Tribunal File Number: 18-006959/AABS
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
[K.W.]
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Robert Watt
APPEARANCES:
For the Applicant:
Gus Triantafillopoulos, Counsel
For the Respondent:
Patrick Sinclair, Counsel
HEARD:
In writing April 29, 2019
OVERVIEW
1The applicant was involved in an automobile accident on June 27, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
ISSUES IN DISPUTE
2I have been asked to decide the following issues:
i. What is the amount of weekly income replacement benefit (IRB) that the applicant is entitled to receive for the following time periods:
a. July 5, 2016 to September 9, 2016
b. February 28, 2018 to April 15, 2018
ii. Is the applicant entitled to receive payment for the cost of an examination in the amount of $2,900 for a psychological assessment, recommended by Dr. Jeremy Frank in a treatment plan dated January 16, 2018, and denied by the respondent on February 8, 2018?
iii. Is the applicant entitled to receive a medical benefit in the amount of $1,320.77 (original treatment plan in the amount of $5,201.49 partially approved in the amount of $3,880.72) for psychological treatment, recommended by Dr. Jeremy Frank in a treatment plan dated June 20, 2018, and denied by the respondent on June 28, 2018?
iv. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULTS
3The applicant is entitled to a weekly IRB in the amount of $2,685.71 for the period from July 5, 2016 to September 9, 2016 and from February 28, 2018 to April 15, 2018.
4The applicant is not entitled to receive payment for the cost of an examination in the amount of $2,900 for a psychological assessment.
5The applicant is not entitled to receive a medical benefit in the amount of $1,320.77 (original treatment plan in the amount of $5,201.49 partially approved in the amount of $3,880.72) for psychological treatment.
6The applicant is entitled to interest on the IRB, but is not entitled to an award.
BACKGROUND
7The applicant was involved in a motor vehicle accident on June 27, 2016. The applicant was self-employed pre-accident and post-accident accident as a real estate agent. The applicant was off work from July 5, 2016, to September 9, 2016 and from February 28, 2018, to April 15, 2018. The respondent has conceded that the applicant qualifies for an IRB for both periods of time set out under the Schedule. The issue is the amount of the payment for the IRB.
8The applicant provided an IRB Benefits Report by Lynch & Associates which determined that the applicant was entitled to $6,514.29 per week for IRBs for the two time periods in question, along with interest in the amount of $1,769.781.
9The respondent provided an IRB Benefits Report by Matson Driscroll & Damico Ltd. Forensic Accountants (MDD), which concluded that the applicant was entitled to $2,685.71.2
10A section 44 insurer examination on September 22, 2016, by Dr. Rockman, psychologist found that the applicant suffered from Dysthymic Disorder and Panic Disorder. The cost of a psychological assessment was approved by the respondent.3.
11A section 38 psychological assessment by Dr. M. Lotfalizadeh, psychologist was undertaken, and a report dated October 11, 2016 diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood. Dr. Lotfalizadeh recommended a course of sixteen psychotherapy sessions4. The respondent approved the recommended psychological sessions and asked the applicant to submit an OCF-18 treatment plan. The applicant never submitted a treatment plan for the psychological sessions.5
ANALYSIS
Amount of Weekly IRB to be Paid
12Sections 4 and 7 of the Schedule set out how the IRB is to be calculated. The Tribunal has decided in other cases, that as passive earned income, has to be included as a deduction, in any calculation under sections 4 and 7 of the Schedule.6
13The applicant at the time of the accident was self-employed and her business continued to generate income during the periods in dispute. Real estate deals closed and became firm during the questionable time periods. Income was therefore earned, even though income was not paid yet on these firm deals. This earned income has to be deducted as part of the IRB calculation, as set out in sections 4, 7 (3)(b) of the Schedule.
14I cannot accept the Lynch & Associates report submitted by the applicant, as that report did not take into account, money earned by the applicant for the periods of the times in dispute. The report of MDD did take into account the moneys earned during the time periods in dispute and therefore shows the proper calculations as required under sections 4 and 7 of the Schedule.
15I find that the amount of the weekly IRB to be paid to the applicant is the amount set out in the MDD report, in the amount of $2,685.71.
Is the applicant entitled to receive payment for the cost of examination in the amount of $2,900 for a psychological assessment?
16Section 15 of the Schedule requires all medical benefits to be reasonable and necessary before an insurer has to pay for them.
17The applicant has already been assessed by Dr. Rockman and by Dr. Lotfalizadeh. The respondent has already approved psychotherapy sessions which the applicant has not availed herself of. If the applicant had taken the treatment, one could then assess again whether further treatments were required. There is no evidence before the Tribunal to support that a further psychological assessment is required. It would seem logical that the applicant submit the treatment plan as requested by the respondent for the recommended psychotherapy sessions. After the sessions have been completed, the applicant could then be assessed as to determine whether further treatments and what type of additional treatments are required.
18Based on the above reasons, I find that the proposed psychological examination is not reasonable and necessary.
Is the applicant entitled to receive a medical benefit in the amount of $1,320.77 (original treatment plan in the amount of $5,201.49, partially approved in the amount of $3,880.72) for psychological treatment?
19The details of the treatment plan denied by the respondent is set out in lines 2, 3, and 4 of the OCF-18. These lines ask for payment for additional ongoing documentation and assessment which duplicates the proposed plan for a psychological assessment, which has been rejected by the Tribunal as set out above in para [18]. The treatment plan also includes costs for consultation, communication with the treatment providers, periodic administration, scoring and interpretation of psychological tests, review of external file materials and preparation of status reports and overseeing supervision of another psychologist.7 Dr. Frank’s letter dated July 27, 2018, indicates that a psychologist under supervision would be charging the guideline rate, and additional fees under planning services for Dr. Frank to oversee this supervision. This again is adding to the cost of services.8
20The Superintendents Professional Service Guideline No #30/14 p3 (“PSG”) limits the adding of costs that can be claimed in relation to the actual services being provided. Those costs include:
“Expenses related to professional services” as referred to in the SABS and the PSG include all administration costs, overhead, and related costs, fees expenses, charges and surcharges. Insurers are not liable for any administration or other costs, overhead, fees expenses charges or surcharges that had the result on increasing the effective hourly rates, or the minimum fees payable for completing forms, beyond what is permitted under the PSG.”
21I agree with the respondent that one cannot try to increase the fee permitted to be charged, for completion of tasks normally included as part of the cost of treatment. The PSG does not permit these added costs to be charged. That is what the service provider has attempted to do in lines 2,3,4, of the OCF-18.
22The applicant complained that the respondent’s letter dated June 28, 2018, was vague and was not a proper denial. I find that the respondent’s letter dated June 28, 2018, meets the criteria set out in section 38(8) of the Schedule. The letter requests further information relating to the treatment plan and sets out clearly why the respondent will not pay for the invoices and for the services listed, under “other reasons”, as required under section 38(8) of the Schedule.
23Based on the above reasons, I find that the proposed plan is not reasonable and necessary.
AWARD AND INTEREST
24I find that interest is owing on the IRB not yet paid pursuant to s.51 of the Schedule.
25There is no evidence before me that the respondent has unreasonably withheld or delayed payments to the applicant to justify an award under s. 10 of Regulation 664. There is a legal dispute on the calculation of the IRB, which had to be resolved by the Tribunal. The respondent conceded that the applicant is entitled to an IRB and rightly relied on the IRB calculation from the MDD report, taking into account the monies the applicant passively earned during the periods in dispute. I therefore find there is no award owing.
CONCLUSION
26Upon review of the evidence and submissions of the parties and the reasons outlined above, I find that
- The amount of weekly income replacement benefit that the applicant is entitled to receive is $2,685.71 for the following time-periods:
a. July 5, 2016 to September 9, 2016
b. February 28, 2018 to April 15, 2018
The treatment plan for the cost of an examination in the amount of $2,900 for a psychological assessment is dismissed.
The treatment plan in the amount of $1,320.77 for psychological treatment is dismissed.
The claim for interest on the IRB is allowed in accordance with s 51 of the Schedule, but the claim for an award is dismissed.
Date of Issue: January 27, 2020
Robert Watt
Adjudicator
Footnotes
- Lynch & Associates Income Replacement Report dated February 13, 2019 p4
- MDD Accounting Report dated April 23, 2019-Tab 9
- Section 44 Psychological Assessment Report of Dr. Rockman dated October 6, 2016- Tab 11
- Section 25 Psychological assessment of Dr. Lotfalizadeh Dated October 11 2016-Tab 13
- Letter dated February 8, 2018 from Aviva Tab 15
- 16-003197/AABS January 10, 2018 Tab 22
- OCF-18lines 2,3,4, dated June 20, 2018 Tab 25
- Letter from Dr. Frank to Aviva dated July 27, 2017 Tab 27