Licence Appeal Tribunal File Number: 20-005013/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:
Dianne Mitchell
Applicant
and
Aviva Insurance Company
Respondent
DECISION [AND ORDER]
ADJUDICATOR:
Gerard Tillmann
APPEARANCES:
For the Applicant:
Michael Wentzel, Paralegal
For the Respondent:
Ramandeep Pandher, Counsel
HEARD:
In Writing
OVERVIEW
1The applicant was involved in an automobile accident on February 28, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016)(“Schedule”).
2The applicant is a 75-year-old mother and grandmother. She is married and lives with her 84-year-old husband in a basement apartment in Toronto. She retired at age 60 and remains so. She suffered a number of injuries, including multiple rib fractures, headaches, neck pain, bi-lateral shoulder pain, knee pain, a concussion, an adjustment disorder, anxiety, and depression as a result of a motor vehicle accident on February 28, 2019. She was 71 years old at the time of the accident.
3The applicant applied for accident benefits, including a Non-Earner Benefit (“NEB”), two treatment plans for chiropractic treatment and a treatment plan for psychological treatment.
4The respondent paid NEBs to the applicant from four weeks post accident (the waiting period) to February 28, 2020 and then ceased paying these NEBs, taking the position that the applicant no longer suffered a complete inability to carry on a normal life.
5The respondent denied the chiropractic treatment plans and part of the psychological treatment plan because these treatment plans were not reasonable and necessary.
6The applicant disagreed with the decision of the respondent to deny the benefits and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
7The following issues are in dispute:
a. Is the applicant entitled to an NEB of $185.00 per week from February 28, 2020 to date and ongoing?
b. Is the applicant entitled to $2,174.50 for chiropractic treatment, recommended by MacKenzie Medical Rehabilitation Centre in a treatment plan (OCF-18) submitted on December 18, 2019 and denied on January 9, 2020?
c. Is the applicant entitled to $1,645.20 for chiropractic treatment, recommended by Mackenzie Medical Rehabilitation Centre in a treatment plan (OCF-18) submitted on January 27, 2020 and denied on February 12, 2020?
d. Is the applicant entitled to $1,671.76 ($5,238.06 less the partially approved amount of $3,566.30) for psychological treatment, recommended by All Health Medical Centre in a treatment plan (OCF-18) dated June 5, 2019 and denied on June 24, 2019?
e. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
f. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
8I find that the applicant:
a. Is entitled to NEBs in the amount of $185.00 per week a period of 12 weeks from February 28, 2020 to May 22, 2020;
b. Is entitled to the cost of the treatment plan for chiropractic treatment recommended by MacKenzie Medical Rehabilitation Centre in a treatment plan (OCF-18) submitted on December 18, 2019 and denied on February 12, 2020 up to the cost of $192.00 for 10 massage therapy treatments and $200.00 for a reassessment fee as the treatment is reasonable and necessary;
c. Is entitled to the cost of the treatment plan for chiropractic treatment recommended by MacKenzie Medical Rehabilitation Centre in a treatment plan (OCF-18) submitted on January 27, 2020 and denied on February 12, 2020 up to the cost of $19.20 for one massage treatment as it is reasonable and necessary;
d. Is not entitled to the balance of $1,671.76 ($5,238.06 less the partially approved amount of $3,566.30) cost of the treatment plan for psychological treatment recommended by All Health Medical Centre in a treatment plan (OCF-18) dated June 5, 2019 and denied on June 24, 2019 as the balance of the treatment plan is not reasonable and necessary.
e. Is not entitled to an award under s. 10 of Ontario Regulation 664; and
f. Is entitled to interest on overdue payments of benefits
ANALYSIS
NEB
9I find that the applicant is entitled to NEBs for the period of 12 weeks from February 28, 2020 to May 22, 2020.
10Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.
11Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which focuses on a comparison of the applicant’s pre- and post-accident activities.
12The burden of proof lies with the applicant.
Positions of the Parties
13The applicant applied for and received NEBs to February 28, 2020 at which time the respondent stopped paying NEBs.
14The applicant takes the position that she is entitled to the payment of NEBs from February 28, 2020 to March 25, 2021.
15Section 12(2)(c) limits the payment of NEBs to 104 weeks after the accident. Thus, the maximum period of NEB payments, if payable to the applicant, would come to an end on February 27, 2021.
16The respondent takes the position that the applicant is not entitled to the payment of NEBs after February 28, 2020 because the applicant has not satisfied her burden of proving that she has suffered a complete inability to carry on a normal life during this period.
17The applicant relies upon the following documents in support of her claim for NEBs:
a. The clinical notes and records (CNRs) of Dr. Shamim Dawood from January of 2018 to April 15, 2019;
b. A Disability Certificate dated April 1, 2019;
c. A Disability Certificate dated April 15, 2019;
d. A Treatment Plan dated March 27, 2019 completed by Dr. I. Robertus for an attendant care assessment;
e. An Assessment of Attendant Care Needs dated March 27, 2019;
f. A Supplementary Note of Lyudmyla Listar, Nurse, dated March 28, 2019;
g. A Questionnaire: Determining Your Eligibility for Non-Earner Benefits (“NEB Questionnaire”) completed May 13, 2019;
h. An Assessment of Attendant Care Needs dated July 4, 2019;
i. A Supplementary Note of Lyudmyla Listar, Nurse, dated July 5, 2019;
j. A Consultation Note Dated November 30, 2019 of Dr. Chantal Vaidyanath;
k. A Disability Certificate dated March 4, 2020; and
l. A Medical Note completed by Dr. Dawood on March 9, 2020.
18The respondent takes the position that it paid NEBs to the applicant for the period of February 28, 2019 to February 28, 2020, subject to the four week waiting period. The respondent states that it paid the NEBs for this period of time based upon the documentation provided to it by the applicant in 2019 following the accident.
19Next, the respondent states that it notified the applicant by letter dated February 12, 2020 that it would not pay NEBs past February 28, 2020. The respondent takes the further position that any documentation provided by the applicant prior to February 12, 2020 could only be for the purpose of supporting entitlement to NEBs to February 28, 2020 and not beyond that date.
20The respondent further submits that there is no documentation submitted by the applicant to the respondent after February 12, 2020 that assists the applicant in meeting her burden to establish that she has suffered a complete inability to carry on a normal life.
21The respondent relies upon the s. 44 reports dated February 10, 2020 and authored by Dr. Weisleder, orthopaedic surgeon, Dr. Koepfler, psychologist, Dr. Desai, neurologist, and Ms. Markandu, occupational therapist, and a surveillance report and video surveillance prepared by K. Wruck & Associates dated September 24, 2020. The report and video covered a four-day period in August of 2020.
22I agree with the respondent that the documentation relied upon by the applicant in this application pre-dates February 12, 2020. It is directed to the entitlement of NEBs after February 28, 2019. However, to say that it is not relevant for the entitlement to NEBs after February 28, 2020 is not accurate. At the very least, this documentation sets out the applicant’s pre-accident activities. It provides information as to the applicant’s ability to perform these pre-accident activities following the accident. The importance of this documentation may diminish, the more time that passes between the report and February 12, 2020, but it continues to be relevant.
23I also note that the authors of the s. 44 reports each specifically referred to the November 30, 2019 Consultation Note of Dr. Chantal Vaidyanath (“Vaidyanath Consultation Note”) in coming to their various conclusions that the applicant was not entitled to NEBs. The respondent calls it, “the most telling document that accurately describes the applicant’s condition”. I agree that the Vaidyanath Consultation Note is very relevant in the determination of whether or not the applicant is entitled to NEBs.
Analysis
24In order to meet her burden of proving that she satisfies the requirements for NEBs, the applicant must provide a description of the activities in which she ordinarily engaged before the accident and compare how they differed post-accident as a result of her impairments. That is provided by the applicant in her NEB Questionnaire completed on May 13, 2019. The respondent accepted the NEB Questionnaire as evidence of the activities in which the applicant was ordinarily engaged prior to the accident.
25The NEB Questionnaire provided by the applicant indicates that the activities in which the applicant ordinarily participated prior to the accident were:
a. knitting,
b. reading,
c. walking,
d. cooking,
e. cleaning,
f. babysitting grandchildren,
g. gardening in the summer, and
h. sleeping.
26“Going to gym”, “driving” and “housework” also need to be considered because the respondent’s s. 44 assessors discussed these activities in their reports as did Dr. Vaidyanath in her Consultation Note. The respondent itself has referred to these activities in its submissions. “Housework” is also referred to in the applicant’s Disability Certificate of March 4, 2020.
27In the NEB Questionnaire, the applicant indicated that in May of 2019, following the accident, she was unable to continue to knit, read, cook, babysit, and garden. She indicated that she could do very little walking and cleaning and that her sleep was disturbed. These were all activities that she did before the accident.
28In the Fall of 2019, the applicant was seen by Dr. Chantal Vaidyanath. The Vaidyanathan Consultation Note noted the following with respect to these activities (it is my emphasis for each):
a. Meal preparation is shared with her husband;
b. She is independent with light housework but requires assistance;
c. She goes for short walks;
d. Does a little reading;
e. Is not back to using a treadmill;
f. Does some knitting;
g. Has not returned to gardening;
h. Is not back to going to the gym; and
i. She is not driving in Toronto.
29The Disability Certificate of March 4, 2020 answers the following questions:
a. “Does the applicant suffer a complete inability to carry on a normal life?” in the affirmative. It goes on to say that “injuries suffered in the accident continuously prevent the patient from engaging in most aspects of ADL’s that involve lifting/carrying”;
b. “Does the applicant suffer a substantial inability the housekeeping and home maintenance services she normally performed before the accident?” in the affirmative; and,
c. “If you responded “Yes” to any disability test above, what is the anticipated duration?” as 9-12 weeks.
30I find this Disability Certificate to be helpful in establishing the applicant’s continued inability to carry on a normal life and to be pivotal in establishing the length of time for her entitlement to NEBs after February 28, 2020.
31The respondent commissioned a series of s. 44 assessments in January of 2020 and obtained an Occupational Therapy Assessment Report from Yaseela Markandu, OT (“Markandu Report”), a Psychology Examination Report from Dr. Louise Koepfler (“Koepfler Report”), a Neurology Examination Report from Dr. Jamsheed A. Desai (“Desai Report”), and an Orthopaedic Examination Report from Dr. Louise Moshe Weisleder (“Weisleder Report”). All of these reports are dated February 10, 2020. All of these reports indicate that their respective reports were available to each other as were the Vaidyanath Consultation Note and the NEB Questionnaire.
32The Markandu Report makes no comment on the Vaidyanath Report.
33The Koepfler Report, Desai Report and Weisleder Report specifically comment on the Vaidyanath Consultation Report and the Markandu Report. None of these reports comments upon the NEB Questionnaire.
34The Markandu Report noted the following in the “Subjective Report of Current Functional Status” portion of the report regarding activities in which the applicant ordinarily participated prior to the accident:
a. Cleaning. Did most of the cleaning and laundry
b. Cooking. Shared with her husband
c. Transportation/driving. Independent in driving
d. Gym. Went three times a week
e. Reading. Enjoyed
f. Knitting. Enjoyed
g. Walking. Enjoyed
h. Gardening. Enjoyed
35The applicant reported that engaging in social activities was very important to her, however, since the accident she has not been engaging in many of these activities due to pain and anxiety. The applicant gave walking in winter and driving as examples of activities she no longer engaged in.
36The applicant described her typical day at the time of the Markandu Report as, “not exciting, just household chores, and watch T.V. Sometimes grandchildren will come down for a bit and play/read.” I note that the applicant’s typical day at this time did not include driving, knitting, reading, using a treadmill, gardening, or walking. All of these were daily activities prior to the accident. None of these activities are included in the applicant’s typical day after the accident as described in the Markandu report in January of 2020 which is almost one-year post-accident.
37I find this to be supportive of the applicant’s position that she is entitled to NEBs beyond February 28, 2020.
38The Markandu Report further indicated that:
a. the applicant drove a little in Newfoundland when visiting in the Summer of 2019 but has not been driving in Toronto due to anxiety;
b. the applicant has started reading again, but she gave no duration of reading time;
c. the applicant’s husband did all of the cooking following the accident;
d. the applicant was able to do light cleaning and dusting;
e. the applicant planned to start trying to go to the gym in the summer; and
f. the applicant may be able to try to do some gardening in the summer.
39As stated in Heath, the phrase “engaging in” should be interpreted from a qualitative perspective, and as meaning more than isolated post-accident attempts to perform an activity that a claimant was able to perform before the accident. The activity must be viewed as a whole and the manner in which an activity is performed, and the quality of the performance post-accident must also be considered. If the degree to perform the activity is sufficiently restricted, it cannot be said that the person is “truly engaging” in the activity.
40The Koepfler Report, Desai Report and Weisleder Report (“these reports”) all indicate that they had each other’s reports as well as the Markandu report, the Vaidyanath Consultation Note and NEB Questionnaire available for review. Each of these reports comments on the other’s reports, the Markandu report and the Vaidyanath Consultation Note, however, none of these reports refers to the NEB Questionnaire.
41Each of these reports indicates the applicant’s ability or inability to physically do an activity and summarizes the Vaidyanath Consultation Note, including the activities before and after the accident as described in the Consultation Note. But, none of these reports comments on the quality of the performance of the activities post-accident. I note that the Vaidyanath Consultation Note does comment on the quality of the performance of the activities post accident.
42These reports all comment on, and include the applicant’s pre-accident activities. These reports all agree that the applicant has resumed the activities of knitting, reading, and walking, but none of these reports comments on the applicant’s ability to do the same post-accident or on the quality of the applicant’s performance of the activities post-accident. They also make no mention of the daily/weekly frequency or duration of these activities, nor do they compare such to the pre-accident ability, frequency, or duration, with the exception of Dr. Koepfler who notes that the applicant “tries to walk”.
43These reports all agree:
a. that prior to the accident, the applicant shared the cooking and did the housecleaning, and that the applicant’s husband has done all of the cooking since the accident and that the applicant is able to do some light housekeeping but none of the heavy housekeeping since the accident.
b. that the applicant attended at the gym three times a week prior to the accident and has not returned to the gym since the accident.
c. that the applicant lives in Toronto and that she drove prior to the accident and all note that she has not driven in Toronto/Ontario since the accident.
d. that the applicant did gardening prior to the accident and that the applicant has not done any gardening since the accident.
44None of these reports comments on babysitting.
45While each of the Koepfler Report, Desai Report and Weisleder Report confirm that the applicant can do some of the activities that the applicant was able to do before the accident, none of these reports consider the quality of the performance of these activities. The Vaidyanath Consultation Note is in line with Heath in viewing the activity as a whole and the manner in which the activity is performed. I give more weight to the Vaidyanath Consultation Note because it is in line with Heath regarding the post accident viewing of pre-accident activities.
46The respondent also takes the position that the applicant has the burden to prove entitlement to NEBs after February 28, 2020. This is correct. The respondent takes the further position that the applicant has the burden to prove entitlement for the whole period being claimed. That overlooks the possibility that the applicant can prove entitlement for NEBs and receive NEBs for a period shorter than what is claimed. That is the case here.
47The Disability Certificate of March 4, 2020 states that the applicant suffers a complete inability to carry on a normal life, suffers a substantial inability to perform housekeeping and home maintenance services that she normally performed before the accident, and that the anticipated duration of the disability was 9-12 weeks.
48The respondent also takes the position that the applicant’s driving in Newfoundland in the Summer of 2019 is significant when talking about the applicant’s inability to drive. I disagree. The respondent overlooks the fact that the applicant lives in Toronto and drove independently on a regular basis before the accident in Toronto. The applicant did not frequently visit Newfoundland prior to the accident or frequently drive in Newfoundland prior to the accident. All of the s. 44 assessors accepted that she has not driven in Toronto since the accident. Driving in Toronto is an activity in which the applicant participated prior to the accident and in which she did not participate following the accident.
49The respondent notes that the applicant says she has not returned to the gym. The respondent then takes the position that the applicant could not return to the gym in 2020 because all gyms were closed in 2020 due to Covid-19. I do take notice that gyms were closed for a lengthy period of time in 2020, but not until late March of 2020. Thus, there is a period of time that the applicant could have attended the gym after February 28, 2020 and did not.
50The respondent then submits that the applicant stopped attending for treatment at Mackenzie Medical in March of 2020 and appears to have stopped seeing her family physician after March of 2020. The respondent does not consider the onset of the COVID-19 pandemic and that perhaps the closing of clinics in March of 2020 had something to do with that.
51As for gardening, the respondent takes the position that because of the cold weather and time of year of the consultation with Dr. Vaidyanath and the s. 44 assessments, the applicant would not have known until the Summer of 2020 whether or not she could return to gardening.
52Further, the Disability Certificate dated March 4, 2020 only indicates a limitation in lifting and no other aspect of her life, and does not support her claim for a disability from February 2020 to February 2021 as the period of disability noted is only for nine to twelve weeks.
53I disagree with the respondent that the Disability Certificate of March 4, 2020 only states a lifting limitation. It clearly states that the applicant also suffers a substantial inability to perform the housekeeping and home maintenance activities that she normally performed before the accident.
54While I agree that the Disability Certificate does not support a claim for NEBs to February 2021, I find that it does support a claim to NEBs for a period of nine to twelve weeks.
55Furthermore, the Vaidyanath Consultation Note shows that the applicant is significantly restricted in the degree to which the applicant could perform her pre-accident activities of meal preparation, walking, reading, using a treadmill, knitting, gardening, use of the gym and driving. This is in keeping with the test for entitlement to NEBs as enunciated in Heath.
56The respondent takes the position that the most important activities for the applicant were knitting, driving, going for walks, and gardening. The respondent further submits that based upon the Vaidyanath Consultation Note, the applicant had returned to these activities. I disagree. To take this position is to ignore the manner in which these activities are performed, and the quality of performance as stated by Dr, Vaidyanath for these activities. She reports to Dr. Vaidyanath no driving in Toronto. She lives in Toronto. She reports to Dr. Vaidyanath no gardening, some knitting and short walks.
57The applicant’s inability to drive in Toronto, inability to garden, do some knitting and take only short walks is not, in my view, the resumption of or return to these activities.
58I find support for this finding from Dr. Weisleder, one of the respondent’s s. 44 assessors, who notes that “she has not been able to resume general housekeeping, knitting, gardening and working out at the gym” which includes two of the four activities that are submitted by the respondent as being the most important activities, i.e., knitting and gardening.
59The Markandu Report noted that engaging in social and recreational activities were important to the applicant and that these included reading, knitting, walking, gardening, and going out to play bingo. The Markandu Report found that since the accident she has not been engaging in many of these activities due to pain and anxiety.
60The K. Wruck & Associates surveillance report of the applicant was conducted over a four-day period in August of 2020. During this period the applicant was observed on two of the four days. The surveillance obtained totalled 5 minutes and 20 seconds. The respondent submits that the surveillance “shows the applicant truly engaged in her activities of daily living.”
61I find the videotape surveillance as well as the surveillance report do not show the applicant doing anything that she said she did before the accident but could not do after the accident, such as driving, gardening, going to the gym or going for long walks.
62I do not find the surveillance report or the surveillance video particularly persuasive in supporting the respondent’s position. If anything, they support the applicant’s position – that she was not driving, not gardening, not going to the gym, and doing little walking after February 28, 2020.
63Overall, I find that the applicant has established that for the period of time from February 28, 2020 to May 22, 2020 she suffered an impairment that continuously prevented her from engaging in substantially all of the activities in which she was ordinarily engaged before the accident. I find that her evidence with respect to this period of time is consistent with the findings set out in the Vaidyanath Consultation Note and the Disability Certificate of March 4, 2020. On the other hand, I find that the applicant has not provided any evidence that she suffered from these impairments beyond May 22, 2020. Accordingly, she has not satisfied her burden of proof beyond May 22, 2020.
Are the treatment plans in dispute reasonable and necessary?
64To receive payment for a treatment 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.
Is the applicant entitled to chiropractic treatment recommended by Mackenzie Medical Rehabilitation Centre for: (b) $2,174.50 submitted December 8, 2019 and (c) $1,645.20 submitted January 27, 2020?
65I dealt with these two treatment plans together because they are from the same service provider, are for the same services, have the same goals, and are within seven weeks of each other.
66I find that the applicant is entitled to payment for the treatment plan identified in issue (b) of up to $192.00 for 10 massage treatments plus $200.00 for the reassessment fee and to payment for the treatment plan identified in issue (c) of up to $19.20 for one massage treatment, but not the $200.00 for the reassessment fee.
Analysis
67The applicant submits that these treatments are reasonable and necessary. In support of that position, she notes that the goals of these treatment plans are pain reduction, increased range of motion and improved strength. The functional goals are to return to activities of normal living.
68She takes the position that these treatment plans clearly indicate that she is still symptomatic, even though there is evidence that while the frequency of the treatment was decreasing, her symptoms were improving. She attributes this to the treatment working.
69Finally, the applicant submits that there is further support for the denied treatment from her family physician, Dr. Dawood. She points to his Medical Note of March 9, 2020, which says in part that the applicant has “improved significantly but continues to have neck and upper back pain with limited range of movement and stiffness which is myofascial pain post MVA. In my opinion, she will definitely benefit from acupuncture and massage therapy.”
70I would note that Dr. Dawood’s Medical Note of March 9, 2020 was not forwarded on to the respondent’s s. 44 assessors for review or comment.
71In response to the applicant’s position, the respondent submits that the Weisleder Report, which was also commissioned to address the treatment plan submitted December 19, 2019 in the amount of $2,174.50, concluded that the applicant had reached her maximum medical recovery/improvement for the injuries sustained in the accident and that the treatment plan as outlined is not reasonably required or necessary for the injuries sustained.
72I note that the treatment plan submitted January 27, 2020 in the amount of $1,671.67 was not submitted to Dr. Weisleder, or any other s. 44 assessor by the respondent, for review or opinion. The respondent says that it used the Weisleder Report to deny both treatment plans. Although the documentation provided by the parties does not include the Explanation Of Benefits (EOB)/denial letter for these treatment plans, I accept that there was such an EOB for these treatment plans and that the respondent used the Weisleder Report to deny the January 26, 2020 treatment plan even though it was for a different frequency of modalities than the December 19, 2019 treatment plan.
73Next, the respondent submits that the records of Mackenzie Medical Rehabilitation Centre indicate that the applicant had been attending at the clinic two to three times a week since the accident. Over the course of the 52 weeks since the accident, the frequency of the applicant’s attendance and treatment had not diminished, and despite the frequency of care she had plateaued, and therefore, Dr. Weisleder’s opinion was correct.
74At the time of the first denied treatment plan in December of 2019, the respondent had already approved six treatment plans for various treatments including chiropractic services, physiotherapy, massage, acupuncture, assistive devices, and psychological treatment. Again, this supported the conclusion of Dr. Weisleder. Unfortunately, the respondent does not provide a breakdown of the types, modalities, or frequency of these treatments.
75Further, the family physician’s Medical Note of March 9, 2020 was produced after the denial of the treatment plans in question and refers only to the benefit of acupuncture and massage therapy. The respondent goes on to say that the Medical Note does not support the on-going need for chiropractic services. To be fair, the Medical Note is silent on chiropractic services. I do not think that this silence can be inferred to be non-support of chiropractic treatment. I find that the Medical Note of March 9, 2020 supports the massage therapy component of each treatment plan as being reasonable and necessary.
76The respondent further submits that the treatment plans lump together ICF, TENS, ice pack, heat pack and acupuncture into one grouping so that no one is able to determine just how many acupuncture treatments are required.
77That is not correct. Acupuncture is not lumped together with any other modality. It is a separate modality in each treatment plan. Each treatment plan notes that the total cost for acupuncture is $0.00.
78Massage treatment is also a separate modality in each treatment plan. In the treatment plan submitted December 8, 2019 in the amount of $2,174.50 (issue b), there are 10 treatments of massage treatment proposed at a cost of $19.20 per treatment for a total cost of $192.00.
79In the treatment plan submitted January 27, 2020 in the amount of $1,645.20 (issue (c) there is one treatment of massage proposed at a cost of $19.20 per treatment for a total of $19.20.
80I find that the Medical Note of March 9, 2020 supports the massage therapy component of each treatment plan as being reasonable and necessary.
81Each treatment plan has a “reassessment” cost of $200.00. I take this to be the fee for a reassessment following the proposed treatment.
82Considering the evidence before me in relation to issues (b) and (c), I am persuaded that the applicant has established that the massage therapy components of the treatment plans in question are reasonable and necessary. I find the reassessment fee following the proposed 10 treatments of massage in the treatment plan submitted December 8, 2019 is also reasonable and necessary. However, a reassessment fee of $200.00 following the one massage therapy treatment component in the treatment plan submitted January 27, 2020 is not reasonable or necessary. The reassessment following the 10 treatments of massage in the treatment plan submitted December 8, 2019 would be sufficient given the short period of time between the proposed treatment plans.
Is the applicant entitled to $1,671.67 ($5,238.06 less the partially approved amount of $3,566.30) for psychological treatment recommended by All Health Medical Centre dated June 5, 2019?
83I find that the applicant is not entitled to the remaining $1,671.67 for psychological treatment recommended by All Health Medical Centre dated June 5, 2019 as it is not reasonable and necessary.
84The applicant submitted that All Health Medical Centre provided its CNRs for treatment, other treating physicians, including Dr. Vaidyanath, agreed that she required psychological treatment and she benefited from the psychological treatment. It is accepted that the applicant required psychological treatment. The respondent agreed and approved several treatment plans for psychological treatment.
85By correspondence dated June 24, 2019, the respondent partially approved the treatment plan to the amount of $3,566.30. The respondent agreed to pay for the psychotherapy at an hourly rate of $149.61 for a psychologist, and an hourly rate of $58.19 for a psychotherapist. These were the Financial Services Commission of Ontario guideline hourly rates. The respondent requested further information regarding this treatment plan: confirmation of which practitioner completed the psychotherapy and how the psychotherapy treatment was provided, either in-person, by phone or by video. All Health Medical Centre did not provide the requested information.
86The respondent also advised that it would not pay for client-related supervision services as they were deemed not to be reasonable and necessary. Neither the applicant nor All Health Medical Centre provided any explanation or rationale as to why supervisory services were required for this treatment plan in dispute.
87I would note that further treatment plans provided by All Health Medical Centre for psychological treatment did contain such information and these subsequent treatment plans were approved by the respondent.
88Given the fact that the respondent partially approved the treatment plan in issue to $3,566.30 and was never provided with the information that it requested for approval above that amount, I find that the applicant is not entitled to $1,671.67. It was her onus to establish the reasonableness and necessity of the remaining amount and she failed to do so.
AWARD
89The applicant sought an award under s. 10 of Reg 664, arguing that the respondent unreasonably withheld or delayed payments.
90The Tribunal assesses an award based on whether the insurer’s behaviour is “excessive, imprudent, stubborn, inflexible, unyielding or immoderate,” and may award up to 50% of the total benefits in dispute if it determines that the insurer unreasonably withheld or delayed benefit payments.
91The applicant submits that she is entitled to an under s. 10 of Reg. 664 because the respondent:
a. Failed to provide its own assessors with a complete medical history of the applicant
b. Failed to take into consideration all of the evidence provided to the respondent including the clinical notes and records of Dr. Dawood, the applicant’s family physician;
c. Failed in its fiduciary obligations under s. 16 of the Schedule to rehabilitate the applicant;
d. Did not properly address the test for NEBs through the respondent’s IE assessors;
e. Intentionally did not review the activities of normal life that were clearly important to the applicant; and
f. Treated the matter in an adversarial fashion right from the start and in conducting surveillance so late after its termination of benefits.
92I find an award is not appropriate. While I appreciate the applicant’s submissions on this issue, I cannot find that the decisions of the respondent regarding the denial of benefits were made in bad faith or that its behaviour was excessive, impudent, stubborn, inflexible, unyielding, or immoderate, given that it initially funded the NEBs from the accident in February of 2019 to February 28, 2020 and funded other treatment plans in addition to the denied treatment plans.
INTEREST
93The applicant claims interest on overdue payment of benefits including interest on an outstanding balance of $2,980.95 to Mackenzie Medical Rehabilitation Centre Inc. and an outstanding balance owing to All Health Medical Centre in the amount of $3,763.68.
94It is the position of the respondent that not all of the amounts listed in the outstanding accounts of Mackenzie Medical Rehabilitation Centre Inc., or All Health Medical Centre are in dispute in this application and that, “interest is only payable on issues in dispute before the Tribunal on the within LAT application and not on all incurred amounts related to the claim.”
95I agree. Interest is payable in accordance with Section 51(2) but only on the issues in dispute and only on those issues where the applicant has been successful.
CONCLUSION AND ORDER
96For the reasons set out above:
a. The applicant is entitled to an NEB in the amount of $185.00 per week for a period of 12 weeks from February 28, 2020 to May 22, 2020;
b. The applicant is entitled to $190.20 for the massage treatment components of the treatment plan submitted by Mackenzie Medical Rehabilitation Centre on December 18, 2019, together with the reassessment fee of $200.00, as the treatment is reasonable and necessary;
c. The applicant is entitled to $19.20 for the massage treatment component of the treatment plan submitted by Mackenzie Medical Rehabilitation Centre on January 27, 2020, together with the reassessment fee of $200.00, as the treatment is reasonable and necessary;
d. The applicant is not entitled to the balance of $1,671.76 of the cost of the treatment plan for psychological treatment recommended by All Health Medical Centre in a treatment plan dated June 5, 2019, as the balance of $1,671.76 of the cost of the treatment plan is not reasonable and necessary;
e. I decline to order an award under s. 10 of Reg. 664; and
f. The applicant is entitled to interest on the overdue payment of benefits noted in a., b., and c. above.
Released: March 28, 2023
Gerard Tillmann
Adjudicator