Ennis v. The Co-operators General Insurance Company, 2023 CanLII 58483

Citation: Ennis v. The Co-operators General Insurance Company, 2023 ONLAT 21-004218/AABS

Licence Appeal Tribunal File Number: 21-004218/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:

Ashley Ennis

Applicant

and

The Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Alla Kadysh

APPEARANCES:

For the Applicant: Peter Cho, Counsel

For the Respondent: Melanie Malach, Counsel

Heard by way of written submissions

OVERVIEW

1Ashley Ennis, the applicant, was involved in an automobile accident on March 2, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, The Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The respondent denied the applicant’s claims for medical cannabis, occupational therapy services, psychological treatment at a higher rate and vitamins and supplements, because it had determined that the treatment plans in dispute do not meet the reasonable and necessary test for entitlement.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to $127.13 for medical cannabis submitted September 5, 2018 and denied September 18, 2018?

ii. Is the applicant entitled to $5,015.25 ($5,428.25 less $413.00 approved) for occupational therapy services recommended by Shannon Alvo and Kim Lamont in a treatment plan/OCF-18 (“plan”) submitted January 25, 2019 and denied May 14, 2019?

iii. Is the applicant entitled to $986.15 ($2,761.89 less $1,775.74 approved) for psychological treatment recommended by Liane Wood of She Thrives Inc. in a treatment plan/OCF-18 (“plan”) submitted March 7, 2019 and denied April 1, 2019?

iv. Is the applicant entitled to $239.90 ($544.90 less $305.00 approved) in an OCF-6 for vitamins and supplements submitted August 21, 2019 and denied September 18, 2018?

v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

4I find that that the applicant is not entitled to the costs of medical cannabis, vitamins, and supplements or to the psychological treatment at a higher rate. I find that the applicant is entitled to occupational therapy services. Interest is to be paid on that amount. I find that the applicant is not entitled to an award.

5The application is granted in part.

ANALYSIS

Medical Cannabis

6I find that the applicant is not entitled to $127.13 for medical cannabis.

7The applicant first seeks payment for an OCF-18 in the amount of $3,353.61 for medical cannabis, recommended by Dr. Salari of Apollo Applied Research. The respondent denied the plan and scheduled a s.44 insurer’s examination. The respondent stated that it requires additional information to help understand if medical cannabis is a reasonable and necessary form of treatment. The applicant then withdrew the treatment plan and submitted the OCF-6 for the purchase of medical cannabis in the amount of $127.13.

8To receive payment for a treatment plan under 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. The applicant submits that pain relief is a legitimate and rehabilitative goal, and that medical cannabis is a well-established medicine for treating chronic pain and anxiety. The applicant further directs the Tribunal to the additional comments by Dr Salari in support of the treatment plan. However, the OCF-18 by itself, even with additional comments, is not compelling enough evidence in support of the treatment plan.

9Furthermore, the applicant submits that the additional questions by the respondent, regarding doses, costs and justification of the prescription demonstrate a negative bias on the part of the respondent against cannabis. I disagree. I find that the respondent handles this particular plan in the same manner as any other treatment plan by scheduling s.44 insurer’s examination. As the applicant does not offer compelling contemporaneous evidence in support of a treatment, the respondent is entitled to ask questions to establish if the plan is indeed reasonable and necessary.

10I find that the respondent’s argument that the applicant withdrew the treatment plan to avoid examination is speculative and not supported by definitive evidence. However, by refusing to answer the respondent’s questions and by subsequently withdrawing the treatment plan, the applicant failed to justify treatment and to meet the burden of proof that the treatment plan is reasonable and necessary.

11As the $127.13 expense for medical cannabis, submitted by OCF-6, is a part of the original OCF-18, which the applicant withdrew, I find the respondent’s denial of OCF-6 is justified.

Occupational Therapy Services

12I find that applicant is entitled to occupational therapy services and the treatment plan should be paid in full.

13The OCF-18 for occupational therapy (OT) services was completed by Shannon Alvo in January of 2019. Ms. Alvo recommended that the Applicant participate in eight OT sessions to learn effective pain management strategies and recommended equipment for self-care and mobility activities, including assistive devices for the shower. The Respondent approved the assistive devices only, leaving $5,105.25 for the occupational therapy intervention in dispute.

14The respondent’s denial of the treatment plan was based on Dr. Cooper’s report. Dr. Christopher Cooper, a psychologist, concluded in his Insurer Examination Independent Psychology Evaluation Report that the proposed Occupational Therapy Treatment and Assessment Plan was not reasonable and necessary from a “purely psychological perspective”. He opined that the proposed treatment goals can be addressed by a psychotherapist and the applicant would benefit from psychological treatment.

15The applicant submits that both the respondent and Dr. Cooper have missed the point of the OT intervention and the goals outlined in the treatment plan. The OT was recommending energy conservation education and strategies to improve the applicant’s performance in her meaningful activities, as well as further assessment into her sleep hygiene to provide strategies for better sleep. The applicant submits that these goals fall within the scope of practice of an occupational therapist and would not be adequately addressed by a psychotherapist.

16I agree with the applicant. I find that Dr. Cooper’s “purely psychological perspective” fails to grasp the purpose of the treatment plan. The OT’s recommendation to address the applicant’s “sleep hygiene” does not involve addressing sleep concerns from the psychological perspective. Instead, it focuses on improving elements that contribute to the quality of sleep: positioning on a bed, room light, room temperature and similar factors. Adjusting room temperature to a level best suited for a good night sleep, for instance, is a matter well within the scope of an occupational therapist’s practice and would not be properly addressed by a psychotherapist. The applicant’s submissions further indicate that the applicant purchased a mattress to address her sleep concerns, which strongly suggests that at least some of those concerns are not of psychological nature.

17Furthermore, the respondent’s approval of the assistive devices, as proposed by the occupational therapist (OT), clearly acknowledges that these devices are reasonable and necessary to assist the applicant in her daily activities. By denying the rest of the treatment plan which encompasses strategies aimed at improving the applicant’s performance in her meaningful activities through, among other things, the integration of those devices, the respondent undermines the overall effectiveness of the approved devices.

18The applicant also submits that despite the respondent’s denial she incurred $2,917.10 for some of the initial occupational therapy intervention, which, I find, should be paid.

19Based on the above analysis, it is my decision that the applicant is entitled to the full occupational therapy treatment plan, including interest, as she has demonstrated that it is reasonable and necessary.

Psychotherapy rates

20I find that the applicant is not entitled to $986.15 for psychological treatment at a higher rate.

21Based on the recommendation of Drs. Tobi Lubinsky and David Kurzman, following the neuropsychological assessment, the applicant’s treating OT submitted a treatment plan to the respondent for 15 psychotherapy treatment sessions with Liane Wood of She Thrives Inc., for a total cost of $2,761.89. The respondent partially approved the treatment at a lower hourly rate, instead of $149.61 as proposed on the treatment plan, it was only approved at an hourly rate of $91.43 per hour.

22The applicant submitted that the hourly rate of $149.61 is a reasonable hourly rate for psychotherapy treatment based on several factors: the number of psychotherapists within the applicant’s geographical area is limited and very few of them are willing to participate in the HCAI system; and because it is important for the psychotherapeutic process that an individual have a good rapport with her treating therapist, which may not be possible with other counsellors or psychotherapists.

23The applicant also relied on the previous decision by the Tribunal in the case I.B. vs. Aviva Insurance Company of Canada, 2020 CanLII 40329 (ON LAT) where a psychotherapist was granted the rate of $149.61 per hour.

24The respondent took the position that a psychotherapist is not to be paid the same hourly rate noted in the Professional Services Guideline as a psychologist or psychological associate, that being $149.61 per hour. The respondent argues that psychotherapists are not listed in the Guidelines and therefore are not subject to the same rate as psychologists. The respondent submits that psychotherapist should be paid at the hourly rate of $58.19, which is consistent with the hourly rate for unregulated providers, such as counsellors and psychometrists. The respondent cited several cases from the Tribunal where a psychotherapist was granted that rate. However, the respondent agreed to increase the hourly rate to $91.43 + HST for psychotherapy treatment with Liane Wood.

25In its letter to the applicant the respondent notes as follows: “With respect to the submitted hourly rate for Psychotherapy, your provider has indicated an hourly rate of $149.61. Psychotherapists do not appear as Regulated Health Care Professionals on the Professional Services Guideline (Financial Services Commission of Ontario Superintendent’s Guideline 03/14), additionally we note the proposed fee is above the rate provided for other Health Care Professionals. In the interest of providing a contribution towards your treatment, we are prepared to pay up to $91.43 per hour for the services of a Registered Psychotherapist. This hourly rate is commensurate with the established hourly rate for a Registered Nurse or Nurse Practitioner, based on the Professional Services Guideline. Given their relative training and responsibilities, we feel this is a reasonable compromise”.

26While I agree with the Tribunal in I.B. vs. Aviva Insurance Company of Canada that the psychotherapist is a highly regulated profession and the rate of $58.19 for unregulated providers is not applicable, I also agree with the respondent, that a psychotherapist should not be paid the same rate as a psychologist. I think it is important to acknowledge the value of higher education in the field. Therefore, the service provider’s rates in this case should be higher than $58.19 for unregulated professionals, but lower than $149.61 for psychologists listed in the Guideline.

27The respondent submitted that the Applicant has not met her burden of demonstrating that the $149.61 per hour rate for Ms. Wood’s services is reasonable and necessary. It cited Baranov v. Aviva General Insurance, 2020 CanLII 87933 (ONLAT) among other Tribunal cases. The Tribunal in Baranov vs Aviva found that the $99.75 hourly rate was appropriate where the psychotherapist who proposed the treatment held both a Master’s degree in psychology and a specialty in cognitive-behavioral therapy (CBT). Since the applicant did not provide any specific details about Ms. Liane Wood’s credentials or education, the respondent approved her services at a slightly lower rate.

28As it is the applicant’s burden to demonstrate that a higher rate is warranted, I find the compromise, proposed by the respondent of $91.43 per hour appears to be a reasonable solution. This rate aligns with the hourly rate of other professionals with college degree, such as registered nurses and nurse practitioners. Accordingly, I find the applicant is not entitled to additional payment for services at the higher, unapproved rate.

Vitamins and Supplements

29I find that the applicant is not entitled to $239.90 for vitamins and supplements.

30The applicant submitted an Expenses Claim Form (OCF-6) to the Respondent, enclosing receipts from Trenton Integrative Health Centre in the amount of $544.90. That amount included three naturopathic sessions and the cost of vitamins and supplements. The vitamins included probiotics, vitamin B-12, magnesium, and iron.

31The respondent approved the naturopathic sessions in the total amount of $305.00 and denied the remainder of the expenses for vitamins and supplements in the amount of $239.90. The letter of denial notes: “A review of the clinical notes from Trenton Integrative Health Centre indicates the vitamins and supplements being claimed have been recommended to treat several complaints. It appears these complaints are either not related to the accident or it is unclear how they would be related to the accident. As such, the costs for these vitamins and supplements are not recoverable under the Statutory Accident Benefits Schedule”.

32The applicant submitted that her complaints were “primarily regarding her chronic pain and anxiety and symptoms resulting from them, which are attributable to the accident”.

33I agree with the respondent. In order to consider goods or services as reasonable and necessary medical expenses, they must treat the applicant’s accident-related impairment, must be of a medical nature, cannot be experimental in nature and, if not specifically listed in section 15 of the Schedule, must be considered essential for the Applicant’s treatment and, in some cases, pre-approved by the respondent.

34I found no medical records to substantiate the claim that probiotics, magnesium, iron, or vitamin B-12 could be essential in treating chronic pain and anxiety or medically necessary because of the car accident nor were these items pre-approved by the respondent. Therefore, they are not payable.

Interest

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I found that the applicant is entitled to the cost of occupational therapy treatment, the interest should be paid on that amount.

Award

36The applicant sought an award under s. 10 of Reg. 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.

37It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. I find that the applicant is not entitled to an award in this matter, because there is no evidence before me that supports a finding that the respondent’s actions rose to the level of excessive, imprudent, stubborn, inflexible, or unyielding.

ORDER

38For the reasons outlined above, I found that:

i. The applicant is not entitled to $127.13 for medical cannabis.

ii. The applicant is entitled to $5015.25 for occupational therapy services and the treatment plan should be paid in full. The interest shall be paid on that amount.

iii. The applicant is not entitled to $986.15 for higher rates for psychological treatment.

iv. The applicant is not entitled to $239.90 for vitamins and supplements.

v. The applicant is not entitled to an award.