Citation: Wang v. Jevco Insurance, 2022 ONLAT 20-010582/AABS

Licence Appeal Tribunal File Number: 20-010582/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:

Wei Yu Wang

Applicant

and

Jevco Insurance

Respondent

DECISION

ADJUDICATOR:

Deborah Neilson

APPEARANCES:

For the Applicant:

Wei Yu Wang, Applicant

Yu Jiang, Paralegal

For the Respondent:

Christine Haddad, Counsel

HEARD: In Writing

By Way of Written Submissions

1The applicant was involved in an automobile accident on December 20, 2018 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”).

2The applicant claims entitlement to income replacement benefits (“IRBs”), psychotherapy, and the cost of an attendant care assessment. The parties disagree on what injuries the applicant sustained in the accident. The applicant submitted that he suffered fractured ribs. The respondent submitted the applicant fractured his ribs a month before the accident. The parties also disagreed on the counselling time and hourly rate payable for psychotherapy and the amount of time required to prepare an OCF-18 treatment plan.

3I find that the applicant is not entitled to the IRBs, the psychological counselling in dispute, nor the cost for preparation of the treatment plans as claimed.

ISSUES

4The issues I must determine are as follows:

Is the applicant entitled to an income replacement benefit in the weekly amount of $400 from January 22, 2020 to date denied January 21, 2020?
Is the applicant entitled to the following medical benefits for psychological services at Somatic Assessments and Treatment Clinic recommended by Bruce Cook, psychological associate, as follows:¹

(a) $2,694.62 ($4,630.72 less $1,936.10 approved) in a treatment plan dated and submitted April 10, 2019 and denied July 4, 2019?

(b) $1,097.73 ($4,121.88 less $3,024.15 approved) in a treatment plan dated and submitted August 23, 2019 and denied August 29, 2019?

(c) $1,745.38 ($4,121.88 less $2,376.50 approved) in a treatment plan dated and submitted December 6, 2019 and denied² December 19, 2019?

(d) $1,517.73 ($4,121.88 less $2,604.15 approved) in a treatment plan dated and submitted March 13, 2020 and denied March 24, 2020?³

Is the applicant entitled to $50.39 ($2,600.00 less $2,549.61 approved) for a document fee for a psychological assessment, recommended by Bruce Cook of Somatic Assessments and Treatment Clinic⁴ in a treatment plan submitted March 3, 2019 and denied March 12, 2019?
Is the applicant entitled to $230.75 for an in home assessment, ⁵recommended by Raymond Wong, occupational therapist of Somatic Assessments and Treatment Clinic, in a treatment plan submitted February 22, 2019 and denied February 25, 2019?⁶
Is the applicant entitled to interest on any overdue payment of benefits?

ANALYSIS

5To determine the applicant’s entitlement to the benefits claimed, I must first determine what injuries the accident caused. Accordingly, I must determine the following:

a. What injuries did the applicant sustain in the accident?

b. Is the applicant entitled to income replacement benefits?

c. Is the applicant entitled to psychological treatment?

d. Is the applicant entitled to cost of examinations?

A. Accident Injuries

6The applicant submitted that he sustained severe physical and psychological injuries as a result of the accident, but did not submit what his physical injuries were. His chiropractor, Georgia Palantzas, diagnosed him with rib fractures and soft tissue injuries to the applicant’s lumbar spine, neck, shoulder, and radiculopathy in addition to headaches and numerous emotional injuries as a result of the accident.⁷

7The respondent denies the accident caused the rib fractures as the applicant had already fractured them a month before this accident. The respondent submitted that it is telling the applicant went to the hospital two days after the first set of rib fractures but did not have to seek any treatment for a month after the accident.

8On November 15, 2018, approximately one month before accident, the applicant attended Scarborough General Hospital. The ER record states, “to ER from home; two days ago, patient fell off a three step ladder, landing on right side, drove self to a walk-in clinic, and was told fracture ribs, and to go to ER.” Imaging done at the hospital on November 15, 2018 showed right sided rib fractures with likely small effusion.⁸ The applicant’s past medical history is also significant for moderate degenerative disc disease of the cervical spine and mild degenerative disc disease for the lumbar spine.

9The applicant did not seek any medical attention until almost a month after the accident on January 23, 2019. He saw his family doctor, Dr Benny Chan, on that day with complaints of neck pain at the levels of 3 to 4 out of 10 on the pain scale with no radiating pain, right posterior rib pain with movement and deep breathing (no pain level was indicated), low back pain into the right buttock but not the hips at a pain level of 7 out of 10. ⁹ Two days later he saw Dr. Georgia Palantzas, chiropractor, with additional complaints of shoulder pain and mid-back pain. Notably Dr. Chan recorded that the applicant had no arm or shoulder joint pain on January 23, 2019. Dr. Palantzas did not identify which shoulder or if it was both shoulders. ¹⁰ However, Dr. Urovitz, an orthopaedic specialist who conducted an insurance examination under s.44 of the Schedule (“IE”) at the respondent’s request on November 21, 2019, diagnosed the applicant with soft tissue injuries to his cervical spine, right shoulder girdle and dorsolumbar spine.¹¹

10Dr. Chan ordered x-rays, which were taken on January 23, 2019. The x-ray of the applicant’s ribs showed degenerative disc disease (“DDD”) of the applicant’s cervical spine at C5-6 with moderate narrowing of the neural foramen, mild multilevel DDD of the lumbar spine. I agree with the respondent that, absent persuasive medical evidence linking this to the motor vehicle accident, the DDD was unlikely to be caused by the accident.

11The x-rays also showed fractures along the posterior aspect of the right seventh, eighth and ninth ribs with mild callus formation and minimal displacement at the fracture sites.¹² Callus formation is the bony and cartilaginous material forming a connecting bridge across a bone fracture during repair. No comparison was done with the x-rays taken on November 15, 2018.

12The applicant apparently did not tell Dr. Palantzas of his pre-accident rib fractures. Nor did he tell his psychological associate, Bruce Cook, or the respondent’s assessors of his pre-accident rib fractures. The applicant did not provide the respondent with his pay slip for the period from November 12 to November 26, 2018. It was during that time that he sustained the fall and the fracture to his ribs. Despite this omission, I find that the applicant suffered fractured ribs as a result of the accident for the following reason.

13Dr. Urovitz diagnosed the applicant with fractured ribs. He had the 2018 x-ray report. The report was contained in Dr. Chan’s records. According to the document list in his report, Dr. Urovitz had a copy of Dr. Chan’s records. I find that Dr. Urovitz reviewed the 2018 x-ray report because he reported that he reviewed all the documents listed in his report. It is problematic that he stated that to the best of his knowledge the applicant did not have any pre-existing conditions. However, I find that because Dr. Urovitz reported that he reviewed all of the documents, he must have had knowledge of the x-ray report. Further, if there was any question, I would have expected the respondent to follow up with Dr. Urovitz. However, there was no evidence that he received the 2018 x-ray afterwards or was asked about the 2018 x-rays after his December 2019 report was released. For these reasons I find that Dr. Urovitz’s opinion that the applicant suffered fractures of the right 7th, 8th and 9th ribs from the motor vehicle accident was made with full knowledge of the November 2018 rib fractures. Therefore, although the applicant may have fractured some ribs a month before the accident, some of the injuries he sustained in the accident were fractures of the right 7th, 8th and 9th ribs.

14In April 2019, the applicant started seeing Bruce Cook, a psychological associate, for a November 25, 2018 accident.¹³ It is not clear if Mr. Cook was referring to the applicant’s November 15, 2018 fall off the step ladder when he reported that the applicant was in an accident on November 25, 2018. This is because Mr. Cook also recorded a date of loss of “December 20, 2018” at the start of his report. Mr. Cook recorded that the applicant reported an unremarkable “pre-MVA” history.” “MVA” is an acronym for “motor vehicle accident.” Accordingly, I find that Mr. Cook erred in his dates for the incident and that the applicant failed to tell him of the fall off the step ladder and the broken ribs he suffered as a result.

15There is no dispute that the applicant sustained a psychological injury as a result of the accident. Mr. Cook diagnosed the applicant with Major Depressive Episode, Single Episode, severe, and Adjustment Disorder with Anxiety. ¹⁴ The applicant was seen by Dr. Shahriar Moshiri, psychologist, on November 15, 2019 for an IE at the respondent’s request. Dr. Moshiri diagnosed the applicant with an Adjustment Disorder with mixed anxiety and depressed mood, Specific (isolated) Phobias, vehicular – 300.29; Insomnia Disorder, persistent, with other sleep disorders.¹⁵ On May 6, 2020, the applicant was diagnosed with Depressive Disorder and Post-Traumatic Stress Disorder (“PTSD”) by his psychiatrist, Dr. Hung-Tat Lo.¹⁶

16Accordingly, I find that the applicant sustained soft tissue injuries to his lumbar spine and neck, fractured ribs, and a psychological injury.

B. Income Replacement Benefits

17The Schedule establishes two distinct legal tests for determining IRB entitlement based on different time periods. The first time period is the first 104 weeks of disability. The Schedule is silent on when the disability starts. Under s. 5(1) of the Schedule, entitlement to IRBs for the first 104 weeks of disability is based on an insured person being employed at the time of the accident¹⁷ and suffering a substantial inability to perform the essential tasks of their pre-accident employment as a result of the accident. To continue being entitled to IRBs after 104 weeks of disability, s. 6(1) of the Schedule states the insured person must suffer a complete inability to engage in any employment or self-employment for which they are reasonably suited, based on their education, training, and experience.

18To determine whether the applicant is entitled to IRBs, I must determine his entitlement under the two separate tests for the following periods:

a. The substantial inability test for the first 104 weeks of disability; and

b. The complete inability test for the post-104 week period.

1. SUBSTANTIAL INABILITY

19The applicant was 60 years old at the time of the accident and was employed as a manager of a cleaning company. The applicant submitted that his essential job duties involved long periods of standing, sitting, and upper body co-ordination, as well as concentration and focus. The last date worked is listed as December 20, 2018.¹⁸ The respondent paid IRBs from the onset of the claim until January 22, 2020.

20Based on the evidence filed by both parties, I find that the essential tasks of the applicant’s employment at the time of the accident were as follows:

a. Scheduling cleaning staff for various facilities and other administrative functions at a desk four to six hours per day;

b. Approximately two to four hours per day cleaning tasks on night shift cleaning of the mall¹⁹ including sweeping, mopping, vacuuming, and garbage disposal; and

c. Lifting/carrying vacuum, garbage bags and cleaning supplies weighing up to 25 lbs.²⁰

21The applicant did not see Dr. Chan again after his January 23, 2019 visit until February 26, 2020. At that time, he had complaints of sleep problems, right rib/chest wall pain, tight neck and back, nightmares, driving phobia, irritability and difficulty coping with work.²¹

22Mr. Cook prepared a number of progress reports. However, they are not very helpful in determining whether the applicant continued to have a substantial inability to engage in the essential tasks of his pre-accident occupation as all of them, but one, were written during the period of time the applicant was receiving IRBs.

23The applicant was seen by Dr. Moshiri on November 15, 2019 for a second IE at the respondent’s request.²² Dr. Moshiri diagnosed the applicant with an Adjustment Disorder with mixed anxiety and depressed mood, Specific (isolated) Phobias, vehicular – 300.29; Insomnia Disorder, persistent, with other sleep disorders. The applicant reported to Dr. Moshiri that he felt psychologically capable of returning to work. This is consistent with Dr. Moshiri’s opinion that, psychologically, the applicant could resume his pre-accident employment with no restrictions.

24The applicant reported to Dr. Moshiri in November 2019 that he was 70% improved physically and 80% improved psychologically. Dr. Moshiri noted that the applicant still had impairments. However, the applicant’s report of an 80% improvement in his psychological status is consistent with the psychological improvement reported by Mr. Cook in his last treatment plan.

25The applicant submitted that he reported persistent pain at his neck, shoulders, right arm, and right ribcage; as well as ongoing difficulties with sleep, mood swings, anxiety, and cognitive ability and relies on a number of invoices in the Somatic Assessments & Treatment Clinic Inc. (“Somatic”) records at pp.138 to 147 of his submissions as supporting evidence. However, there is no record of the applicant’s complaints in the invoices. The only other documents contained in Somatic’s records after IRBs were terminated are Mr. Cook’s treatment plan dated March 13, 2020 and Mr. Cook’s February 28, 2020 report. Of note is that there are no clinical notes contained in the records.

26Mr. Cook reported on his March 13, 2020 treatment plan that the applicant’s depressive episode was moderate, which was an improvement from his initial diagnosis of severe depressive episode. Mr. Cook did not know if the applicant’s impairments affected his ability to carry out his tasks of employment. The goal of the treatment plan was to return the applicant to his activities of normal living. There was no goal of returning him to his pre-accident work activities. Mr. Cook reported that the applicant was still experiencing pain in his neck, shoulders, right arm, and right rib cage with the rib cage as the most severe. He also reported that the applicant had limitations in being able to do his cleaning chores due to his rib cage pain as it took him most of the day to what used to take him two hours to do. He also reported anxiety, depression and decreased memory and concentration. Despite these complaints, Mr. Cook was unable to determine if they affected the applicant’s ability to work. Accordingly, the Somatic records do not assist the applicant.

27Dr. Lo, the applicant’s psychiatrist, recommended a number of different medications, but if the applicant tried them, he only took them for a short time and eventually advised Dr. Lo that he preferred not being on medication. By November 30, 2020, Dr. Lo recorded that the applicant was mildly depressed. Again, this was an improvement from his moderate depression in March 2020.

28Although the applicant complained to his psychotherapist of memory issues, throughout his treatment of the applicant, Dr. Lo reported that the applicant’s cognition was grossly intact.²³ Accordingly, there is no support for the applicant’s submission that the applicant’s psychological injuries affected his ability to work.

29Dr. Lo’s report is consistent with Dr. Moshiri’s opinion, and the apparent improvement based on Mr. Cook’s last treatment plan. Therefore, despite the applicant’s psychological complaints to Dr. Chan and his worry about work in February 2020, I accept Dr. Moshiri’s opinion and find that the applicant’s psychological impairments did not cause a substantial inability for him to perform the essential tasks of his pre-accident employment after January 22, 2020.

30Turning to the applicant’s soft tissue injuries, on December 13, 2019, the applicant underwent a functional capacity assessment administered by Dennis Polygenis, physiotherapist, at the respondent’s request. At that time, the applicant’s only pain complaints were intermittent neck and low back pain, both rated at 5 out of 10 on the pain scale. Mr. Polygenis reported that the applicant’s results were overall valid. The applicant displayed no deficits in his strength levels required by his work. He demonstrated the functional ability classified at the Medium to Heavy Physical Demand Characteristic (PDC). Mr. Polygenis determined the applicant substantially satisfied the essential load and frequency requirements of his pre-accident vocation.²⁴

31Dr. Urovitz found no objective signs of accident related impairment. He found no functional or physical limitations, despite the applicant still having some pain complaints. Further, he found that the applicant’s ribs had healed. I also note that x-rays of the applicant’s right ribs taken in February 2020 confirmed that the fractures had healed ²⁵and no further treatment with respect to his ribs was recommended. Since the applicant was no longer complaining of shoulder pain when he saw Dr. Urovitz, I find that the soft tissue injury to the applicant’s his right shoulder had also resolved by November 2019.

32I accept that the applicant continued to have some pain complaints after his IRBs were terminated as set out in Mr. Cook’s report. However, the applicant did not complain of rib pain to Mr. Polygenis in December 2019, and he told Dr. Urovitz his rib pain was 5 to 6 out of 10 with activity, and that he had no rib pain at rest. He told Dr. Chan on February 26, 2020 that his pain was not severe. This is opposite to Mr. Cook’s December 6, 2018 report of increased pain in his right rib cage if the applicant sat for a long time.²⁶ He told Dr. Chan on February 26, 2020 that his pain was not severe.²⁷

33The applicant relies on a Financial Services Commission of Ontario (“FSCO”) decision, Burgess v Pembridge, FSCO A11-001160, June 14, 2013, that dealt with an accident under a previous version of the Schedule. In that case, the Arbitrator held that it is not simply a question of whether an insured person is unable to engage in employment, but that the applicant must be able to engage in employment in a competitive, real-world setting, taking into account employer demands for reasonable hours and productivity. Ms. Burgess returned to work. However, the Arbitrator accepted that the medical evidence demonstrated that Ms. Burgess had ongoing functional problems with respect to her ability to work because of her head injury and pain complaints.

34I am not bound by FSCO decisions. Even if I were, I do not find that Burgess v Pembridge assists the applicant as his situation is distinguishable. The applicant has not provided medical evidence that his cognitive functions have been affected by his accident injuries or that his pain complaints prevent him from engaging in the essential tasks of his pre-accident occupation. Just because a person has pain complaints does not mean that they have a substantial inability to perform the essential tasks of their occupation. The applicant advised Mr. Cook that he has difficulty doing the cleaning in his own house due to rib pain. However, there is no record of the extent of his difficulty, other than it took him longer to clean. The applicant has presented no evidence to counter that of Mr. Polygenis and Dr. Urovitz. The information Mr. Cook provided is not consistent with what the applicant told Dr. Urovitz and Dr. Moshiri. He told them that he had no rib pain at rest, whereas Mr. Cook reported that he had increased rib pain with sitting. The applicant’s reports to Mr. Cook about his pain complaints do not assist him because Mr. Cook would not comment on whether it interfered with his ability to work.

35The respondent submitted that the applicant has not provided any medical evidence stating that he is unable to return to work. None of the medical evidence the applicant relied on specifically commented on the applicant’s ability to return to work. The respondent relied on Lin v Aviva Insurance Canada, 2020 CanLII 98736 (ON LAT) (Lin v Aviva). I do not agree with the respondent that Lin v. Aviva stands for the proposition that an insured person is only able to satisfy their onus by presenting medical evidence stating he is unable to work. In Lin v. Aviva, the Adjudicator determined that the medical evidence the applicant relied on recorded pain complaints and psychological symptoms. However, there was no evidence before the Adjudicator that the pain complaints and psychological symptoms prevented the applicant from working. Such evidence is not necessarily only available by a statement from a health professional that an insured cannot work. It may present in the reported functional capacity of an insured compared to the essential tasks of the insured’s employment, by evidence of the insured’s attempts to work and the reasons for an inability to do so, or a combination of all of these with the medical evidence of the injuries sustained. In Lin v. Aviva, the applicant presented none of that evidence or combination of evidence.

36This case is similar to Lin v Aviva because the applicant has provided no other evidence to corroborate his subjective complaints such as a functional capacity assessment or a record of his attempts to work that support a finding on a balance of probabilities that the applicant continued to sustain a substantial inability to engage in the essential tasks of his pre-accident occupation after January 21, 2020. The evidence supports the opposite determination. Accordingly, the applicant’s claim for income replacement benefits is dismissed.

2. COMPLETE INABILITY

37As I have determined that the applicant has failed to prove on a balance of probabilities that he was entitled to IRBs beyond January 22, 2020, I need not determine whether, as a result of the accident, he sustained a complete inability to engage in any occupation for which he is reasonably suited by training, education and experience. In any event, if I am wrong, I find that the applicant would not be entitled to any IRBs beyond December 14, 2020 because of an intervening event.

38The applicant was diagnosed with a head injury on December 14, 2020 when he was struck by a mirror on a car. He fractured the right inferior orbital foramen and dislocated his right ocular lens.²⁸ He underwent surgery to the orbital fracture requiring bone grafting harvested from his maxilla on December 31, 2020.

39The applicant next saw Dr. Chan on January 19, 2021, at which time the applicant was asking for a health note to attend school. He had no musculoskeletal complaints.²⁹ Dr. Chan also recorded a January 20, 2021 note that appears to be a phone appointment. No psychological complaints were recorded by Dr. Chan.

40The respondent relied on an activities of daily living form (“ADL form”) prepared by the applicant dated March 17, 2021 that was prepared for his December 14, 2020 accident. I find that the accident year of 2022 on the form is an error and was supposed to be December 14, 2020. The correct date is set out in the cover letter that accompanied the ADL form as confirmed by the fax information on the documents. The applicant stated in his ADL form that he was able to do all of the activities listed in the form without any assistance prior to the December 14, 2020 accident. This is the applicant’s evidence of his own functional abilities demonstrates that he could engage in cleaning and cognitive activities similar to what he engaged in before the accident. For these reasons, I find that by December 14, 2020, the applicant did not meet the test for post-104 week IRBs and, therefore, he would not have met the test by December 20, 2020 as a result of the December 20, 2018 accident.

C. Psychological Treatment

41Mr. Cook prepared a number of treatment plans recommending psychological treatment at 1.5 hours per session at a cost of $149.61 per hour. He is listed as the only provider on the treatment plans and in the invoices. However, according to his progress reports, treatment was also provided by Yunshi Christy Huang, M. Psych. According to the College of Registered Psychotherapists of Ontario, she was registered as a member of the College on April 4, 2021 as a Qualifying registrant. The respondent received confirmation on December 12, 2019 that Mr Cook was providing supervisory service while Ms. Huang was the one who provided psychotherapy treatment to the applicant.³⁰

42The applicant has submitted that the respondent failed to provide a clear denial and medical reasons when it denied portions of the treatment plans in issue. contrary to s.38(8) of the Schedule. Section 38(8) of the Schedule requires an insurer to identify the goods and services described in the treatment plan that it will pay for and any that it will not pay for and provide the medical and all other reasons it will not pay for the denied services. The applicant relied on s.38(11) of the Schedule, which requires an insurer to pay for all the treatment described under the denied treatment plan that relates to the period from the 11th business day after it was submitted until the requisite denial notice is provided. He submitted that the respondent did not provide any reasons why it preferred the opinion of a psychologist who conducted an IE assessment over the opinion of the applicant’s psychological associate.

43The respondent relied on the Tribunal’s reconsideration decision of MB v Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT). In that case, the Executive Chair held that medical and other reasons require an insurer to explain its decision with reference to the insured’s medical condition and any other applicable rationale. She held that, ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.

44I agree with the applicant’s submissions on what constitutes a medical reason. The consequences to an insurer are strict if an insurer denies part or all of a treatment plan that complies with all of the requirements under s.38(3) of the Schedule but fails to provide the medical and all other reasons for denying any of the services. This is consumer protection so that an insured person can understand what is being denied and why in order to make an informed decision on whether to pursue the denied benefits through the Tribunal. Because of the strict consequences to an insurer for an improper denial, it is crucial to look first at whether the treatment plan complies with the Schedule. Section 38(3) of the Schedule requires a treatment plan to be signed by the applicant, be completed and signed by a regulated health professional and include a statement from a health practitioner that in his opinion, the goods and services and their cost described in the treatment plan are reasonable and necessary. This allows an insurer to assess the reasonableness and necessity of the treatment plan before approving or denying it. If the treatment plan does not comply with s.38(3), then s.38(11) of the Schedule does not apply if there is an improper denial.

45Christie Huang has been providing psychotherapy and Mr. Cook has been supervising without this being listed on any of the treatment plans or the invoices. The Schedule states that under s.38(3), for a treatment plan to be complete, a regulated health professional must complete and sign it, stating that the proposed services are reasonable and necessary for the insured person’s treatment and assessment. ³¹ Section 38(3) is silent on whether the name, qualifications or hourly rate of the service provider are required for a treatment plan to be complete. However, a treatment plan is a specific form, an OCF-18, that is required under the Schedule to be approved by the Chief Executive Officer.³² It sets out areas where it is mandatory the name, qualifications and hourly rate of the service provider be listed. By requiring the treatment plan to be approved by a health practitioner, I find that s.38(3) implies that the treatment plan must list who the service provider is or, at a minimum, what the provider’s qualifications are and the hourly fee they are charging. Otherwise, I do not see how the regulated health professional can sign off on the reasonableness of the proposed service. For these reasons, I do not find that any of the disputed treatment plans for psychological treatment do not comply with s.38(3) of the Schedule.³³

46If I am incorrect and a treatment plan is not required to list the name, qualifications and hourly rate of the treatment provider to be complete, I fail to see how any treatment provided by a different, less qualified treatment provider than what is described in the treatment plan can be said to qualify as the goods or services “described” in s.38(11) of the Schedule.

47The respondent approved $1,936.10 of Mr. Cook’s $4,630.72 treatment plan dated April 10, 2019, leaving $ 2,694.62 in dispute. The respondent approved only one hour of psychological treatment per session and denied the one and a half hours per session recommended by Mr. Cook. The respondent also approved only 8 out of the 16 sessions recommended. The applicant submitted that the respondent failed to provide medical reasons for those portions of the treatment plan that were denied.

48I agree with the applicant that a medical reason for paying for one hour sessions and only 8 sessions was not provided. In its July 5, 2019 letter, the respondent quoted Dr. Moshiri in giving its reason for why it would only approve of one hour sessions. Dr. Moshiri’s June 21, 2019 report was attached to the respondent’s letter. Dr. Moshiri opined that the treatment could be provided in a more reasonable amount of time. He recommended one hour sessions instead of one and a half hour sessions. The explanation given by the respondent was, therefore, specific to the applicant as it is almost a direct quote of Dr. Moshiri. However, the respondent did not refer to the applicant’s medical condition. Nor did it refer to his rationale for why only eight sessions were approved, which was that he recommended a separate driver desensitization program consisting of one to two sessions with a psychologist and six to seven sessions with a driving instructor to address the applicant’s driving phobia. I find that simply attaching a medical decision to a denial letter does not comply with the Schedule’s requirement that the medical reason be set out in the denial letter. For these reasons there was not sufficient enough information for an unsophisticated person to determine whether to accept or dispute the respondent’s decision.

49The respondent relies on the decision of Chac-Wai v The Co-Operators Insurance, 2021 CanLII 57282 (ON LAT) at para.45 to 48 and submitted that it was not required to explain why it preferred Dr. Moshiri’s opinion over Mr. Cook’s. I do not find the Chac-Wai v Co-operators decision assists the respondent as the discussion in that case about an insurer being entitled to rely on a medical opinion was in the context of a Reg.664 award. The respondent also relied on F.O. v Aviva Insurance Canada, 2021 CanLII 64247 (ON LAT) at para.52, which dealt with the same issue.

50I find that the treatment plan does not comply with s.38(3) of the Schedule because it does not list Ms. Huang as the service provider. The treatment described was supposed to last for 16 weeks and be provided by Mr. Cook. However, the applicant does not dispute that he received treatment from Ms. Huang and not Mr. Cook, given her submissions that Christie Huang should be paid at $149.61 per hour. Therefore, I find that the applicant received psychotherapy from Ms. Huang, and not psychological treatment from Mr. Cook. Somatic Assessments invoiced the respondent for Mr. Cook’s services, even though it was Ms. Huang who provided the services.

51Accordingly, s.38(11) does not apply. However, if it did, the applicant would not be entitled to the psychological treatment described in the treatment plan from April 25, 2019 less amounts already paid until a requisite denial was made because he did not receive any of the psychological treatment described in the plan.

52At the time Ms. Huang provided the therapy, she was not a registered psychotherapist. The applicant attended six, one and a half hour, treatment sessions with Ms. Huang from July 18, 2019 up to and including August 22, 2019 or during the 16 week period described in the treatment plan, after which a new treatment plan was submitted.³⁴ This treatment was not described in the treatment plan. Despite the invoices from Somatic Assessments stating that Mr. Cook provided six, one and a half hour treatment session to the applicant during the 16 week period, I find that Mr. Cook did not provide the treatment. This means that if I am wrong in finding that s.38(11) does not apply because a completed treatment plan in accordance with s.38(3) of the Schedule was not submitted, the respondent is not required by s.38(11) to pay anything further under the treatment plan until the applicant is able to prove that he received any treatment from Mr. Cook pending the requisite notice of denial,

53With respect to whether the denied portion of the treatment plan is reasonable or necessary, I find that it was not for the following reasons. The applicant submitted that the only opinion as to the appropriate length of each session is from Mr. Cook and that deference should be paid to his opinion. The respondent submitted that Mr. Cook did not provide any opinion about the length of each session. I disagree. I find that Mr. Cook’s recommendation of one and a half hours per session in the treatment plans is an opinion on an appropriate length. Mr. Cook signed each treatment plan confirming that the treatment he recommended was reasonable and necessary for the injuries listed in Part 6 of each treatment plan. However, I find that he did not provide any rationale for his opinion that the sessions should be one and a half hours long.

54The applicant submitted that cultural and language barriers required longer treatment sessions. However, there is no evidence supporting the submission. In fact, none of the treatment plans in issue recommend a translator, which is evidence that refutes the applicant’s submission.

55Not only is there no evidence justifying Mr. Cook’s opinion that the sessions should be one and a half hours long, there is also no evidence to explain why the applicant could not be treated in one hour sessions in light of Dr. Moshiri’s recommendation. I would have expected some explanation from Mr. Cook in light of the respondent’s request for an explanation for the duration of each session set out in its subsequent letters to the applicant and copied to the applicant’s counsel and Somatic Assessments.³⁵ However, I was provided with no evidence from the applicant that Dr. Moshiri was incorrect, or any submissions supported by evidence as to why his recommendation of one hour sessions was not reasonable.

56The invoices show that the applicant has been receiving one and a half hour therapy sessions from Mr. Cook.³⁶ I accept the respondent’s evidence that the invoices are incorrect because Ms. Huang has been providing the psychotherapy, not Mr. Cook. This leads me to doubt other factual points contained in the invoice, namely whether they were actually for one and a half hours. Accordingly, I find that, in the absence of any explanation for why Mr. Cook’s recommendation should be preferred over Dr. Moshiri’s, the applicant has failed to prove on the balance of probabilities that one and a half hour psychotherapy sessions are reasonable and necessary.

57Dr. Moshiri recommended only 8 of the 16 sessions recommended by Mr. Cook because he also recommended the separate driving desensitization program. I find that Dr. Moshiri’s approach was reasonable because of the applicant’s driving phobia. Given that no evidence was submitted to contradict Dr. Moshiri’s recommendation and rationale, I find that the applicant is not entitled to the remaining 8 sessions that were denied.

58The applicant submitted that because the respondent approved more than eight sessions later in 2019 and in 2020 that it should have approved all 16 the sessions recommended by Mr. Cook. I agree with the respondent that, just because it approved more sessions or approved transport costs at other times, that does not mean this particular treatment plan is reasonable and necessary.

59The respondent submitted that under the Transportation Expense Guideline,³⁷ it is only required to pay for transportation costs after the first 50 km. The applicant has not proved that he lived more than 25 kilometres from Mr. Cook’s office. Despite the Transportation Expense Guideline, the respondent agreed to approve the $30 per session transportation costs recommended in the treatment plans for the duration of four to six months as recommended by Dr. Moshiri. The transportation that was denied was for the eight other sessions that Dr. Moshiri recommended against. As I have found that the other eight sessions under the treatment plan were not reasonable or necessary, I find that the applicant is not entitled to the transportation expenses for those denied sessions.

August 23, 2019 Treatment Plan For $4,121.88

60The respondent approved $3,024.15 of Mr. Cook’s $4,121.88 treatment plan dated August 23, 2019, leaving $1,097.73 in dispute. The respondent advised that it required more information before paying for one and a half hour sessions. In the interim, it was approving one hour sessions. The applicant submitted that the letter is confusing. I agree for the following reasons. The respondent stated that it was “partially approving the following services” and then listed all of the original amounts for the services. It then stated it was approving a total of $3,024.14, but the amounts listed, when added up, exceed $3,024.14.

61The applicant also submitted that the respondent failed to provide a medical reason for only paying for one hour sessions. I agree. The applicant should not have to refer back to other letters dealing with other treatment plans to try to understand why an insurer is denying payment of a benefit. In this case, the respondent advised the applicant that with respect to the recommendation of one and a half hour sessions, it required further information with respect to the nature and type of treatment in order to consider approval of the session length. It asked the applicant to discuss this with his provider and have them submit further details “if applicable.” In the interim, the respondent advised it would pay for one hour sessions pending receipt of the requested information.

62If an insurer identifies information about an insured person’s condition that it does not have but requires, the notice will be sufficient for providing “medical and other reasons.” However, requiring information about the length of a session “if applicable” without reference to the applicant’s condition does not, in my view, satisfy the requirement for the respondent to provide medical and other reasons for denying the benefit. However, I find that the respondent was not required to comply with s.38(8) requirements for providing medical and other reasons because the treatment plan was not complete as required under s.38(3) of the Schedule. The treatment plan listed Mr. Cook as the provider, but, as with the previous two psychological treatment plans, it was Ms. Huang who provided the treatment. For the reasons already given, I find that the treatment plan was not completed in accordance with s.38(3).

63If I am wrong, the applicant is entitled to the treatment he incurred that was described in the August 23, 2019 treatment plan from September 9, 2019 up to the end of the 14 week period contemplated in the treatment plan to November 29, 2019 until the requisite notice of denial is provided under s.38(11) of the Schedule. I find that the applicant attended 11 sessions up to December 6, 2019,³⁸ after which a new treatment plan was submitted. However, he did not receive any of the psychological treatment described in the treatment plan because the 11 sessions were with Ms. Huang, not Mr. Cook. Therefore, for the same reasons as I gave for the April 10, 2019 treatment plan, the respondent is not required to pay anything further under the August 23, 2019 treatment plan.

64I find that the applicant is not entitled to the amounts denied because they are not reasonable or necessary for the same reasons he was not entitled to the amounts denied in the April 10, 2019 treatment plan.

December 6, 2019 Treatment Plan for $4,121.88

65The respondent approved $2,376.50 of the $4,121.88 for psychological services recommended by Mr. Cook in his December 6, 2019 treatment plan, leaving $1,745.38 in dispute. Mr. Cook again recommended one and a half hour sessions with himself. The respondent approved one hour sessions and asked the applicant to provide information to justify one and a half hour sessions. The respondent also advised that, because Ms. Huang was providing the services, the respondent was adjusting the hourly rate. The respondent approved the number of sessions and all the other expenses recommended by Mr. Cook.

66The applicant submitted that the respondent failed to provide the rate they used to calculate the amount and to provide the medical reasons for only approving one hour sessions.

67I agree with the respondent that when simple math is applied, based on the respondent’s advice to the applicant that it would only pay for hour long sessions, it is clear that the rate it determined was reasonable for Ms. Huang’s services was $99.75 per hour.

68I agree with the applicant that no medical reason has been provided in the denial for why the respondent will only approve of one hour sessions. However, for the reasons already given, s.38(11) does not apply because the treatment plan is not a completed treatment plan in accordance with s.38(3) of the Schedule. If s.38(11) did apply, the applicant would have been entitled to the services described in the treatment plan from December 23, 2019 until the requisite denial notice is provided. He attended eight sessions of one and a half hours each up to February 28, 2020, ³⁹ after which a new treatment plan was submitted dated March 13, 2020. As I have found that those sessions were from Ms. Huang and not with Mr. Cook as described in the treatment plan, for the reasons previously provided, the applicant did not incur any treatment described in the treatment plan.

69I find that the denied portion of the treatment plan claimed is not reasonable or necessary for the same reasons I gave for the April 10, 2019 treatment plan.

70I find that the applicant is only entitled to $99.75 per hour for Ms. Huang’s services for the following reasons. The Superintendent’s Guideline No.03/14, Professional Services Guideline (“Professional Services Guideline”) provides a rate of $58.19 per hour for unregulated psychometrists and $149.61 per hour for regulated psychological associates. Psychotherapists are regulated but are not listed in the Professional Services Guideline. The Professional Services Guideline states that the amounts payable by an insurer related to services not covered by it are to be determined by the parties involved. In this case, the parties cannot agree on an amount. The applicant submitted that the appropriate amount is $149.61 per hour whereas the respondent submitted $99.75 per hour is appropriate.

71The applicant relies on A.S. vs. Aviva Insurance Company, 2020 CanLII 12787 (ON LAT), in which the hourly fee for a psychotherapist was determined to be the same as for a psychologist. I find the case is distinguishable as the psychotherapists in that case were highly trained. There was no evidence as to whether they were required to be supervised, only that they were supervised by a psychologist as a means of ensuring that the service was efficient. Nor was there any discussion on the level of training and education a psychotherapist or the number of supervised clinic hours and/or practicum hours a psychotherapist is required to undergo before no longer requiring supervision.

72I prefer the reasoning in Jamon v. The Co-operators, 2021 CanLII 19483 (ON LAT). In that case, the Tribunal found the hourly fee of $91.43 was reasonable for a psychotherapist who did not have extensive training, experience or credentials and was not licenced to practice without supervision.⁴⁰ The respondent submitted that at the time Ms. Huang was providing treatment, she was required by the College of Registered Psychotherapists to be supervised as she did not have the experience to practice unsupervised. I have no information on her experience or training other than she was registered as a member of the College of Registered Psychotherapists of Ontario on April 4, 2021 and that she is in the process of qualifying to become an unsupervised registered psychotherapist. This implies that her hourly rate should be for an unregistered psychotherapist.

73The respondent also relies on J.A. v. Aviva Insurance Company, 2020 CanLII 12726 (ON LAT), where the Tribunal also found that a psychotherapist is not entitled to the same fee as a psychologist. The Tribunal held that services not covered by the Professional Services Guideline are subject to negotiation. The Tribunal found that by not negotiating a different rate and by proceeding to incur the treatment after it was approved at the lower amount, the insured person’s actions were tantamount to an agreement of the lesser rate. I agree with the reasoning in the decisions relied upon by the respondent as they take into account the training and experience of the psychotherapists in the hourly rate to be applied.

74For these reasons, I find the rate that the respondent has approved of $99.75 per hour is more than reasonable. I find that the applicant has not provided any evidence to established that she is entitled to any higher a rate.

March 13, 2020 Treatment Plan for $4,121.88

75The respondent approved $2,604.14 of Mr. Cook’s March 13, 2020 treatment plan for $4,121.88, leaving $1,517.73 in dispute. I agree with the applicant’s submission that it is not clear from the respondent’s denial why part of the plan was denied. The respondent again said in its March 26, 2020 letter that it would approve one hour sessions, but provided no medical reasons why. The respondent submitted that the denied portion of the treatment plan was based on the Professional Fee Services Guideline. However, no mention was made in the letter of Ms. Huang’s fees.

76The respondent submitted that, given the length of time Mr. Cook had been treating the applicant and that the treatment plan was a regurgitation of previous treatment plans, one hour should have been more than sufficient to prepare the treatment plan. I agree. However, this reasoning for approving only $149.61 of the $200.00 fee claimed for preparation of the treatment plan was not explained in the March 26, 2020 denial letter. Therefore, I find that under s.38(11) of the Schedule, this $200.00 fee is payable.

77The applicant was advised that the respondent would pay $0 of the $30.00 per session claimed for transportation expenses. While I agree with the respondent that an insurer is only required to pay for transportation expenses that exceed 50 km round trip to treatment sessions, this information was not conveyed to the applicant in the March 26, 2020 letter. Despite the lack of explanation to the applicant, I am unable to find that s.38(11) of the Schedule requires an insurer to pay expenses incurred that were described in a treatment plan that are not covered by the policy. An example of expenses not covered by the policy are expenses that are incurred for the first 50 kilometres of a trip.⁴¹ As the applicant has not proven that the $30 per session transportation fee is for transportation that exceeds the 50 kilometer deductible, I am unable to find the expense is payable under s.38(11) of the Schedule. Further, even if the respondent approved $30.00 per session for transportation on other treatment plans despite not being required to do so under the Schedule, that does not bind the respondent to do so here.

78For the reasons already provided, I find the treatment plan was not completed in accordance with s.38(3) of the Schedule. The treatment plan listed Mr. Cook as the provider at $149.61 per hour and not Ms. Huang, who actually provided the services. Therefore, the applicant is not entitled under s.38(11) to the services described in the treatment plan from March 30, 2020 until the requisite denial notice is provided. However, if he was, for the same reasons as I gave for the April 10, 2019 treatment plan, the respondent would not be required to pay for Ms. Huang’s services incurred pending a proper denial as they were not described in the treatment plan. Since the applicant did not receive any treatment from Mr. Cook and only Mr. Cook’s services were described in the treatment plan, no further expenses are payable.

D. Cost of Assessments

79The applicant claimed entitlement to $50.39 ($2,600.00 less $2,549.61 approved) for a document fee for a psychological assessment, recommended by Mr. Cook in a treatment plan submitted March 3, 2019.⁴² The respondent approved Mr. Cook’s time of one hour for preparing the treatment plan recommending the assessment at the rate of $149.61 per hour. The respondent advised the applicant that one hour was sufficient for preparing the treatment plan.

80The applicant submitted that, because the respondent approved a $200.00 fee for preparing other treatment plans that the $200,00 fee charged for the March 4, 2019 treatment plan was reasonable. I disagree for reasons already given. Where the insurer has denied the cost of an examination such as the cost of preparing a treatment plan, the burden is on the applicant to prove on a balance of probabilities that the expense is reasonable and necessary.

81Mr. Cook conducted a screening interview with the applicant in order to prepare the treatment plan. Mr. Cook did not indicate in his invoice or on the treatment plan the length of time it took him to conduct the screening interview or to prepare the treatment plan. Without evidence of how long it took Mr. Cook to prepare the treatment plan, I am unable to find that the applicant has satisfied his burden to prove on a balance of probabilities that the $200.00 fee claimed was reasonable and necessary.

82The applicant is also claiming $230.75 for an attendant care assessment, recommended by Raymond Wong, occupational therapist of Somatic Assessments and Treatment Clinic, in a treatment plan dated February 22, 2019. Mr. Wong had recommended $200.00 for the cost of preparing the treatment plan and $130.00 for planning services. The respondent approved $99.75 for preparing the treatment plan and $99.75 for planning services.⁴³

83The applicant submitted that the respondent approved $99.75 for the two services without reason or justification. In its denial letter, the respondent advised that reason for the denial was that no medical evidence was provided to indicate that more than one hour of service was required. I find that this was a reasonable explanation and qualifies as a medical and all other reasons.

84Turning to the reasonableness and necessity of the time claimed, the applicant has not provided any evidence that more than one hour was required for planning or for preparation of the treatment plan. I agree with the respondent that the fees recommended for preparation of a treatment plan in the Professional Services Guideline are the maximum payable and are not the set amount payable. I would have expected the time that Mr. Wong spent on preparing the treatment plan and on planning activities to be listed in his invoice, but it was not. Nor did his treatment plan set out the hourly fee he was charging for his services. Therefore, it is questionable whether Mr Wong was able to provide a statement that the fees were reasonable when he did not provide any indication of the hours it was going to take or the fee he was charging for any of his services.

85Accordingly, I find that the applicant has not satisfied his burden to prove that the $130.00 for planning was or the $200.00 for preparation of the treatment plan was reasonable.

E. Interest

86As I have found that the $200.00 fee claimed for preparing the March 13, 2020 Treatment Plan is payable, interest on the outstanding portion of $50.39 is payable in accordance with the Schedule.

CONCLUSION and ORDER

87The applicant has failed to prove on a balance of probabilities that he is entitled to any IRBs after January 21, 2020.

88The applicant is entitled to the outstanding portion of $50.39 for the cost of preparing the March 13, 2020 treatment plan under s.38(11) of the Schedule.

89The applicant is not entitled to the remaining psychological treatment claimed. The respondent is not required to pay for treatment described in the disputed treatment plans that was incurred pending a proper denial of the treatment plan because a completed treatment plan was never submitted. Nor did the applicant incur any of the treatment described in the disputed plans. He failed to prove on a balance of probabilities that the denied portions of the treatment plans was reasonable or necessary.

90The applicant failed to prove on a balance of probabilities that he is entitled to the costs claimed for preparing the psychological assessment treatment plan and the attendant care assessment.

91Interest is payable on the $50.39 owed for the cost of preparing the March 13, 2020 treatment plan in accordance with the Schedule.

92The remainder of the applicant’s application is dismissed.

Released: August 8, 2022