Licence Appeal Tribunal File Number: 24-009789/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:
Agnes Mcinally
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Aric Bhargava
APPEARANCES:
For the Applicant:
Alexei Antonov, Counsel
For the Respondent:
Marcin Panasewicz, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Agnes Mcinally, the applicant, was involved in an automobile accident on January 29, 2020, 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 $3,697.14 for psychological services, proposed by Downsview Healthcare Inc. in a treatment plan/OCF-18 (“plan”) dated August 30, 2022?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
iii. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3I find that:
i. The applicant is not entitled to the psychological services treatment plan dated August 30, 2022.
ii. As there are no overdue benefits, no interest is owing.
iii. The respondent is not liable to pay an award.
ANALYSIS
Psychological services
4I find on a balance of probabilities that the applicant is not entitled to the psychological services treatment plan.
5To receive payment for a treatment and assessment plan under section 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.
6The plan, signed by Dr. Jacqueline Brunshaw, psychologist, and services provided by Dr. Oleksandr Pivtoran, chiropractor, is for $3,697.14 with a goal of providing driver/passenger rehabilitation counselling to help manage emotional responses experienced when travelling in a vehicle and to return to activities to normal living. The plan proposes twelve virtual drive counselling sessions, one drive therapy report, and one session for claim form and review of medical documentation.
7The applicant submits the treatment plan is reasonable and necessary because she has been diagnosed by Dr. Brunshaw in the psychological report dated July 22, 2020, with generalized anxiety disorder, adjustment disorder with depressed mood, and specific phobia, situational type (vehicular) and the costs of the plan are in line with industry standards.
8Section 33(1)1 permits the respondent to seek any additional information reasonably required to assist it in determining the applicant’s entitlement to a benefit. Subsection 33(6) provides that an insurer is not liable to pay a benefit in respect of a period which the insured person fails to comply with the request.
9In letters dated September 13, 2022 and October 12, 2022 the respondent denied the treatment and issued a request under section 33 of the Schedule for additional information, including completed OCF-5s, and clarification about how drive counselling sessions were beneficial to the applicant if they are conducted virtually. The respondent denied the treatment plan again in a letter dated December 7, 2022.
10The applicant did not submit that she complied with the respondent’s section 33 request. However, the Dr. Carson’s clinical notes and records (“CNRs”) were produced November 7, 2022. I find the applicant has not demonstrated that she has complied with the respondent’s request and has not clarified how virtual drive counselling sessions are beneficial to the applicant as part of her treatment plan.
11The applicant relies on the OCF-3 prepared by Charina Maramag, physiotherapist, the CNRs of Dr. Carson, the CNRs of Halton Healthcare Emergency Room, the CNRs of MedRehab Physiotherapy, the psychological report dated July 22, 2020 prepared by Dr. Brunshaw, the driver rehabilitation report dated June 24, 2021 prepared by Dr. Brunshaw, and on Semih v. Aviva Ins. Co., 2022 CanLII 27252 (ON LAT).
12The applicant argues in Semih that a psychological assessment is necessary based on the applicant’s psychological pre-screen interview, chronic pain condition, and reports of ongoing emotional difficulties. I am not bound by other decisions of the Tribunal, and I find that Semih is not applicable in this case because the dispute in Semih is regarding a psychological assessment. In this case, a psychological assessment is not before me and the dispute is regarding psychological services, and the bar for an assessment and psychological services is not the same.
13Based on the OCF-3 the applicant sustained accident-related injuries including “c/s strain, t/s strain, l/s strain, shldr strain, HA, anxiety”. The physiotherapist notes in Part 6 of the form that the applicant can not return to work or modified duties, she suffered a complete inability to carry on a normal life, and the anticipated duration was 9 – 12 weeks.
14I place less weight on the MedRehab Physiotherapy CNRs because the treatment is focussed on her physical injury, and it is out of scope for physiotherapists to diagnose psychological symptoms.
15The CNRs of Halton Healthcare Emergency Room note the applicant complained of sore left shoulder, lower back pain when sitting, and mild tenderness after the accident. The CNRs of Dr. Carson on February 3, 2020 note the applicant was in an accident, and the applicant visited Dr. Carson repeatedly with complaints of physical pain. However, the applicant has not directed me to corroborating evidence of the applicant’s accident-related psychological injuries or complaints in Dr. Carson’s CNRs.
16Dr. Brunshaw’s July 22, 2020 and June 24, 2021 reports are based on the applicant’s self-reporting, and the administered tests include the Vehicular Anxiety Questionnaire (VAQ), Beck Depression Inventory-II (BDI-II), Beck Anxiety Inventory (BAI), Whetstone Vehicle Anxiety Questionnaire (WVAQ), Accident Fear Questionnaire (AFQ), and Symptom Checklist-90-Revised (SCL-90-R). Dr. Brunshaw notes that the applicant is experiencing symptoms of depression, anxiety, and somatic pain and diagnosed her with generalized anxiety disorder, adjustment disorder with depressed mood, and specific phobia (driver, passenger, and pedestrian).
17I am not persuaded by Dr. Brunshaw’s report because the report does not address how the drive counselling sessions in the treatment plan will address the applicant’s accident-related impairments.
18The respondent argues the applicant has not met her onus of demonstrating the virtual drive-counselling treatment plan is reasonable and necessary and relies on the CNRs of Downsview Health and the section 44 psychology assessment, dated May 5, 2022, prepared by Dr. Mehdi Lotfalizadeh, psychologist, that notes the applicant “does not suffer from any psychological impairment as per DSM-5 as a result of the subject accident.”
19Dr. Lotfalizadeh’s section 44 report relies on behavioural observations, previous reports, and tests including the Structured Inventory of Malingered Symptomatology (SIMS), the Beck Depression Inventory-II (BDI-II), Beck Anxiety Inventory (BAI), and the World Health Organization Disability Assessment Schedule 2.0 (WHODAS 2.0).
20I place more weight on Dr. Lotfalizadeh’s report over Dr. Brunshaw’s for the reason that the section 44 report employs validity testing as a standalone test and provides additional context for the other objective test results, which is not provided for in Dr. Brunshaw’s report. The SIMS test itself is not necessarily determinative of the issue in dispute; however, the applicant has not directed me to a treating family physician or other medical practitioner that evidences the applicant’s ongoing psychological complaints on a consistent basis.
21I find the applicant has not directed me to evidence or a recommendation from a medical practitioner regarding the proposed treatment. I find the treatment plan for psychological services is not reasonable and necessary.
22Accordingly, on a balance of probabilities, I find that the applicant is not entitled to the psychological treatment plan.
Interest
23Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As there are no overdue benefits, no interest is owing.
Award
24The applicant seeks an award under section 10 of Regulation 664. Under section 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.
25The applicant submits the insurer unreasonably withheld funding by failing to consider all the information available while adjusting the claim, such as its prior determinations. The applicant argues the insurer only considered the section 44 insurer examination.
26The applicant relies on Applicant v. Portage La Prairie Mutual Insurance Company¸ 2019 CanLII 101649 (ON LAT) and submits the respondent’s behaviour can be seen as excessive imprudent, inflexible, unyielding and immoderate. In Applicant the respondent ignored the findings of their own expert. In this case, the applicant did not lead evidence to support her claim for the disputed treatment. Here the respondent is relying, in part, on the section 44 assessment for the denial of the treatment plan.
27The respondent submits the applicant has not met her onus for an award and the applicant did not provide particulars of the award claim in compliance with the Case Conference Report and Order (“CCRO”) and no explanation was provided for this non-compliance.
28I find the respondent’s reliance on the section 44 report or waiting for the applicant’s productions does not amount to behaviour that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. I find that benefits were not unreasonably withheld and therefore the applicant is not entitled to an award.
ORDER
29For the reasons outlined above, I find that:
i. The applicant is not entitled to the psychological services dated August 30, 2022.
ii. As there are no overdue benefits, no interest is owing.
iii. The respondent is not liable to pay an award.
30The application is dismissed.
Released: March 9, 2026
Aric Bhargava
Adjudicator