D.L. v. Aviva General Insurance Company, 2021 CanLII 19482

Citation: D.L. v. Aviva General Insurance Company, 2021 ONLAT 19-000651/AABS

Released Date: 02/18/2021

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:

D.L.

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Daniella Libio da Silva, Paralegal

For the Respondent:

Danielle N. Wilkinson, Counsel

HEARD:

Via Written Submissions

OVERVIEW

1The applicant was involved in an automobile accident on October 15, 2016, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The parties agree that the applicant is not subject to treatment within the Minor Injury Guideline as a result of his pre-existing impairments that were exacerbated by the accident.

2In its submissions, Aviva agreed to fund the issues identified below as (i), (ii) and (iii), however, it asserts that these issues require determination with respect only to the amounts proposed in excess of the maximum hourly rate in Superintendent’s Guideline No. 03/14. Issues (iv), (v) and (vi) remain in dispute for this written hearing.

ISSUES IN DISPUTE

3Accordingly, the issues in dispute are as follows:

(i) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,250.00 for services consisting of massage, adjustments, modalities, acupuncture, IFC and exercises, recommended by Pain Rehabilitation Clinic Inc. in a treatment plan (OCF-18) submitted on January 19, 2017, and denied on January 24, 2017?

(ii) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,600.00 for services consisting of massage, adjustments, modalities, acupuncture, IFC and exercises recommended by Pain Rehabilitation Clinic Inc. in a treatment plan (OCF-18) submitted on April 20, 2017, and denied on April 27, 2017?

(iii) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,600.00 for services consisting of massage, adjustments, modalities, acupuncture, IFC and exercises recommended by Pain Rehabilitation Clinic Inc. in a treatment plan (OCF-18) submitted on December 15, 2017, and denied on December 18, 2017?

(iv) Is the applicant entitled to the costs of an examination in the amount of $2,350.00 for a social work assessment recommended by Pain Rehabilitation Clinic Inc. in a treatment plan (OCF-18) submitted on June 13, 2017 and denied on June 21, 2017?

(v) Is the applicant entitled to the cost of an expense in the amount of $200.00 for the completion of a disability certificate by Pain Rehabilitation Clinic Inc. submitted on June 15, 2017 and denied on July 12, 2017?

(vi) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant is entitled to payment for the treatment provided in each of the treatment plans in dispute as follows: (i) OCF-18 dated January 19, 2017: $789.67; (ii) OCF-18 dated April 20, 2017: $1,596.00; and (iii) OCF-18 dated December 15, 2017: $1,596.00, plus HST and the cost of form completion. Interest is payable on any overdue benefits pursuant to s. 51.

5The applicant is not entitled to the remaining benefits in dispute as he has not demonstrated that they are reasonable and necessary or incurred.

ANALYSIS

Issues (i), (ii) and (iii) - Maximum hourly rate in Guideline No. 03/14

6Aviva has agreed to fund these treatment plans subject to direction with respect to the amounts proposed in excess of the maximum hourly rate in Superintendent’s Guideline No. 03/14.

7The three OCF-18’s in dispute at issues (i), (ii) and (iii) all relate to physical treatment. All of the OCF-18s propose one hour of treatment to be completed at a rate of $150.00 per hour. The OCF-18s purport that the applicant is treated “by session” and not by hour through interdisciplinary care, comprising of a combination of massage, chiropractic, acupuncture, physical therapy, and active rehabilitation. While Aviva has agreed to fund treatment, its position is based on the fact that though only Dr. Bui is formally listed as a treatment provider in the OCF-18s, the treatment plans indicate that practitioners involved with the applicant’s treatment could include a list of six various providers. Aviva submits that the treatment plans list no further detail, such as how long each session would be, how often the applicant would receive each component of the “interdisciplinary” care or for how long.

8As Aviva notes, Superintendent’s Guideline No. 03/14 provides the maximum hourly rate for various healthcare providers. The maximum rate for a Chiropractor is $112.81 for services rendered to non-catastrophically impaired patients. Even though the treatment plans in dispute suggest that services will be rendered by other professions such as physiotherapists (with a maximum rate of $99.75) and massage therapists (with a maximum rate of $58.19), the cost of the services are still noted to be $150.00 per hour.

9To this end, Aviva argues that it is impossible for it (or the Tribunal) to determine if the treatment plan is reasonable and necessary given that there is no breakdown of the services to be rendered, at what frequency or at what rate. Further, it submits that “no party can determine how long the sessions will be, what they will be comprised of, how often the applicant would receive each services and who would provide them. Not even the applicant is able to determine if his own medical and rehabilitation limits are being appropriately used with respect to these treatment plans. The applicant cannot say if he is actually receiving $150.00 of services as billed in accordance with the Guideline.” Finally, Aviva submits that without these crucial details, the Tribunal does not know precisely what treatments it is adjudicating on, making the treatment costs proposed non-compliant with the Guideline.²

10In response, the applicant contends that he cannot speak to the amounts proposed allegedly exceeding the maximum hourly rate as defined by Superintendent's Guideline No. 03/14, however, he submits that the treatment he receives is multi-disciplinary; that the $150.00 per session is not based upon a strict hourly rate per service provider per se; that his sessions could easily exceed one hour in duration; that if the clinic were to independently bill for each service separately “it is likely that the costs would be significantly higher”; and that there is nothing in the Guideline that prohibits billing for multi-disciplinary services or that this type of billing is non-compliant.

11I agree with Aviva. First, it is the applicant’s burden to prove that the costs of the services he is claiming are reasonable and necessary under the Schedule, so I do not find his submission that he cannot speak to the proposed rates, that his treatment is multi-disciplinary in nature or that the $150.00 per session rate is not based on an hourly rate per se, to be particularly helpful. Second, his submissions that treatment “could easily exceed” the proposed durations and that independent billing “would likely be higher” are entirely speculative and, again, unhelpful to the Tribunal. Even if four providers are providing 15 minutes of treatment each, there is no calculation that would result in a total rate greater than $150.00 per hour if each of the providers listed billed at ¼ of an hour each. Even if Dr. Bui was the sole provider for one hour, his rate, being the highest amongst those listed at $112.81, is still well short of the total proposed. Third, while the Guideline does not speak to multi-disciplinary service billing, it does speak to the maximum hourly rates that are applicable.

12In this vein, I agree with Aviva that pursuant to s. 15(2)(b) of the Schedule, insurers are not required to pay for expenses that exceed the maximum hourly rates set out in the Guideline. The additional comments of the OCF-18s indicate that the clinic treats patients by “session” and not by “hour” and the $150.00 rate accounts for the “nature of care rendered to each patient.” The manner in which the clinic has proposed services is a disservice to the applicant and the fact that its patient management software causes reporting issues is not Aviva’s problem. Without more information, it suggests a veiled attempt to secure a higher provider rate. Treatment plans should be assistive. They should clearly articulate the service provided and identify the provider and the appropriate rate. The insurer and the Tribunal should not be forced to parse through SOAP notes or treatment records in order to guess the applicable rate, as the applicant’s submissions suggest. This is the clinic’s job. This is the applicant’s burden.

13However, as noted, Aviva has agreed to fund the treatment, which leads me to believe that it agrees that the treatment proposed is reasonable and necessary for each of the OCF-18s, subject to the appropriate Guideline rate. Without more information, I am left to consider each document on its face. While Dr. Bui is the “A” provider for each, he is only the signing provider for the first OCF-18. Given that the applicant and the clinic assert that the treatment is truly multi-disciplinary, I find it would not be reasonable to only use the “A” provider in the calculation, as it is the highest rate under the Guideline and, in any event, the rate proposed next to the “A” provider is still non-compliant at $150.00 per hour. So, as Dr. Bui, a chiropractor, is the signing provider on the first treatment plan, I find it reasonable to assume that chiropractic treatment was the dominant modality and that the appropriate rate under the Guideline is $112.81 per hour ($1 more than listed in the OCF-18), as the applicant is not catastrophically impaired. As Dr. Bajwa and Dr. Rastogi, both physiotherapists, are the signing providers on the latter OCF-18s, I find it reasonable to assume that physiotherapy was the dominant modality for the other OCF-18s and that the appropriate rate under the Guideline is therefore $99.75 per hour.

14Accordingly, without consideration for HST or the OCF fees identified in each OCF-18 that would be in addition to the below, I find the applicant is entitled to payment for the treatment provided in each of the treatment plans in dispute as follows: (i) OCF-18 dated January 19, 2017: $789.67 (being 7 hours at $112.81); (ii) OCF-18 dated April 20, 2017: $1,596.00 (being 16 hours at $99.75); and (iii) OCF-18 dated December 15, 2017: $1,596.00 (being 16 hours at $99.75). Interest is payable on any overdue benefits incurred pursuant to s. 51.

Issue (iv) – Social Work Assessment

15Here, the applicant seeks payment for a social work assessment in the amount of $2,350.00, as recommended again by Dr. Bui. The goals of the assessment are noted to be pain reduction, increased range of motion and to determine whether the applicant requires psycho-social intervention, as it indicates he is struggling with a return to work. Aviva denied the benefit on the basis that Dr. Bui is not qualified to make a recommendation for a social work assessment and following a s. 44 report dated August 23, 2017 by Dr. El-Hage, who found the applicant did not meet the diagnostic threshold for a DSM-V psychological diagnosis.

16The applicant must demonstrate that the treatment plan is reasonable and necessary on a balance of probabilities. He submits that Dr. Bui was qualified to provide the application for assessment and was not proposing a treatment but rather was proposing an assessment, so that a qualified and regulated professional could make the determination as to his needs. The applicant submits that without the assessment the goals could not be achieved because he would not be able to receive treatment. To this end, the applicant submits that the assessment is necessary to determine if he needs treatment, the nature of treatment required and for the provision of funding. Finally, the applicant argues that there would be no opportunity for a psychological diagnosis without an assessment making such a diagnosis and by failing to provide for an assessment, Aviva is actively preventing a possibly pertinent diagnosis. He submits the assessment is reasonable and necessary in order to, at the very least, temporarily relieve his pain and assist his psychological recovery.

17While I am alive to the applicant’s submissions, I find he has not met his burden to demonstrate why a social work assessment is reasonable and necessary. It is unclear from the OCF-18 how a social work assessment would meet the stated goals of pain reduction, increased range of motion and to determine whether the applicant requires psycho-social intervention. I struggle to understand how a social work assessment is appropriate to address pain or range of motion issues, and especially so where the recommending provider is the practitioner responsible for these impairments. Further, where Dr. El-Hage did not make a psychological diagnosis and the applicant has never been diagnosed with a psychological impairment by one of his own treating practitioners or been referred for same by his treating physician, I find it difficult to reconcile the alleged need for psycho-social intervention. In any case, there does not appear to be a psychological element to the OCF-18 at all, despite the applicant’s submissions and the alleged impairments listed in Part 6.

18Accordingly, I see no reason to interfere with Aviva’s denial that this type of assessment does not appear to be consistent with the applicant’s diagnosis and that there is no compelling medical evidence to indicate that a social worker assessment is required as a result of injuries sustained in the October 2016 accident. The applicant is not entitled to payment for the assessment plan as he has not demonstrated that it is reasonable and necessary or incurred.

Issue (v) – Cost of the OCF-3

19Finally, the applicant seeks a $200.00 payment for an OCF-3 Disability Certificate dated June 13, 2017, completed by Dr. Bui. The applicant’s submissions on this issue amount to the following: “that he is entitled to the cost and the completion of an OCF- 3 assessment. Candidly, if any of the other above-noted issues are answered in the positive, then this one follows automatically, as the Disability Certificate is the empowering tool for the treatment and assessment plans.”

20In response, Aviva submits that Pain Rehabilitation Clinic Inc. completed six OCF-3 Disability Certificates between October 10, 2016 and May 22, 2019. It asserts that the OCF-3 in dispute was the second OCF-3 to be completed and that notwithstanding that the applicant had returned to work eight months prior to the completion of this OCF-3, the OCF-3 indicates that the applicant could not return to work on modified hours and duties under Part 6. Aviva submits that it funded the reasonable costs of the first OCF-3 dated October 26. 2016, but did not request the OCF-3 in dispute and refused to fund it.

21I agree with Aviva. Sections 36 and 37 of the Schedule provide parameters on when an OCF-3 is appropriate and payable. Generally, a change of circumstances, a decline in the applicant’s condition or a determination of continuing entitlement to a specified benefit typically warrant the submission of a new OCF-3. I agree that six OCF-3s from the same clinic in a three-year span is excessive where the applicant has not pointed to any change in circumstance or a decline between the submission of the first OCF-3 dated October 26, 2016 and the submission of the OCF-3 in dispute.

22Further, neither the applicant, nor the clinic provided particulars to support why it was necessary to provide an updated OCF-3, nor is there any indication that Aviva requested an updated OCF-3 under s. 37(1). Further, as Aviva submits, where the OCF-3 “states that the applicant was not able to return to work when he had been working full hours and duties for the previous eight months”, I agree it is difficult to find that it was reasonable and necessary to support a specified benefit like an income replacement benefit. Accordingly, the applicant has not demonstrated that payment for the OCF-3 is reasonable and necessary.

ORDER

23The applicant is entitled to payment for the treatment provided in each of the treatment plans in dispute as follows: (i) OCF-18 dated January 19, 2017: $789.67; (ii) OCF-18 dated April 20, 2017: $1,596.00; and (iii) OCF-18 dated December 15, 2017: $1,596.00, plus HST and the cost of form completion. Interest is payable on any overdue benefits pursuant to s. 51.

24The applicant is not entitled to the remaining benefits in dispute as he has not demonstrated that they are reasonable and necessary or incurred.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2See, 17-003500/AABS, 2018 CanLII 27841 (ON LAT).