Citation: Jindal v. Novex Insurance Company, 2023 ONLAT 21-002942/AABS

Licence Appeal Tribunal File Number: 21-002942/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:

Arjun Jindal

Applicant

and

Novex Insurance Company

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Rayanna Hamadi, Counsel

For the Respondent: Katherine Badenoch, Counsel

HEARD: By way of written submissions

OVERVIEW

1Arjun Jindal (“A.J.”), the applicant, was involved in an automobile accident on March 12, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). A.J. was denied benefits by the respondent, Novex, 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 A.J. entitled to $797.73 for assistive devices, proposed by Heather Potts, occupational therapist, in a treatment plan/OCF-18 dated February 27, 2019?

ii. Is A.J. entitled to psychological services recommended by Rob Jagosky, psychotherapist and Stephen White, psychologist, as follows:

(a) $653.25 for services proposed in an OCF-18 submitted March 4, 2019?

(b) $1,082.76 for services proposed in an OCF-18 submitted August 1, 2019?

(c) $1,082.76 for services proposed in an OCF-18 submitted December 4, 2019?

(d) $969.76 for services proposed in an OCF-18 submitted May 6, 2019?

(e) $1,346.29 for services proposed in an OCF-18 submitted November 9, 2020?

iii. Is Novex liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to A.J.?

iv. Is A.J. entitled to interest on any overdue payment of benefits?

RESULT

3A.J. is entitled to the OCF-18 for assistive devices. Interest is payable.

4A.J. is not entitled to the remaining OCF-18s as they are not reasonable and necessary.

5No award is payable.

ANALYSIS

Are the OCF-18s reasonable and necessary?

6Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. In all cases, A.J. bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary. In order to do so, A.J. should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall cost of achieving the goals is reasonable.

A.J. Is entitled to $797.73 for assistive devices in the OCF-18 dated February 27, 2019

7The February 27, 2019 OCF-18 recommended a Cefaly device (and accompanying electrodes) with a justification letter and Cefaly information sheet. The goals of the OCF-18 were noted to be pain reduction and improving performance of activities of daily living. For clarification, the Cefaly device is a transcranial stimulator offering pain prevention and relief, and stress reduction. A.J. submits the OCF-18 is reasonable and necessary for a number of reasons: past use has been helpful; there are no side effects; and it has allowed him to increase his activity level.

8A.J. submits that he suffers from ongoing migraines and cluster headaches as a result of the accident. The headaches reportedly can occur one to three times per day and for months at a time. Further, the headaches lead to pain, blurry vision, difficulty focusing and post-headache drowsiness. These effects were noted in the May 14, 2021 consultation report of Dr. Lamb, rehabilitation specialist. His family physician, Dr. Hudson, also recommended the use of the Cefaly device and accompanying electrodes.

9In response, Novex relies on the May 27, 2019 neurological assessment report from Dr. Yahmad in support of its denial of the OCF-18. In his report, Dr. Yahmad opined that the post-traumatic headaches were not associated with a neurological disability or impairment and recommended that A.J. follow up with his treating physician. Dr. Yahmad concluded that from a neurological perspective, there was no impairment. As a result, Dr. Yahmad determined that the Cefaly device was not reasonable and necessary.

10I find the evidence A.J. relies on to be persuasive. Notably, although various medication options were tried by A.J., he found the side effects of the medication to be detrimental. Second, the Cefaly device had not only been recommended, but also used, and proved to be beneficial in providing relief from pain. It is well-settled that pain relief, even as the sole goal of treatment, is a reasonable goal.

11The OCF-18 identified pain relief as a goal, and the medical records support that the goal was achieved when the Cefaly device was used. Dr. Yahmad did not find the OCF-18 to be reasonable and necessary, yet, recommended that A.J. follow up with his family physician who recommended the Cefaly device. I find this position somewhat contradictory. If the s. 44 assessor recommends that an insured follow up with their family physician for treatment, then the treatment that the family physician recommends should be considered reasonable and necessary.

12Accordingly, I find that the OF-18 for a Cefaly device is reasonable and necessary.

A.J. is not entitled to the balance of the OCF-18s for psychological services totalling $5,134.82

13The main issues in dispute regarding the OCF-18s for psychological services, are: a) the difference between the hourly rate claimed ($130.00) and the rate that Novex paid ($99.75); and b) the length of each counselling session (1.25hrs vs. 1 hour). I will address the length of the sessions and the hourly fee separately below.

Length of the Counselling Sessions (1 hour vs. 1.25 hours)

14A.J. submits that the full-length counselling sessions for cognitive behavioural therapy (“CBT”) provided by a registered psychotherapist are reasonable and necessary in order to deal with his cognitive deficits and symptoms of anxiety and depression.

15Novex argues that the balance of the OCF-18s is not reasonable and necessary as there is no adequate explanation as to why the 1.25-hour session are necessary. Regarding the hourly rate, its position is that as a registered psychotherapist, Mr. Jagosky is not listed as a provider in the Financial Services Regulatory Authority of Ontario Professional Services Guidelines (the “Guidelines”), therefore the amounts payable for services are to be determined by the parties involved.

16I agree with Novex that the length of the session at 1 hour each is reasonable.

17A.J. submits that the 1.25-hour sessions included counselling as well as session notes is reasonable and necessary. His position is that the July 31, 2019 Progress Report from Mr. Jagosky supports that the full length of the counselling sessions are reasonable and necessary. I disagree.

18In his Progress Report, Mr. Jagosky notes that A.J. has been benefitting from the counselling sessions. In particular, that he has made progress in terms of improvements with his anxiety and mood, and overall is optimistic about his recovery.

19In response, Novex argues that none of the OCF-18s explain why a 1.25-hour session is required over a 1-hour session, nor is there any explanation as to why the proposed treatment could not be provided in 1 hour. In support of its position, it points to the letters of partial approval, wherein it notes that it requires additional information with respect to the nature and type of treatment in order to consider approval of the 1.25-hour session lengths.

20While I agree that the sessions have been beneficial, Mr. Jagosky’s Progress Report provides no explanation as to why the 1.25-hour sessions are required. A.J.’s submissions also do not provide any explanation as to why the longer sessions are required, or why they are reasonable and necessary. Although the goals of the OCF-18s have been met to a reasonable degree, there is no evidence that establishes why the longer sessions are reasonable and necessary.

21Accordingly, I find that the 1.25-hour sessions are not reasonable and necessary, and I see no reason to interfere with Novex’s determination regarding the 1-hour session length.

Hourly rate for a Registered Psychotherapist

22A.J. submits that Novex did not have sufficient information to properly determine Mr. Jagosky’s rate based on the three criteria it claims it considered. His position is that Novex did not have Mr. Jagosky’s curriculum vitae, nor did it inquire as to the rate he charges other clients. He submits that the three criteria that Novex relied on to determine the hourly rate was incorrect, those being: a) the years of schooling required to obtain his accreditation; b) the number of controlled acts within his scope of practice; and c) the rate being charged in private practice and to other organizations.

23A.J. posits that the correct criteria was set out in J.V. v. Intact Insurance Company, 2019 CanLII 76995 (ON LAT) at paras. 7-8, wherein the adjudicator considered the following three factors to determine a psychotherapist’s rate: a) whether the treatment plans in dispute explicitly propose CBT administered by a psychotherapist; b) whether the psychotherapist is qualified and licensed to provide CBT; and c) the psychotherapist’s education and experience, and particularly, whether the psychotherapist has special training in CBT.

24In J.V., the adjudicator found that a registered psychotherapist was doing the same work as a psychologist or psychological associate in providing CBT and should be paid the same rate. The adjudicator found that the psychotherapist had specialized training to conduct CBT and was therefore qualified to provide CBT. Based on the evidence of the registered psychotherapist, the adjudicator found that the appropriate rate was $149.61 per hour.

25A.J. submits that similar to J.V., Mr. Jagosky is identified as a psychotherapist (Part 11 of the OCF-18s); that he is conducting CBT (Part 9); and that he is a psychotherapist registered with the College of Registered Psychotherapists of Ontario and licenced to provide CBT without supervision.

26Novex relies on the jurisprudence set out in Jamon v. The Co-Operators, 2021 CanLII 19483 (ON LAT) at para 30, where the adjudicator found that a rate of $91.00 was reasonable for a psychotherapist. Novex further relies on the decision in Moran v. Aviva General Insurance, 2021 CanLII 21433 (ON LAT) at para 44, where the adjudicator found that the appropriate rate for a psychotherapist was $58.19, which was consistent with the hourly rate for unregulated providers, where there is no evidence of credentials, no education details nor was the experience of the psychotherapist put before the adjudicator.

27Novex’s submits that the J.V. case is distinguishable. It refers to the evidence in J.V. that the psychotherapist was a specialist in CBT, one of the grounds for the adjudicator finding that the hourly rate of $149.61 was reasonable. Its position is that A.J. has led no evidence that Mr. Jagosky specializes in CBT. It argues that while Mr. Jagosky may provide a certain type of service, the Guidelines do not specify fees based on the type of service provided, but on the service provider’s licence type.

28Novex also argues that the finding in J.V. supports its determination in the subject matter; in that, by not negotiating a different rate and by proceeding to incur the treatment after it was approved at a lower rate, the actions of the applicant were tantamount to an agreement of the lesser rate. Novex’s position is that this is similar to the subject proceeding where multiple OCF-18s were submitted, A.J. was aware of the partial approval, the rationale behind the approval, and undertook to incur treatment at the approved rate.

29I find that the hourly rate of $99.75 is reasonable based on Mr. Jagosky’s credentials, as laid out in his curriculum vitae. While I note that he has had training in various cognitive behavioural-related areas, there is no indication that he has received any accreditation specifically for CBT, outside of what was indicated on the OCF-18s. In J.V., the psychotherapist is specifically noted to have specialized training within the area of CBT, whereas in the subject proceeding, the evidence before me does not confirm that Mr. Jagosky is specifically certified to provide CBT treatments. Accordingly, I find Novex’s determination to approve the OCF-18s at the partial hourly rate of $99.75 is reasonable.

Interest

30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

31Having determined that A.J. is entitled to payment of the OCF-18 for the Cefaly device and accompanying electrodes, interest is payable on the outstanding benefit.

Award

32A.J. 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.

33As there was only one OCF-18 that I found reasonable and necessary, my comments will focus solely on same.

34A.J. seeks an award of 40% of the denied OCF-18. He submits that Novex relied on its s. 44 report without properly assessing the report. His position is that Dr. Yahmad’s conclusion that from a “strict physical neurological basis”, that the OCF-18 was not reasonable and necessary, was erroneous, and Dr. Yahmad failed to provide an opinion on whether the OCF-18 was reasonable and necessary on a neuropsychological basis.

35A.J. points to the similarities between the November 20, 2020 psychological report of Dr. Kurzman, and the December 31, 2018 neuropsychological s. 44 report of Dr. Zakzanis. Both noted A.J.’s cognitive and emotional difficulties, and headaches. A.J.’s position is that Novex was unreasonable in concluding that the OCF-18 was not reasonable and necessary to his treatment based on a “strict physical neurological basis.”

36Novex did not specifically address this OCF-18 in its submissions, therefore no argument was put forward to refute A.J.’s claims regarding the OCF-18 for the Cefaly device.

37However, I do not find Novex’s adjusting of its file on this particular OCF-18 to have resulted in an unnecessary withholding or delaying of benefits. As a neurologist, Dr. Yahmad is not necessarily specialized in dealing with neuropsychological issues, hence his conclusion that from a “strict physical neurological basis”, he did not find the OCF-18 reasonable and necessary, as A.J. suggests he should have.

38Despite Drs. Kurzman and Zakzanis’ noting of A.J.’s cognitive, emotional and headache issues, A.J. mainly relied on the OCF-18 itself in support of his claim, and his arguments regarding the alleged shortcomings of Dr. Yahmad’s report. This is not sufficient enough to meet the threshold of an award claim. Novex relied on the report of its assessor, as it is within its right to do, and despite doing so, denied the OCF-18 based on Dr. Yahmad’s opinion. The explanation of benefits was provided in a timely manner, denying the claim, and meeting the requirements of responding to a claim in accordance with s. 38 of the Schedule.

39For the reasons set out above, I find that an award is not appropriate.

ORDER

40A.J. is entitled to the February 27, 2019 OCF-18 for the Cefaly device and accompanying electrodes, interest is payable.

41A.J. is not entitled to the balance of the OCF-18s for psychological services, no interest or an award is payable.