21-001405/AABS

Licence Appeal Tribunal File Number: 21-001405/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:

Svetlana Ossipova

Applicant

and

BelairDirect Insurance Company

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

Anton O. Serikov, Paralegal

For the Respondent:

Marko Radulovic, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Svetlana Ossipova (the “applicant”) was involved in a motor vehicle accident on July 18, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). BelairDirect Insurance Company (the “respondent”) denied certain benefits. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant is seeking the full amounts of eight treatment plans that the respondent partially denied, plus interest. The respondent’s denials were almost entirely based on claims that the applicant sought payment for services in excess of rates authorized by the Financial Services Commission of Ontario’s (“FSCO”) Professional Services Guideline – Superintendent’s Guideline No. 03/14 (the “Guideline”). The respondent also disputes the length of time proposed for individual psychological therapy sessions, saying that the applicant has not proven them to be reasonable and necessary.

ISSUES IN DISPUTE

3The following issues are in dispute:

1. Is the applicant entitled to $87.19 ($200.00 less $112.81) for a Disability Certificate/OCF-3 prepared by Dr. Saranjit Khaira, chiropractor from 101 Assessment Centre, dated September 11, 2019?

2. Is the applicant entitled to $878.10 ($4,240.67 less $3,362.57) for osteopathic services, an initial assessment, and the cost of preparing the treatment plan from 101 Assessment Centre, proposed by Dr. Wayne Coughlan, chiropractor, in a treatment plan/OCF-18 dated July 23, 2019?

3. Is the applicant entitled to $917.15 ($3,152.22 less $2,235.07 approved) for osteopathic treatment services and the cost of a chiropractic reassessment from 101 Assessment Centre, proposed by Dr. Saranjit Khaira in a treatment plan/OCF-18 dated January 30, 2020?

4. Is the applicant entitled to $95.56 ($2,962.70 less $2,867.14 approved) for education services and the cost of completing the treatment plan for assistive devices and exercise equipment from 101 Assessment Centre, proposed by Dr. Coughlan in a treatment plan/OCF-18 dated February 18, 2020?

5. Is the applicant entitled to $1,546.57 ($4,912.80 less $3,366.23 approved) for psychological services from 101 Assessment Centre, proposed by Dr. Peter Waxer, psychologist, in a treatment plan/OCF-18 dated June 4, 2020?

6. Is the applicant entitled to $100.25 ($2,460.00 less $2,359.75) for the cost of preparing a treatment plan for a cognitive assessment from 101 Assessment Centre, proposed by Remik Zakrewski, occupational therapist, in a treatment plan/OCF-18 dated November 7, 2019?

7. Is the applicant entitled to $230.25 ($2,128.51 less $1,898.26 approved) for the cost of preparing an attendant care assessment treatment plan from 101 Assessment Centre, proposed by Remik Zakrewski in a treatment plan/OCF-18 dated November 29, 2019?

8. Is the applicant entitled to $200.50 ($2,128.51 less $1,928.01 approved) for the cost of preparing a treatment plan for attendant care assessment services from 101 Assessment Centre, proposed by Remik Zakrewski in a treatment plan/OCF-18 dated September 8, 2020?

9. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

RESULT

4I find that:

i. The applicant is entitled to $87.19 ($200.00 less $112.81) for the OCF-18 dated September 11, 2019, plus taxes and interest as applicable.

ii. The applicant is entitled to $109.05 for the OCF-18 dated July 23, 2019, plus taxes and interest as applicable.

iii. The applicant is entitled to $87.19 for the OCF-18 dated January 30, 2020, plus taxes and interest as applicable.

iv. The applicant is entitled to $94.38 for the OCF-18 dated February 18, 2020, plus taxes and interest as applicable.

v. The applicant is entitled to $1,546.57 ($4,912.80 less $3,366.23 approved) for the OCF-18 dated June 4, 2020, plus taxes and interest as applicable.

vi. The applicant is entitled to $100.25 for the OCF-18 dated November 7, 2019, plus taxes and interest as applicable.

vii. The applicant is entitled to $100.25 for the OCF-18 dated November 29, 2019, plus taxes and interest as applicable. However, the applicant is not entitled to $130 for HST for the OCF-18 dated November 29, 2019 and as no benefits are owing, it follows that tax is not applicable.

viii. The applicant is entitled to $100.25 for the OCF-18 dated September 23, 2020, plus taxes and interest as applicable.

ANALYSIS

The Treatment Plans: Background

5Entitlement to treatment and assessment plans is determined under s. 15 and 16 of the Schedule, with the applicant bearing the burden of demonstrating that such medical benefits are reasonable and necessary as a result of the accident. Here, however, the respondent has agreed that the treatment plans are reasonable and necessary and has approved them. What remains in dispute is the amount charged in each treatment plan for various services, plus a dispute over the length of time of the psychological therapy sessions recommended in the treatment plan dated June 4, 2020.

6I will first address the question of the rates in the treatment plans in dispute, then determine if the psychological services treatment plan recommendations are reasonable and necessary.

What are the appropriate fees for the services rendered to the applicant?

7The FSCO Guideline establish the maximum expenses payable by automobile insurers under the Schedule. These maximums are applicable to: a medical benefit under s. 15 of the Schedule; a rehabilitation benefit under s. 16 of the Schedule; case management services under s. 17 of the Schedule; and conducting an examination, assessment, or provision of a certificate, report, or treatment plan under s. 25 of the Schedule. Insurers are not prohibited from paying above any maximum amount or hourly rate established in the Guideline.

8Services provided by health care professionals/providers, unregulated providers, and other occupations not listed in the Guideline are not covered by the Guideline. Amounts payable by an insurer in these instances are to be determined by the parties involved, or by the Tribunal in situations like this one where the parties cannot agree on acceptable rates of compensation.

9Section 25(3) of the Schedule provides that an insurer is not liable to pay for expenses related to professional services rendered to an insured person that exceed the maximum rate or amount of expenses established under the Guideline.

Preparation fee for an OCF-3 dated September 11, 2019

10I find that the applicant is entitled to $87.19, plus taxes and interest as applicable, for completion of the OCF-3 prepared by Dr. Khaira, dated September 11, 2019.

11The applicant has submitted a rate of $200.00 for the completion of this plan, the maximum allowable under the Guideline. She further argues that this is an appropriate rate, explaining that Dr. Khaira, the chiropractor who completed the plan, required over two hours to do so.

12BelairDirect denied this rate. The insurer instead approved $112.81, which is the maximum hourly rate for a chiropractor under the Guideline.

13I agree with the applicant. A rate of $200.00 is allowable under the Guideline for the preparation of an OCF-3, as noted in the table on page 5 of that document. In addition, the applicant provided a thorough explanation of how the OCF-3 was completed, and how much time Dr. Khaira required to do so. The $200.00 is also the standard rate for the completion of disability certificates. I accept the applicant’s argument that this fee was intended to be a separate cost considered apart from hourly rates, as the Guideline lists maximum rates for the completion of forms such as OCF-3s and OCF-18s in one table and the maximum hourly rates for services in another.

14BelairDirect provided no submissions as to why it chose to approve the hourly chiropractic rate instead of the allowed $200.00, writing that this decision was made because the rules of the Guideline “allow an insurer to avoid paying for fees which have the effect of increasing hourly rates.” This argument is unpersuasive, as it is lacking in specifics and does not refer directly to the issue before me.

15As a result, I find that the applicant is entitled to $87.19 ($200.00 less $112.81) for the completion of the OCF-18 dated September 11, 2019, plus taxes and interest as applicable.

Osteopath rates and plan completion fee in an OCF-18 dated July 23, 2019

16I find that the applicant is entitled to an $80.00 per hour rate for the five sessions of osteopathic therapy recommended in the treatment plan dated July 23, 2019. As a result, the applicant is entitled to $109.05, plus taxes and interest as applicable.

17The applicant submitted a rate of $150.00 per hour for five sessions in total of osteopathic therapy in this treatment plan. BelairDirect partially approved the plan, but denied the osteopath rate. Instead, the respondent agreed to pay for the same number of osteopathic therapy sessions but at the rate of $58.19 per hour. The respondent argues that the Guideline rate of $58.19 for unregulated providers should apply because osteopaths are not listed in the Guideline.

18In submissions, the applicant proposes that a rate of $80.00 per hour would best apply for osteopathic services as this is the hourly rate recommended by the National Academy of Osteopathy (Canada).

19I concur with the applicant. While osteopaths are not included in the list of medical service providers in the Guideline, that does not, at least in my opinion, necessitate that they be relegated to the lowest rate of hourly compensation. Also, the list of unregulated providers in the Guideline includes counsellors and case managers, not a profession such as osteopathy, which is fully regulated. As such, it would be more appropriate to assign osteopathy to a higher hourly rate akin to chiropractors and physiotherapists. This is also supported by the suggested hourly rate listed by the National Academy of Osteopathy.

20Due to the reasons noted above, the applicant is entitled to an $80.00 per hour rate for the five sessions of osteopathic therapy recommended in this treatment plan dated July 23, 2019. This means that the applicant is entitled to an additional $21.81 per hour for the five sessions, as the respondent has already approved $58.19 per hour for these services. The total that the applicant is entitled to is $109.05, plus taxes and interest as applicable.

Osteopath rates and chiropractic reassessment fee in an OCF-18 dated January 30, 2020

21I find that the applicant is entitled to an $80.00 per hour rate for eight sessions of osteopathic therapy recommended in this treatment plan dated January 30, 2020, and the full $200.00 recommended therein for a chiropractic assessment.

22This dispute is similar to those listed above, with the plan submitted by the applicant recommending $150 per hour in osteopathic therapy along with a $200.00 fee for a chiropractic assessment completed by Dr. Khaira. The respondent applied the same rationale and $58.19 hourly rate to osteopathic therapy in its partial denial of this plan, and the same rationale to its decision to pay the $112.81 chiropractic hourly rate for an assessment by Dr. Khaira instead of the flat $200.00 fee.

23For the same reasons as those noted above on osteopathy rates and fees for document completion, I agree with the applicant’s position on both issues.

24Due to the reasons noted above, the applicant is entitled to an $80.00 per hour rate for the eight sessions of osteopathic therapy recommended in this treatment plan dated January 30, 2020. This means that the applicant is entitled to an additional $21.81 per hour for the eight sessions, as the respondent has already approved $58.19 per hour for these services. This results in a total of $174.48, plus taxes as applicable. The applicant is also entitled to interest, as applicable.

25The applicant is also entitled to $200.00 for the chiropractic assessment component of this plan. As the respondent has already approved $112.81, the applicant is entitled to the remaining $87.19, plus tax and interest as applicable.

26Taken together, this amounts to a total of $261.67, plus taxes and interest.

Documentation and support activity fee in an OCF-18 dated February 18, 2020

27I find that the applicant is entitled to $94.38, plus taxes and interest as applicable, for an education service and the completion of the OCF-18 prepared by Natalya Khramtsova, nurse, and Dr. Wayne Coghlan, chiropractor, dated February 18, 2020.

28This dispute is similar to those above. Here, the applicant submitted the OCF-18 including $120.00 for education about the use of assistive devices to be provided by Ms. Khramtsova and $200.00 for the preparation of the OCF-18 by Dr. Coghlan. The respondent approved the plan, but limited the amounts of these line items to the $112.81 chiropractor rate. This resulted in a difference of $94.38 (a slight difference from the $95.56 sought by the applicant).

29For the same reasons that I have noted above regarding fees for document preparation and assessments, I agree with the applicant.

30Accordingly, the applicant is entitled to $94.38 for the education item and the completion of the OCF-18 dated February 18, 2020. This amounts to the difference between the $225.62 approved for these items by the respondent and the $320.00 sought by the applicant. The applicant is also entitled to tax and interest as applicable.

Documentation support activity fee in an OCF-18 dated November 7, 2019

31I find that the applicant is entitled to $100.25, plus taxes and interest as applicable, for the completion of the OCF-18 by Remik Zakrzewski, occupational therapist, dated November 7, 2019.

32This dispute is also similar to those noted above. The applicant submitted this plan with a $200.00 line item for the completion of the OCF-18. The respondent approved the plan, although it limited the amount payable to Mr. Zakrewski to a single hour at the $99.75 maximum rate for occupational therapists in the Guideline.

33For the same reasons that I have noted above regarding fees for document preparation and assessments, I agree with the applicant. The applicant also provided additional information on the length of time that Mr. Zakrewski required to write this OCF-18, which included review of the medical documentation on file. The respondent submitted no rationale as to why it chose to pay just the single hour at the occupational therapist rate, other than to write that it relies on the Guideline and is not liable to pay more than this single hour at the specified rate. This argument is unpersuasive, as it lacks specifics and does not refer to the issue before me.

34It follows from the above that the applicant is entitled to the $100.25 balance of the treatment plan in dispute dated November 7, 2019, plus taxes and interest.

Documentation and support activity fee in an OCF-18 dated November 29, 2019

35I find that the applicant is entitled to $100.25, plus taxes and interest as applicable, for the completion of the OCF-18 by Remik Zakrzewski, occupational therapist, dated November 29, 2019. However, I find that the applicant is not entitled to $130.00 sought for Harmonized Sales Tax (“HST”).

36This dispute is similar to those noted above. The applicant submitted this plan with a $200.00 line item for the completion of the OCF-18. The respondent approved the plan, although it limited the amount payable to Mr. Zakrewski to a single hour at the $99.75 maximum rate for occupational therapists in the Guideline.

37For the same reasons that I have noted above regarding fees for document preparation and assessments, I agree with the applicant. The applicant also provided additional information on the length of time that Mr. Zakrewski required to write this OCF-18, which included review of the medical documentation on file. The respondent submitted no rationale as to why it chose to pay just the single hour at the occupational therapist rate, other than to write that it relies on the Guideline and is not liable to pay more than this single hour at the specified rate. This argument is unpersuasive, as it lacks specifics and does not refer to the issue before me.

38The applicant has provided no evidence that the respondent did not pay the $130.00 amount for HST. The respondent specifically notes that it agreed to pay this expense in correspondence dated February 12, 2020, and I have no evidence before me that disputes this claim. As a result, I can make no ruling here other than to agree with the applicant’s citation of the Guideline and that “If the HST is considered by the CRA [Canada Revenue Agency] to be applicable to any of the services or fees listed in this Guideline, then the HST is payable by an insurer in addition to the fees as set out in this Guideline.”

39For the reasons that I have explained above, the applicant is entitled to the $100.25 balance of the treatment plan in dispute, plus taxes and interest as applicable. The applicant is not entitled to $130 for HST.

Documentation and support activity fee in an OCF-18 dated September 23, 2020

40I find that the applicant is entitled to $100.25, plus taxes and interest as applicable, for the completion of the OCF-18 by Remik Zakrzewski, occupational therapist, dated September 23, 2020.

41With the exception of the HST matter, this issue is otherwise identical to that noted above.

42I agree with the applicant, also for the same reasons as noted above.

43As a result, the applicant is entitled to the $100.25 balance of the treatment plan in dispute, plus taxes and interest as applicable.

Is the psychological services treatment plan dated June 4, 2020 reasonable and necessary?

44I find that the applicant is entitled to $1,546.57 ($4,912.80 less $3,366.23 approved) for the remainder of this psychological services treatment plan dated June 4, 2020, as she has proven it to be reasonable and necessary.

45In dispute is a treatment plan completed by Lital Grinberg, psychological associate, under the supervision of Dr. Peter Waxer, psychologist, that recommends 16 sessions of psychological therapy with a duration of 1.5 hours each.

46The respondent approved the majority of this plan, but only allowed one hour per therapy session. This was explained by BelairDirect in correspondence dated July 6, 2020, that also referred to an insurer’s examination (“IE”) report completed by Dr. Jana Atkins and dated October 21, 2019. The respondent also denied a $200.00 line item for preparation of the OCF-18 by Dr. Waxer, paying one hour of the $149.61 maximum psychologist rate as specified in the Guideline for the same reason as noted above with similar denials.

47I agree with the applicant. While an OCF-18 is not sufficient evidence proving that its treatment recommendations are reasonable and necessary without the support of supporting medical evidence, this OCF-18 includes clinical observations and diagnoses of somatic symptom disorder, chronic adjustment disorder with mixed mood, and a situational phobia. It well supports the recommendation for 1.5-hour treatment sessions. It also stands alone, as the respondent did not submit the Dr. Atkins report that formed the basis of its partial denial of this plan.

48I further agree with the applicant with regard to the $200.00 fee for the preparation of this OCF-18 for the same reasons explained above regarding similar disputes over documentation.

49For the above reasons, I find that the applicant is entitled to the remaining portion of this treatment plan, plus tax and interest as applicable.

ORDER

50I find that:

i. The applicant is entitled to $87.19 ($200.00 less $112.81) for the OCF-18 dated September 11, 2019, plus taxes and interest as applicable.

ii. The applicant is entitled to $109.05 for the OCF-18 dated July 23, 2019, plus taxes and interest as applicable.

iii. The applicant is entitled to $87.19 for the OCF-18 dated January 30, 2020, plus taxes and interest as applicable.

iv. The applicant is entitled to $94.38 for the OCF-18 dated February 18, 2020, plus taxes and interest as applicable

v. The applicant is entitled to $100.25 for the OCF-18 dated November 7, 2019, plus taxes and interest as applicable.

vi. The applicant is entitled to $100.25 for the OCF-18 dated November 29, 2019, plus taxes and interest as applicable. However, the applicant is not entitled to $130 for HST for the OCF-18 dated November 29, 2019 and as no benefits are owing, it follows that tax is not applicable.

vii. The applicant is entitled to $100.25 for the OCF-18 dated September 23, 2020, plus taxes and interest as applicable.

viii. The applicant is entitled to $1,546.57 ($4,912.80 less $3,366.23 approved) for OCF-18 dated June 4, 2020, plus taxes and interest as applicable.