Citation: Vila v. Aviva Insurance Company, 2023 ONLAT 20-003585/AABS

Licence Appeal Tribunal File Number: 20-003585/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:

Sabit Vila

Applicant

and

Aviva Insurance Company

Respondent

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Donata Di Iorio, Counsel

For the Respondent: Nathalie Rosenthall, Counsel Kevin So, Counsel

HEARD: By way of written submissions

1Sabit Vila, the applicant, was involved in an automobile accident on March 6, 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, 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 the assessments, treatment, or benefits proposed by Prime Healthcare, as follows:

i. $506.36 ($4,676.96 submitted less $4,170.60 approved) for chiropractic, massage and acupuncture treatment, in a treatment plan submitted on April 5, 2018;

ii. $45.72 ($483.01 submitted less $437.29 approved) for assistive devices, in a treatment plan submitted on July 5, 2018;

iii. $4,015.71 for chiropractic, massage and acupuncture treatment, in a treatment plan submitted on July 5, 2018;

iv. $5,644.44 for chiropractic treatment, in a treatment plan submitted on July 5, 2018;

v. $2,343.69 ($4,368.25 submitted less $2,024.56 approved) for chiropractic treatment, in a treatment plan submitted on November 6, 2018;

vi. $3,405.21 for psychological treatment, in a treatment plan submitted on September 3, 2019;

vii. $949.14 ($2,205.14 submitted less $1,256.00 approved) for physiotherapy treatment, in a treatment plan submitted on August 28, 2019;

viii. $1,996.95 for physiotherapy treatment, in a treatment plan submitted on October 9, 2019;

ix. $9,341.41 for physiotherapy treatment, in a treatment plan submitted on January 8, 2020;

x. $45.72 ($148.75 submitted less $103.03 approved) for assistive devices, in a treatment plan submitted on January 7, 2019;

xi. $371.36 ($1,230.92 submitted less $859.56 approved) for an attendant care assessment, in a treatment plan submitted on April 6, 2018;

xii. $512.91 ($1230.92 submitted less $718.01 approved) for an attendant care assessment, in a treatment plan submitted on November 6, 2018;

xiii. $1,908.96 ($4,674.04 submitted less $2,765.08 approved) for 16 counselling sessions, in a treatment plan denied on March 3, 2022;

xiv. $3,498.92 for 24 hours of translation services for a psychological assessment, in a treatment plan denied on March 4, 2022;

xv. $1,678.88 ($6,971.40 submitted less $5,292.52 approved) for 10 occupational therapy sessions, denied on March 17, 2022;

xvi. $11,604.19 for various items denied on March 17, 2022; and

xvii. $2,187.72 ($12,759.68 submitted less $10,571.96 approved) for 24 rehabilitation support worker treatment sessions, denied on May 3, 2022.

ii. 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?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is entitled to the following, including interest in accordance with s. 51 of the Schedule:

i. $361.76 for massage and travel in the treatment plan submitted on April 5, 2018;

ii. $881.90 for massage and acupuncture in the treatment plan submitted on July 5, 2018;

iii. $274.18 for physiotherapy in the treatment plan submitted on August 28, 2019;

iv. $1,996.96 for physiotherapy in the treatment plan submitted on October 9, 2019;

v. $2,278.46 for the psychological components of the treatment plan submitted on January 8, 2020;

vi. $59.82 of the denied portion of the treatment plan for an attendant care assessment submitted on April 6, 2018; and

vii. $201.37 of the denied portion of the treatment plan for an attendant care assessment submitted on November 6, 2018.

4The applicant is not entitled to the remainder of the treatment plans in dispute.

5The respondent is liable to pay an award under s. 10 of O. Reg. 664 in the amount of $450.00.

ANALYSIS

Overview

6To 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.

7I have listed the issues in dispute as they are identified by the applicant in his submissions, but I have grouped the treatment plans below according to kind.

$506.36 ($4,676.96 submitted less $4,170.60 approved) for chiropractic, massage and acupuncture treatment, in a treatment plan submitted on April 5, 2018

8The disputed portion of this treatment plan relates to mileage, travel time, and the hourly rate for massage therapists. For the reasons below, I find that of the $506.36 in dispute, the applicant is entitled to $203.70 for massage therapy, and $158.06 for travel time. I find that the applicant is not entitled to the mileage expense claimed.

9The respondent submits that the applicant is not entitled to mileage payment for any service provider. It relies on V.H. v. Certas Home & Auto Company, 2018 CanLII 98286 [V.H.], which states that there is no provision in the Schedule, the Professional Services Guideline (“PSG”), or the Transportation Expense Guideline that allows the Tribunal to order that service providers’ mileage be paid.

10The applicant relies on J.D. v. Intact Insurance Company, 2022 CanLII 4512, which states that mileage costs are payable as long as the applicant can establish on a balance of probabilities that it is reasonable and necessary for the treatments to take place in-home. The applicant submits that he was unable to leave his home and drive due to his injuries, so the mileage costs of the provider were reasonable and necessary so that he could receive massage therapy in his home. I note that the decision relied upon by the applicant was recently set aside by the Tribunal (see 2022 CanLII 84682 (ON LAT)). Adjudicator Flude found that the Tribunal failed to provide adequate reasons for approval of the mileage payment, and did not address the impact, if any, of the Schedule and the PSG on the respondent’s obligation to pay for it.

11Pursuant to s. 15(2)(c) of the Schedule, an insurer is not liable to pay for transportation expenses other than “authorized transportation expenses”. An “authorized transportation expense” is defined in s. 3(1) and in Superintendent's Guideline No. 04/16 as mileage expenses for an insured person or their aide or attendant to travel. It does not mention mileage expenses for a service provider.

12I find the case law relied on by the respondent to be persuasive. Mileage for a service provider is not expressly payable under the Schedule or the PSG. Further, in V.H., like this case, the insurer agreed to pay for the provider’s travel time, so the transportation expenses had already been paid for. I therefore find that the expense for mileage is not payable.

13The respondent argues that the travel time is excessive, as a round trip between the two addresses is 24 minutes and not 30 minutes as suggested in the treatment plan. It submits that the appropriate amount for travel time is $631.68, as opposed to the $789.74 claimed. The applicant states that the duration of a drive between destinations in the Greater Toronto Area fluctuates depending on traffic conditions. He argues that 30 minutes of travel time is reasonable.

14Aside from making submissions, neither party has provided me with evidence as to the length of time that it would take to complete a round trip from the clinic to the applicant’s home. However, the respondent acknowledged in a letter dated November 12, 2018, partially approving a different treatment plan, that the clinic and the applicant’s home are 15 minutes apart each way. The respondent has effectively conceded, in principle, the need to prove that the round trip is 30 minutes. It would be illogical for the respondent to agree that the trip takes 30 minutes for one treatment provider, but only 24 minutes for another treatment provider from the same clinic location. I accordingly find that 30 minutes of travel time is payable.

15The respondent also submits that the hourly rate charged for the registered massage therapy exceeds the maximum rate under the PSG. The treatment plan lists $59.00 as the hourly rate, whereas the PSG indicates a maximum of $58.19 per hour. The respondent states that at 45 minutes per session, the applicant should be entitled to a total of $610.96. The applicant did not make any submissions with respect to this item.

16The treatment plan requests 14 sessions of massage therapy, each an hour long, at a rate of $59.00 pre hour. I agree with the respondent that the appropriate rate should be $58.19 per hour in accordance with the PSG, and not $59.00. However, the respondent does not explain why it reduced the amount of time for each massage session to 45 minutes from one hour in its denial letter, or in its submissions. Based on the account summary from Prime Health Care Inc. provided by the applicant, it does appear that the denied portion of the treatment plan was incurred.

17I do not find it unreasonable for the applicant to have received 1-hour massage therapy sessions at the time. This was what was being recommended by his treatment team one month after the accident, and there is no evidence to suggest that this was unreasonable. Massage was recommended by his family physician around that time as well. He appears to have incurred the cost for 1-hour sessions. The respondent has not provided any evidence to tip the scales in their favour. I find that on a balance of probabilities, the applicant was entitled to 1-hour massage therapy sessions at a rate of $58.19 per hour.

$45.72 ($483.01 submitted less $437.29 approved) for assistive devices, in a treatment plan submitted on July 5, 2018

18The denied portion of this treatment plan is with respect to $45.72 listed as “preparation, service”. The respondent submits that it had already agreed to pay the amount of $63.72 for “documentation, support activity for claim form”. It states that the applicant has not explained the difference between the two items, or why the fee for “preparation, service” is required in addition to the recommended treatment. It relies on Gordon-Tennant v. Aviva General Insurance, 2021 CanLII 45660 (ON LAT), where the Tribunal found that if an applicant has failed to produce evidence in relation to a “planning, service” expense, they have not met their onus in proving it is reasonable and necessary.

19The applicant does not make any submissions in respect of this item.

20No explanation has been provided as to what this item is for. There is no explanation in the treatment plan itself or any other document in evidence. I agree with the respondent that the applicant has not met his onus in proving that this item is reasonable and necessary.

$45.72 ($148.75 submitted less $103.03 approved) for assistive devices, in a treatment plan submitted on January 7, 2019

21Similar to the abovementioned issue, the denied portion of the treatment plan is for “preparation, service”. No submissions have been made by the applicant with respect to this treatment plan. No explanation has been provided by the applicant with respect to what the preparation was for, or why it is reasonable and necessary. I find that the applicant has not met his onus in proving on a balance of probabilities that the denied portion of this treatment plan is reasonable and necessary.

$4,015.71 for chiropractic, massage, and acupuncture treatment, in a treatment plan submitted on July 5, 2018

22This treatment plan proposed a chiropractic assessment, chiropractic manipulation, massage therapy, acupuncture, stimulation to the muscles of the back, travel time, mileage, “therapeutic intervention NEC”, and a cane. For the reasons below, I find that the applicant is entitled to a total of $881.90 for massage therapy and acupuncture.

23The respondent submits that the only medical documentation produced to demonstrate that the requested treatment is recommended is the s. 25 chronic pain report of Dr. Grigory Karmy. The respondent states that Dr. Karmy recommends chiropractic adjustments and spinal decompressions, but does not recommend chiropractic manipulations for the cervical and lumbar spine due to possible radiculopathy. The respondent submits that I should place less weight on Dr. Karmy’s recommendations due to their ambiguity, and because there are no other medical records to corroborate his recommendations.

24The respondent also relies on the s. 44 report of Dr. Erin Boynton from January 2019. Dr. Boynton reviewed a different but similar treatment plan submitted in November 2018, and although she recommended that the applicant receive physiotherapy, she did not believe that the treatment plan as submitted was reasonable and necessary.

25The respondent further states that the provider travel time and mileage should not be payable as these items were claimed for chiropractic treatment. Finally, the respondent submits that it should not have to pay for the cane, as it subsequently approved payment for a cane on January 11, 2019.

26The applicant submits that Dr. Karmy is his treating therapist and is arguably in the best position to determine the necessary treatments for him. However, no documentation has been provided to indicate that Dr. Karmy has provided any treatment. The applicant has not provided any treatment records from Dr. Karmy or explained in what capacity he would have treated him. The only document in evidence from Dr. Karmy is his s. 25 report.

27The applicant further argues that there is a medical distinction between spinal manipulation, chiropractic adjustments, and spinal decompression therapy. He argues that spinal manipulation involves a thrusting movement, typically applied with significant force and speed, whereas spinal decompression involves low velocity and low force. The applicant states that the recommendations for chiropractic adjustments and spinal decompression were reasonable and necessary. The applicant does not make any other submissions with respect to this treatment plan.

28Aside from his submissions, the applicant has not provided any evidence with respect to the differences between chiropractic manipulation and decompression therapy. In any event, as far as I can determine, the line item in the treatment plan is not for decompression therapy; it is listed as “manipulation”. The applicant appears to agree that manipulation is not warranted. I therefore find that this line item is not reasonable or necessary.

29With respect to the provider travel time, the applicant states that he received massage therapy in his home following the accident. He does not state that his chiropractor, Dr. Hefford, was also providing treatment at his home, and there is no evidence to show that he was. The treatment plan claims $564.10 for the chiropractor to travel to and from the applicant’s home for 10 sessions. I find that in the absence of any evidence that the chiropractor was travelling to and from the applicant’s home, the travel time is not payable. I also find that mileage is not payable for that reason, and for the reasons stated above.

30I disagree with the respondent’s assertion that no other medical records corroborate Dr. Karmy’s recommendations. Although Dr. Karmy does recommend a number of treatment modalities that are not mentioned by anyone else, massage therapy was being recommended by the applicant’s family physician, Dr. Murray, around the time the treatment plan was submitted.

31Dr. Murray’s clinical notes indicate that the applicant’s pain was being controlled by medication and the physical therapy he was receiving. I note that Dr. Boynton’s s. 44 assessment did not take place until January 10, 2019, so I do not find that her report is determinative of whether the applicant required the proposed therapy in May 2018. In any event, in January 2019 she recommended that the applicant engage in aggressive activity with the assistance of a physiotherapist or kinesiologist. I find that it is not unreasonable for the applicant to have received therapies such as massage and acupuncture at the time the treatment plan was submitted.

32The massage therapist claimed $59.00 per hour for therapy sessions, which exceeds the maximum hourly rate in the PSG. I find that the applicant is entitled to 10 sessions of massage therapy at a rate of $58.19 per hour, for the total amount of $581.90. I also find that the applicant is entitled to 10 sessions of acupuncture for the total amount of $300.00.

33However, Dr. Boynton specifically stated that Pulsed Electro Magnetic Field therapy (PEMF) is not indicated for the applicant’s condition. This treatment was referred to in the “additional comments” section of the treatment plan. From what I can determine, it appears to relate to the line item for “stimulation, muscles of the back”. No treatment records have been provided from the applicant’s therapy clinic. I find that in the absence of further evidence regarding the efficacy of this treatment, the applicant has not proven on a balance of probabilities that this item is reasonable and necessary. If I am incorrect, and the line item for “stimulation” related to something else, the applicant has not explained what this is and therefore has not met his burden either way.

34I do not know what “therapeutic intervention NEC” is. The applicant has not explained what this is. The treatment plan itself does not explain what this is. In the absence of further information, I find that the applicant has not met his onus in proving that this item is reasonable and necessary.

35I find that as the respondent already paid for a cane, and without any information as to whether these canes are different or why two canes were required, the cane referred to in this treatment plan is not reasonable and necessary.

36As I have determined that none of the therapies to be provided by the chiropractor were reasonable and necessary, I find that $200 for the chiropractor’s assessment is not reasonable and necessary either. Without further information, I do not see a reason why the chiropractor would need to assess the applicant if he was not providing any treatment.

$5,644.44 for chiropractic treatment, in a treatment plan submitted on July 5, 2018

37This treatment plan is for an Orthoflx REMF Bone Growth Stimulator. The respondent argues that the applicant has not produced evidence as to what this item is, or why it would be beneficial for him. There are no records from the fracture clinic discussing a bone growth stimulator. The respondent also submits that it is not liable to pay benefits for goods that are experimental in nature.

38In the applicant’s reply submissions, he submits that the stimulator provides waves to stimulate his natural healing process. He argues that being allowed to heal from his injuries would mean less facility-based treatment, as it could potentially reduce his pain.

39The applicant did not provide any evidence as to whether the stimulator would actually reduce his pain or need for facility-based treatment. Submissions are not evidence. The applicant was followed by an orthopaedic surgeon for approximately 1 year after the accident, and this item was never recommended. Although the OCF-18 states that the applicant was advised at the fracture clinic that the fracture had still not healed, the records from the clinic indicate that the fracture had in fact healed as of June 2018. This treatment plan was submitted after that appointment.

40I find that the applicant has not proven on a balance of probabilities that this treatment plan is reasonable and necessary.

$2,343.69 ($4,368.25 submitted less $2,024.56 approved) for chiropractic treatment, in a treatment plan submitted on November 6, 2018

41The applicant does not make any submissions with respect to this treatment plan, aside from listing it as an issue in dispute. The respondent points out that this treatment plan is for psychological services, not chiropractic treatment. The respondent indicated in its denial letter that the psychotherapist would be paid an hourly rate of $58.19 instead of the proposed $149.61, and that the therapist could contact the adjuster to discuss an alternative rate if it was appropriate.

42The respondent submits that the OCF-18 states that the therapy would be conducted by “Dr. Shaul or a therapist working under his direct supervision.” The respondent states that there is a lack of clarity as to the credentials, experience, and training of the individual to be providing the sessions, and as such the proposed hourly rate is excessive. There is also no information as to the identity of the person who provided the service. The respondent also invited the treating therapist to contact them to discuss an appropriate rate, but it submits that there is no evidence they ever did.

43Finally, the respondent points out that there does not appear to be an outstanding amount for the OCF-18 as noted in the account summary provided by Prime Health Care. I have reviewed the account summary, and it appears that $3,322.30 has been paid for this treatment plan. That leaves an amount of $1,045.95 in dispute, not $2,343.69. It appears that the respondent has actually paid more than $58.19 per hour for the services in this treatment plan, although the respondent has not advised why.

44The PSG specifies that the maximum hourly rate for unregulated professionals is $58.19. A psychologist or psychological associate is entitled to charge a maximum of $149.61 per hour. There is no set amount in the PSG for a registered psychotherapist; that amount is to be decided by the parties or the Tribunal. If the provider was not a psychologist or psychological associate, the onus is on the applicant to demonstrate that they are entitled to a higher hourly rate. Since the OCF-18 indicated that the treatment might not be provided by Dr. Shaul, the applicant must provide further information as to who will be conducting the sessions.

45The parties have left me very much in the dark with respect to this treatment plan. Without further information, I am unable to determine who was supposed to conduct the treatment sessions, or who ended up doing it. If it was someone other than a psychologist or psychological associate, I have no way of knowing whether the amount claimed was reasonable and necessary. The applicant had the ability to clarify this in his reply submissions, but failed to do so. As such, the applicant has not met his onus in proving that the amount in dispute is reasonable and necessary.

$3,405.21 for psychological treatment, in a treatment plan submitted on September 3, 2019

46This treatment plan is for driving counselling. The respondent in fact approved $2,244.15, and only $1,161.06 remains in dispute. The respondent refused to pay for “facilitation, cognition and learning” in the amount of $50, and $63.72 for documentation. The respondent approved completion of the OCF-18 at $149.61, and approved one-hour treatment sessions instead of the proposed 1.5-hour sessions.

47With respect to the length of the treatment sessions, the respondent relies on the s. 44 report of psychologist Dr. Arnold Rubenstein from January 17, 2019. Dr. Rubenstein recommended 8-10 hourly driving counselling sessions. The applicant submits that Dr. Rubenstein only addressed his anxiety symptoms, and the recommendations made by Dr. Shaul went beyond that of Dr. Rubenstein, requiring longer sessions. He submits that it is not unreasonable that he would require 1.5-hour sessions, as this was what was being recommended by his treating therapist.

48Dr. Shaul noted in his driver/passenger rehabilitation evaluation report of July 22, 2019 that the applicant was already attending psychological treatment sessions, where he was working through the multiplicity of difficulties that he faces as a result of the accident. Dr. Shaul indicated that during those regular sessions, there was minimal time to focus on the applicant’s anxiety while travelling in a vehicle, and additional counselling sessions were recommended for that issue in particular. He writes “these proposed counselling sessions would cater solely towards reducing his anxiety when travelling in a vehicle”.

49The treatment plan in dispute is specifically for driver/passenger rehabilitation counselling. As such, I cannot agree with the applicant’s submission that the recommendations made by Dr. Shaul went further than addressing his anxiety symptoms. In fact, Dr. Shaul specified that these sessions would only address his anxiety.

50It also appears, based on Dr. Shaul’s report, that the sessions were to occur in an office setting, and there was no in-vehicle component. The applicant would be provided with exposure therapy homework after learning techniques during the sessions. Without further evidence, I do not see a reason why the in-office sessions could not be completed within one hour.

51The treatment plan was prepared and signed by Nikolay Zagrebailov, a physiotherapist, based on the report of Dr. Shaul. Dr. Shaul did not specify how long the treatment sessions should be in his report. Mr. Zagrebailov is not qualified to opine on the length of psychological treatment sessions. I do not give much weight to the applicant’s submission that 1.5 hour sessions were recommended by his treating therapist, as the treatment plan was not prepared by his treating psychotherapist, and it is the only evidence of 1.5 hours being recommended for these sessions. I find that the applicant has not met his onus in justifying sessions lasting longer than one hour for driver/passenger rehabilitation counselling.

52The applicant does not address the other portions of the treatment plan that were denied, amounting to $113.72. Without further information or evidence, I find that the applicant has not met his onus in proving that the denied portion of the treatment plan is reasonable or necessary.

$949.14 ($2,205.14 submitted less $1,256.00 approved) for physiotherapy treatment, in a treatment plan submitted on August 28, 2019

53The submitted treatment plan was for 10 sessions of physiotherapy, 10 sessions of massage therapy, and 6 sessions of osteopathy, including a total body assessment and a fee to complete the OCF-18. The treatment was to take place over 6 weeks. The respondent partially approved the treatment plan for the amount of $1,256, however in its letter to the applicant, it does not specify the amount that it was denying or why. The respondent just states that the following was approved: “physiotherapy” and “as per sec. 44 recommendations inclusive of work hardening program”. I cannot determine, based on the text of the respondent’s letter, what portions of the treatment plan it was prepared to pay for.

54To make matters more complicated, the account summary provided by the applicant indicates that $1,930.96 was ultimately paid for this treatment plan, and thus only $274.18 appears to be in dispute. The applicant does not make any submissions with respect to this treatment plan in particular. The respondent submits that it relies on Dr. Boynton’s recommendations for four weeks of formal therapy and then a work hardening program. The respondent argues that the applicant has not provided evidence or submissions to dispute Dr. Boynton’s recommendation or indicate why treatment beyond what was partially approved is reasonable and necessary.

55While the applicant has the onus of proving that a treatment plan is reasonable and necessary at this Tribunal, an insurer first has the obligation, pursuant to s. 38(8), to provide proper notice to the applicant including the medical and all other reasons why it does not regard the proposed treatment to be reasonable and necessary. Where the insurer has failed to do so, the consequence under s. 38(11) is that the insurer must pay for the entirety of the treatment plan.

56The Schedule is consumer protection legislation. This Tribunal has found on multiple occasions that an insurer should refer to the specific benefit at issue, and the reasons for the denial should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision.¹

57I find that the respondent’s letter to the applicant was deficient, thus triggering the consequences of s. 38(11). I am entirely unable to determine what items in the treatment plan the respondent refused to pay for. I have no issue with the respondent relying on a s. 44 report in making its decision, however Dr. Boynton’s s. 44 report was completed prior to this treatment plan being submitted, so there is no clarity on this issue within her report either. I find that the balance of the treatment plan, which appears to be $274.18 based on the account summary, is payable.

$1,996.95 for physiotherapy treatment, in a treatment plan submitted on October 9, 2019

58This treatment plan was for physiotherapy, massage therapy, and osteopathy.

59The applicant submits that physiotherapy and massage therapy was recommended by Dr. Murray and Dr. Nauth, his orthopaedic surgeon, to manage his chronic pain condition and limited mobility. The respondent relies on the s. 44 report of Dr. Chris Boulias from December 10, 2019, where he opined that the treatment plan was not reasonable and necessary.

60In the “additional comments” section of the treatment plan, it states that exercise was provided in accordance with Dr. Boynton’s recommendations, and the applicant’s strength had improved. However, the physiotherapist who prepared the treatment plan stated that the applicant needed more time to develop the strength in his muscles and required more exercise program treatments. The applicant had not reached maximum medical recovery yet.

61Dr. Boulias also opined that the applicant had not achieved maximum medical recovery. Dr. Boulias recommended that the applicant work with his physiotherapist for quadricep strengthening or abductor strengthening exercises. I find it difficult to reconcile this recommendation with his opinion that the treatment plan in its entirety was not reasonable and necessary. Clearly, he believed that some of the proposed treatment was warranted. I accordingly assign less weight to his opinion with respect to this treatment plan.

62In April 2019, Dr. Nauth indicated that there was significant soreness in the applicant’s hip, and he recommended ongoing physiotherapy and massage therapy to control his ongoing soreness. The applicant was using increasing amounts of opiates to control his pain, which eventually led to an opiate use disorder. One of the goals of the treatment plan, in addition to restoring his stability and increasing his strength, was pain reduction. I find that there is evidence that the applicant was experiencing ongoing pain and that further treatment was warranted to try and relieve that pain around the time the treatment plan was submitted.

63Further, the applicant’s therapist stated that they had implemented the regimen recommended by s. 44 assessor Dr. Boynton, but found that the applicant required more treatment sessions to improve his strength. I do not think it was unreasonable for the applicant to have attempted one more slate of treatment in an attempt to reach this goal.

64I therefore find that on a balance of probabilities, the treatment plan in dispute was reasonable and necessary at the time.

$9,341.41 for physiotherapy treatment, in a treatment plan submitted on January 8, 2020

65The treatment plan in dispute is for a multidisciplinary pain rehabilitation program. The treatment modalities were recommended by Dr. Karmy in his report, and they include a psychological assessment, psychological treatment, physiotherapy, exercise with a chiropractor, acupuncture, massage therapy, and a follow up assessment with Dr. Karmy.

66The respondent submits that the applicant has not made submissions or produced medical evidence to justify this treatment plan, other than the chronic pain report of Dr. Karmy. It argues that the applicant has failed to provide updated medical documentation as to the benefits of the treatment. The respondent also submits that the applicant has failed to produce any corroborating medical evidence that his pain is chronic in nature, warranting a chronic pain assessment.

67The applicant submits that Dr. Murray recommended renewed funding for weekly physiotherapy and massage therapy in order to manage his chronic pain condition. He also submits that Dr. Nauth prescribed ongoing and consistent physiotherapy, and Dr. Shaul recommended ongoing psychological treatment for his deteriorating mental health.

68I find that in January 2020, the psychological assessment and treatment were warranted. Dr. Shaul diagnosed Adjustment Disorder with Anxiety, Major Depressive Disorder, Specific Phobia, and Somatic Symptom Disorder, and recommended counselling, a progress report, and psycho-educational material in his report of June 28, 2018. Psychological counselling was also recommended by s. 44 assessor Dr. Rubenstein after his assessment in December 2018. The applicant had been referred to a psychiatrist, Dr. Vasdev, by Dr. Murray and was diagnosed with Post-Traumatic Stress Disorder in March 2020. The applicant was also later deemed catastrophically impaired by a s. 44 psychiatrist, and was diagnosed with Somatic Symptom Disorder, Specific Phobia, and Major Depressive Disorder. It appears that psychological treatment was warranted, and I find that the amount of $2,278.46, relating to the psychological components of the treatment plan, was reasonable and necessary.

69With respect to the physical treatment proposed, I find that the applicant has not provided enough evidence to prove on a balance of probabilities that it was reasonable and necessary at the time. As mentioned above, I found that one further slate of physical therapy in October 2019 was reasonable based on the evidence before me. However, without further evidence, I find it difficult to conclude that facility-based physical therapy should continue. Dr. Murray and Dr. Nauth did prescribe physical treatment; however, I have no records from Dr. Murray past August 2018, and no records from Dr. Nauth past April 2019. I do not accept, without further evidence, that the recommendations of Dr. Murray and Dr. Nauth were meant to be indefinite. I do not know if the applicant continued to attend treatment, for how long, or how effective the treatment was. The applicant has not discharged his burden for this component of the treatment plan.

$371.36 ($1,230.92 submitted less $859.56 approved) for an attendant care assessment, in a treatment plan submitted on April 6, 2018

$512.91 ($1230.92 submitted less $718.01 approved) for an attendant care assessment, in a treatment plan submitted on November 6, 2018

70The items listed in both treatment plans are identical, however the respondent paid different amounts for each assessment. A summary of the amounts listed and the respondent’s positions are as follows:

Item	Amount claimed	Approved amount for OCF-18 submitted April 6, 2018	Approved amount for OCF-18 submitted November 6, 2018
Attendant care benefit determination – completion of Form-1 [assessment]	$420.66	$420.66	$399.00
Documentation, support activity [completion of Form-1]	$165.14	$99.75	$99.75
Preparation, service [communication with applicant to arrange assessment]	$141.55	$0	$49.86
Documentation, support activity [completion of attendant care report]	$353.88	$299.25	$199.50
Provider travel time, provider to treatment	$124.69	$39.90	$49.86
Provider mileage to treatment	$25.00	$0	$0

71The applicant has not made any submissions with respect to either of these treatment plans specifically. The respondent has not explained why it agreed to pay different amounts for each treatment plan despite them being identical. I also note that the total amount approved by the respondent for the second treatment plan, $718.01, does not add up to the sum of the amounts it agreed to pay for each item. The respondent should have paid $797.97 based on the reasoning in its notice letter.

72The respondent initially agreed that $420.66 was reasonable for the completion of the assessment itself. The respondent agreed to pay for less of the provider’s time for the second assessment than for the first assessment. There is no evidence before me indicating that the second assessment would take less time than the first. In order to complete the Form-1 and report, the applicant would presumably have to undergo the same testing during both assessments. In fact, the applicant incurred $1,230.92 for both assessments, which does not indicate to me that it took the assessor less time for the second assessment. As I do not believe that $420.66 is an unreasonable amount for an assessment of this nature, and the respondent apparently agreed with that in April 2018, I find that the amount of $420.66 for both assessments is reasonable and necessary.

73Without further information, I do not find it unreasonable for one hour to be allotted to complete the Form-1. The applicant has not provided any evidence or submissions as to why more time is required for the completion of the Form-1. I therefore find that the applicant has not proven on a balance of probabilities that more should be paid for this task than the $99.75 approved by the respondent.

74I find it reasonable that the provider be allotted some time to contact the applicant to arrange the assessment. The respondent acknowledged that this was reasonable for the second identical treatment plan, so I fail to see how it would not be reasonable for the first. I agree with the respondent that half an hour for this item is sufficient, and accordingly find that $49.86 for “planning, service” is reasonable and necessary for both treatment plans.

75With respect to the preparation of the attendant care report, the applicant has not provided any evidence to explain why the amount claimed is reasonable and necessary. For the first assessment, the respondent agreed to pay for three hours of report writing time. Without further information from the applicant, I agree with the respondent that three hours to write the attendant care assessment report is reasonable. I fail to see how it would be reasonable in April 2018 and then suddenly unreasonable in November 2018. I accordingly find that the applicant is entitled to $299.25 for this item for both treatment plans.

76The respondent acknowledged that the clinic and the applicant’s home are a 15-minute drive from each other. Without any evidence from the applicant regarding what address the assessor was travelling from, I agree with the respondent that half an hour round trip is reasonable and necessary for the provider’s travel time. The respondent reduced the travel time to 24 minutes in the first treatment plan, but agreed to fund 30 minutes of travel time for the second. As I have indicated above, the respondent was agreeable to paying for half an hour of travel time for the second assessment, and I do not see why it would be unreasonable to pay for half an hour for the first as well, given that the trips are exactly the same. I accordingly find that the applicant is entitled to $49.86 for provider travel time in both treatment plans.

77For the same reasons that I have indicated above, I find that the expense for mileage is not payable.

78I find that the applicant is entitled to $919.38 for each assessment. I accordingly find that of the $371.36 in dispute for the April 6, 2018, treatment plan, the applicant is entitled to $59.82. I also find that of the $512.91 in dispute for the November 6, 2018, treatment plan, the applicant is entitled to $201.37.

$1,908.96 ($4,674.04 submitted less $2,765.08 approved) for 16 counselling sessions, in a treatment plan denied on March 3, 2022

79The denied portion of this treatment plan relates to the hourly rate for the service provider, Tatiana Klopina, a registered psychotherapist. The treatment plan requested $179.29 per hour, the maximum amount allowable under the PSG for psychologists and psychological associates for catastrophically impaired claimants. The respondent agreed to pay $99.75 per hour for Ms. Klopina’s services, however the respondent invited Ms. Klopina to contact them to discuss her rate. I do not have evidence before me indicating that this was ever done.

80A psychotherapist is not an occupation specifically listed in the Guideline. The respondent relies on Hawes v. Aviva General Insurance Company, 2022 CanLII 70525, and argues that a contextual approach should be taken to determine whether an insurer is obligated to pay a psychotherapist the same rate that a psychologist is entitled to. I agree that each case should turn on its facts, which may include the therapist’s credentials, skills, training, experience, and type of therapy to be administered. This is not to be taken as an exhaustive list.

81The onus is on the applicant to demonstrate that the therapist is entitled to the higher hourly rate. The applicant makes no submissions with respect to this treatment plan, nor does he provide any evidence to suggest why the appropriate hourly rate for Ms. Klopina should be $179.29. I find that he has failed to prove on a balance of probabilities that the denied portion of the treatment plan is reasonable and necessary.

$3,498.92 for 24 hours of translation services for a psychological assessment, in a treatment plan denied on March 4, 2022

82The respondent denied this treatment plan as it required further information as to the specifics of the psychological assessment, as well as the breakdown of the services, provider, and time. The respondent submits that the applicant had received psychological counselling prior to this treatment plan being submitted, and no interpretation services were claimed. The respondent also submits that no details have been provided regarding the interpretation company, which makes it difficult for the respondent to assess an appropriate rate.

83The applicant submits that he immigrated from Kosovo to Canada in 1999, and although he has made strides to improve his English and speaks conversational English, his preferred method of communication is in his native dialect. He submits that it is not unreasonable for him to want treatment services provided in the language he is most comfortable with.

84In theory, I can see that translation services may be beneficial for the applicant during a psychological assessment. I also note that the applicant had the assistance of an Albanian interpreter during his s. 44 psychological assessment with Dr. Rubenstein and his s. 44 physiatry assessment with Dr. Boulias.

85However, I agree with the respondent that there is not enough information regarding what the translation services pertain to. There is no treatment plan before me for a psychological assessment that corresponds with the request for translation services, and the applicant has not provided any details about the assessment. The treatment plan itself does not shed any light on this issue. It lists 16 hours of interpretation at a rate of $190 per hour. Under the “additional comments” section of the treatment plan, it states: “The patient requires 24 hours of Arabic translation services for her psychological assessment”. As far as I am able to tell from the documentation before me, the applicant’s preferred language for translation is Albanian, not Arabic, and the applicant’s preferred pronouns are he/him, so this may be an error. Either way, without further information, I am also at a loss as to why either 16 or 24 hours of translation is required for one psychological assessment.

86The onus is on the applicant to prove his entitlement to the items listed in the treatment plan. I find that he has not provided sufficient information to show that this particular treatment plan is reasonable and necessary.

$1,678.88 ($6,971.40 submitted less $5,292.52 approved) for 10 occupational therapy sessions, denied on March 17, 2022

87The respondent approved the items of this treatment plan except for fees for brokerage, file review, file management, and rehabilitation support worker supervision. The respondent submits that the applicant has not provided any reasons or evidence as to why the denied items are reasonable and necessary. The applicant has not made any submissions with respect to this treatment plan.

88The treatment plan itself does not provide justification for the denied services. The applicant has in his possession a report from his treating occupational therapist but did not rely on it in or submit it as evidence. Without further information, I agree with the respondent that the applicant has not met his onus in proving on a balance of probabilities that the remainder of this treatment plan is reasonable and necessary.

$11,604.19 for various items denied on March 17, 2022

89This treatment plan was submitted by the applicant’s occupational therapist, Hazel Wood, and requests the following items: X-box game console, racing wheel, game pass, Forza Horizon X-box game, accidental damage coverage, Microsoft Surface Pro bundle, home internet, sit/stand desk, ergonomic chair, articulating keyboard and mouse tray, ergonomic keyboard and mouse, LCD monitor, Muse S bundle and case, stool, Lumosity, cognitive workbook, Apple watch, and a sectional sofa. The respondent requested a s. 44 assessment to determine whether the items are reasonable and necessary. Neither party has indicated whether this assessment was scheduled or has taken place.

90The applicant has not made any submissions with respect to the items listed in the treatment plan. He has not provided a copy of the report from Ms. Wood from February 2022, where these recommendations were discussed. The treatment plan itself refers to this report and summarizes the recommendations in brief, however without the ability to review the report I cannot determine whether the items are reasonable and necessary. There is no other evidence from other treatment providers that the items are reasonable and necessary. The applicant has accordingly not met his onus with respect to this treatment plan, and I find that it is not payable.

$2,187.72 ($12,759.68 submitted less $10,571.96 approved) for 24 rehabilitation support worker treatment sessions, denied on May 3, 2022

91The respondent approved sessions with a rehabilitation support worker, but did not approve costs for “planning”, brokerage, or personal protective equipment (“PPE”). The respondent approved costs for “preparation”, so it stated that costs for “planning” were not reasonable and necessary. The respondent submits that the applicant has not provided any submissions or evidence to prove that the “planning” and brokerage services are reasonable and necessary. Finally, the respondent submits that PPE is considered “expenses related to professional services” as referred to in the Schedule, and are considered “administration costs, overhead, and related costs, fees, expenses, charges and surcharges” pursuant to the PSG. The respondent states that it is not responsible for such costs that would have the result of increasing the provider’s effective hourly rate.

92The applicant makes no submissions with respect to this treatment plan.

93I find that in the absence of any explanation from the applicant as to how the items of “planning” and “preparation” differ, the cost for “planning” is not reasonable and necessary.

94With respect to brokerage fees, the treatment plan indicates that the brokerage fees are for the rehabilitation counselor to communicate with the occupational therapist. The applicant has not provided any explanation as to why this is required. I find that he has failed to prove that the brokerage fee is reasonable and necessary.

95The maximum hourly rate under the Guideline for a rehabilitation counsellor is $89.07, which is what was claimed and approved for the treatment itself. I find that PPE is captured by administrative and overhead costs, and including the cost for the PPE would increase the provider’s hourly rate beyond the maximum listed in the Guideline. In the absence of any evidence or argument from the applicant on this issue, I agree with the respondent and find that the expense for PPE is not payable.

96I find that the applicant has not proven on a balance of probabilities that the denied portion of this treatment plan is reasonable and necessary.

Interest

97Having determined that certain benefits are payable, it follows that interest applies pursuant to s. 51 if the benefits are incurred.

Award

98The applicant sought an award under s. 10 of Reg. 664. Under s. 10, I may grant an award of up to 50 per cent of the total benefits payable if I find that the respondent unreasonably withheld or delayed the payment of benefits.

99The applicant submits that the respondent failed to reassess his treatment needs after being determined catastrophically impaired, and failed to properly review and adjust the claim when the material facts changed. The respondent submits that its denials were made in good faith, and its actions were entirely consistent with the Schedule.

100An insurer does not have an obligation to re-assess every treatment plan after an insured person is deemed catastrophically impaired. The applicant has not pointed me to any authorities in support of that assertion. If a treatment plan is denied for the sole reason that someone is not catastrophically impaired, after they are deemed catastrophically impaired the insurer certainly has an obligation to re-assess the treatment plan as the reason for the denial no longer stands. However, that is not the case for any of the treatment plans in dispute here.

101The bar is high for an award, and the applicant is not necessarily entitled to an award just because I have found that some of the denials are payable. However, I do find that the denial of the psychological component of the treatment plan submitted on January 8, 2020, was unreasonable such that it attracts an award.

102The respondent denied the entirety of this treatment plan based on the report of Dr. Boulias, whose report addressed a completely different treatment plan for physical therapy. While Dr. Boulias’ findings could potentially be extrapolated to the physical components of a subsequent treatment plan, he said nothing about psychological treatment in his report. The respondent did not even acknowledge the psychological treatment proposed in its submissions, and yet that portion of the treatment plan remained in dispute right up to the date of this hearing. The respondent acted unreasonably in failing to approve the psychological components of the treatment plan, provide a legitimate reason for the denial, or have the applicant re-assessed to determine if further psychological treatment was necessary.

103In determining the quantum of a special award, the Tribunal has found that the following factors may be considered: (i) the blameworthiness of the respondent’s conduct; (ii) the vulnerability of the applicant; (iii) the harm or potential harm directed at the applicant; (iv) the need for deterrence; (v) the advantage wrongfully gained by the insurer from the misconduct; (vi) should take into account any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct; and (vii) the overall length of the delay.²

104In this case, the respondent’s conduct should be deterred, and not paying for treatment constitutes a monetary advantage. I do not find the applicant’s vulnerability or potential harm to be strong factors without further evidence in that regard. I do not believe that the respondent’s behaviour attracts the full 50% maximum allowable under O. Reg. 664. I find that $450.00 is an appropriate quantum for the award, plus interest pursuant to O. Reg. 664. This represents approximately 20% of the unreasonably denied treatment.

ORDER

105I order that the applicant is entitled to the following, including interest in accordance with s. 51 of the Schedule: