Licence Appeal Tribunal File Number: 20-010570/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:
Michelle Phillip
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Mitchell Barber, Counsel
Fawad Siddiqui, Counsel
For the Respondent:
Savneet Multani, Counsel
HEARD:
BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1Michelle Phillip, the applicant, was involved in an automobile accident on March 15, 2017, 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, Aviva Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to $3,458.97 for physical therapy proposed by HealthMax Physiotherapy Clinic in a treatment plan (“OCF-18”) dated June 15, 2018?
ii. Is the applicant entitled to $2,073.38 for psychological services proposed by Injury Management in a treatment plan dated October 1, 2018?
iii. Is the applicant entitled to $3,121.57 for physical therapy proposed by HealthMax Physiotherapy Clinic in a treatment plan dated November 1, 2018?
iv. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to the treatment plan dated June 15, 2018 for physical therapy, plus interest in accordance with s. 51 of the Schedule.
4The applicant is not entitled to payment for the two remaining treatment plans in dispute, as she has not demonstrated that they are reasonable and necessary. An award under s. 10 is not appropriate in this case.
ANALYSIS
Are the Treatment Plans (OCF-18s) Reasonable and Necessary?
5To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
OCF-18s dated June 15, 2018 and November 1, 2018 for physical therapy
6I find that the applicant has adduced sufficient evidence to establish that the OCF-18 dated June 15, 2018 for physical therapy, is reasonable and necessary. However, she has failed to meet her onus to establish that the subsequent OCF-18 dated November 1, 2018, is reasonable and necessary.
7The applicant submitted two similar treatment plans for physical therapy treatment consisting of 16 sessions of physical rehabilitation, with 6-8 additional sessions of acupuncture, laser treatment, and massage therapy. The applicant submits that these plans are reasonable and necessary for her accident-related physical impairments, because her treating practitioners, such as her family physician and physiotherapy clinic, along with s. 25 assessors, continued to recommend multidisciplinary medical treatment.
8In response, the respondent submits that the applicant has failed to establish that the treatment plans are reasonable and necessary. The respondent relies on its Insurer’s Examination (“IE”) assessment, by Dr. Riaz Moolla, who found that the applicant had sustained only soft-tissue strains to the neck and spine and had achieved maximal medical recovery. As such, Dr. Moolla found that further passive, facility-based treatment was not recommended. The respondent further contends that even the applicant’s treating clinic had noted in a progress note that the applicant had reached maximal medical recovery.
9With respect to the June 15, 2018 OCF-18, I find it persuasive that the applicant’s family physician, Dr. Hamlet, recommended that the applicant continue with physiotherapy, a few months prior to the submission of the OCF-18. In the year post-accident, the applicant had reported ongoing pain complaints in the back, neck and shoulders to her family physician, Dr. Bevin Hamlet. The clinical notes and records (“CNRs”) of Dr. Hamlet also noted her ongoing attendance at physiotherapy. In a January 4, 2018 entry, Dr. Hamlet reported that the applicant was still experiencing shoulder pain and was attending at physiotherapy twice weekly “with benefit”. The CNR entry further stated, “continue with physio”.
10Similarly, the records of the applicant’s treating clinic, HealthMax Physiotherapy Clinic (“HealthMax”) noted the applicant’s ongoing attendance at treatment and the applicant’s reports that it had helped with pain reduction. Although the respondent submits that a progress report from HealthMax dated June 8, 2017 stated that the applicant had reached full medical recovery, I agree with the applicant that this is not entirely accurate. The progress report states that maximal recovery is anticipated, but that “some complications” were expected and that while full medical recovery was reached, additional functional rehabilitative treatment was highly warranted.
11Further, although the respondent’s IE assessor Dr. Moolla found that the applicant had reached maximal medical recovery, I note that the results of the physical examination still found restrictions in the applicant’s neck extension, flexion and rotation. Although Dr. Moolla concluded that passive treatment modalities were no longer recommended, he noted that active treatment modalities should be pursued, and that the applicant had been advised of home exercises. Given that the June 15, 2018 OCF-18 proposed mostly physical therapy and the CNRs of HealthMax indicated a detailed exercise program, I find that one additional course of the proposed physical therapy treatment is reasonable and necessary, to help the applicant solidify an effective home exercise therapeutic program and to transition away from facility-based treatment.
12With respect to the second OCF-18 for physical therapy dated November 1, 2018, I find that the applicant has not provided sufficient contemporaneous evidence to establish that it is reasonable and necessary.
13The November 1, 2018 OCF-18 was almost identical to the June 15, 2018 OCF-18, with the same listed injuries, stated goals and same treatment modalities. It proposed an essentially unchanged course of sixteen additional physical treatment sessions. The respondent denied this OCF-18, again on the basis of Dr. Moolla’s IE assessment. Although the applicant submits that this was an improper denial as Dr. Moolla’s IE report only spoke to the June 15th OCF-18, I agree with the respondent’s submissions that as both OCF-18s were nearly identical, it would not be inappropriate for the respondent to rely upon the same IE report. Particularly given the fact that the IE assessment was conducted within three months of the November 1, 2018 OCF-18.
14Other than the OCF-18 itself, the applicant did not direct me to any contemporaneous evidence that ongoing physical therapy was still recommended by her medical providers in November 2018. The last entry from Dr. Hamlet recommending physiotherapy was in January 2018, ten months prior to the OCF-18 in dispute. Further, I accept Dr. Moolla’s findings that ongoing facility-based treatment is not recommended on an indefinite basis for the applicant’s soft-tissue strain and sprain type injuries. Given that the applicant resubmitted essentially the same treatment plan, with identical stated goals, for treatment that was virtually identical to what she had been receiving since the subject accident, it does call into question how the goals of the treatment plan are being met to a reasonable degree. For example, with respect to the stated goal of pain reduction, it was noted in the Additional Comments section of the November 1, 2018 OCF-18, that the applicant rated her pain as 7/10, while in the previous June 15, 2018 OC-18 it had been rated only as 4/10.
15In her submissions, the applicant agreed that she had received essentially the same treatment since the accident until it was “suddenly denied” by the respondent. However, in order to establish her entitlement to continued treatment, the onus rests with the applicant to provide sufficient evidence that the treatment goals were being met to a reasonable degree, as required by General Accident Assurance Co. of Canada v Violi, 2000 CarswellOnt 3453. The applicant has failed to meet this onus on a balance of probabilities.
16While I find that there was sufficient contemporaneous evidence to warrant the course of treatment proposed in the OCF-18 dated June 15, 2018, the applicant has not met her onus to prove that the subsequent OCF-18 dated November 1, 2018 is also reasonable and necessary.
OCF-18 for Psychological Treatment
17The applicant has not met her burden of establishing that the outstanding balance of the OCF-18 for psychological treatment is reasonable and necessary.
18The psychological treatment plan in the amount of $2,930.93 was partially approved by the respondent for $857.55. The applicant is contesting the difference of $2,073.38. The respondent denied the remaining amounts relating to the cost of a progress report and costs related to preparation, planning and documentation support activity. Further, the respondent only approved an hourly rate of $58.19 for the proposed psychotherapy services as opposed to the $149.61 requested.
19The applicant submits that the respondent failed to provide a principled and meaningful denial of the OCF-18 and failed to properly outline its medical and other reasons, relying on Tribunal decisions T.F. v Peel Insurance Company, 2018 CanLII 39373 and Hedley v. Aviva Insurance, 2019 ONSC 5318. The applicant also contends that with respect to the hourly rate for psychotherapy, the respondent was incorrect in imposing a $58.19 hourly rate on Ms. Priftis, psychotherapist.
20With respect to the sufficiency of the respondent’s denial, I find that the respondent’s October 30, 2018 Explanation of Benefits complied with its obligations under s. 38(8) of the Schedule. The only portions of the treatment plan that were unapproved were the difference in hourly rate for psychotherapy treatment, the cost of a progress report and costs related to preparation, planning and documentation support activity. The applicant submits that the respondent failed to provide a medical and other reason for its denial. However, I note that a medical reason was not required, as the psychotherapy sessions were approved, and only the rate and specific fees were in dispute.
21The respondent clearly stated that it would only pay $58.19/hr for such treatment, as it was being provided by a psychotherapist and not a psychologist, and set out the reasons why it would not pay for supervision services, costs of planning, preparation and the fee for a progress report. I find that the reasons were clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue in accordance with the principles set out in T.F. v. Peel and Hedley.
22With respect to the hourly rate to be charged for psychological services, the respondent submits that the $149.61 proposed in the OCF-18, exceeds the maximum rate set under the Professional Services Guideline, Superintendent’s Guideline No. 03/14 (the “Guideline”). The respondent approved an hourly rate for a psychotherapist of $58.19, which it argues is consistent with the hourly rate payable under the Guideline for unregulated providers, such as counsellors and psychometrists. It cites the Tribunal decision S.M.Z. v. Aviva Insurance Company, 2020 CanLII 27401, in support of its position.
23I find that the applicant has not provided sufficient evidence to establish that the higher proposed rate in the OCF-18 in dispute is reasonable and necessary. While the applicant submits that the decision relied upon by the respondent, S.M.Z., can be distinguished from the case at hand, she does not provide any caselaw in support of her position that a rate higher than $58.19 is appropriate for psychotherapists. Rather, the applicant provides a general submission that psychotherapists should be paid more than the Guideline rate for unregulated providers, as the unregulated providers have “lesser training and qualifications”. However, no information was provided by the applicant, by way of curriculum vitae or even specific submissions, as to the qualifications or training of the listed psychotherapist, to support a such a higher hourly rate.
24Similarly, although the applicant submits that that Ms. Priftis would be supervised by a psychologist and as such, should be paid a higher rate, no evidence was provided in support of this claim. A review of the OCF-18 lists the provider of psychotherapy sessions as Ms. Priftis, a psychotherapist. Although the applicant states that the fact that a psychologist prepared the OCF-18 is sufficient evidence that the psychologist would “ultimately be responsible for the administration of the planned treatment”, I do not find this argument to be persuasive. If the applicant is raising the argument that psychotherapy was being provided under the supervision of a psychologist, the onus is on the applicant to lead evidence of active supervision.
25With respect to payment of the additional outstanding amounts listed in the OCF-18, namely, the cost of a progress report and costs related to preparation, planning and documentation support activity, the applicant did not provide any arguments or evidence as to the reasonableness and necessity of these items, or why the treatment provider required fees beyond the $200.00 prescribed by the Guideline.
26In my view, the hourly rate for professional services includes things like preparation, planning and documentation support activity. Without submissions from the applicant on this issue, I am bound by section 15(2)(b) of the Schedule, which states that the respondent is not liable to pay for medical goods or services that exceed the maximum rate prescribed by the Guideline. In addition, with respect to the progress report, I agree with the respondent that charging for a future mental health assessment when one may not be required is premature and is not a reasonable expense. For these reasons, I do not find the balance of this treatment plan to be reasonable and necessary.
Is the applicant entitled to an award for unreasonably withheld or delayed payments?
27The applicant sought an award under s. 10 of O. Reg. 664, submitting that the respondent unreasonably withheld and delayed the payment of the benefit and failed to properly review medical evidence provided by the applicant. I find an award is not appropriate.
28The test for a s. 10 award is whether the insurer’s behaviour is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. While I have found one of the OCF-18s for physical therapy to be reasonable and necessary, the applicant has not demonstrated that Aviva’s conduct meets the threshold to warrant a s. 10 award.
ORDER
29For the reasons provided above, I find that:
i. The applicant is entitled to the OCF-18 dated June 15, 2018 for physical therapy, plus interest in accordance with s. 51 of the Schedule;
ii. The applicant is not entitled to the November 1, 2018 OCF-18 or the outstanding balance of the OCF-18 dated October 1, 2018;
iii. The applicant is not entitled to a s. 10 award.
Released: March 8, 2023
Ulana Pahuta
Adjudicator```