Citation: P.K. vs. Aviva Insurance Canada, 2020 ONLAT 18-011533/AABS
Tribunal File Number: 18-011533/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:
P. K.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
PANEL:
Brian Norris, Adjudicator
APPEARANCES:
For the Applicant:
David Carranza, Paralegal
For the Respondent:
Robert J. Jones, Counsel
HEARD:
In Writing on August 30, 2019
OVERVIEW
1The applicant was injured in an automobile accident on June 11, 2016 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for certain benefits and, as a result, the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
ISSUES
2The disputed claims in this hearing are:
Is the applicant entitled to a medical benefit in the amount of $3,591.87, less $2,444.15 approved by the respondent, for psychological services recommended by Excel Medical Diagnostics Inc. in a treatment plan submitted on June 16, 2017?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The unapproved balance of the psychological treatment plan is not reasonable and necessary. However, pursuant to section 38(11)2, the applicant is entitled to the goods and services listed in the psychological treatment plan which were incurred during the period between August 8, and October 24, 2017, plus interest.
BACKGROUND
4The applicant was the driver of a vehicle that struck another vehicle while travelling through a suburban intersection. As a result of the collision, the applicant’s vehicle flipped over onto its roof. Remarkably, he suffered no fractures as a result of the accident and commenced treatment pursuant to the MIG. He was later removed from MIG and the $3,500.00 funding limit due to psychological injuries suffered as a result of the accident.
5The parties agree the applicant is entitled to psychological treatment as a result of injuries suffered in the accident. According to the parties, the disagreement over the subject psychological treatment plan lies in whether the applicant is entitled to 12 two-hour sessions, as he claims, or 12 one-hour sessions, as was approved by the respondent.
THE PSYCHOLOGICAL TREATMENT PLAN
6The psychological treatment plan proposes 12 sessions billed at $224.42 per session. The respondent approved funding for 12 sessions billed at $149.61 per one-hour session. For the following reasons, I agree with the respondent and find the balance of the disputed psychological treatment plan is not reasonable and necessary.
7The applicant’s submissions do not correspond with the evidence. As noted above, the applicant submits he is entitled to 12 two-hour sessions. However, there is no indication in the disputed treatment plan or the other evidence to suggest the treatment plan actually proposes two-hour sessions. Rather, the treatment plan proposes 12 sessions of an unknown duration, to be billed at a per-session rate of $224.42, which is 1.5 times the maximum hourly rate prescribed by the Professional Services Guideline1 (“PSG”) for psychological treatment.
8Psychological treatment is to be billed at the hourly rate, not the per-session rate. The PSG provides the maximum expenses payable by an insurer. In it, it states a psychologist’s maximum hourly rate payable is $149.61. The PSG also provides a maximum of $2,000.00 for any one assessment, but makes no mention of a maximum per-session rate for therapy. The treatment plan in dispute provides no clarity with respect to the length of session. With this ambiguity in mind, considering the PSG only notes a maximum hourly rate, and the absence of a per-session rate in the PSG, I find psychological treatment should be billed at the per-hour rate.
9I do not infer the treatment plan proposes 12 one-and-a-half hour sessions. While I understand it may seem simple to infer this, I refuse to do so because it fails to appreciate the service provider chose to bill at a per-unit rate and not a per-hour rate, despite having the ability to and it being contrary to the PSG. In the event the service provider was proposing one-and-a-half hour sessions, or two-hour sessions as the applicant submits, there is no reason to explain why the provider did not simply note 1.5 (or 2) units at the hourly rate of $149.61, which would be compliant with the PSG.
10Considering the PSG and the lack of evidence to confirm the treatment plan proposes sessions longer than an hour, I am unable to find the balance of the disputed psychological treatment plan is reasonable and necessary.
COMPLIANCE WITH SECTION 38
11While I have found the balance of the disputed psychological treatment plan is not reasonable and necessary, I must address whether the response to it was compliant with section 38 of the Schedule. Amongst other things, section 38(8) obliges the respondent to reply to a treatment plan within 10 business days and to provide the medical and all other reasons when denying funding for treatment. If it failed to discharge this obligation, then, pursuant to section 38(11)2, the respondent is liable to pay for the services incurred starting on the 11th business day after receipt and ending on the day it provides a compliant notice.
12The applicant submits the response to the treatment plan was delivered late and was overly generic. The respondent disagrees.
13The respondent concedes the response to the disputed treatment plan was late, specifically that it was delivered on August 16, 2017, which would only entitle to the applicant to treatment incurred between August 8, 2017, the 11th business day, and August 16, 2017. It also submits, in the event the August 16, 2017 notice is deficient, the notice dated October 24, 2017, which included a copy of the respondent’s insurer’s examination report, is sufficient and there is no evidence the applicant incurred the treatment during the period of non-compliance. The applicant made reply submissions, however chose not to address this point.
14I find the notice dated August 16, 2017 is not compliant with section 38 as it failed to provide adequate medical reasons to deny the balance of the disputed treatment plan. The medical reason offered is “the frequency of care does not generally diminish over time”. This reason is inadequate in that it fails to address the applicant’s injuries or impairments in any way.
15I find the respondent’s notice dated October 24, 2017 is the first notice which is compliant with section 38(8). It clearly outlines the goods and services for which the respondent agrees and does not agree to pay for, and it included the insurer’s examination report which outlines the medical basis for the decision.
WHAT’S PAYABLE?
16Despite finding the applicant is entitled to the goods and services incurred during the period of non-compliance, I am unable to determine whether the applicant consumed any goods and services during this time. As a result, I am unable order the respondent to pay for any specific goods and services.
17Pursuant to section 38(11)2, the respondent is liable to pay for the goods and services listed in the disputed treatment plan which were incurred between the 11th business day and October 24, 2017, when a compliant refusal was provided. The respondent noted the applicant lacked any evidence of goods and services incurred during the period of non-compliance. The applicant chose not to make any reply submissions on this issue. Considering the lack of evidence and submissions on the issue, I am unable to determine whether the applicant is entitled to any specific goods or services.
CONCLUSION AND ORDER
18Upon review of the submissions and evidence before me, I find the unapproved balance of the psychological treatment plan is not reasonable and necessary.
19Pursuant to section 38(11)2, the applicant is entitled to the goods and services listed in the psychological treatment plan which were incurred during the period between August 8, and October 24, 2017, plus interest pursuant to section 51 of the Schedule.
Released: February 7, 2020
Brian Norris
Adjudicator