of normal living, nor is there further context within the treatment plan to explain how the treatment propose will address this goal.
19In their submissions, the applicant has referenced goals that would not apply to a treatment plan for psychological services. These goals, while identified in submissions were not linked to the treatment plan itself.
20Therefore, I find that the applicant has not identified how the goals of the treatment plan would be met to a reasonable degree.
21For these reasons I find that the treatment plan is not reasonable or necessary.
The applicant is not entitled to a chronic pain assessment
22I find the applicant does has not proven entitlement to a chronic pain assessment.
23The applicant submits that a treatment plan dated July 17, 2024 for a chronic pain assessment proposed by Dr. M Gofeld, physician, is reasonable and necessary.
24The plan proposes the following:
i. Follow-up regarding chronic pain;
ii. Report preparation;
iii. Review of the material; and
iv. Completion of the OCF-18.
25The goals of the treatment plan are pain reduction, return to pre-accident work activities and to restore functional tolerance and endurance.
26The applicant submits that the follow-up is required based on the findings of Dr. Gofeld’s previous chronic pain assessment on May 14, 2022.
27The respondent submits that the applicant has already received a chronic pain assessment from Dr. Gofeld and that Dr. Gofeld’s previous assessment cannot be used to justify a follow-up assessment two years later in the absence of contemporaneous medical records that reference the applicant’s current condition.
28I agree with the respondent. There has been no additional evidence adduced or submissions made that reference the applicant’s current condition which would support a finding that the applicant has a condition that warrants investigation through a second assessment.
29Dr. Gofeld formed the following general impressions of the applicant:
i. Episodic posttraumatic headache;
ii. Chronic neck pain: chronic whiplash associated disorder;
iii. Chronic right shoulder pain: rotator cuff syndrome, supraspinatus tendon tear; and
iv. Chronic right knee pain.
30Dr. Gofeld noted that the applicant was not receiving treatment at the time of the assessment and recommended a chronic pain management program.
31There have been no submissions made or evidence adduced that would indicate that the recommendations of Dr. Gofeld in May of 2022 were actioned.
32There are no submissions indicating any treatment was undertaken by the applicant after May of 2022.
33There is no evidence adduced or submissions made that would indicate the applicant continues to suffer from any accident-related injury beyond 2022.
34The applicant has not convinced me that the goals in this treatment plan will be met to a reasonable degree, as there is no evidence that the applicant attempted to follow the recommendations of the previous chronic pain assessment.
35Therefore, I find on the balance of probabilities that this treatment plan is not reasonable or necessary.
Interest
36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
37As no benefits are overdue, there is no entitlement to interest.
Award
38The 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.
39As I have found no benefits were improperly withheld, there is no basis for an award under s. 10 of Reg 664.
ORDER
40For the reasons above I find that:
i. The applicant is not entitled to the disputed treatment plans;
ii. No interest is payable; and
iii. There is no entitlement to an award under s. 10 of Reg 664.
41This application is dismissed.
Released: February 19, 2026
Julian DiBattista
Vice-Chair