R.O. v. Aviva Insurance Company of Canada, 2019 CanLII 122721

R.O. v. Aviva Insurance Company of Canada

Citation: R.O. vs. Aviva Insurance Company of Canada, 2019 ONLAT 18-002855/AABS Tribunal File No.: 18-002855/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:

[R.O.] Applicant

and

Aviva Insurance Company of Canada Respondent

DECISION

Adjudicator: Nidhi Punyarthi

Appearances: David Tomovski, Counsel for the Applicant M. Jennifer Cosentino, Counsel for the Respondent

Heard: In Writing (following evidence in-person on May 21, 2019)

OVERVIEW

1The applicant was involved in an accident on December 21, 2016. She claimed certain benefits from the respondent under the Statutory Accident Benefits Schedule – Effective September 2010, O. Reg. 34/10 (“Schedule”). The respondent denied her claim for benefits, and she applied to the Licence Appeal Tribunal (“Tribunal”) for an adjudication of the dispute arising from her denied benefits.

2The application proceeded to a hearing before me. On May 21, 2019, I heard evidence in person on the following issues in dispute:

a. Is the applicant entitled to attendant care benefits in the amount of $1,229.51 per month in accordance with a Form 1 submitted by Promed Rehabilitation, as opposed to the amount of $975.07 per month for such benefits that was approved by the respondent?

b. Is the applicant entitled to attendant care expenses in the amount of $3,400.00 in accordance with an expense form (OCF-6) that was dated July 5, 2017 and denied on August 11, 2017?

3I rendered a decision on the above-noted issues on August 16, 2019. In that decision, I found that the applicant was not entitled to either the additional attendant care benefit or expenses claimed.

ADDITIONAL ISSUES IN DISPUTE

4The following issues remain in dispute as between the parties¹:

a. A medical benefit in the amount of $540, representing the balance of a treatment plan originally submitted in the amount of $3,733.63 and partially approved by the respondent. This treatment plan, dated November 16, 2017, was for social work services recommended by Rehab First, and was approved in part by the respondent on December 4, 2017.

b. A medical benefit in the amount of $4,945 for chiropractic, massage and physiotherapy services in a treatment plan recommended by Knead Wellness that was dated July 19, 2017 and denied on September 22, 2017.

c. A medical benefit in the amount of $4,685 for chiropractic, massage and physiotherapy services in a treatment plan recommended by Knead Wellness that was dated April 6, 2018 and denied on June 5, 2018.

d. A medical benefit in the amount of $1,995.33 for a psychological assessment recommended by Knead Wellness in a treatment plan that was dated May 17, 2018 and denied on June 4, 2018.

e. An award under Section 10 of Regulation 664, R.R.O. 1990, Reg. 664 (“Regulation 664”).

f. Interest on any overdue payment of benefits.

RESULT

5The applicant is entitled to:

a. the remainder of the treatment plan for social work services less $150;

b. the two chiropractic, massage and physiotherapy treatment plans in issue;

c. the psychological assessment in issue; and

d. interest on these overdue amounts in accordance with the Schedule.

6The applicant is not entitled to an award under Section 10 of Regulation 664.

ANALYSIS

A. Social Work Services

7In order for a medical benefit to be paid under the Schedule, it has to be reasonable and necessary.²

8The respondent has partially approved the treatment plan for social work services, leaving a balance of $540.00. According to the respondent, this difference relates to a disagreement on what the hourly rate of services should be for the social worker in the treatment plan.

9The respondent’s first submission is that since this treatment plan has not been denied, the applicant is not able to apply to the Tribunal for an adjudication in respect of this treatment plan.

10Section 280(1) and (2) of the Insurance Act provide that an insured person can apply to the Tribunal with respect to the resolution of disputes concerning the entitlement to or the amount of statutory accident benefits.³ In this case, the respondent has approved a different and lower amount for the treatment plan in question, and the applicant disagrees with that amount. This is an issue over which the Tribunal has jurisdiction.

11This brings me to the respondent’s alternative submission, which relates to the hourly rate that should be payable for the social worker.

12The Professional Services Guideline - Superintendent’s Guideline No. 03/14 (“Guideline”) sets out hourly rates for services rendered by professions that are listed within the Guideline. The respondent agrees that a social worker is not listed in the Guideline.

13The respondent submits, however, that I should consider that a social worker falls under the category of an “unregulated provider” in the Guideline and, on that basis, that I apply the listed rate of $58.19 per hour, as opposed to the $130 per hour claimed in the treatment plan.

14The respondent also provided me with a prior decision of this Tribunal in which a social worker was accepted as a qualified case manager in a catastrophic impairment case and assigned the hourly rate for a case manager in the Guideline. I find the issue in this decision to be distinct from the facts before me, as I am dealing with the reasonableness and necessity of a treatment plan in which a social worker is providing services in the capacity of a social worker and not as a case manager to a non-catastrophic individual.

15The Guideline provides that: “Services provided by health care professionals/ providers, unregulated providers and other occupations not listed in the Guideline are not covered by the Guideline. The amounts payable by an insurer related to services not covered by the Guideline are to be determined by the parties involved.” [my emphasis]⁴

16The undisputed evidence before me is that the $130 rate was the prescribed fee of the OASW or Ontario Association of Social Workers.⁵. It also appears from the evidence that, later in the parties’ dealings, the respondent partially approved a similar treatment plan for social work services at the rate of $100 per hour as opposed to $130 per hour.⁶

17Thus, at the very least, there is no consistency between the rate that the respondent is asking me to assign as part of this decision, and what the respondent did with a similar treatment plan in the applicant’s case.

18It is also not clear to me where the $540 difference comes from. In the treatment plan as submitted, 3 hours of services were claimed at the rate of $130 per hour, for a total of $390. If I were to accept the respondent’s argument and indicate that 3 hours should be paid at the rate of $58.19, the total would be $174.57. The difference between $390 and $174.57 is $215.43, which is much less than the unpaid amount of $540.

19In other words, there is no explanation before me as to where the $540 difference comes from.

20On a balance of probabilities, the applicant has satisfied me that the treatment sought in the treatment plan for social work services is reasonable and necessary. The applicant’s need for and benefit from such services is implied in her need levels that were put in evidence during the hearing as well as the fact that the respondent approved provision of the same services for a lower amount.

21I now turn to the issue of the amount for these services. The balance claimed of $540 consists of 3 hours at the hourly rate of $130 per hour and an additional $150. The applicant has tendered evidence to show that the rate of $130 per hour is an industry standard for social workers., In addition, the respondent had agreed to fund a similar treatment plan at the rate of $100 per hour. The Guideline states that the parties can determine an hourly rate in an individual case.

22In this case, the parties were unable to jointly determine an hourly rate, and the applicant then applied to the Tribunal. I will, therefore, make a determination as to the rate in this case.

23The respondent’s submissions refer to a letter from the treatment plan provider that the $130 was the prescribed OASW fee. The fact referred to in this letter (of what the prescribed fee by the OASW is) appears to be undisputed. Specifically, there is no evidence that $130 per hour is not the prescribed OASW rate. On this basis, I find the $130 per hour as claimed by the applicant is reasonable in this case. I wish to make it clear that this decision is not setting a precedent on the hourly rate for a social worker. It is a conclusion drawn based on my assessment of the specific evidence in this case and one set of probabilities that weighed more than another.

24Even if the respondent paid for 3 hours of the social worker’s time at $130 per hour in this case, there is still an amount remaining of a $150 within the $540 difference. I find that there is no support in the evidence, on a balance of probabilities, for this $150 amount. For that reason, I order that the $150 amount not be paid in this case.

25Based on the above, I am satisfied that the balance of the treatment plan for social work services, less $150, is reasonable and necessary. The respondent shall pay $390 (not $540) towards the remaining amount of this treatment plan for social work services.

B. Chiropractic, massage, and physiotherapy treatment plans

26The two treatment plans in this category were denied in full by the respondent. The earlier of these plans was submitted in the summer of 2017, and the later in the spring of 2018.

27On each occasion, the respondent obtained opinions from assessors it had engaged under s. 44 of the Schedule. The respondent denied each of the treatment plans based on the opinions obtained from its assessors, who opined that the plans were not reasonable and necessary.

28To summarize, the s. 44 assessors had the following opinions:

a. In the summer of 2017, it was sufficient for the applicant to undergo a self-directed exercise program as opposed to the treatment that was set out in the plan. The treatment plan was not reasonable or necessary.

b. In the spring of 2018, given that the applicant had refused surgery, she had reached maximal medical recovery. Therefore, the treatment plan was not reasonable or necessary.

29The medical records tendered in evidence indicate that the applicant had the following conditions on the day of and following the accident:

a. On the day of the accident, she was struck on her right elbow. No fracture was noted.⁷

b. On April 10, 2017, an MRI consultation indicated that she had a clinical history of chronic pain in the neck and right shoulder for a few months.⁸

c. On April 28, 2017, an MRI of the right shoulder resulted in an impression of supraspinatus and infraspinatus tendonitis.⁹

d. On June 12, 2017, she reported right shoulder pain.¹⁰

e. On June 12, 2017, a fracture clinic report indicated a torn rotator cuff based on reading the MRI after the December accident.¹¹

f. On July 24, 2017, a fracture clinic report indicated a note that she has a tear.¹²

30The first of the two treatment plans at issue in this category was dated July 19, 2017. This was around the same time as the observations found in the above-noted medical records. It should also be noted that the respondent had determined that the applicant’s injuries were not minor injuries as defined in the Schedule on June 15, 2017.

31The treatment plan as proposed includes therapies such as muscle recruitment, massage, acupuncture, and ice and heat therapy to help alleviate pain, improve postural alignment, and increase muscular strength. The medical evidence listed above indicates, on a balance of probabilities, that the applicant was experiencing right shoulder issues around the time of this treatment plan. I infer from this evidence that, in addition to a self-directed exercise program, the applicant would reasonably benefit from the full set of therapies and interventions listed in the treatment plan. For this reason, I find the opinion on the treatment plan of July 19, 2017 to be more persuasive than the opinion of the s. 44 assessor who had indicated that a self-directed program, without the additional services listed on the treatment plan, was adequate.

32On a balance of probabilities, then, the treatment plan for chiropractic, massage, and physiotherapy services dated July 19, 2017 is reasonable and necessary.

33The second of the two treatment plans in this category was dated April 6, 2018. It proposes similar and follow-up therapies to the ones listed in the earlier treatment plan. It refers to the tear in the applicant’s right shoulder.

34It is reasonable to infer that the issues identified in the medical records of 2017 continued to be issues for the applicant in the spring of 2018.

35The applicant tendered a social work progress report around the time of April 2018. In this progress report, it is noted that the applicant continued to experience physical pain and limitations due to her right shoulder, and that she would benefit from certain assistive devices.

36Considered together, the evidence from the medical records, the notes about the applicant’s physical condition and functional needs in the social work progress report, and the specific recommendations and notes made in the treatment plan in question, I am satisfied, on a balance of probabilities, that the treatment as proposed is reasonable and necessary.

37By contrast, there is insufficient detail in the s. 44 opinion to explain why the applicant’s decision to decline surgery was consistent with maximal medical recovery and an opinion that the April 2018 treatment plan was not reasonable and necessary. The totality of the evidence before me, as stated above, tells me otherwise.

38Therefore, I find that ongoing treatment as proposed in treatment plan dated April 6, 2018 for chiropractic, massage, and physiotherapy is reasonable and necessary.

39The respondent shall pay for the two treatment plans for chiropractic, massage and physiotherapy that are at issue in this hearing.

C. Psychological Assessment

40This assessment was denied by the respondent based on an opinion from its assessor under s. 44 of the Schedule. The assessor opined that the assessment was not reasonable or necessary given that the applicant is already receiving counselling from a social worker.

41The treatment plan, however, does not list items for services that are identical to services provided by the applicant’s social worker. The plan indicates that an assessment for mental health and disorders will be performed, and that testing will be performed using tools available to a psychologist. In the applicant’s case, the social worker has not engaged in the same type of assessment and testing, even if she has provided counselling sessions to the applicant. The assessment and testing of the nature indicated in the treatment plan would enable the applicant and her treating professionals to have a better understanding of her mental health condition as a result of the accident.

42I also note that the medical records filed in evidence indicate that the applicant had problems with her sleep.¹³

43The proposed assessment and testing are not within the purview of the social worker’s counselling services. I am therefore not persuaded by the suggestion that the proposed psychological assessment is duplicative.

44On a balance of probabilities, the psychological assessment as proposed is reasonable and necessary. The respondent shall pay for this treatment plan.

D. Special Award

45Section 10 of Regulation 664 states that the Tribunal may order an insurer to pay an award of up to 50% of a denied benefit and interest where the Tribunal finds that the insurer has unreasonably withheld or delayed payment of that benefit.

46I was not provided any specific particulars or evidence to address this issue.

47On a balance of probabilities, I am not satisfied that the respondent unreasonably withheld or delayed payment of a benefit to the applicant in this case. Therefore, the respondent is not liable to pay an award under s. 10 of Regulation 664.

E. Interest

48The respondent shall pay interest in accordance with the Schedule.

CONCLUSION

49The respondent shall pay $390 towards the remainder of the social work treatment plan, and the full amounts of the two chiropractic treatment plans and the psychological assessment that were listed as issues for this hearing. The respondent shall also pay the corresponding interest in accordance with the Schedule. The applicant is not entitled to an award under s. 10 of Regulation 664.

Footnotes

1. 1Order of Adjudicator Corapi dated August 10, 2018; Order of Adjudicator Watt dated April 9, 2019; Letter from Mr. Tomovski dated May 16, 2019; Email from Ms. Cosentino dated May 17, 2019; Submissions of the applicant dated October 11, 2018; Submissions of the respondent dated October 31, 2018.
2. 2Schedule, s.15(1).
3. 3Insurance Act, R.S.O. 1990, c.I.8.
4. 4Professional Services Guideline - Superintendent’s Guideline No. 03/14.
5. 5Written Submissions of the Respondent dated October 31, 2018, p.4.
6. 6Treatment plan submitted March 26, 2018 and partially approved on June 4, 2018.
7. 7Records of Mackenzie Health, December 21, 2016 (Applicant’s Document Brief, Tab 13)
8. 8Records of Dr. Dief (Applicant’s Document Brief, Tab 15).
9. 9Records of Humber River Hospital. Medical Imaging dated April 27, 2017 (Applicant’s Document Brief, Tab 14).
10. 10Records of Humber River Hospital. Outpatient Day Care Record dated June 12, 2017 (Applicant’s Document Brief, Tab 14).
11. 11Records of Dr. Dief (Applicant’s Document Brief, Tab 15).
12. 12Records of Humber River Hospital, Fracture Clinic Report dated July 24, 2017 (Applicant’s Document Brief, Tab 14).
13. 13Sleep Study Report dated November 2, 2017 (Applicant’s Brief of Documents – Tab 15).