Licence Appeal Tribunal

Citation: Baraiya v. Echelon General Insurance Company, 2021 ONLAT 20-004092/AABS

Release date: 08/12/2021

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:

Kimberly Baraiya

Applicant

and

Echelon General Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Nathan Ferguson

For the Applicant:

Kimberly Baraiya, Applicant

Francesco Blasi, Paralegal

For the Respondent:

Echelon General Insurance Company

Devan Marr, Counsel

HEARD In Writing

February 1, 2021

OVERVIEW

1The applicant (“KB”) was involved in an automobile accident on March 18, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). This included benefits for physical therapy treatment modalities and a psychological assessment.

2The respondent denied KB’s request for benefits. KB disagreed with this decision and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution. KB also requested interest, and an award under section 10 of Regulation 664.

3For the reasons that follow, I find that KB is not entitled to the benefits in dispute. As a result, she is also not entitled to interest on any amount outstanding or an award.

ISSUES

4The issues to be determined are as follows:

a. Is the applicant entitled to a medical benefit in the amount of $877.93 ($2,200.00 less $1,322.07) for psychological services submitted in an treatment plan (OCF-18) dated June 26, 2019?

b. Is the applicant entitled to a medical benefit in the amount of $4,185.89 submitted by Alpha Physiotherapy in an OCF-18 dated November 15, 2019?

c. Is the applicant entitled to interest on any overdue payment of benefits?

d. Is the respondent liable to pay an award under Regulation 664 because the respondent unreasonably withheld or delayed payments to the applicant?

5In their written submissions, the parties confirmed that the applicant was removed from the Minor Injury Guideline (“MIG”). KB’s treatment was no longer confined to the $3,500.00 treatment limit of the MIG and the issue was no longer in dispute.

ANALYSIS

6In order to be entitled to the treatment plans claimed, KB bears the onus to show these treatment plans are reasonable and necessary. To be reasonable and necessary, the goals of the treatment plan must be reasonable, the goals must be reasonably met, and the cost of the treatment plan must be reasonable. I find that she did not meet this onus in this instance.

Physiotherapy Treatment Plan ($4,185.89) Dated November 15, 2019

7There is no dispute that KB had pre-existing low back pain before the accident on March 18, 2019. This is referenced throughout her family physician’s (Dr. Hammoud) clinical notes and records.

8There is also no dispute that KB reported additional pain to Dr. Hammoud after the accident. On March 23, 2019 she described experiencing pain in her neck and throughout her back to Dr. Hammoud. Dr. Hammoud referred KB to the orthopedic surgeon who was already engaged in her care (Dr. Duncan). She described increased back pain (low back) to Dr. Duncan on April 23, 2019. Dr. Duncan provided a Consultation Report dated April 23, 2019 that recommended activity in addressing her pain.

9She was prescribed pain medication in addition to this. Dr. Czok’s confirmed she was prescribed Percocet twice a week beginning in 2018.¹

10Having reviewed the clinical notes and records provided, there is no additional complaint of neck pain, right arm pain or upper back pain after June 17, 2019. However, the low back pain the applicant described was persistent.

11The respondent argues that much of this pain was attributable to her heavy lifting at work and cold weather. However, despite identifying some other sources of pain, the respondent previously approved two treatment plans for physical therapy, most recently 10 sessions on the basis of a treatment plan dated June 14, 2019.

12The disputed physical therapy treatment is dated November 19, 2019, and after receiving this plan, the respondent requested an assessment of the applicant. This was conducted by Dr. Czok. Dr. Czok’s report is dated January 17, 2020 and based on a December 19, 2019 assessment. Dr Czok is a physiatrist and the assessment was performed in-person, including a physical examination of KB. Dr. Czok’s opinion is that KB’s accident-related sprain/strain was resolved, though she continued to have mechanical low back pain for unrelated reasons,² and that KB reached maximum medical recovery from this accident by the date of assessment.³

13Although the OCF-18 provided by Alpha Physiotherapy recommends the treatment included, the clinical notes and records prepared by Alpha Physiotherapy⁴ are in keeping with Dr. Czok’s opinion that KB was not improving as a result of similar treatment. Specifically, the notes dated July 6 and 26, 2019; August 21 and 28, 2019; September 4, 13 and 27, 2019; and October 4, 23, and 26, 2019 state that KP is either the “same as last time” or “unchanged from last visit” on clinical observation. On November 8, and 15, 2019 and January 20, 2020, the treating physiotherapist observed that KB was “Not improving as expected”.

14Dr. Ogilvie-Harris, an orthopaedic surgeon, assessed KB by telephone and did not agree with Dr. Czok, concluding that the treatment plan in dispute is reasonable and necessary.⁵

15Dr. Ogilvie-Harris also felt that “…she may need prolonged treatment to achieve optimum results”.⁶ Dr. Ogilvie-Harris did not comment on the fact that KB had already attended prolonged treatment at this time. Dr. Ogilvie-Harris also considered the disputed OCF-18 specifically and concluded the treatment plan “…would be reasonable as an initial treatment plan”.⁷ However, this is not an initial treatment plan. As outlined above, two earlier treatments were approved and attended by the applicant.

16I did not give Dr. Ogilvie-Harris’ report as much weight as I did Dr. Czok’s. This is for two reasons. First, Dr. Ogilvie-Harris’ report did not include any in-person or direct observations such as a physical examination, while Dr. Czok’s did. I appreciate that the pandemic situation has made it difficult to attend in person, but in this instance one assessor had the benefit of a physical examination and direct observation, while the other did not. In addition, Dr. Ogilvie-Harris appears not to be aware of, or has chosen not to address, that the treatment in question has already been attempted, is not “initial” and appears to have plateaued according to the notes of Alpha Physiotherapy.

17I agree with the respondent that it is not obligated to fund a treatment plan that is likely to be ineffective. The goals of treatment in this instance appear not to be met in any reasonable facet and in any event result in no additional increase in KB’s function. Therefore, I find that the treatment plan submitted by Alpha Physiotherapy is not reasonable and necessary in all the circumstances on a balance of probabilities.

Psychological Assessment (Balance of $877.93) Dated June 26, 2019

18The applicant submitted an OCF-18 for a psychological assessment by Dr. Pilowsky in the amount of $2,200.00. The respondent approved part of this treatment plan ($1,322.07) on the basis of Dr. Moshiri’s opinion.⁸

19Dr. Moshiri assessed the applicant on July 29, 2019 and diagnosed an Adjustment Disorder. Dr. Moshiri confirmed that treatment is warranted and reasonable and disputed only the cost of the plan submitted by Dr. Pilowsky in this instance. Thus, the dispute before me is only with respect to the cost of the treatment plan.

20The respondent directed me to C.D. v. Aviva Insurance Canada⁹ in which the adjudicator (C. Ferguson), considered a dispute regarding a treatment plan submitted by Dr. Pilowsky in the amount of $2,200.00 which was contested by Dr. Moshiri, who recommended approval of $1,322.07.¹⁰ This is largely because Adjudicator Ferguson considered the details provided by Dr. Pilowsky vague and incomplete and concluded that Dr. Moshiri’s more detailed description provided a reasonable alternative course of action. The facts, in other words, are almost identical to the present dispute.

21In that instance, Member C. Ferguson held at paragraphs 24 and 25:

24I find that Dr. Moshiri’s assessment of the hours required to conduct interviews and tests to be credible given his expertise and because he himself carried out the interviews and several of the same tests proposed and later used by Dr. Pilowsky in far less time. Furthermore, the amount of time he budgets in recommending cost is significantly greater than he himself used: he has exercised discretion in allowing for more in-depth assessment that he used in the IE.

25Because Part 12 of the OCF-18 did not lay out the specific tests and other diagnostic processes being proposed, I find that Dr. Moshiri was credible and reliable in developing an alternative plan outline and time-budget based on his own medical opinion of the applicant’s needs. This is especially true given that he administered most of the very same tests eventually used by Dr. Pilowsky.

22The applicant argued that this case is more akin to D.K. v. Aviva¹¹ in which Member Conway held:

26In the case before me, Dr. Moshiri’s report states that the psychological assessment of the applicant is necessary, but that it can be completed for less money. He does not state what part of the assessment plan is unnecessary or overly costly. He does indicate how long he thinks interviewing and other parts of the assessment should take. Respondent’s counsel notes that Dr. Pilowsky’s OCF 18 requesting an assessment does not set out how long it will take to interview the applicant or prepare her report and suggests that this fact alone should signal that Dr. Pilowsky is not proposing to charge a calculated amount but is simply claiming the maximum amount permitted by the Schedule. Therefore, counsel would have me conclude that the amount claimed is excessive.

27…I do not find it surprising that Dr. Pilowsky refrains from setting out a precise time frame within which the interview will be conducted, the tests will be administered, the results analysed, and the report prepared. It is to be expected that these time frames will depend on the interactions with the applicant and the results of the testing. It is not unusual, in my view, that different therapists will have different approaches and will take varying amounts of time. Dr. Moshiri approved as reasonable and necessary $1,322.07 of $2,200.00. This is not near the level of difference remarked on by Arbitrator Ferguson. The respondent has offered no reasoned basis on which to conclude that Dr. Pilowsky’s cost is excessive; the argument is simply that Dr. Moshiri would perform the assessment for less. I decline on that basis to find that the applicant has failed to satisfy the onus on her to establish that the treatment plan is reasonable. The full amount of $2,200 should be paid.

28With respect to the OCF 18 June 19, 2017 treatment plan, Dr. Moshiri points to two specific items, planning and session notes, as “not necessarily of therapeutic significance”. He does not explain his reasoning, and I do not find his statement persuasive. Different therapists may have varying techniques, and my view is that overall, unless a proposed cost is demonstrably out of line, the author of the plan should not be second guessed on the details of their treatment plan when the plan itself has been agreed to as necessary and reasonable…I find that the whole amount of $3,129.48 is reasonable and necessary and should be paid.

29I am fortified in this view by the fact that two subsequent treatment plans proposed by Dr. Pilowsky in June and December 2018 were approved in full, apparently without further reference to Dr. Moshiri. This indicates to me that the insurer was satisfied on the basis of the earlier course of treatment that Dr. Pilowsky’s services were necessary and not overpriced.

23I find the present circumstance more similar to that described by Member C. Ferguson. In this instance, there is no reference to planning and session notes that are not therapeutically significant. Rather, Dr. Moshiri, simply outlined a more specific plan of assessment that could be conducted at a lesser cost than the assessment suggested by Dr. Pilowsky.

24Dr. Pilowsky’s OCF-18 is not detailed or specific about the nature and content of the assessment to be provided. It simply indicates that an assessment for “mental health and addictions” will take place for $2,000.00 and an additional $200.00 is necessary for documentation. The respondent approved the $200.00 portion of the plan and this is therefore not in dispute.

25Dr. Pilowsky did conduct the assessment despite the respondent’s denial of the OCF-18. This assessment included several of the same tests and tools used and recommended by Dr. Moshiri.¹² That is, there is considerable overlap in the approach that was eventually taken.

26No breakdown of the hours needed to complete the assessment was provided by Dr. Pilowsky. The invoice provided by Dr. Pilowsky¹³ includes no breakdown of the amounts owed demonstrating more time than Dr. Moshiri estimated was used or required.

27The parties also referred to J.S. v. Aviva General Insurance Company¹⁴ which was reconsidered and upheld. On reconsideration Member Maleki-Yazdi upheld the member’s approval of a similar treatment plan to the OCF-18 in dispute. The respondent argued that this is not supportable because there was no consideration of the detail of the OCF-18 which was vague. I am not bound by other Tribunal decisions, though they are often illustrative and persuasive. In this instance, I agree with the respondent that an assessment’s containment within the payment limits established in section 25 of the schedule does not establish the treatment is reasonable and necessary in itself. In this case, the reasonableness of the cost of the assessment is directly disputed and the cost must therefore be considered.

28Had the respondent alleged that the amount was too high without providing a corresponding expert opinion on the subject, I would likely have found this insufficient to question Dr. Pilowsky’s evidence. That is, if it were uncontested, I would likely defer to the evidence provided by Dr. Pilowsky. However, where there are two competing opinions, I must evaluate which is more persuasive and I note that the applicant bears the onus in demonstrating the plan in question is reasonable and necessary.

29In this instance, the opinion provided by Dr. Moshiri provides much more detail as to the time necessary, and therefore cost attributable, to the assessment in question. Dr. Pilowsky provided very little detail, even after completing the assessment, to justify the disparity in cost.

30I prefer the more detailed and specific description, including much of the same testing, and allowing for additional time for the applicant’s completing assessor, provided by Dr. Moshiri, who was able to complete a similar assessment, including many of the same tests and tools, in less than the time allowed for in his estimate.

31Having found Dr. Moshiri’s evidence more persuasive in this case, I agree with the respondent that KB did not provide compelling evidence that the treatment plans in dispute are reasonable and necessary.

Interest on overdue payments

32I found that there are no payments overdue in this instance. Therefore, there is no interest owing on any overdue payment.

Award

33As the applicant is not entitled to the benefits in dispute, no benefits were unreasonably delayed or withheld. Accordingly, no award is payable.

ORDER

34The application is denied.

35The applicant is not entitled to the physiotherapy treatment plan, or any additional amounts with respect to the psychological assessment in dispute.

36It follows that the applicant is not entitled to interest on any overdue payments or an award under Section 10 of Regulation 664.

Footnotes

1. 1Independent Physiatry Assessment (“IPA”) dated January 17, 2020 at p. 6.
2. 2IPA at pp. 9 and 10.
3. 3IPA at p. 11.
4. 4Applicant’s Written Submissions at Tab 15.
5. 5October 7, 2020 Report.
6. 6Ibid at p. 10.
7. 7Ibid at p. 6.
8. 8See Independent Psychological Assessment (“IPA2”) dated August 5, 2019.
9. 92017 CanLII 81581 (ON LAT).
10. 10Ibid at paras. 18-20.
11. 112020 CanLII 58832 (ON LAT), at paras. 26-29.
12. 12See IPA2 at p.3, and Dr. Pilowky’s August 22, 2019 Psychological Report at p.11.
13. 13Applicant’s Written Submissions at Tab 8.
14. 142021 CanLII 11881 (ON LAT) (Reconsideration).```