Licence Appeal Tribunal File Number: 21-007105/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:
Ayoka Johnson
Applicant
and
Aviva Insurance Company of Canada
Respondent
AMENDED DECISION
ADJUDICATOR:
Bernard Trottier
APPEARANCES:
For the Applicant:
Sam Elbassiouni Rajiv Kapoor, Paralegal
For the Respondent:
Yann Grand-Clement, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Ayoka Johnson, the applicant, was involved in an automobile accident on September 27, 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, Aviva Insurance Company of Canada, 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 $1,026.36 ($2,290.32 less $1,263.96 approved) for psychological services, proposed by Injury Management and Medical Assessments, in a treatment plan/OCF-18 (“treatment plan”), submitted July 29, 2019 and denied July 31, 2019?
ii. Is the applicant entitled to $14,997.80 for a chronic pain management program, proposed by Healthmax-Etobicoke, in a treatment plan submitted January 13, 2020 and denied February 28, 2020?
iii. Is the applicant entitled to $5,228.75 for physiotherapy, chiropractic services, massage and acupuncture, proposed by Healthmax-Etobicoke, in a treatment plan submitted June 24, 2021 and denied June 25, 2021?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to receive the disputed amount for the treatment plan for psychological services described in issue (i) above.
4The applicant failed to prove that the treatment plans described in issues (ii) and (iii) above are reasonable and necessary.
5An award under s. 10 of Reg 664 is payable.
6The applicant is entitled to interest on the benefits owing.
ANALYSIS
The applicant is entitled to receive funding for the disputed line items in the proposed treatment plan for psychological services
7I find that the evidence supports that the treatment plan submitted by Dr. Leanne Wagner, Psychological Associate with Injury Management and Medical Assessments (“IMMA”), on July 7, 2019, was intended to provide services by a registered psychotherapist. I find that the preparation, planning, documentation, and support activities related to those services are reasonable and necessary. I also find that the respondent was deficient in its notification requirements, under Section 38 of the Schedule, for this treatment plan.
8To 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.
9Both the applicant’s and the respondent’s psychological assessors agree that a treatment plan for psychological services is at least partially reasonable and necessary.
10Dr. Ricardo Harris, Psychologist, conducted a Section 25 assessment of the applicant on June 20, 2018. In his report of the same date, Dr. Harris proposes 16 hours of weekly counselling sessions to offer the applicant “pain coping techniques, increase her general activity level, elevate her mood, overcome her fears and decrease her anxiety.” This report provided the basis for a treatment plan submitted by Dr. Wagner on July 16, 2018 for $3,616.21.
11On August 2, 2018, the applicant attended a s.44 insurer’s examination (IE) with Dr. Mohammad Nikkhou, Psychologist. Dr. Nikkhou provided an IE report on the same day as the examination and a subsequent paper review report on August 18, 2018. The purpose of the assessments conducted by Dr. Nikkhou was to determine the reasonableness and necessity of the above treatment plan. In his report, Dr. Nikkhou opines that the applicant’s injuries would not be considered “minor” and that the above treatment plan was partially reasonable and necessary. Dr. Nikkhou disagreed with the diagnosis of post-traumatic stress disorder (PTSD) and the severity of the applicant’s symptoms but agreed with the rest of Dr. Harris’s assessment.
12Based on Dr. Nikkhou’s assessments, the respondent partially approved the July 16, 2018 treatment plan for $2,051.44. This treatment plan is not in dispute before the Tribunal. The applicant was advised that she was removed from the Minor Injury Guideline (MIG) based on her psychological injuries on August 17, 2018. The applicant then began counselling sessions with Ms. Allyson Gilbert, Registered Psychotherapist with IMMA, on August 28, 2018. In total, the applicant participated in 8 of 8 psychological counselling sessions with Ms. Gilbert between August 28, 2018 and May 29, 2019.
13The source of the dispute is whether the applicant would receive a renewal of those services from a registered psychotherapist or from an unregistered professional.
14On June 30, 2019, Dr. Wagner and Ms. Gilbert provided a psychotherapy progress report to the respondent, in which Ms. Gilbert is identified as the treating psychotherapist. On July 29, 2019, a new treatment plan for psychological services was submitted to the respondent, again by Dr. Wagner. The OCF-18 comprised the following line items:
| Line # | Description | Quantity | Measure | Cost | Total Count | Total Cost |
|---|---|---|---|---|---|---|
| 1 | Counselling, mental health and addictions | 1 | hr | 130.00 | 8 | 1,040.00 |
| 2 | Preparation, service | 3 | hr | 448.83 | 1 | 448.83 |
| 3 | Planning, service | 1 | hr | 130.00 | 1 | 130.00 |
| 4 | Documentation, support activity | 0.2 | hr | 26.00 | 8 | 208.00 |
| 5 | Documentation, support activity for claim form | 1 | PR | 200.00 | 1 | 200.00 |
| Sub-Total | 12 weeks | 2,026.83 | ||||
| Tax | 263.49 | |||||
| Total | 2,290.32 |
15In its explanation of benefits (EOB) letter of July 31, 2019, the respondent indicated that it would only pay a rate of $58.19 per hour for counselling services (Line 1), for a total of $465.52, with the remainder of $574.48 not payable. The letter provides an explanation that “the provider can call to discuss the rate.”
16The letter indicates that the amounts for Line 2, 3 and 4 cannot exceed $598.44 “per Section 44 dated August 13, 2018” and therefore the remainder of $188.39 is not payable. The letter indicates that Line 5 is payable. In its EOB the respondent approved a total $1,263.96 and denied a total of $1,026.36.
17The respondent argues that Line 1 of the disputed OCF-18 does is not specific about who would be the service provider or whether the counselling services would be provided by a registered psychologist, psychotherapist or “other” service provider. The respondent further points out that the Professional Services Guideline distinguishes services by profession, with a maximum rate of $149.61 per hour for registered psychologists, and a maximum rate of $58.19 per hour for unregulated professions. The respondent argues that psychotherapists are not part of a regulated profession, and that because it was unclear who would provide the services, they were compelled to default to the lower rate. The respondent points out that the OCF-18 identifies Umair Malik, whose speciality is identified as “other” on the form, as the proposed service provider. In its submissions, the respondent continues to argue that the rate of $58.19 applies to registered psychotherapist services.
18The applicant argues that a registered psychotherapist should be paid the rate of a regulated professional, and pointed to the Tribunal’s decision in J.V. v. Intact Insurance Company, 2019 CanLII 130366 (ON LAT), where the Tribunal found that the registered psychotherapist was entitled to be paid at the same hourly rate as a psychologist or a psychological associate as a result of her credentials, specialized training and experience.
19I agree with the applicant on four points regarding the disputed treatment plan. First, I agree that psychotherapy is a regulated profession in Ontario, overseen by the College of Registered Psychotherapists of Ontario. Psychotherapists must undergo extensive training to earn their designation and incur costs to maintain their designation. Therefore, the services psychotherapists provide are not limited to the unregulated rate of the Schedule.
20Second, Dr. Wagner’s and Ms. Gilbert’s psychotherapy progress report, provided to the respondent a month prior to disputed treatment plan being submitted, recommended a renewal of psychotherapy. I note that both Ms. Gilbert and Mr. Malik are registered psychotherapists. The OCF-18 form does not have a box to check for registered psychotherapists, hence the reason why “other” was checked. Psychotherapy, under the supervision of a psychological associate, would justify a regulated professional rate, which in this case was proposed at $130.00 per hour.
21Third, I agree with the applicant that preparation, planning service and documentation support activities (Lines 2, 3 and 4 of the OCF-18) are reasonable and necessary since they are related to the psychological treatment approved by the respondent. The respondent also agrees that they are reasonable and necessary, but disagrees on the quantum ($598.44 approved and $188.39 denied) with the explanation in the EOB stating, “per Section 44”.
22Fourth, I agree with the applicant that the respondent was deficient in its responsibilities under s.38 of the Schedule in providing sufficient explanations for the partial denials. The explanation that “the provider can call to discuss the rate” does not give clear information to the applicant to help her make an informed decision in response. Similarly, the explanation “per Section 44” does not describe in sufficient detail why these lines items are being partially denied.
23I find on the balance of probabilities that the disputed amount of the treatment plan for psychological services is reasonable and necessary and therefore payable.
The proposed treatment plan for a chronic pain management program is not reasonable and necessary
24I find the evidence does not support, on the balance of probabilities, that the proposed treatment plan is reasonable and necessary to treat the applicant’s injuries sustained in the accident.
25As with the previous treatment plan, 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 and that the overall costs of achieving the treatment plan’s goals are reasonable.
26Both the applicant and the respondent agree on the facts of the accident of September 27, 2017. The applicant was involved in a rear-end collision while travelling on Highway 400 in Toronto. Airbags did not deploy. Paramedics did not attend the scene of the accident and the applicant drove herself to the collision reporting center. The applicant did not go the hospital after the accident.
27The applicant submits that she had pre-existing, chronic lower back pain that was exacerbated by the accident. The applicant points to her use of Tylenol 3 in 2014 and 2015 as evidence of this pre-existing condition. In the year prior to the accident, the applicant was not undergoing any treatment for her back pain as it was not severe at that time. After the subject accident, the applicant submits that she had increased neck, lower back, right shoulder, left thigh and left hand pain as a result of the accident, as well as panic attacks resulting in insomnia and driving avoidance. The applicant submits that chronic pain persisted at least until January of 2020 when the treatment plan for chronic pain management was submitted.
28The applicant argues that for a pre-existing chronic pain diagnosis to be valid medically, the Tribunal relies on the American Medical Association’s (AMA) Guides for evaluating chronic pain claims. The AMA Guides state that at least three of the following six criteria must be met for a diagnosis of chronic pain:
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
ii. Excessive dependence on health care providers, spouse, or family.
iii. Secondary physical deconditioning due to disuse and or fear avoidance of physical activity due to pain.
iv. Withdrawal from social milieu, including work, recreation, or other social contracts.
v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.
vi. Development of psychosocial sequelae after the initial incident, include anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
29The applicant underwent a chronic pain assessment on December 10, 2018, conducted by Dr. Tajedin Getahun, Orthopaedic Surgeon. In his report of December 18, 2018, Dr. Getahun opines that the applicant satisfies 4 of the 6 criteria in the AMA Guides, namely criteria (iii), (iv), (v) and (vi) above. The applicant relies on this report as the main basis for entitlement to the chronic pain management program.
30On August 9, 2018, the applicant submitted an OCF-18 for the chronic pain assessment indicated above. The respondent requested that an IE be conducted by an orthopaedic surgeon, Dr. Louis Weisleder, on November 12, 2018. As part of this assessment, Dr. Weisleder reviewed the applicant’s pre-accident OHIP records, clinical notes and records of the applicant’s family physician (Dr. George Otto), diagnostic imaging, psychological assessment reports and other related documents.
31In his 2018 report, Dr. Weisleder opined that the proposed plan for a chronic pain assessment was not reasonable and necessary since the applicant sustained minor strain injuries and that she had reached maximum medical recovery, by then more than a year after the accident. Based on this assessment, the chronic pain assessment was denied initially. It was approved subsequently after further review by the respondent, and the applicant consulted with Dr. Getahun.
32On January 11, 2020, the applicant submitted an OCF-18 for $14,997.80 for a chronic pain management program. As a result, the respondent requested another IE. This was conducted by Dr. Frank Loritz, General Practitioner, on September 23, 2020. As part of this assessment, Dr. Loritz reviewed the applicant’s previous medical reports, clinical notes and records of the applicant’s family physicians and diagnostic imaging. In his report dated October 1, 2020, Dr. Loritz opined that the applicant had suffered soft tissue injuries as a result of the accident that had since healed and did not find a chronic pain management program reasonable and necessary. Dr. Loritz’s assessment did not refer specifically to the AMA Guides for chronic pain. Rather, Dr. Loritz opines that his “clinical examination has not identified an accident-related impairment that would benefit from such a program which is typically reserved for individuals whose physical and mental capabilities have been significantly disabled by pain.”
33The respondent argues that the applicant does not meet criteria (i), (ii), (iv) and (v) of the AMA Guides, while conceding, implicitly, that she meets criteria (iii) and (vi). The respondent disagrees with the applicant specifically on whether the applicant meets criteria (iv) and (v). Criterion (iv) tests whether the injured person has withdrawn from social milieu, including work, recreation, or other social contracts and criterion (vi) tests whether the applicant has failed to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs.
34The respondent notes that by November 2018 the applicant was back to work as a personal support worker (PSW), working 30 hours per week and by May 2020 she was working a second job working three days per week as a hospital PSW in addition to working with private clients. The respondent argues that the applicant does not meet criteria (iv) and (v) since her return to work indicates she has not withdrawn from work and that her physical capacity is sufficient to pursue work.
35At the time the treatment plan was submitted (January 11, 2020), the applicant’s family physician was Dr. Basil Al-Saigh. Dr. Al-Saigh’s CNRs from May 16, 2020 indicate a diagnosis for itchy eyes but make no mention of chronic pain. Dr. Al-Saigh’s CNRs from August 12 and August 15 of 2020 indicate itchy eyes, but again make no mention of chronic pain or of the accident.
36I prefer the opinion of Dr. Weisleder and that of Dr. Loritz, that the proposed chronic pain management program is not reasonable and necessary, since these opinions are more consistent with the applicant’s medical record and the AMA Guides criteria.
37I find that the applicant failed to provide objective, corroborating medical evidence, such as diagnostic images or a persistent history of chronic pain complaints, that would indicate that the applicant suffered from a pre-existing chronic pain condition (as described by the AMA Guides). I also find that the applicant only meets two of the four criteria in the AMA Guides.
38I find on the balance of probabilities that the applicant has not proven that the proposed treatment plan for a chronic pain management program is reasonable and necessary.
The proposed treatment plan for physiotherapy, chiropractic services, massage and acupuncture is not reasonable and necessary
39I find the evidence does not support, on the balance of probabilities, that the proposed treatment plan is reasonable and necessary to treat the applicant’s injuries sustained in the accident.
40The applicant submitted the proposed treatment plan on June 23, 2021, about three years and nine months after the accident. The applicant argues that the respondent failed to review the treatment plan in its entirety since it denied the treatment plan within a day of its submission, and that the respondent failed to conduct an addendum IE. The applicant argues that the respondent failed to consider recent medical evidence, given that the last IE (with Dr. Loritz) had occurred more than eight months before the submission of OCF-18. The applicant argues that the respondent failed to properly adjust the claim on an ongoing basis.
41The respondent argues that the denial of the treatment plan was based on the previous IE assessments of Dr. Weisleder and Dr. Loritz, the contemporaneous records of Dr. Al-Saigh, as well as those of her previous family physicians. Dr. Loritz’s report indicated that the applicant did not suffer from ongoing, accident-related physical impairment and that she had attained maximal medical recovery from her physical injuries. The respondent also argues that Dr. Al-Saigh’s CNRs from May 2, 2020 to May 1, 2021, for a full year leading up to the submission of the treatment plan, did not mention the accident.
42I agree with the respondent that an addendum IE is not required when every proposed treatment plan is submitted. At the time of submittal, the respondent had been adjusting the applicant’s file for three years and nine months. Three IEs had been conducted and in each of them the respondent’s assessors reviewed the applicant’s clinical notes and records, OHIP records, diagnostic imaging and related information. By then the respondent had a point of view as to whether the applicant had achieved maximal medical recovery. An additional IE is not required by the Schedule and I find that the respondent’s justification for its decision was reasonable.
43Although Dr. Loritz did not provide an opinion on the reasonableness and necessity of the proposed treatment plan (since it was submitted after his assessment), I prefer his opinion that the applicant had achieved maximal medical recovery by September, 2021 since it is consistent with the contemporaneous medical records of the applicant’s family physician.
44I find on the balance of probabilities that the applicant has not proven that the proposed treatment plan for physiotherapy, chiropractic services, massage and acupuncture is reasonable and necessary.
Award
45The 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.
46I find that the respondent acted unreasonably in only approving additional psychotherapy at the rate of an unregulated professional when the proposed services would be provided by a registered psychotherapist, per the recommendations of the psychotherapy progress report of June 30, 2019. Psychotherapy is a regulated profession in Ontario. Initially, the respondent argued that it was unclear on the proposed treatment plan who would provide the services, therefore they defaulted to the rate of an unregulated professional. In its submission before the Tribunal, the respondent still argues that a registered psychotherapist is still only entitled to charge her services at the rate of an unregulated professional even though they had previously paid for Ms. Gilbert’s services at the regulated professional rate.
47I acknowledge that the Professional Services Guideline is not explicit regarding the allowable rate for psychotherapists. I also acknowledge that the OCF-18 form does not provide the ability to identify whether services would be provided by a registered psychotherapist. However, the miscommunication regarding which type of professional and who would provide the proposed services could have been dealt with more effectively by the respondent.
48I also find that the respondent’s reasons for the partial denial of the proposed psychological services were vague and did not give clear information to the applicant to help her make an informed decision in response. I find that the respondent fell short of its responsibilities under s.38 of the Schedule in providing clear, reasoned explanations for the partial denial.
49For the reasons above, the find that the applicant is entitled to an award of 25% of the disputed amount of the treatment plan for psychological services.
50For the other two treatment plans in dispute, I have found that no benefits are payable. I do not find that the respondent unreasonably withheld or delayed payment for these benefits. As a result, an award under s. 10 of Reg. 664 is not warranted for these two treatment plans.
Interest
51Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that interest is applicable to the overdue portion of the proposed treatment plan for psychological services, at a rate of 2 percent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
ORDER
52The applicant has demonstrated that she is entitled to receive the disputed amount of $1,026.36 for the treatment plan for psychological services.
53The applicant has not demonstrated that the proposed treatment plan for a chronic pain management program is reasonable and necessary to treat her accident-related injuries. As a result, she is not entitled to this medical and rehabilitation benefit.
54The applicant has not demonstrated that the proposed treatment plan for physiotherapy, chiropractic services, massage and acupuncture is reasonable and necessary to treat her accident-related injuries. As a result, she is not entitled to this medical and rehabilitation benefit.
55The applicant is entitled to an award of 25% of the amount in dispute for the proposed treatment plan for psychological services. The amount of this award is $256.59.
56The applicant is entitled to interest on the overdue portion of the proposed treatment plan for psychological services, at a rate of 2 percent per month, compounded monthly, from the time the benefits first became payable.
Released: August 18, 2023
__________________________
Bernard Trottier
Adjudicator