Licence Appeal Tribunal File Number: 20-013617/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:
Lobsang Tsetan
Applicant
and
Intact Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR:
Dominique Setton
APPEARANCES:
For the Applicant:
Lobsang Tsetan, Applicant Michelle Velvet, Counsel
For the Respondent:
Shirline Apiou, Counsel
HEARD: In Writing
OVERVIEW
1Tsetsan Lobsang, the applicant, was involved in an automobile accident on May 15, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2This hearing was scheduled to be heard by videoconference. The respondent submitted a Notice of Motion, to change the format because the parties resolved certain issues in dispute leaving only 4,5,6 and 8. On consent of the parties, the format was changed to a written hearing.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $767.82 ($3,336.67 less $2,568.85 approved) for psychological services, proposed by Injury Management in a treatment plan/OCF-18 dated November 30, 2018?
ii. Is the applicant entitled to $337.19 ($2,930.93 less $2,593.74 approved) for psychological services, proposed by Injury Management in a treatment plan/OCF-18 (“plan”) dated January 21, 2020?
iii. Is the applicant entitled to $1,614.76 ($2,761.87 less $1,147.11approved) for psychological services, proposed by Injury Management in a treatment plan/OCF-18 (“plan”) dated September 22, 2020?
iv. Is the applicant entitled to $2, 360.00 for a Naturopath Examination, proposed by Healthmax in a treatment plan/OCF-18 (“plan”) dated March 8, 2019?
RESULT
4The applicant is not entitled to $767.82 for psychological services.The applicant is not entitled to $337.19 for psychological services. The applicant not entitled to $1,614.76 for psychological services. The applicant is not entitled to $2, 360.18 for a naturopath examination. The applicant is not entitled to interest. The applicant is not entitled to an award.
ANALYSIS
The applicant is not entitled to the balance of $767.82 for psychological services
5I find the applicant is not entitled to the outstanding balance of this treatment plan.
6Under s. 25(3) of the Schedule, an insurer is not liable to pay for expenses for professional services that exceed the Professional Services Guideline, Superintentent’s Guideline No.03/14 (“Guideline”).
7The respondent partially approved the treatment plan of $3,336.67 up to $2,568.85. The balance of $767.82 is based on the approval of an hourly rate of $99.75 instead of $149.61. It is the applicant’s onus to prove the rate of $149.61 should be applied to both the psychologist and the psychotherapist.
8The applicant submits that the respondent incorrectly determined the maximum hourly rate of psychotherapist Dr. Walsh because it perceives psychologist Dr. Wagner to be Dr Walsh’s supervisor, which is not permitted, since they are not in the same field of practice. The applicant asserts that Dr. Walsh performed the counselling services, unlike his supervisor Dr. Wagner, therefore Dr. Walsh should receive $149.61 per hour the same rate of a psychologist.
9The applicant also submits that according to S. 25 of the Professional Services Guideline, if the Guideline limits the amounts payable per hour for professionals in certain categories, those not listed in the Guideline are therefore not limited by the guideline, which would include Dr. Walsh, since psychotherapists are not listed in the guideline. The applicant submits that for that reason there is no limit to what Dr. Walsh should be paid and it should therefore be the same as Dr. Wagner.
10I do not agree with the applicant because the Guideline states clearly that services provided by health care professionals/providers, unregulated providers and other occupations not listed in the Guideline are not covered by the guideline. The amounts payable by an insurer related to services not covered by the Guideline are to be determined by the parties involved. What that means is that the amounts for professions not mentioned, are not unlimited, but on the contrary limited and defined.
11The guideline further states that automobile insurers are not liable to pay for expenses related to professional services that exceed the maximum hourly rates. It also states that they are not prohibited from paying above the maximum amount or hourly rate established by the Guideline. This allows for some flexibility, which the respondent has reasonably explained.
12The respondent has noted that in J.A. vs Aviva, the respondent approved a treatment plan proposing treatment for psychotherapy at the rate of $58.19, the hourly rate for unregulated providers such as counsellors. In that case the applicant did not try to negotiate a different rate and incurred the treatment without questioning the rate. In this case the applicant opposes the hourly rate which approved an hourly rate that is more than the hourly rate of unregulated providers such as psychotherapists. The case shows that the rate of $58.19 is an acceptable rate for unregulated providers, and that negotiation is possible. In this case, the respondent on it’s own considered the services provided, and the types of professionals involved, and it approved a higher hourly rate.
13The applicant did not meet his onus to show why the rate of $149.61 should be applied to both the psychologist and the psychotherapist.
The applicant is not entitled to $337.19 for psychological services.
14I find the applicant is not entitled to the outstanding balance of this treatment plan.
15Under s. 25(3) of the Schedule, an insurer is not liable to pay for expenses for professional services that exceed the Professional Services Guideline, Superintentent’s Guideline No.03/14 (“Guideline”).
16The respondent partially approved the treatment plan of $2,930.93 up to $2,593.74. The balance of $337.19 is based on the approval of an hourly rate of $99.75 instead of $149.61. It is the applicant’s onus to prove the rate of $149.61 should be applied to both the psychologist and the psychotherapist.
17The applicant thus submits, for this issue as above, that the respondent incorrectly determined the maximum hourly rate of psychotherapist Dr. Walsh because it perceives psychologist Dr. Wagner to be Dr Walsh’s supervisor, which is not permitted, since they are not in the same field of practice. The applicant asserts that Dr. Walsh or his colleague Umair Malik performed the counselling services, unlike his supervisor Dr. Wagner, therefore Dr. Walsh should receive $149.61 per hour, the same rate of a psychologist.
18The applicant again submits that according to S. 25 of the Professional Services Guideline, if the Guideline limits the amounts payable per hour for professionals in certain categories, then those not listed in the Guideline are therefore not limited by the guideline, which would include Dr. Walsh, since psychotherapists are not listed in the guideline. The applicant submits that for that reason there is no limit to what Dr. Walsh should be paid and it should therefore be the same as Dr. Wagner.
19I again, do not agree with the applicant because the Guideline states clearly that services provided by health care professionals/providers, unregulated providers and other occupations not listed in the Guideline are not covered by the guideline. The amounts payable by an insurer related to services not covered by the Guideline are to be determined by the parties involved. What that means is that the amounts for professions not mentioned, are not unlimited, but on the contrary limited and defined.
20The guideline further states that automobile insurers are not liable to pay for expenses related to professional services that exceed the maximum hourly rates. It also states that they are not prohibited from paying above the maximum amount or hourly rate established by the Guideline. This allows for some flexibility, which the respondent has reasonably explained.
21The respondent has noted that in J.A. vs Aviva , the respondent approved a treatment plan proposing treatment for psychotherapy at the rate of $58.19, the hourly rate for unregulated providers such as counsellors. In that case the applicant did not try to negotiate a different rate and incurred the treatment without questioning the rate. In this case the applicant opposes the hourly rate which approved an hourly rate that is more than the hourly rate of unregulated providers such as psychotherapists. The case shows that the rate of $58.19 is an acceptable rate for unregulated providers, and that negotiation is possible. In this case, the respondent on it’s own considered the services provided, and the types of professionals involved, and it approved a higher hourly rate.
22The applicant did not meet his onus to show why the rate of $149.61 should be applied to both the psychologist and the psychotherapist.
The applicant not entitled to $1,614.76 for psychological services.
23I find that the applicant is not entitled to the outstanding balance of this treatment plan.
24Under s. 25(3) of the Schedule, an insurer is not liable to pay for expenses for professional services that exceed the Professional Services Guideline, Superintendent’s Guideline No. 03/14 (“Guideline”).
25The respondent partially approved the treatment plan of $ 2,761.87 up to $1,147.11. The balance of $1,614.76 is based on an approval of an hourly rate of $99.75 instead of $149.61. It is the applicant’s onus to prove the rate of $149.61should be applied to both a psychologist and the psychotherapist.
26The applicant submits that the respondent incorrectly determined the maximum hourly rate of psychotherapist Dr. Walsh because it perceives psychologist Dr. Wagner to be his supervisor. However, this not permitted since they are not in the same filed of practice. The applicant asserts that Dr. Walsh performed the counselling services, unlike his supervisor Dr. Wagner, therefore Dr. Walsh should receive $149.61 per hour rate of a psychologist.
27The respondent asserts it approved a rate of $99.75 for Dr. Walsh’s psychotherapy counselling which is above the Guideline’s maximum hourly rates of $58.19 for other service providers, providing counselling services. It asserts the approved rate is reasonable and takes into consideration that Dr. Dr. Walsh provided psychotherapy progress reports as Dr. Wagner’s supervision was not required.
28I agree with the respondent, and I find their determination of the rate is reasonable because the Guideline does not list the rate for a psychotherapist. Rather than assign Dr. Walsh the other service providers rate of $58.19 the respondent acknowledged the work he did by assigning the rate of $99.75, well above the rate stated in the Guideline of $58.19.
29The respondent’s submission clearly shows in the applicant’s progress reports that the applicant was treated by Dr. Walsh, psychotherapist and Dr. Wagner was not required.
30The respondent cited that in Hawes v Avivia, Adjudicator Norris found that a psychotherapist is not entitled to a psychologist’s rate because the Guideline specifies service providers by designation, and not by other considerations.
31Also raised by the respondent in Hawes is that the adjudicator in that case found that it didn’t matter that the rate in the Guideline is less than what is recommended by the Ontario Psychological Association, which confirms that the Guideline sets the hourly rate by designation and not by the nature of the work done, such as counselling services.
32The respondent noted that in J.A. V Aviva, the insurer respondent approved a treatment plan proposing treatment for psychotherapy at the rate of $58.19, the hourly rate for unregulated providers such as counsellors. I find that this case provides evidence that $58.19 is accepted as a rate paid to psychotherapist, and is consistent with the Guideline.
33In addition, as submitted by the respondent, in J.A v Aviva, the was no opposition to the hourly rate, and the applicant in that case proceeded to incur the treatment. I agree that in this case the applicant agreed to the approved treatment at the rate of $99.75 as he proceeded to incur the treatment, and did not raise an opposition, at that time.
34I find the applicant did not meet his onus to prove the rate of $149.61 should be applied to both the psychologist and psychotherapist.
The applicant is not entitled to $2, 360.18 for a naturopath examination.
35I find the applicant is not entitled to $2,360.18 for a Naturopath Examination.
36The applicant submitted a treatment plan of March 8, 2020, proposing a total body assessment, therapy, documentation, and counselling for $2,360.18 which was denied by letter on March 21, 2019.
37The applicant submits that the denial letter provided by the respondent is insufficient as it fails to set out “medical reasons” for the denial as required by S.38(8), and or 38 (14(a) and 38(11) and should therefore be payable.
38The applicant also submits that according to the College of Naturopaths of Ontario and the Naturopathy Act 2007 the opinion expressed by the S. 44 examiner was insufficient in terms of medical reasons that he expressed in reference to the treatment plan that had been provided by Dr. Fadumo Hassan, chiropractor. Dr. Fadumo identifies injury of muscle and tendon at neck level, post concussion syndrome, sprain and strain of thoracic spine, sprain of lumbar spine, psychological and behavioural factors associated with disorders or diseases classified elsewhere, contusion of parts of the wrist and hand and sprain and strain of wrist. The recommendations for treatment included “instruction, promoting health and preventing disease, Assessment, examination, instruction, therapy, multiple body sites, documentary support activity, counseling and education.”
39The applicant refers to terminology contained in the Naturopathy Act, 2007, “performing prescribed procedures involving moving joints of the spine…” and administering, by injection or inhalation, a prescribed substance (which could include acupuncture)” which I found were general in nature and could be applied generally. I find that the applicant has not shown how the proposed treatment plan of March 9, 2021, is reasonable and necessary and that it is related to the motor vehicle accident of May 15, 2018, which is required by S. 15(1) of the Schedule.
40The insurer’s examination, as requested by the respondent, was completed by Dr. Khaled, who provided an examination report of April 30, 2019. In that report he provided a comprehensive history of the applicant, and his present situation. This examiner, evaluated prior medical history, and performed a physical examination of the applicant. His report contains a finding that the applicant sustained “uncomplicated soft tissue injuries” and that there were “no significant orthopedic or neurological sequelae”. He found overall there were no indicators of ongoing permanent musculoskeletal, neurological, or orthopaedic accident-related injury or impairment. In his opinion the treatment plan of Dr. Hassan, chiropractor, proposing assessment, instruction, acupuncture, and chiropractic treatment naturopathic counselling and nutritional counselling and support was not reasonable or necessary. I find that this report in its detail, was comprehensive opinion that I found to be credible, specific, and grounded in medical reasoning. I prefer this report to the report of Dr. Fadumo.
41The applicant is not entitled to the treatment plan of the naturopath because it is not reasonable and necessary.
The applicant is not entitled to interest.
42Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no benefits due, not interest applies.
The applicant is not entitled to an award.
43As there have been no benefits withheld, there is no award payable.
ORDER
44This application is dismissed.
Released: December 27, 2023
Dominique Setton
Adjudicator