Licence Appeal Tribunal File Number: 21-006448/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:
[H. R.]
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Roger R. Foisy, Counsel Harpreet S. Sidhu, Counsel Daniel Berman, Counsel Rusald Laloshi, Paralegal
For the Respondent: Leah Dick, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1[HR], the applicant, was involved in an automobile accident on May 19, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant is seeking the outstanding balance of nine treatment plans that the respondent had partially denied, plus interest. The respondent’s denials were largely for administrative expenses that the respondent submits are not reasonable and necessary or were in excess of the rates authorized by the Professional Services Guideline – Superintendent’s Guideline No. 03/14 (the “Guideline”).
ISSUES
i. Is the applicant entitled to $749.60 for occupational therapy services, recommended by Entwistle Power Occupational Therapy Services in a treatment plan (“OCF-18”) dated April 17, 2019?
ii. Is the applicant entitled to $855.96 for social rehab counselling, recommended by Genesis Community Rehabilitation Inc. in an OCF-18 dated June 3, 2019?
iii. Is the applicant entitled to $59.96 for a physiotherapy assessment, recommended in an OCF-18 dated September 11, 2019?
iv. Is the applicant entitled to $559.76 for occupational therapy services, recommended by Entwistle Power Occupational Therapy Services in an OCF-18 dated August 13, 2019?
v. Is the applicant entitled to $578.02 for occupational therapy services, recommended by Entwistle Power Occupational Therapy Services in an OCF-18 dated June 2, 2020?
vi. Is the applicant entitled to $499.80 for occupational therapy services, recommended by Entwistle Power Occupational Therapy Services in an OCF-18 dated August 26, 2020?
vii. Is the applicant entitled to $1,048.06 for social rehab counselling, recommended by Genesis Community Rehabilitation Inc. in an OCF-18 dated December 16, 2019?
viii. Is the applicant entitled to $80.08 for a physiotherapy assessment, recommended by Maryanne Lawton, in an OCF-18 dated August 4, 2020?
ix. Is the applicant entitled to $1,788.07 for social rehab counselling, recommended by Genesis Community Rehabilitation Inc. in an OCF-18 dated December 29, 2020?
x. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
xi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that:
i. The applicant is entitled to the outstanding balance of $749.60 for the OCF-18 dated April 17, 2019, plus interest;
ii. For the OCF-18 dated June 3, 2019, the applicant is entitled to $149.16 for the completion of the OCF-18 form, plus interest. However, the applicant has not established that the remaining outstanding balance of the OCF-18 is reasonable and necessary;
iii. The applicant is not entitled to the outstanding balance of $59.96 for the OCF-18 dated September 11, 2019;
iv. The applicant is entitled to the outstanding balance of $559.76 for the OCF-18 dated August 13, 2019, plus interest;
v. The applicant is entitled to the outstanding balance of $559.76 for the OCF-18 dated June 2, 2020, plus interest;
vi. The applicant is entitled to the outstanding balance of $449.80 for the OCF-18 dated August 26, 2020, plus interest;
vii. For the OCF-18 dated December 16, 2019, the applicant is entitled to $149.16 for the completion of the OCF-18 form, and $192.10, in documentation fees, plus applicable interest. However, the applicant has not established that the remaining outstanding balance of the OCF-18 is reasonable and necessary;
viii. The applicant is not entitled to the outstanding balance of $80.08 for the OCF-18 dated August 4, 2020;
ix. For the OCF-18 dated December 29, 2020, the applicant is entitled to $141.25 for the completion of the OCF-18 form, $355.95 for brokerage services and $610.20 for documentation fees, plus applicable interest. The applicant has not established that the activity expenses, transportation fees and planning fees are reasonable and necessary.
ANALYSIS
5To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
Issue #1 – OCF-18 dated April 17, 2019 for the outstanding amount of $749.60
6I find that the applicant has established that the outstanding balance of the OCF-18 dated April 17, 2019 is payable.
7The applicant submitted an OCF-18 in the amount of $3,747.60 for eight 1.5 hour sessions of occupational therapy (“OT”). By way of Explanation of Benefits (“EOB”) dated May 24 2019, the respondent partially approved the OCF-18, but denied $749.60 of brokerage and documentation fees. The respondent approved one hour at the provider’s hourly rate to complete the OCF-18 (rather than the $200 requested), 1.5 hours for brokerage services (rather than the four hours requested) and stated that six hours for documentation fees was excessive.
8With respect to the fee for the completion of the OCF-18 form, while I agree with the respondent that $200 for form completion is the maximum permitted under the Guideline and is not automatically payable, I find that the applicant has established that the remaining amount of $30.08 is reasonable and necessary. The OCF-18 included substantial detail such as a description of activity limitations, detailed goals and extensive additional comments, which I accept would have taken longer than an hour to complete. The respondent submits that it would be unreasonable to approve “several hours” to complete the form, however, I agree with the applicant’s submissions that at an OT’s rate, $200 would be an hour and forty minutes, which I find to be reasonable.
9I also find that the applicant has established that the remaining amount of $299.80 for brokerage services is reasonable and necessary. The respondent had approved 1.5 hours but argued that four hours was not reasonable. The applicant submits a letter dated May 23, 2019, from her OT service coordinator, explaining that the brokerage time included medical file review, consultations with the client, health care team and referrals. Although the respondent argues that it is the case manager’s role to coordinate care for the applicant, I agree with the applicant that brokerage fees encompass not simply communications between the OT and the case manager, but also with other team members. This is particularly true in this case, where the applicant was catastrophically impaired, and the OT was coordinating with a registered social worker for community outings.
10Finally, I find that the remaining amount of $419.72 for documentation support activity, is reasonable and necessary. The applicant relies on a letter from the OT’s service coordinator, noting that such documentation expenses relate to a detailed progress report, that is completed after six sessions and is based on industry standards and regulatory guidelines for OT’s. I find the applicant’s submissions to be persuasive.
11In addition, I agree with the applicant that the respondent’s submissions on the issue of documentation support fees are unclear. The EOB itself did not specify how many hours of documentation fees were being partially approved and how many were denied, but simply stated that six hours was excessive. The respondent’s submissions are similarly confusing, as they state in one chart that $719.52 is the amount of documentation fees in dispute, while in another that it is $419.72. Although I infer that the respondent partially approved the documentation fees, it did not specify the hours it approved or why.
12I find that the applicant has led sufficient evidence to establish that the full outstanding amount of $749.60 is reasonable and necessary, and therefore, payable.
Issue #2 – OCF-18 dated June 3, 2019 for the outstanding amount of $855.96
13I find that the applicant is entitled to the amount of $149.16, for the completion of the OCF-18 form. However, she has not established that the rest of the outstanding balance of the OCF-18 is reasonable and necessary.
14The applicant submitted an OCF-18 dated June 3, 2019, for 24 three-hour sessions of social rehabilitation counselling, in the amount of $9,654.14. The respondent partially approved the OCF-18 in the amount of $8,798.18. The outstanding amounts included payment for the completion of the OCF-18 form, transportation expenses in the amount of $360 + HST, and activity expenses in the amount of $300.
15With respect to the cost of completing the OCF-18 form, the respondent approved one hour at the treatment provider’s hourly rate of $68. The applicant had requested $200 + HST for the form completion and claims the remaining balance of $132, plus HST, being $149.16. I find that the applicant is entitled to the remaining balance for form completion. The applicant submits that this OCF-18 was prepared by Genesis Community Rehab based on the OT’s recommendations and can include collaboration between the OT, RSW and supervisors. As such, I agree with the applicant that several steps may be involved in the preparation of this OCF-18, which warrant the full $200 fee for form completion.
16However, I find that the applicant has failed to adduce sufficient evidence that the transportation expenses and activity fees are reasonable and necessary. The applicant contends that the expense for “claimant transportation to treatment” in the amount of $360 + HST, would be for community outings. She submits the progress notes of Genesis Community Rehab and asserts that they show that she “occasionally attended at community outings”. However, the progress notes detail that most of the sessions involved outdoor walks in the neighborhood and only a few visits to a mall, Dollarama or a knitting circle. No details were provided as to distances, mileage or the mode of transportation. The cost of each trip was similarly not detailed. Without such details or specific submissions on the issue, the applicant has not met her onus to prove that the transportation expense is reasonable and necessary.
17The applicant has similarly not provided any details of the $300 cost for “activity expenses”. The OCF-18 lists it as twelve $25.00 charges, but no additional information is provided in the OCF-18 or the applicant’s submissions as to what this amount would cover. Without any additional information, I find that the applicant has failed to prove that it is reasonable and necessary.
18As such, I find that the applicant is entitled to the cost for the OCF-18 form completion in the amount of $149.16, but has not established that the remaining balance of the OCF-18 is reasonable and necessary.
Issue #3 - OCF-18 dated September 11, 2019 for the outstanding amount of $59.96
19I find that the applicant has not established that the remaining balance of $59.96 for brokerage services is reasonable and necessary.
20The OCF-18 submitted was for a one-time physiotherapy assessment, in the amount of $539.64. Two sessions of brokerage services were requested, totaling $59.96. The applicant has not provided any submissions as to why communications between the physiotherapist and the team or additional brokerage services were required for a one time physical assessment. Without such information, I am unable to find that the outstanding amount is reasonable and necessary.
Issue #4 - OCF-18 dated August 13, 2019 for the outstanding amount of $559.76
Issue #5 – OCF-18 dated June 2, 2020 for the outstanding amount of $559.76
Issue #6 - OCF-18 dated August 26, 2020 for the outstanding amount of $499.80
21I find that the applicant has established that the outstanding balances of the OCF-18s dated August 13, 2019, June 2, 2020 and August 26, 2020 are reasonable and necessary, with the exception of the PPE charge.
22The OCF-18s dated August 13, 2019 and August 26, 2020 were for eight 1.5 hour sessions of occupational therapy. The OCF-18 dated June 2, 2020 was for six 1.5 hour sessions of occupational therapy. The denied amounts of the OCF-18 dated August 13, 2019, included $479.68 for four hours for documentation support activity, which was denied in full, and $80.08 for the OCF-18 form completion, being the remainder of the claimed $200 to complete the OCF-18, as the respondent had approved only one hour for form completion. The denied amounts of the OCF-18 dated June 2, 2020, included $479.68 for four hours of documentation support activity, denied in full and $80.08 for the remainder of the OCF-18 form completion. The denied amounts of the OCF-18 dated August 26, 2020, included $239.84 for documentation support activity, $80.08 for the remainder of the OCF-18 form completion, and $179.88 for 1.5 hours of denied brokerage fees (the respondent had approved 1.5 hours out of the requested three hours).
23All three of these treatment plans for OT services are similar to the plan submitted in Issue #1 above, which was for eight 1.5 hour sessions of OT services, also recommended by Entwistle Power Occupational Services. For the same reasons as I have noted in Issue #1 above, I find that the applicant has established that outstanding amounts for the OCF-18 form completion, documentation support activity and brokerage fees, are reasonable and necessary. Although the OCF-18 dated June 2, 2020 also included a charge of $18.26 for PPE, no submissions or information was provided for this charge, and as such, I do not find that the applicant has established that it is reasonable and necessary.
Issue #7 – OCF-18 dated December 16, 2019 for the outstanding amount of $1,048.06
24I find that the applicant has established that the $149.16, for the completion of the OCF-18 form and $192.10 for the preparation of a progress report is reasonable and necessary. However, she has not established that the rest of the outstanding balance of the OCF-18 is reasonable and necessary.
25The applicant submitted an OCF-18 dated December 16, 2019 for 24 three hour social rehabilitation counselling sessions in the amount of $9,654.15, which the respondent partially approved in the amount of $8,606.08. The denied portion of $1,048.06 included the remaining amount of $132 +HST for the OCF-18 form completion, as the respondent denied the $200 requested and instead approved one hour for form completion at the RSW’s hourly rate. The respondent also denied $360 + HST in transportation expenses for the claimant, $300 for an activity fee and $170 + HST for 2.5 hours of documentation support activity, to prepare a progress report.
26As this OCF-18 is similar to the treatment plan in Issue #2 above, for the same reasons as I have noted in Issue #2, I find that the applicant has not established that outstanding amounts for the transportation expenses and activity fee, are reasonable and necessary. However, I find that the applicant is entitled to the remaining amount of $132 +HST, totaling $141.25, for the OCF-18 form completion.
27I further find that the requested $170 + HST for 2.5 hours to prepare a progress report is reasonable and necessary. In its EOB, the respondent had stated that they did not require a report, as the case manager provides a report from all parties. However, I agree with the applicant that the respondent has not submitted any such report from the case manager to indicate that a report from the RSW would be a duplication of services. I further find that a progress report after 24 three hour therapeutic sessions is reasonable, to assess and report on the applicant’s progress.
28As such, I find that the applicant has established that $149.16 for the completion of the OCF-18 form and $192.10, in documentation fees, is reasonable and necessary.
Issue #8 – OCF-18 dated August 4, 2020 for the outstanding amount of $80.08
29I find that the applicant has not established that the outstanding amount of $80.08 is reasonable and necessary.
30The only disputed amount for this treatment plan was for the difference of the amount claimed for the OCF-18 form completion. The applicant claimed $200 for the form completion, while the respondent approved only one hour at the physiotherapist’s rate.
31The applicant has not provided any specific submissions as to why the additional time is required to complete the OCF-18. With respect to the previous OCF-18s prepared by Genesis Community Rehab, the applicant had argued that there were multiple steps involved in the preparation of the OCF-18. However, no such argument was raised with respect to this treatment plan, prepared by a physiotherapist. Similarly, I note that the OCF-18 form did not include substantial detail or additional comments that would have involved additional time. Without the applicant’s specific submissions as to why the additional time is warranted, I do not find that she has established that the outstanding amount for the preparation of the OCF-18 is reasonable and necessary.
Issue #9 – OCF-18 dated December 29, 2020 for the outstanding amount of $1,788.77
32I find that the applicant has established that she is entitled to part of the outstanding amount of the treatment plan - for the completion of the OCF-18 form, fees for documentation support activity and brokerage services. However, she has not met her burden to prove that the outstanding amounts for activity fees, transportation expenses and planning services, are reasonable and necessary.
33The applicant submitted an OCF-18 dated December 29, 2020 for 24 three hour sessions of social rehabilitation counselling, in the amount of $11,136.70. The respondent partially approved the treatment plan in the amount of $9,347.93. The outstanding amount of $1,788.77 was comprised of:
i. Brokerage services – 24 sessions of 20 minutes each, totalling $540 + HST. The respondent partially approved the brokerage fee at $225;
ii. Documentation support activity – 24 sessions of 20 minutes each, totalling $540 + HST, which the respondent denied in full;
iii. Transportation expenses for transporting the claimant to treatment - $360, which the respondent partially approved for $240;
iv. Activity expenses - $300, which the respondent partially approved for $120;
v. Cost of completing OCF-18 - $200 + HST was claimed, which the respondent partially approved for $75; and
vi. Planning services – three 1.5 hour sessions for $337.50, denied in full.
34As I have noted with respect to Issue #2 above, I find that the applicant has not provided any specific submissions or evidence to establish that the outstanding amounts for transportation expenses and activity fees, are reasonable and necessary. The applicant has also not provided any submissions or evidence as to why the $337.50 for planning services is reasonable and necessary. No details are provided as what this fee covers, and I note that the respondent had already approved two other planning sessions for $150. The applicant has not led any evidence as to why this planning service fee is required in addition to the one already approved. With respect to the cost of completing the OCF-18 form, I find that the applicant is entitled to the remaining amount of $125 +HST for the OCF-18 form completion.
35With respect to the outstanding amount for brokerage services and documentation support activity, I find these costs to be reasonable and necessary. Firstly, I note the applicant’s submissions that in the previous OCF-18s dated June 3, 2019 and December 16, 2019 which were substantially similar, the respondent had approved in full both the brokerage services and the documentation fees for session progress notes. The respondent has not provided an explanation as to why these fees were found to have been appropriate in two prior treatment plans, but now were not reasonable and necessary. In addition, the applicant has provided the progress notes from the treating clinic, indicating that the treatment provider was maintaining detailed notes for each session. I also accept that given the complexity of the file and the coordination involved in scheduling three hour community sessions, brokerage services are reasonable and necessary.
36As such, I find that the outstanding balance of the OCF-18 dated December 29, 2020 is partially payable, for the outstanding amount of the OCF-18 form completion for $141.25, $355.95 for the remainder of the brokerage service fees and $610.20 for documentation fees. The applicant has not established that the activity expenses, transportation fees and planning fees are reasonable and necessary.
Award
37The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
38The applicant argues that the respondent failed to consider new evidence, and was stubborn and unyielding in approving only one hour for form completion and maintaining that brokerage services are not covered. Although I have found that the applicant was entitled to some of the outstanding fees, I note that insurers are not held to a standard of perfection. I find that the applicant has not established that the respondent’s conduct rises to the threshold of being excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
ORDER
39I find that:
i. The applicant is entitled to the outstanding balance of $749.60 for the OCF-18 dated April 17, 2019, plus interest;
i. For the OCF-18 dated June 3, 2019, the applicant is entitled to $149.16 for the completion of the OCF-18 form, plus interest. However, the applicant has not established that the remaining outstanding balance of the OCF-18 is reasonable and necessary;
ii. The applicant is not entitled to the outstanding balance of $59.96 for the OCF-18 dated September 11, 2019;
iii. The applicant is entitled to the outstanding balance of $559.76 for the OCF-18 dated August 13, 2019, plus interest;
iv. The applicant is entitled to the outstanding balance of $559.76 for the OCF-18 dated June 2, 2020, plus interest;
v. The applicant is entitled to the outstanding balance of $449.80 for the OCF-18 dated August 26, 2020, plus interest;
vi. For the OCF-18 dated December 16, 2019, the applicant is entitled to $149.16 for the completion of the OCF-18 form, and $192.10, in documentation fees, plus applicable interest. However, the applicant has not established that the remaining outstanding balance of the OCF-18 is reasonable and necessary;
vii. The applicant is not entitled to the outstanding balance of $80.08 for the OCF-18 dated August 4, 2020;
viii. For the OCF-18 dated December 29, 2020, the applicant is entitled to $141.25 for the completion of the OCF-18 form, $355.95 for brokerage services and $610.20 for documentation fees, plus applicable interest. The applicant has not established that the activity expenses, transportation fees and planning fees are reasonable and necessary.
ix. The applicant is not entitled to an award
Released: June 13, 2023
Ulana Pahuta Adjudicator