Tribunal File Number: 18-011393/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:
J. A.
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: David Carranza, Paralegal
For the Respondent: Nisaa Khan, Counsel
HEARD: In writing on August 26, 2019
OVERVIEW
1The applicant was injured in an automobile accident on October 5, 2017 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, as a result, 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:
Is the applicant entitled to medical benefits recommended by Physio Fix & Fitness as follows;
i. $3,994.62 for a chiropractic treatment plan dated February 1, 2018;
ii. $2,139.35 for a psychological assessment proposed in a treatment and assessment plan dated December 8, 2017; and
iii. $3,250.60 for a psychological treatment plan dated February 18, 2018?
Is the applicant entitled to interest on any overdue payments?
RESULT
3The applicant is partially entitled to the chiropractic treatment plan, plus interest.
4The applicant is entitled to the unpaid balance of the psychological assessment, plus interest.
5The applicant is not entitled to the balance of the psychological treatment plan, nor interest.
OVERVIEW
6The applicant was the front-seat passenger of a vehicle which was struck head-on by another vehicle. He sustained various soft-tissue and psychological injuries as a result of the accident.
7The 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 injuries which were excluded from the MIG and was no longer subject to the MIG and the $3,500.00 funding limit on treatment.
8Despite removal of the $3,500.00 funding limit on treatment, the respondent partially denied funding for the psychological assessment and chiropractic and psychological treatment plans, all listed above.
THE CHIROPRACTIC TREATMENT PLAN
9The applicant argues entitlement to the disputed chiropractic treatment plan in two ways. First, because it is reasonable and necessary. Second, in the event it is found not reasonable and necessary, because the respondent did not provide a medical reason to deny funding for it.
Is the plan reasonable and necessary?
10It is the applicant’s burden to prove entitlement to the benefits claimed and he has not met this burden. As a result, I am unable to find the chiropractic treatment plan reasonable and necessary.
11Here, the applicant has only provided one relevant piece of evidence in favour of chiropractic treatment - the progress report completed by the author of the disputed chiropractic treatment plan, Dr. S. Winter, chiropractor, dated February 1, 2018 (submitted February 5, 2018). Dr. Winter examined the applicant, noted his pain complaints, and found mostly mild range of motion limitations in the neck, low back, and shoulders. The report noted the applicant was compliant with his home exercise/stretching program and his whiplash associated disorder, rotator cuff syndrome, and knee sprain/strain injuries had all resolved. The report recommended treatment with a focus on increasing the applicant’s exercise to increase strength and endurance in an effort to return the applicant to his pre-accident functioning.
12Unfortunately, as noted in the respondent’s submissions, there is no other medical evidence to support the need for chiropractic services. The applicant did not provide the clinical notes and records from Physio Fix & Fitness. There is no referral from the applicant’s family physician. Nor is there any recommendation from the applicant’s psychologist, Dr. A. Bodnar, to indicate a psychological benefit from engaging in chiropractic treatment. I am unable to find this chiropractic treatment plan reasonable and necessary without any evidence to corroborate the need for such treatment.
13On the contrary, there is an IE report by Dr. P. Tepperman, dated April 3, 2018. Dr. Tepperman found the applicant’s presentation to be non-organic. Examination revealed no consistent objective evidence of musculoskeletal impairment. Dr. Tepperman also noted the applicant had not been taught a self-directed strengthening and conditioning program, contrary to Dr. Wilson’s report, which prompted a recommendation for such a program. Dr. Tepperman concludes the applicant’s soft tissue injuries require no more clinical treatment beyond 2 hours for instructions on how to start a self-directed home exercise program plus the associated form fee. The respondent agreed and approved $316.40 in funding, according to Dr. Tepperman’s recommendation.
Did the respondent comply with its obligations set out in [section 38](https://www.canlii.org/en/on/laws/regu/o-reg-34-10/latest/o-reg-34-10.html#sec38_smooth) of the [Schedule](https://www.canlii.org/en/on/laws/regu/o-reg-34-10/latest/o-reg-34-10.html)?
14Despite finding the treatment plan is not reasonable and necessary, I find the applicant is entitled to some of the goods and services because the respondent failed to provide a medical reason for denying the treatment plan.
15Amongst other things, section 38(8) provides that the respondent must provide a response to a treatment and assessment plan which includes the medical and all other reasons why the respondent does not agree to pay for any of the goods and services proposed. The respondent’s denial letter dated February 13, 2018 and notice of insurer’s examination dated February 21, 2018 did not provide any valid medical reasons to deny funding for the treatment. They both only note “The patient does not appear to show objective signs of improvement despite continuing treatment”. This statement lacks the specificity required when providing a denial. It fails to mention anything about the applicant’s injuries and/or impairments.
16The respondent’s failure to provide medical reasons to deny the treatment plan entitles the applicant to some of the goods and services incurred. Pursuant to section 38(11)2, the applicant is entitled to payment for the goods and services incurred during the period spanning from the 11th business day following receipt of the treatment plan to when a compliant notice is provided.
17A proper notice was provided April 10, 2018 when Dr. Tepperman‘s IE report was sent to the applicant. The applicant’s submissions do not specifically agree with this finding, however, I infer from the balance of his submissions that he does. This is because the applicant’s submissions specifically note that, by receipt of the April 10, 2018 letter, he had incurred $2,463.88 of treatment associated with this plan.
18The applicant is entitled to the goods and services incurred during the period from February 20, 2018 to April 10, 2018 as a result of the respondent’s failure to provide sufficient medical reasons in the denial. I note the applicant incurred some services before the 11th business day, which are not payable. They are the reassessment and progress report ($250.00), a chiropractic session ($84.61), and an exercise session ($29.10).
19I see no reason to question whether the applicant incurred $2,463.88, less the amounts noted above, by the receipt of the April 10, 2018 letter. He provided itemized standard automobile insurance forms documenting this. The respondent does not dispute this amount was incurred but, instead, submits no goods or services were incurred during the period from February 19, 2018, the 11th business day following receipt, to February 21, 2018, when it provided the notice of insurer’s examination. This is immaterial because, as noted above, a proper notice was not provided until April 10, 2018. As a result, the applicant is entitled to the incurred goods and services, less the deductions noted above.
THE PSYCHOLOGICAL ASSESSMENT
20I find the psychological assessment is payable by the respondent because it did not clearly and unequivocally deny funding for all or part of the assessment.
21The respondent’s notice dated January 19, 2018 failed to clearly and unambiguously advise the applicant of its position with respect to funding the assessment. This is because the respondent, in the first paragraph of the letter, advised the applicant that it was “writing to let you know that your treatment plan has been approved up to a maximum of $2,139.35”. This sentence approves the treatment plan as claimed. The chart lower down on the page, though it notes the amount payable is “up to: $1,345.51”, does not supersede the first paragraph. As a result, the amount approved for the assessment is unclear.
22Considering the above and the principles of Smith v. Co-Operators General Insurance Company1, I find the applicant is entitled to his incurred expenses for the psychological assessment up to a maximum of $2,139.35. As a result, I need not consider the other submissions on this issue.
THE PSYCHOLOGICAL TREATMENT PLAN
23The unapproved balance of the psychological treatment plan is for communication with other treatment providers, treatment planning, and preparation of a progress report. The total amount approved by the respondent is “up to $2,502.55”.
24I find the applicant is not entitled to the balance of the psychological treatment plan because it is not reasonable and necessary.
The denied services are not necessary
25As noted in the respondent’s letter dated March 21, 2018, the is no need for communication with other treatment providers, for a progress report, or for additional planning fees. The applicant’s treatment is all provided through one clinic, is uncomplicated, and does not require additional communication between providers. A progress report is not required as part of the treatment because such information can be provided in a subsequent treatment plan, should the applicant require further psychological treatment beyond the subject treatment plan. Lastly, planning fees are already covered in the $200.00 fee for completing the treatment plan.
The psychotherapist is not entitled to the same fee as the psychologist
26The applicant also claims entitlement to payment of psychotherapist services at an hourly rate of $149.61, which is the rate for a psychologist. He submits the psychotherapist is providing the same service as a psychologist and should be paid the same as contemplated in J. V. and Intact Insurance Company2. I disagree.
27The rates of service providers are prescribed in the professional services guideline. The psychologist maximum hourly rate is $149.62. There is no rate specifically noted for psychotherapists. The respondent approved treatment by the psychotherapist at an hourly rate of $58.19, which is consistent with unregulated providers such as counsellors and psychometrists.
28The Guideline expressly states “The amounts payable by an insurer related to services not covered by the Guideline are to be determined by the parties involved”. To me, it is clear that services proposed which are not covered by the guideline are subject to negotiation. In the event the applicant requires the treatment and is unable to wait to make an agreement on the hourly rate of psychotherapy prior to incurring it, such a dispute can be addressed directly by the service provider and the respondent. However, this does not entitle the applicant to the greater hourly rate.
29In addition, I find the applicant’s actions are tantamount to an agreement that a psychotherapist be paid at the lesser rate. This is because the applicant not only failed to negotiate a different rate for psychotherapy, he proceeded to incur the treatment after the respondent approved it at the lower, unregulated professional, rate without indicating any opposition to the approved hourly rate.
30Lastly, I find this matter is distinguishable from 18-07991 because the treatment plan in 18-07991 was prepared by a psychotherapist and it proposed cognitive behavior therapy provided by a psychotherapist. Here, the applicant submitted a plan for cognitive behaviour therapy provided by Dr. Bodnar, a registered psychologist and not by any other provider. In effect, Dr. Bodnar has misled the respondent by substituting a different service provider despite being advised that doing so could result in payment at the lower hourly rate. As a result, the applicant is only entitled to payment at the lesser rate of $58.19 per hour.
INTEREST
31Having found the applicant is entitled to the balance of the psychological assessment and the incurred goods and services listed in the chiropractic treatment plan as outlined above, I conclude the applicant is entitled to interest pursuant to section 51 of the Schedule.
CONCLUSION
32Pursuant to section 38(11), the applicant is entitled to the goods and services listed in the chiropractic treatment plan which were incurred during the period from February 20, 2018 to April 10, 2018, plus interest pursuant to section 51.
33The applicant is entitled to the balance of the psychological assessment fees incurred, up to $2,139.35, plus interest pursuant to section 51.
34The applicant is not entitled to the balance of the disputed psychological treatment plan.
Released: January 24, 2020
Brian Norris
Adjudicator