Licence Appeal Tribunal File Number: 22-009419/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:

Vasuki Sivasubramaniyam Applicant

and

Allstate Insurance Company of Canada Respondent

DECISION

VICE-CHAIR: Tyler Moore

APPEARANCES:

For the Applicant: Georgiana Masgras, Counsel For the Respondent: Rebecca Brown Greer, Counsel

HEARD: By Way Of Written Submissions

OVERVIEW

1Vasuki Sivasubramaniyam, the applicant, was involved in an automobile accident on November 11, 2020, 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, Allstate 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 the assessments and treatments proposed by Midland Wellness Centre, as follows: a) $3,399.90 for physiotherapy in a treatment plan dated September 25, 2021; b) $299.22 ($3,641.09 less $3,341.87 approved) for psychological therapy in a treatment plan dated May 28, 2021; c) $3,399.90 for physiotherapy, in a treatment plan dated October 8, 2021; d) $3,093.38 for physiotherapy, in a treatment plan dated January 22, 2022; e) $2,620.85 for physiotherapy, in a treatment plan dated October 6, 2021; f) $2,443.94 for physiotherapy, in a treatment plan dated December 13, 2021; g) $3,310.29 for physiotherapy, in a treatment plan dated November 12, 2021; h) $2,531.00 ($10,992.58 less $8,461.58 approved) for physiotherapy, acupuncture, and psychological treatment in a treatment plan dated February 7, 2022?

ii. Is the applicant entitled to $145.00 for completion of a medical form, submitted on an expense claim form/OCF-6 dated October 7, 2021?

iii. Is the applicant entitled to $1,921.00 for the completion of an income replacement benefits (“IRBs”) financial report, prepared by Gurlal S. Gill, CPA, and submitted on an expense claim form/OCF-6 dated January 15, 2021?

iv. Is the applicant entitled to attendant care benefits in the amount of $8,003.69 ($16,175.95 less $8,172.26 approved) from November 15, 2020 to April 28, 2021?

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

3The applicant is not entitled to the treatment plans, the OCF-6, the IRB report, and the partially denied ACBs in dispute.

4The applicant is not entitled to interest or an award.

ANALYSIS

5I find that the applicant has not demonstrated on a balance of probabilities that the following treatment plans for physiotherapy services are reasonable and necessary: the September 25, 2021 plan in the amount of $3,399.90; $3,399.90 dated October 8, 2021; $2,620.85 dated October 6, 2021; $2,443.94 dated December 13, 2021; $3,310.29 dated November 12, 2021; and $3,093.38 dated January 22, 2022.

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.

7The treatment plans for physiotherapy services were proposed by Midland Wellness Centre. The treatment plan dated September 25, 2021 proposes 20 sessions of physical rehabilitation, 7 sessions of massage therapy, and BioFreeze. The treatment goals include pain reduction, increased range of motion, increased strength, and return to normal activities of daily living. The plan notes that the applicant complained of severe pain but was able to move well with less pain.

8The treatment plan dated November 12, 2021 proposes the same form of treatment as the September 25, 2021 plan, but the number of treatments was 19 sessions of physical rehabilitation and 9 sessions of massage therapy. The treatment plan reflects the same goals and indicates that the applicant reports a 5% pain reduction and that 5% more activities are pain free. The applicant’s pain was rated as 8/10.

9The treatment plan dated October 6, 2021 proposes 15 sessions of physical rehabilitation and 7 sessions of massage therapy and indicates that the applicant reports a 50% reduction in pain overall and a 30% reduction in low back pain. The treatment plan goals remain the same.

10The treatment plan dated December 13, 2021 proposes 14 sessions of physical rehabilitation and 6 sessions of massage therapy. That treatment plan notes that the applicant’s overall pain has been reduced by 60%, her low back pain reduced by 50%, and her activities of daily living improved by 60%. The goals of the treatment plan are the same. The treatment plan dated January 22, 2022 proposes 18 sessions of physical rehabilitation and 8 sessions of massage therapy and provides no subjective improvement ratings other than that the applicant reports ongoing pain in the neck and back. The goals of treatment plan are also the same.

11The applicant provides a general submission that a catastrophic impairment (“CAT”) orthopaedic assessment report by Dr. Joseph Kwok dated January 11, 2023, recommends physiotherapy, massage, and chiropractic for the applicant’s shoulders, neck, and back conditions followed by active rehabilitation. Apart from that, the applicant’s written submissions reiterate what is listed on the treatment plans in dispute to support that the proposed treatment is reasonable and necessary.

12The respondent submits that the treatment plan dated October 8, 2021 is a duplicate of the treatment plan dated September 25, 2021, and that the applicant has not submitted any evidence to the contrary. The respondent also submits that the treatment plan dated November 12, 2021 was withdrawn by Midland Wellness Clinic and is therefore not payable. On January 13, 2022, it informed the applicant that the treatment plan was considered withdrawn as the treating clinic confirmed the withdrawal and advised that it planned to submit a new one.

13With respect to the remaining treatment plans, the respondent submits that they were denied because the medical evidence shows that the necessary treatment in light of the applicant’s impairments is a multi-disciplinary chronic pain treatment program or that the policy limits were exhausted. The respondent also submits that Dr. Kwok’s report concurs that the applicant should undergo a chronic pain assessment and treatment, and that the applicant has only recited what is in the treatment plans to support her position.

14The respondent argues that the applicant did not consider or mention the clinical notes and records of her family doctor, Dr. Shahrose Malik, despite being one of her most frequently visited healthcare providers since the accident. The respondent relies on Dr. Malik’s clinical notes dated June 23, 2021 where it was noted that the applicant had symptoms of chronic pain and a rheumatological condition. Dr. Malik made no referral or recommendation for ongoing physiotherapy services, just a referral to a rheumatologist.

15The respondent also relies on the s. 44 physiatry report of Dr. Ida Cavaliere dated August 5, 2021, which concludes that the applicant’s residual soft-tissue complaints could be treated with topical analgesics, a reduction of NSAIDs, and home-based exercise. Unfortunately, despite being provided with a home-based exercise program, Dr. Cavaliere noted that the applicant was non-compliant. The applicant also reported to Dr. Cavaliere that physical treatment actually worsened her pain. Dr. Cavaliere concluded that further facility-based treatment was not reasonable and necessary as the applicant reported only 10% improvement despite receiving seven months of treatment. The respondent submits that Dr. Cavaliere also recommended a chronic pain treatment program, and that Dr. Kwok’s recommendation for physiotherapy provides no meaningful analysis as to why this would render treatment plans reasonable and necessary. A s. 44 CAT orthopaedic assessment report from Dr. Jihad Abouli dated October 31, 2023 also made no recommendation for physiotherapy.

16I am not persuaded by the applicant’s evidence or submissions. Again, the onus is on her to establish that the proposed treatment plans are reasonable and necessary. I am not satisfied on a balance of probabilities that they are, based on the evidence and submissions she has presented. For example, in the treatment plan dated October 6, 2021, it is noted that the applicant’s overall pain was reduced by 50% and her low back pain reduced by 30%. In the treatment plan dated November 12, 2021, however, it is noted that the applicant’s pain was only reduced by 5% overall. If that is the case, then the goals of the proposed treatment plans are not being met because her overall improvement was much less. Based on these inconsistencies, I have given limited weight to the applicant’s pain ratings and self-reported improvement. I am persuaded, however, by the consistent report by multiple assessors, even the applicant’s assessor, Dr. Kwok, that the applicant requires a multi-disciplinary approach to chronic pain management, and not further facility based physical therapy treatment.

17For all these reasons, the applicant is not entitled to the physiotherapy services treatment plans.

18I find that the applicant is not entitled to the unapproved portion of the treatment plan dated May 28, 2021 for psychological services. The applicant has failed to demonstrate on a balance of probabilities that the denied portion of the treatment plan is reasonable and necessary.

19The treatment plan was proposed by Midland Wellness Centre, and it sought funding for 12 sessions of 1.5 hours of psychotherapy, 1 hour for planning service, 1 hour for communication with others, 1 progress report, and OCF-18 completion fees. The respondent approved the entire treatment plan except for the proposed fees for documentation and planning in the amount of $299.22.

20The applicant reiterates the details of the treatment plan in her submissions and relies on the CAT psychiatric evaluation dated May 8, 2023 by Dr. Emily Gavett-Liu which concluded that the applicant was suffering from moderate depression and severe somatic symptoms and recommended psychotherapy.

21The respondent submits that the Professional Service Guideline (“PSG”) sets out that the maximum hourly rate for professional service includes all administration costs, overhead, related costs, fees, expenses, and surcharges. As a result, the respondent is not liable for any fees that have the result of increasing the effective hourly rate, or the maximum fees payable for completing forms, beyond what is permitted under the PSG. The hourly rate, according to the respondent, therefore includes things like documentation to support activity and planning, which is the only portion of the treatment plan that was not approved. The respondent argues that the applicant has failed to make any submissions to establish that the denied portion of the treatment plan is reasonable and necessary.

22I agree with the respondent and find that the applicant’s submissions do not address how the unapproved portions of the treatment plan are reasonable and necessary. The applicant did not address the PSG, made no formal connection between Dr. Gavett-Liu’s 2023 report and the May 2021 treatment plan in dispute, and the report made no reference to whether the proposed treatment plan was reasonable and necessary. For these reasons, the applicant has not met her onus of proving on a balance of probabilities that the denied portion of the treatment plan is not reasonable and necessary. Therefore, the applicant is not entitled to this treatment plan.

23I find that the applicant is not entitled to the denied portion of the treatment plan dated February 7, 2022 proposing physiotherapy, acupuncture, and psychological treatment. She has not established on a balance of probabilities that the unapproved portion of the plan is reasonable and necessary.

24The treatment plan is proposed by Midland Wellness Centre for chronic pain treatment and a chronic pain assessment. It proposes physical rehabilitation, exercise, acupuncture, massage therapy, mental health counselling, aquatic physical therapy basics workshop, and documentation, and a chronic pain assessment. The total amount of the treatment plan is $10,992.58 and the respondent approved all but $1,890.00 for a chronic pain assessment, $350.00 for an aquatics physical therapy basics workshop, and the respondent limited the amount of time for the acupuncture sessions to 30 minutes. That amounts to $291.00 for acupuncture as opposed to $582.00 that the treatment plan proposes.

25In her submissions, the applicant reiterated what the treatment plan proposes and what was denied without providing evidence as to why the unapproved amounts are reasonable and necessary.

26The respondent submits that it denied the aquatics workshop as it required further detail regarding the number of sessions and the cost per session. The respondent also submits that it has already funded a chronic pain assessment and report by Dr. Daniel Yim on March 21, 2022.

27Again, the applicant has not provided any evidence or submissions that would contradict the respondent’s position that the proposed chronic pain assessment is a duplicate of a previously funded chronic pain assessment by Dr. Yim. Further, the applicant has not provided any evidence that she provided the respondent with any of the requested information related to the amount of time for acupuncture sessions or the number of sessions and cost per session for the aquatics therapy program.

28I find that the applicant has not proven on a balance of probabilities that the denied portion of the February 7, 2022 treatment plan is reasonable and necessary. Therefore, the applicant is not entitled to this plan.

OCF-6 for medical form completion

29I find that the applicant is not entitled to $145.00 for completion of a medical form, submitted on an OCF-6 dated October 7, 2021.

30The applicant provided no submission other than re-stating that the respondent denied the OCF-6 and confirming that the medical form was completed for the applicant’s employer.

31The respondent submits that fees for completion of forms that it does not require or request are not payable, including forms required by the applicant’s employer.

32I agree that the applicant has not provided any evidence to support that the medical form completion for her employer is payable by the respondent. As a result, I find that the applicant is not entitled to $145.00 for the medical form completion.

IRB financial report

33I find that the applicant is not entitled to $1,921.00 for an IRB financial report dated January 15, 2021. She has not established on a balance of probabilities that it is reasonable and necessary.

34According to s. 7(4) of the Schedule:

i. The insurer shall pay an expense incurred by or on behalf of an insured person for the preparation of a report for the purpose of calculating the person’s income from employment or self-employment if all of the following conditions are satisfied:

a) The insured person is applying for an income replacement benefit under this Part that is based on the employment or self-employment considered in the report.

b) The report is prepared by a member of a designated body within the meaning of the Public Accounting Act, 2004.

c) The expense is reasonable and necessary for the purpose of determining the insured person’s entitlement to an income replacement benefit.

35This is to be read on concert with s. 7(5) of the Schedule, which allows up to $2,500.00 in total for the report expenses. The applicant bears the onus of proving these conditions on a balance of probabilities.

36The applicant submits that Mr. Gurlal S. Gill, certified public and general accountant, calculated her IRB in accordance with s. 7(5) of the Schedule. Mr. Gill, in a letter to the respondent dated January 15, 2021, addressed this denial by setting out the applicant’s right to seek assistance of a chartered professional accountant to complete an independent valuation as the applicant is not versed in the Schedule and she has no financial expertise to confirm or deny inaccurate benefit payments.

37The respondent submits that the use of an independent accountant to determine IRB was not required because the calculation of IRB entitlement was not a complicated one as the applicant was not self-employed prior to the accident. The respondent submits that the applicant has not met all of the conditions outlined in s. 7(4) of the Schedule, specifically, that the expense must be reasonable and necessary for the purpose of determining the insured person’s entitlement to an IRB. The respondent relies on S.M. v. Aviva General Insurance Company, 2020 ONLAT18-010116 in which the Tribunal found that the cost of an IRB accounting report at issue was not reasonable and necessary, as the applicant had one source of income and the IRB calculation was straightforward and did not require the assistance of a forensic accountant. Although not binding on me, I am persuaded by the findings in S.M. v. Aviva General Insurance Company as the circumstances in this matter are similar, with the only exception being that the applicant in this case was also receiving employment insurance benefits.

38Having reviewed the report of Mr. Gill, I agree that the applicant’s IRB calculation was a straightforward one that did not require the assistance of an accountant. It is undisputed that the applicant had only one employer, and her only other source of income was employment insurance benefits. The applicant does not argue that she was self-employed which may have necessitated the need for an accountant. It also appears that all of the relevant financial documentation was available. In my view, the applicant’s IRB calculation did not require expertise to interpret the documentation. As a result, I find that the accounting report to complete such a relatively straight-forward calculation was not reasonable and necessary.

39For these reasons, I find that the applicant is not entitled to the cost of an IRB accounting report in the amount of $1,921.00 as it was not reasonable and necessary on a balance of probabilities.

Attendant Care Benefits

40I find that the applicant is not entitled to $8,003.69 ($16,175.95 less $8,172.26 approved) for attendant care benefits from November 15, 2020 to April 28, 2021 as she has not demonstrated on a balance of probabilities that the disputed amount is reasonable and necessary.

41Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (ACBs) provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).

42The applicant submits that she requires attendant care for activities like dressing/undressing, toenail care, assistance with preparing and feeding meals, bathroom hygiene, bedroom hygiene, for exercise, and for bathing/drying. She relies on the occupational therapy attendant care assessment report of James Moorthy dated January 8, 2021. Mr. Moorthy recommended 962 minutes/week of attendant care of Level 1, 1031 minutes/week of Level 2, and 105 minutes/week of Level 3 weekly assistance, valued at $2,583.64 per month in a Form 1 that was included as part of his assessment. The applicant submits that she has consistently relied on attendant care since the accident which is evident from various incurred invoices submitted as evidence.

43The respondent submits that the applicant has merely copied and pasted the findings of her s. 25 assessor’s report without any supporting authority for her position. The respondent also submits that the applicant is not entitled to retroactive payment for ACBs prior to the submission of her Form 1 or HST until March 1, 2021. The respondent relies on the s. 44 occupational therapy attendant care assessment report of Arash Sasani dated March 12, 2021 that recommended $1,252.66 per month for attendant care services after April 6, 2021. The respondent argues that the amount is more reflective of the applicant’s level of function.

44I find that the applicant has not proven on a balance of probabilities that the unapproved portions of ACBs from November 15, 2020 to April 28, 2021 are reasonable and necessary. The applicant relies upon attendant care invoices incurred during the time period in dispute from Smart Personal Care Limited, but there are only invoices for November 2020, December 2020, and January 2021. The applicant also provides no explanation as to how the invoices are connected or in what context they apply to the amount in dispute. Again, the applicant’s submissions and evidence provide no context or support for how the denied portion of ACBs being sought is reasonable and necessary versus the amount approved, other than restating the monthly amount proposed by Mr. Moorthy.

45While I recognize that the respondent has submitted that the applicant is not entitled to retroactive payments for ACBs prior to the submissions of the Form 1 and that no HST was payable prior to March 1, 2021, which is when Smart Personal Care Limited registered to start charging HST, I find that I do not need to address these arguments because the applicant has not discharged her onus for entitlement to the denied portion of the ACBs at first instance.

46For these reasons, I find that the applicant is not entitled to the denied portion of ACBs being sought between November 15, 2020 and April 28, 2021.

Interest

47Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, the applicant is not entitled to interest.

Award

48The 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. The applicant did not provide any submissions related to her entitlement to an award, and since I have found that no benefits are payable, the applicant is not entitled to an award.

ORDER

49The applicant is not entitled to the treatment plans, the OCF-6, the IRB report, and the partially denied ACBs in dispute.

50The applicant is not entitled to interest or an award.