Witkowski v. Belair Direct Insurance Company, 2024 CanLII 112992

Citation: Witkowski v. Belair Direct Insurance Company, 2024 ONLAT 22-013411/AABS

Licence Appeal Tribunal File Number: 22-013411/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:

Lina Witkowski

Applicant

and

Belair Direct Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Andre Bourdon, Counsel

For the Respondent:

Robbie Brar, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Lina Witkowski, the applicant, was involved in an automobile accident on January 1, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The applicant was denied benefits by the respondent, Belair Direct Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

3At the end of the applicant’s submissions, she requests an award pursuant to s. 10 of Reg. 664. This issue was not raised by the applicant at the Case Conference and the applicant did not file a Notice of Motion to add this issue prior to submitting her written submissions. Therefore, I do not find it appropriate to add an award to this proceeding.

4Also, at the end of the applicant’s submissions, she requests an order for costs under Rule 19 of the Licence Appeal Tribunal Rules. Under Rule. 19.1, the request for costs may be made to the Tribunal in writing, at any time before the decision or order is released. As the applicant requested to add costs within her written submissions, I find it appropriate to add costs to the proceeding.

ISSUES

5The issues in dispute are:

i. Is the applicant entitled to social rehabilitation counselling, proposed by Lajeunesse Rehabilitation Services Inc. in the following treatment plans:

(i) Treatment Plan, dated October 20, 2021 in the amount of $908.17 ($3,382.00 less approved $2,473.83)

(ii) Treatment Plan, dated February 15, 2022 in the amount of $2,454.72 ($4,138.52 less approved $1,683.80);

(iii) Treatment Plan, dated May 24, 2022 in the amount of $2,265.67 ($3,978.64 less $1,712.97);

(iv) Treatment Plan, dated July 22, 2022 in the amount of $2,265.67 ($3,978.64 less $1,712.97)

ii. Is the applicant entitled to interest on any overdue payment of benefits;

iii. Is the applicant entitled to costs pursuant to Rule 19.1 of the Licence Appeal Tribunal Rules, 2023?

RESULT

6I find that the applicant is not entitled to the unapproved balance of the treatment plans in dispute. As such, no interest is payable.

7I find that the applicant is not entitled to costs.

ANALYSIS

8The applicant submits that he is entitled to the balance of four treatment plans, dated October 20, 2021, February 15, 2022, May 24, 2022 and July 22, 2022, proposed by Lajeunesse Rehabilitation Services for social rehab counselling. As all of the treatment plans were partially approved on the same basis and have the same issues in dispute, I will consider them together.

9In the treatment plans in dispute, the respondent denied the following items:

i. Completion of OCF-18 form – denied $100.25 of $200.00 submitted;

ii. Hourly rate of provider – denied $37.78 per hour of $150.00 per hour submitted;

iii. Claimant transportation to treatment; and

iv. Provider travel time to treatment.

10To receive payment for a treatment 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 that the goals of treatment are reasonable, how the goals would be met to a reasonable degree and that the overall cost of achieving them are reasonable.

Cost of Completion of the Treatment Plan Form

11I find that the applicant has not proven on a balance of probabilities that she is entitled to $200.00 for completion of the treatment plan form.

12The treatment plans in dispute propose a $200.00 fee for completion of the treatment plan form. Specifically, the treatment plans propose “Documentation, support activity for claim form at $200.00”. The respondent approved $99.75 for one hour to complete the treatment plan form.

13The respondent submits that it clearly outlined to the applicant in its denial letters that the respondent approved one hour to complete the treatment plan form. It further submits that the Professional Services Guideline issued as Superintendent’s Guideline No. 03/14 (the “Guideline”) does not require the respondent to pay $200.00 per completion of the treatment plan. It is only the maximum amount payable, not the minimum. The respondent submits that the additional amount has not been proven to be reasonable or necessary.

14The respondent noted in its correspondence to the applicant that,

In accordance with section 25 of the Statutory Accident Benefits Schedule (SABS), an insurer is not liable to pay for expenses in excess of the Financial Services Commission of Ontario’s Professional Services Guideline. In an effort to ensure you are receiving the recommended service(s), we will approve the cost of the recommended service fees and/or form completion accordingly to one hour of the health care provider who completed the form.

15I find that the applicant has not met her onus of demonstrating entitlement to $200.00 for completion of the treatment plan form. I find that the applicant did not provide any submissions to support that $200.00 for completion of the treatment plan form is reasonable and necessary. I find that the respondent has paid $99.75 for completion of the treatment plans in dispute and the applicant has not met her onus of proving the higher amount is payable.

Hourly rate of Social Worker

16I find that the applicant has not proven on a balance of probabilities that she is entitled to $150.00 per hour for the services provided by Richard Wagner, social worker, in the treatment plans in dispute.

17The treatment plans in dispute propose $150.00 per hour for the services provided by Mr. Wagner, social worker. The respondent approved $112.22 per hour.

18The fee for services provided through the Schedule is governed by the Guideline. The Guideline establishes the maximum expenses payable for a range of health care services, medical benefits and case management services. The maximum hourly rate for psychologists and psychological associates is $149.61 per hour. The rate provided for unregulated professionals is $58.19 per hour. The amounts payable by an insurer related to professional services not covered by the Guideline are to be determined by the parties involved.

19The Guideline does not specify a rate for social workers. Rather, the rate stipulated for unregulated providers such as counsellors and psychometrists, is $58.19 per hour. Given the Guideline is silent on the maximum hourly rate for a social worker, it is left to the parties to determine what the acceptable hourly rate would be. However, this does not automatically entitle the applicant to the higher hourly rate. Rather, she must still prove that it is reasonable on a balance of probabilities.

20The applicant submits that social workers are not listed in the Guideline. She submits that Mr. Wagner received an Honours Degree in Social Work, a Degree in Sociology and a Diploma in Social Service Work. His professional background includes 21 plus years of experience working in mental health and counselling circles. As such, she submits that he should be paid at the psychologist rate of $149.61 for the psychotherapy services that he provided to the applicant. The applicant relies on the decision in J.V. v Intact Insurance Company, 2019 CanLII 76995 (ON LAT) (“J.V. v. Intact”), where the Tribunal determined that a psychotherapist who was providing cognitive behavioural therapy (“CBT”) was entitled to be paid the same rate as a psychologist. The applicant also relies on the decision in Rohile v. Intact Insurance Company, 2021 CanLII 13205 (ON LAT) (“Rohile v. Intact”), where the adjudicator found that in some circumstances social workers can provide psychotherapy services and may be paid at the psychologist rate.

21The respondent submits that it advised the applicant that the services of Mr. Wagner, would be considered at the maximum hourly rate of $112.22, which is higher than all but one of the listed professional rates under the Guideline. It submits that Mr. Wagner is a social worker, and although social workers are not specifically listed in the Guideline, the respondent categorized them as speech language pathologists for the purpose of determining the maximum rate. The respondent further submits that the applicant has not provided any evidence establishing that Mr. Wagner was providing CBT or psychotherapy services in the treatment plans proposed. In addition, with respect to Mr. Wagner’s qualifications as submitted by the applicant, none of those listed would reasonably lead to the conclusion that they would be paid at the psychologist rate.

22I find that the applicant has not led sufficient evidence to establish that Mr. Wagner should be paid $150.00 per hour for his services, for the following reasons.

23Firstly, I do not have sufficient evidence before me to consider whether Mr. Wagner’s qualifications and experience warrant the higher hourly rate proposed by the applicant and as such, the applicant has not met her onus in this regard. I find that other than advising in her submissions that Mr. Wagner has 21 years of experience and a diploma and degree in social work, the applicant has not led sufficient evidence indicating that Mr. Wagner has specialized training or provided services similar to what a psychologist would provide. Specifically, no CV was provided.

24I am not persuaded by the Tribunal decision in J.V. v. Intact relied on by the applicant, as the service provider in that decision was expressly identified as a psychotherapist and registered with the College of Registered Psychotherapists of Ontario. In the case before me, there is no evidence that Mr. Wanger is also a registered psychotherapist in addition to a social worker.

25Secondly, the applicant has not provided submissions or evidence that Mr. Wagner was providing CBT or psychotherapy services that would support a higher hourly rate. The treatment plans in question stated “Counseling, mental health and addictions” to be provided by Mr. Wagner, social worker. There is no indication that CBT or psychotherapy would be provided to the applicant, warranting consideration of a higher hourly rate.

26I am also not persuaded by the Tribunal decision in Rohile v. Intact relied on by the applicant, as the service provider in that decision was a social worker who was specifically providing psychotherapy. I agree with the respondent’s submissions that the applicant has not provided any evidence indicating that Mr. Wagner has specialized training, is qualified in CBT or provided services similar to what a psychotherapist would provide.

27For the reasons set out above, I find that the applicant has not met her onus of demonstrating entitlement to $150.00 per hour for the services of Mr. Wagner.

Transportation Expenses of the Applicant

28I find that the applicant has not proven on a balance of probabilities that she is entitled to transportation expenses to treatment in the treatment plans in dispute.

29The treatment plans in dispute propose “Claimant Transportation to treatment” at the rate of $13.00 per hour based on 20 kilometres. This was denied by the respondent.

30The respondent submits that pursuant to s. 3 of the Schedule, the transportation expenses are denied because there is a 50 km deductible per round trip unless the applicant’s injuries have been deemed catastrophic. The respondent submits that there are no other exceptions. It stated in its denial letters:

The SABS provides coverage, subject to medical limits, for transportation expenses of the insured person to and from treatment sessions. Pursuant to Section 3 of the SABS there is a 50 km deductible per round trip, unless the injuries have been deemed catastrophic. Therefore, we are unable to consider funding for the proposed transportation services as they do not appear to constitute authorized transportation expenses.

31I find that the applicant has not met her onus of establishing entitlement to transportation expenses to treatment. The applicant did not provide any submissions on the issue of transportation expenses to treatment to support that she travelled further than 50 kilometres for her treatment. The applicant has also not been deemed catastrophic. Therefore, I agree with the respondent that the expenses are not authorized transportation expenses as outlined in s. 3(1) of the Schedule and the applicant is not entitled to the transportation expenses to the treatment in dispute.

32For the reasons set out above, I find that the applicant has not met her onus of demonstrating that the transportation expenses to treatment are reasonable and necessary.

Provider travel time to the treatment sessions

33I find that the applicant has not proven on a balance of probabilities that she is entitled to provider travel time to treatment expenses, in the treatment plans in dispute.

34The applicant claims entitlement to “Provider travel time to treatment” at the rate of $75.00 per hour. This was denied by the respondent.

35The applicant submits that the “provider travel time to treatment” expenses claimed are a medical and rehabilitation benefit, rather than a transportation expense. She submits that in order to overcome her vehicle-related anxiety and to regain a sense of independence, she requires exposure therapy. She relies on the Social Work Reports to support that the social worker, Mr. Wagner, would pick her up from her home in his vehicle and proceed to drive her around. She further submits that these expenses are reasonable and necessary because Mr. Wagner could no longer afford the costs associated with exposure therapy due to high gas prices.

36The respondent submits that the applicant has not provided a reasonable explanation as to why the attending service provider would require travel time to the treatment sessions above regular business practice. It submits that transportation expenses are not payable unless the applicant suffers catastrophic injuries, which is not present in this case. It further submits that the exposure therapy is part of the regular course of treatment provided by Mr. Wagner and as such, is considered the basis for which the treatment fee would cover. Finally, the applicant submits that high gas prices are not a reasonable excuse to seek additional funding in a treatment plan.

37I find that the applicant has not led sufficient evidence to establish that she is entitled to provider travel time to treatment.

38I find that in accordance with s. 15(2)(c) of the Schedule, provider travel time is not a payable benefit under the Schedule unless it is an authorized transportation expense.

39I find that the applicant has not provided a reasonable explanation as to why Mr. Wagner would be required travel time to the treatment sessions above regular business practice. While the applicant relies on the social work reports in support of her need for exposure therapy, the treatment plans do not specifically set out the extra requirements for the exposure therapy, the amount of time spent on exposure therapy or the extra costs associated with the exposure therapy. I agree with the respondent that high gas prices do not correlate with seeking additional funding in a treatment plan.

40I further find that despite the respondent’s request in its letters for additional particulars of the provider travel requests, the applicant did not provide a response. The respondent stated in its correspondence to the applicant that, “Please discuss with your service provider and should they wish to substantiate the need for this request, please have them provide the explanation in writing for our review.” Despite this request, there is no documentation before me to support that the applicant or Mr. Wagner responded to this correspondence and set out an explanation for the request for travel expenses for the provider.

41For the reasons set out above, I find that the applicant has not met her onus of demonstrating that the provider travel time to treatment is reasonable and necessary.

The applicant is not entitled to interest

42Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I find that no benefits are owing, it follows that no interest is payable pursuant to s. 51 of the Schedule.

The applicant is not entitled to costs

43Rule 19.1 of the Licence Appeal Tribunal Rules provides that a party may make a request to the Tribunal for costs where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.

44The applicant did not provide any particulars to support her claim. Therefore, I find no evidence that the respondent has acted unreasonably, frivolously, vexatiously, or in bad faith to support a costs award.

ORDER

45For the reasons outlined above, I find:

i. The applicant is not entitled to the unapproved balance of the treatment plans in dispute. As such, no interest is payable.

ii. The applicant is not entitled to costs.

iii. The application is dismissed.