17-006851 v RBC Insurance Company, 2018 CanLII 83514

17-006851 v RBC Insurance Company

Date: 2018-06-08 Tribunal File Number: 17-006851/AABS Case Name: 17-006851 v RBC 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

and

RBC Insurance Company

Respondent

DECISION

ADJUDICATOR: Melody Maleki-Yazdi

APPEARANCES:

Paralegal for the Applicant: David Carranza Counsel for the Respondent: Patrick M. Baker

Written Hearing on: May 7, 2018

OVERVIEW

1The applicant was injured in an automobile accident (“the accident”) on February 23, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when her claims for benefits were denied by the respondent.

2The applicant’s position is that she is entitled to the treatment claimed for three reasons. The first is that the respondent is precluded from taking its position on the application of the Minor Injury Guideline² (“the MIG”) because it failed to comply with section 38 of the Schedule and provided late notice of denial. Secondly, she contends that she has psychological impairments which would remove her from the application of the MIG. Finally, she asserts that the proposed treatment plan is reasonable and necessary.

3The respondent denied the applicant’s claims because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the MIG. The respondent submits that even if the Tribunal accepts the applicant’s position on the MIG, the treatment plan would be non-payable as the proper notice of denial was provided prior to the treatment being incurred.

ISSUES

4The issues in dispute are as follows:

i. Is the respondent barred from taking the position that the applicant’s benefits are subject to the MIG because it failed to provide an explanation of benefits within the time limit prescribed by s. 38(8) of the Schedule?

ii. If the answer to the first question is yes, then I need not make a determination on whether the applicant’s injuries are predominantly minor in nature and subject to the MIG limit.

iii. If the answer to the first question is no, then I must decide whether the applicant sustained predominantly minor injuries as defined by the Schedule.

iv. If the applicant’s injuries are not within the MIG, then:

a) Is the applicant entitled to receive payment for the cost of examination in the amount of $2,000.00 for a psychological assessment, performed by Dr. Aghamohseni of Excel Medical Diagnostics, submitted to the respondent on May 23, 2017, denied by the respondent on June 5, 2017?

b) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5For the reasons set out below, I find that:

i. The respondent failed to respond to the applicant’s claim within the period prescribed by section 38(8) of the Schedule. Accordingly, pursuant to section 38(11)1, the respondent is prohibited from maintaining its position that the applicant is subject to the MIG.

ii. Since the treatment was incurred by the applicant during the period prescribed by section 38(11)2 of the Schedule, the benefit is payable.

iii. The cost of the psychological assessment should be adjusted to reflect that the assessment for mental health and addictions was entirely conducted by a social worker at an hourly rate of $58.19. The documentation support activity amount remains at $200.00.

iv. The applicant is entitled to interest at the prescribed rate.

ANALYSIS

Did the respondent comply with section 38 of the Schedule?

6Section 38(8) of the Schedule requires the insurer to notify the insured person of its decision of whether or not to pay the claimed benefits within 10 business days after it receives a treatment and assessment plan.

7Section 38(11) sets out that if the insurer fails to comply with subsection (8), it is prohibited from taking the position that the MIG applies and it must pay for any incurred treatment expenses starting on the 11th business day after the day the insurer received the treatment plan and ending on the day the insurer gives a proper notice.

8Pursuant to section 64(18) of the Schedule, in the absence of evidence to the contrary, a person is deemed to receive anything delivered by ordinary mail on the fifth business day after the day the document is mailed.

9The applicant contends that the respondent failed to respond to her claim for benefits within the 10 day notice period prescribed by section 38(8) of the Schedule.

10It is uncontested that the disputed treatment plan was submitted on May 23, 2017. Accordingly, notice to the applicant was required by June 6, 2017.

11The respondent claims the following:

i. The notice of denial, dated June 5, 2017, was sent by regular mail to the applicant’s address. The address noted on the denial letter is identical to the address identified on the applicant’s OCF-1, as well as her LAT application; and

ii. If the Tribunal finds that the notice was effective 5 business days after mailing, then the notice would have been deemed to be provided on June 12, 2017.

12The applicant submits the following:

i. She never received the notice of denial. The notice she got was provided by a letter dated February 16, 2018 after it was requested during the case conference on February 8, 2018; and

ii. The respondent’s notice of denial dated June 5, 2017, which she never received, sent by regular mail, would have been deemed received 5 business days later on June 12, 2017, which is beyond the 10 business days mandated by section 38(8).

13The submissions include evidence that indicates that the applicant most likely did not receive the mailed denial notice. The respondent sent the notice of denial to the wrong mailing address. The applicant’s address on the application for accident benefits (OCF-1) and her LAT application is different from the applicant’s address on the notice of denial. Specifically, street suffix (i.e., the word that follows the name of a street to further describe that street) is different.

14I find that the respondent did not provide the applicant with notice of its refusal to pay for the treatment claimed within 10 business days as required by section 38(8). The notice of the denial was provided to the applicant on February 16, 2018, the date when the respondent sent the denial notice to the applicant after it was requested during the case conference. This date, February 16, 2018, is beyond the 10 business days mandated by section 38(8).

15Pursuant to section 38(11)1 of the Schedule, the respondent is therefore prohibited from taking the position that the applicant is subject to the MIG. Furthermore, this involves the mandatory payment provisions of section 38(11)2 of the Schedule.

16As noted, I have found that the respondent received the treatment plan on May 23, 2017 and that 10 business days from that date would be June 6, 2017. The respondent would therefore be liable for the cost of the treatment incurred for the period covering June 7, 2017 (the 11th business day) up to and including February 16, 2018 (February 16th being the date the respondent is deemed to have given the applicant proper notice).

17The respondent provided the required notice on February 16, 2018, which is after the applicant had incurred the treatment cost on September 29, 2017. Accordingly, the respondent is obliged to pay the applicant’s incurred costs.

Disputed cost of the treatment plan

18In regards to the cost of the treatment plan, the respondent submits the following:

i. The psychological assessment produced is not in line with the assessment proposed. The rate under the treatment plan was for a psychologist, but the services were provided by an unregulated social worker, Ms. Leila Abbaszadeh. The treatment plan lists the only involved practitioner to be Dr. Aghamohseni, the psychologist. Ms. Abbaszadeh is not mentioned or listed in the treatment plan. Ms. Abbaszadeh administered, prepared and completed the assessment, psychometric tests and report. Apart from signing the report, it is unclear what role Dr. Aghamohseni played in the assessment; and

ii. There are different rates for psychologists and social workers under the Professional Services Guideline³. Under the Guideline, the maximum hourly rate applicable to non-catastrophic impairments is $149.61 for psychologists, while the rate for unregulated providers, including psychometrists, is $58.19.

19In regards to the cost of the treatment plan, the applicant submits the following:

i. Ms. Abbaszadeh is not considered an unregulated professional because she has a Master of Social Work degree and is in good standing with the Ontario College of Social Workers and Social Service Workers; and

ii. With respect to fees, the Financial Services Commission of Ontario (“FSCO”) does not have a fee guideline for social workers. Therefore, social workers can charge any fee that they feel is “reasonable” according to the Canadian Association of Social Workers.

20The breakdown of the cost of the treatment plan is the following: an assessment for mental health and addictions in the amount of $2,000.00; and documentation support activity for the claim form in the amount of $200.00. The treatment plan does not set out how many hours were spent on the assessment.

21I find that the cost of the treatment plan should be adjusted. The report itself sets out on pages 1 and 2 that Ms. Abbaszadeh was the individual who conducted and assisted with the assessment, while Dr. Aghamohseni supervised. Dr. Aghamohseni signed the report, which was written by Ms. Abbaszadeh.

22I find that Ms. Abbaszadeh is classified as a psychometrist according to the Guideline. Although Ms. Abbaszadeh is a social worker, the Guideline does not provide an hourly fee amount for social workers, and I find that she was working in the capacity of a psychometrist. It makes the most sense to determine that she worked as a psychometrist because psychometrists administer testing instruments, and prepare reports based on data analysis and the interpretation of results. Furthermore, psychometrists generally work under the supervision of registered psychologists where certain testing materials are concerned.⁴ I find that Ms. Abbaszadeh administered testing instruments, prepared the report and was supervised by Dr. Aghamohseni. Therefore, the hourly rate for Ms. Abbaszadeh’s work is $58.19.

23I do not find an issue with the documentation support activity in the amount of $200.00. The $200.00 amount is a maximum fee that is set out in the Superintendent’s Guideline No. 03/14, where it reads at pages 2-3:

The $200 maximum fee referred to in this Guideline and in Superintendent’s Guideline No. 06/10 (July 2010 Professional Services Guideline) for a Treatment and Assessment Plan (OCF-18) applies only to the services of a health practitioner as referred to in subsection 25 (1) 3 of the SABS, namely reviewing and approving an OCF-18 under subsection 38 (3) (c), including any assessment or examination necessary for the purpose of that review and approval by the health practitioner.

24As noted above, Dr. Aghamohseni supervised Ms. Abbaszadeh and signed the report. I am satisfied that Dr. Aghamohseni reviewed and approved the treatment plan, and that the documentation support activity amount should remain at $200.00.

25Therefore, the cost of the treatment plan should be adjusted to reflect that the assessment for mental health and addictions was performed entirely by Ms. Abbaszadeh and her hourly rate is $58.19. The documentation support activity amount remains at $200.00.

The applicant’s motion dated April 26, 2018

26I will address the motion filed by the applicant dated April 26, 2018. The motion was based on new evidence that was included in the respondent’s submissions, specifically that the treatment plan dated April 9, 2017 was approved by the respondent on June 5, 2017. The applicant submitted that since the respondent approved the treatment plan in dispute, this would suggest that the applicant’s injuries were no longer in the MIG.

27I have viewed the treatment plan dated April 9, 2017, where on June 5, 2017, at part 13 of the treatment plan, a box was checked to “Approve this Treatment and Assessment Plan”. I have also viewed the accompanying denial letter dated June 5, 2017, where there is a clear and unambiguous denial of the claim, with reasons.

28I conclude that the indication of an approval of the treatment plan dated June 5, 2017 was likely a clerical error, as the accompanying denial letter dated the same day sets out in extensive detail that the treatment plan is being denied.

CONCLUSION

29For the reasons outlined above, I find that:

i. The respondent failed to respond to the applicant within the period prescribed by section 38(8) of the Schedule and pursuant to section 38(11)1 the respondent is prohibited from maintaining its position that the application is subject to the MIG.

ii. Since the treatment was incurred by the applicant during the period prescribed by section 38(11)2 of the Schedule, the benefit is payable.

iii. The cost of the psychological assessment should be adjusted to reflect that the assessment for mental health and addictions was entirely conducted by a social worker at an hourly rate of $58.19. The documentation support activity amount remains at $200.00.

iv. The applicant is entitled to interest at the prescribed rate.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline No. 01/14.
3. 3Professional Services Guideline, Superintendent’s Guideline No. 03/14.
4. 4The Ontario Association of Consultants, Counsellors, Psychometrists and Psychotherapists. (n.d.). Mental Health Practitioner Designations. Retrieved from http://www.oaccpp.ca/resources/help-with-terminology/