Tribunal File Number: 16-003204/AABS
Case Name: 16-003204 v Allstate Insurance Company
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:
Applicant
Applicant
and
Allstate Insurance Company
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Celeste A. Courville, Counsel
For the Respondent: Rose Muscolino, Counsel
HEARD: In writing on July 4, 2017
OVERVIEW
1The applicant was injured in an automobile accident on November 30, 2012 and sought benefits from the respondent pursuant to O. Reg. 34/10: Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The respondent refused to pay for certain medical benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
ISSUES:
2The disputed claims in this hearing are:
a. A medical benefit of $2,378.58 for psychological services recommended by Dr. J. G. Gagnon, psychiatrist, in a treatment and assessment plan dated September 24, 2014;
b. A medical benefit in the amount of $11,132.99, less $8,411.85 approved by the respondent, for psychological services recommended by Dr. Gagnon in a treatment and assessment plan dated January 14, 2015.
RESULT
3The applicant is not entitled to the medical benefits claimed because they are not reasonable and necessary as a result of the accident.
OVERVIEW:
4The applicant struck a left-turning vehicle on the front passenger side on the evening of November 30, 2012. The applicant went to Espanola Regional Hospital following the accident and was diagnosed with bruising to the chest and possibly to the kidney. There is no dispute that the applicant sustained soft tissue injuries in the form of whiplash associated disorder (grade I), sprain/strain of the thoracolumbar spine and later developed a small disc herniation of the L5-S1 with an impingement of the left S1 nerve root origin.
5There is also no dispute that the applicant developed psychological symptoms after the accident and that psychological counselling was recommended and paid for by the respondent.
6At issue is whether the psychological treatment claimed in the two disputed treatment plans is necessary and reasonable as a result of the accident. Under the Schedule, an insurer is only liable to pay for medical benefits that meet these criteria. An insured must prove on a balance of probabilities that the medical benefits, the treatment and assessment plans in this matter, are reasonable and necessary.
7Having reviewed all the evidence, I find the applicant is not entitled to the medical benefits claimed because the applicant failed to demonstrate that, on a balance of probabilities, the treatments in dispute are reasonable and necessary.
DISCUSSION:
8The applicant submitted a total of four treatment plans for psychological treatment to the respondent;1
a. September 3, 2014;
b. September 24, 2014;
c. October 15, 2014; and
d. January 14, 2015.
9As noted, only items b and d are in dispute. The respondent paid for psychological treatment submitted in the plans dated September 3, 2014 and October 15, 2014.
10The applicant submits that they are entitled to the treatment proposed in the treatment plans dated September 24, 2014 and January 14, 2015 because the treatment is a) recommended by the treatment provider, b) the applicant continues to suffer from pain and a psychological impairment, and c) because the applicant has not returned to work in any capacity.
11The respondent submits that the September 24, 2014 treatment plan is not reasonable or necessary because it was submitted before the September 3, 2017 treatment plan was consumed and the respondent believed it was a duplication of services approved in the September 3, 2014 treatment plan. Additionally, the respondent states that the October 15, 2014 treatment plan was approved in full, leaving no gap in treatment for the applicant.
12With respect to the January 14, 2015 treatment plan, the respondent states that only a portion of the treatment plan is reasonable or necessary. According to the respondent, the unapproved balance of the treatment plan is not reasonable and necessary as their findings concluded that the applicant did not require clinical supervision for social outings and that the service provider estimated an hourly rate which is higher than the Financial Services Commission of Ontario (FSCO)’s prescribed rate.
SEPTEMBER 24, 2014 TREATMENT PLAN
13To support the claim, the applicant submitted excerpts from the clinical notes and records of Dr. Gagnon and excerpts from the reports of Dr. J. Cisa (orthopaedic surgeon), and Deborah Sollgo (vocational rehabilitation consultant).
14The portions of Dr. Gagnon’s records submitted are limited to three pieces of evidence. The first is a June 2014 note which indicates the applicant presented with symptoms of depression, anxiety, chronic pain, and irritable bowel syndrome. Dr. Gagnon made a record of the applicant’s self-reporting, specifically noting the applicant:
…notes increased anxiety in social settings; (the applicant) tends to avoid social situation and no longer goes out with friends. (The applicant) also notes low mood and tearfulness. (The applicant) maintains interest in participating in previously enjoyed activities, but notes that (the applicant’s) physical impairments restrict (the applicant’s) ability to complete these activities.
15Second, Dr. Gagnon recommends the applicant continue counselling in the notes related to a treatment summary report dated January 22, 2015.
16Lastly, in a January 22, 2015 treatment summary report it is noted that the applicant:
…continues to access services regularly and is interested in continuing to participate in social outings in order to maintain… progress. Therefore, it is important that (the applicant) continues with treatment at this time in order to increase (the applicants) participation in recreational activities and further discover new meaningful activities.
17Dr. Gagnon’s records in the summer of 2014 are compelling and supportive of treatment. They show that Dr. Gagnon identified symptoms of a psychological or psychiatric impairment and suggest treatment to address the symptoms, which was approved and funded by the respondent.
18The January 2015 entries by Dr. Gagnon are not as persuasive. First, simply having a medical professional recommend treatment does not make the treatment reasonable and necessary. Second, there is not any information which indicates that the treatment will increase the applicant’s participation in recreational activities and further discover new meaningful activities. In fact, the applicant’s participation in treatment beyond January 2015 decreased despite having treatment approved and available for consumption.
19The portions of Dr. Cisa’s June 24, 2015 report submitted by the applicant are not helpful regarding this claim because they focus mainly on the applicant’s physical impairments. Dr. Cisa summarizes the claimant’s medical history and injuries and comments on the claimant’s abnormalities of the musculoskeletal system and believes they will be permanent. Dr. Cisa does not list any psychological or psychiatric impairment in the list of impairments of the applicant. But for one instance noting the applicant had seen someone for counselling sometime after July 2014, Dr. Cisa provides no evidence to support psychological treatment.
20Deborah Sollgo’s report is dated July 6, 2015. The portion of the report submitted states that the author would not recommend the applicant return back to any employment until the applicant’s psychological symptoms and pain levels have been reduced. The report supports further psychological counselling and recommends the applicant work with a vocational rehabilitation counselor. Additionally, Deborah Sollgo recommended that, once pain levels are reduced and psychological state improves, the applicant should engage in employment in an ergonomically designed workstation in which they are exempt from any heavy lifting. The portion of Deborah Sollgo’s report submitted for evidence is void of any data or analysis regarding the applicant’s psychological state. I find that, without any data or analysis, this portion of the report is unhelpful in asserting the applicant’s entitlement to the benefits in dispute.
21I agree with the respondent’s submission that the September 24, 2014 treatment is not reasonable and necessary as it is a duplication of services approved and not yet consumed in the September 3, 2014 treatment plan.
22As the respondent points out, a treatment plan dated October 15, 2014 and proposing similar services was fully approved – leaving no gap in treatment available for the applicant.
23The applicant has made no submissions addressing the respondent’s position that the September 24, 2014 treatment plan was a duplication of the services approved in the September 3, 2014 treatment plan.
24For the following reasons, I find that the applicant is not entitled to the September 24, 2014 treatment plan.
25First, the applicant has not established that the treatment plan is reasonable and necessary. The submissions do not address the stated goals of the treatment plan and do not speak to how the treatment plan will help achieve those goals. The applicant had access to approved and unconsumed treatment at the time this treatment plan was submitted. In the event that I were to assume the goals of the treatment plan are similar to that of the other treatments plans by Dr. Gagnon, to maintain progress by continued participation, the previously approved and unconsumed treatment would meet the goals of the September 24, 2014 treatment plan, rendering it moot.
26Second, the September 24, 2014 treatment plan was submitted prematurely. It was submitted before any substantial amount of the September 3, 2014 treatment plan was consumed. Additionally, the respondent has left virtually no gap in funding for treatment by approving the October 3, 2014 treatment plan.
JANUARY 14, 2015 TREATMENT PLAN
27The applicant’s submissions for the January 14, 2015 treatment plan are the same as they are for the September 24, 2014 treatment plan.
28The respondent submitted that they have approved all reasonable and necessary treatment proposed in the January 14, 2015 treatment plan. The respondent relies on the report of Dr. A. Joseph, psychiatrist. The report concludes that the treatment plan is partially reasonable and necessary. It goes on to note that it is Dr. Joseph’s opinion that clinical supervision for social outings is not required because there is self-reporting evidence that the applicant is able to participate in social outings independently and while supervised by a parent.
29In addition to the findings noted above, Dr. Joseph concluded that a portion of the fees proposed for the treatment plan are above the Professional Services Guideline – Superintendent’s Guideline No. 03/14 (the Guideline). Specifically, the Guideline dictates the maximum hourly rate for a rehabilitation counsellor is $58.19 and the treatment plan proposed a fee of $99.75 per hour for the same services. Nevertheless, the respondent submits that, ultimately, $8,411.85 of the treatment plan was approved, rendering the denial of the increased hourly rate moot.
30Lastly, the respondent presents a big picture argument with respect to the applicant’s treatment. They submit that the applicant had ceased engaging in the proposed treatment and that it would not be reasonable to approve further treatment when the applicant has shown that they will not consume the approved treatment. The respondent submits that the applicant had not fully consumed the September 3, 2014 treatment plan by January 2015, that the applicant had sporadically attended for approved treatment since January 2015, and has not consumed approved treatment since July 2015 when the applicant advised the counsellor that they would be busy over the next few months and that the applicant would contact the provider’s office to book the next outing. There is no evidence that the applicant followed up with the provider’s office after July 2015. The respondent submits that, as of the date of the submissions, and more than two years since the treatment plan was proposed, the applicant has yet to consume any of the approved treatment in the January 14, 2015 plan.
31I agree with the respondent’s position, and find that the applicant is not entitled to the January 14, 2015 treatment plan, for the following reasons.
32First, similar to the September 24, 2014 treatment plan, the applicant has not established that the treatment plan is reasonable and necessary. The submissions did not address the stated goals of the treatment plan and did not speak to how the treatment plan will help achieve those goals.
33Second, although moot considering the amounts eventually approved, I have reviewed the fees proposed in FSCO guidelines and accept the respondent’s position that the services proposed are at a rate higher than that of the superintendent’s guideline.
34Lastly, I am compelled by the respondents submissions that, at the time of the January 14, 2015 treatment plan, the applicant had yet to fully consume similar treatment approved in the September 3, 2014 treatment plan. Additionally, it is clear to me that the applicant has ceased engaging in the treatment proposed by Dr. Gagnon’s office despite having approved treatment available for consumption.
CONCLUSION
35Ultimately, the applicant’s submissions and evidence focus heavily on the applicant’s impairments and not on how the disputed treatment plans would benefit the applicant. The applicant has not provided the treatment plans in dispute with their written submissions. The applicant was provided an opportunity to make reply submissions and chose not to.
36For the reasons above, I find that the applicant did not establish that the medical benefits proposed are reasonable and necessary.
ORDER
37The applicant is not entitled to a medical benefit in the amount of $2,378.58 submitted on a treatment and assessment plan dated September 24, 2014 as recommended by Dr. Gagnon.
38The applicant is not entitled to the balance of a medical benefit in the amount of $11,132.99 submitted on a treatment and assessment plan dated January 14, 2015 as recommended by Dr. Gagnon.
Released: October 11, 2017
Brian Norris, Adjudicator