L. Y. v. Aviva Insurance Company, 2019 CanLII 28021

Licence Appeal Tribunal

Tribunal File Number: 17-008847/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:

L. Y.

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Maka Metreveli, Paralegal For the Respondent: Louise Kanary, Counsel

HEARD: In writing on July 4, 2018

OVERVIEW

1The applicant was injured in an automobile accident on February 29, 2016 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the "Schedule"). The respondent refused to pay for certain medical benefits and the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal") for resolution of this dispute.

ISSUES:

2The issues in dispute in this hearing are:

1. Is the applicant entitled to medical benefits for treatment recommended by 101 Physio as follows; i. $2,893.70 for physical treatment submitted in a treatment plan dated June 27, 2016; ii. $2,618.15 ($4,015.12 less $1,396.88 approved) for psychological treatment submitted in a treatment plan dated October 18, 2016; iii. $3,322.12 for physical treatment submitted in a treatment plan dated April 11, 2107; and iv. $3,696.88 for physical treatment submitted in a treatment plan July 21, 2017?

2. Is the applicant entitled to the cost of examination in the amount of $677.96 ($2,000.00 less $1,322.07 approved) for a psychological assessment recommended by 101 Physio in a treatment plan dated July 4, 2016?

3. Is the applicant liable to repay the respondent $748.05 for medical benefits paid in relation to 101 Physio invoice #25912?

RESULT

3The applicant is not entitled to the medical benefits listed as issues 1(i), 1(iii), and 1(iv).

4The applicant is partially entitled to psychological treatment and related costs listed as issue 1(ii).

5The applicant is entitled to the cost of the psychological assessment listed as issue 2.

6The applicant is liable to repay the respondent for medical benefits paid in relation to 101 Physio invoice #25912, listed as issue 3.

OVERVIEW

7The applicant was the driver of a vehicle that was struck from behind while in traffic. Emergency medical services attended at the scene but did not take the applicant to the hospital. The applicant was picked up and taken to the collision reporting centre and then home. The next day, the applicant went to a walk-in clinic and complained of neck, back and shoulder pain and was prescribed physiotherapy with supplemental massage therapy.

8The applicant initially received treatment within the framework of the Minor Injury Guideline (MIG), which the respondent funded. The applicant was later found to have suffered from a psychological injury and was removed from the MIG on August 22, 2016

9For easy reference, I have grouped issues 1(i), 1(iii), and 1(iv) together and refer to them as "the physical treatment plans".

THE PHYSICAL TREATMENT PLANS

10The issue is whether or not the medical benefits proposed in the disputed physical treatment plans are reasonable and necessary 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.

11The respondent submits there is no evidence the applicant has ongoing physical complaints or accident-related impairments that require further facility-based treatment. Further, the respondent submits, the applicant has not established that the physical treatment plans are reasonable and necessary, because the applicant has not provided any evidence establishing the goals of the treatment plans or how the treatment plans will achieve the goals.

12In reply, the applicant submits that not all medical documents have been reviewed by the insurance examination assessors, that the applicant was not assessed by a neurologist, and that there is no evidence of whether the applicant should be treated under the MIG due to a neurological injury. The applicant did not address the respondent's argument that the applicant hasn't provided evidence of the goals of the treatment plans or the means to achieve the goals. The applicant submits the following reasons to support entitlement to the treatment plans:

1. The applicant is not bound by the funding limit of the minor injury guideline (MIG).
2. The applicant has pre-existing neck and back pain.
3. The insurer's examination by Dr. Kominek, chiropractor, is flawed because it only refers to previous insurer examinations and no other medical documents.
4. Dr. Kominek was never given Dr. Prigozhikh's CNR's for an addendum review.
5. Dr. C. Godfrey, physician, diagnosed carpal tunnel stenosis August 22, 2016.

13Upon review of submissions, the evidence before me and the following reasons, I agree with the respondent and find the applicant is not entitled to any of the disputed physical treatment plans.

14As previously outlined, the issue before me is not whether the applicant is restricted to medical benefits within the MIG but whether the disputed treatment plans are reasonable and necessary. The applicant has provided no evidence as to what the proposed treatment is or what injuries the treatment plans are to address.

15While I accept the applicant had exhibited some signs of a neurological injury (carpal tunnel stenosis), there is no evidence to show the treatment plans were to help with concerns related to this injury. Nevertheless, the evidence shows the carpal tunnel stenosis was treated not through physical treatment but by wearing wrist splints at night. The applicant reported the injury had resolved by the end of August 2016 as confirmed in Dr. Prigozhikh's consultation letter dated October 25, 2016. Ultimately, the evidence and submissions provided by the applicant do not meet the evidentiary burden to establish the physical treatment plans are reasonable and necessary as a result of the accident.

THE PSYCHOLOGICAL ASSESSMENT

16The respondent partially approved funding for the psychological assessment and the applicant claims entitlement to the remaining balance. The respondent submits the proposed cost of the psychological assessment is not reasonable and the same assessment and report can be completed in 7.5 hours at $149.61 per hour, plus $200.00 for the completion of the OCF-18, for a total cost of $1,322.07.

17The applicant contends the fee approved by the respondent does not provide enough time for testing, medical file review, and report preparation. The applicant did not say how long the testing, file review, and report preparation took. However, using the respondent's same reasoning, I can infer from the amount billed, the form fee, and the maximum hourly rate provided by the Professional Services Guideline (the Guideline") that the psychological assessment proposed about 12 hours of work, or about 4.5 hours more than what the respondent approved.

18The Professional Services Guideline provides maximum rates and maximum fees for professionals providing services under the Schedule. Relevant for this issue, the maximum hourly rate for a psychologist is $149.61 and the maximum fee is $2,000.00 for any one assessment.

19The respondent has not provided any evidence to conclude the assessor exceeded the maximum hourly rate. Similarly, the respondent has only provided an opinion on the length of time it would take to complete the assessment and has not provided any other evidence to confirm the assessor's time to conduct the assessment and complete the report is less than what the assessor invoiced for.

20Considering the submissions, evidence, and the Schedule, I find the applicant is entitled to the balance of the disputed psychological assessment because the proposed fee does not exceed the maximum fee outlined in the Professional Services Guideline.

THE PSYCHOLOGICAL TREATMENT PLAN

21The respondent partially approved funding for the psychological treatment plan and the applicant claims entitlement to the remaining balance of $2,618.15. The applicant submits the respondent's position fails to consider the treating psychologist would be required to review medical documents, conduct periodic testing, and prepare a progress report upon completion of the treatment plan.

22The respondent submits the applicant has been diagnosed with a mild Adjustment Disorder which warrants only 8 one-hour sessions of cognitive psychotherapy and a fee for the completion of the forms. The respondent also holds that, beyond the treatment and assessment plan itself, the applicant has not provided evidence to support further treatment with a service provider beyond that which has already been approved.

23Upon review of the evidence and submissions I find the applicant is only entitled to a further $299.22 for additional evaluation and related services. The breakdown of the reasonable and necessary fees related to the psychological treatment plan is as follows:

$1,196.88 (8 hours of psychotherapy sessions at $149.61/hour)

$299.22 (2 hours of evaluation testing at $149.61/hour)

$200.00 (The completion of the necessary forms)

$1,696.10 (Total cost of the psychological treatment plan)

24The evidence supports that applicant is entitled to 8 one-hour psychotherapy sessions. Dr. S. Moshiri, psychologist, in an insurer's examination report dated November 16, 2016 recommended 8 sessions of cognitive psychotherapy for the applicant. This is echoed by the author of the treatment plan, Dr. S. Tenenbaum, psychologist, who recommended 8-12 sessions. However, Dr. Tenenbaum recommended one and a half hour sessions. Based on the mild rate of impairment, I agree with Dr. Moshiri's opinion and also finds 8 one-hour sessions to be reasonable and necessary.

25The proposed treatment plan also provides time for documentation and additional evaluation testing. I find the additional documentation fees to be redundant as the provider is compensated for documentation through the $200.00 form fee. I find the additional evaluation testing to be reasonable and necessary to gauge the applicant's progress upon completion of the treatment plan and to determine if further treatment with a service provider is required. For this reason, I find the 2 hours proposed for evaluation testing, review, communication with treatment providers where necessary, and for preparing termination reports to be reasonable and necessary.

26I am unsure if the applicant has consumed the disputed treatment plan. If the applicant has consumed the treatment, the respondent is liable to pay an additional $299.22. If the applicant has not consumed the treatment, the applicant may incur up to $1,696.10 in psychological treatment and related costs and the respondent is liable to pay these costs once they are properly invoiced.

REPAYMENT

27The respondent claims a repayment from the applicant in the amount of $748.05. Early in 2017, the respondent mistakenly sent payment to the applicant instead of 101 Physio. The clinic brought this to the respondent's attention and on September 7, 2017, the respondent asked the applicant to give the payment to 101 Physio.

28The applicant did not address this issue in initial submissions and, when presented with the issue in the respondent's response submissions, chose not to address the issue in reply. Consequently, I conclude the applicant does not dispute that the respondent is entitled to the repayment.

29Section 52 of the Schedule provides the guidelines for seeking repayment of a benefit. To claim a repayment, the respondent has two obligations once it has determined a payment was made in error 1) it must notify the applicant of the amount the applicant is required to repay and 2) it must provide the notice within 12 months after the erroneous payment is made.

30The respondent has satisfied both the notice requirements in the September 7, 2017 letter. The applicant is liable to repay the respondent the amount of $748.05.

31The respondent is not entitled to interest on the repayment because the notice letter expressly states that the respondent will defer its entitlement to interest.

ORDER

32The applicant's appeal on issues 1(i), 1(iii), and 1(iv) is dismissed.

33The psychological assessment is reasonable and necessary and the applicant is entitled to the remaining balance owed of $677.96.

34The psychological treatment is reasonable and necessary in the amount of $1,696.10. The respondent is liable to pay this amount if the applicant has already incurred it. If the applicant has not incurred it, the applicant may do so and the respondent is liable to pay up to $1,696.10.

35The applicant must repay the respondent $748.05.