Licence Appeal Tribunal File Number: 22-011244/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:
Novneet Kahlon
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
VICE-CHAIR: Monica Ciriello
APPEARANCES:
For the Applicant: Alim Ramji, Counsel
For the Respondent: Nathan Fabiano, Counsel
HEARD: In Writing
OVERVIEW
1Novneet Kahlon, the applicant, was involved in an automobile accident on August 16, 2019, 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 General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The following issues are to be decided:
i. Is the applicant entitled to $1,346.22 ($4,239.55 less $2,893.33 approved) for psychological services, proposed by Elite Specialist Group Inc., in a treatment plan dated May 3, 2021?
ii. Is the applicant entitled to $747.90 ($2,893.03 less $2,145.13 approved) for psychological services, proposed by Elite Specialist Group Inc., in a treatment plan dated December 10, 2021?
iii. Is the applicant entitled to $1,010.00 for transportation expenses, proposed by Finchgate Physio, in a treatment plan dated August 28, 2022?
iv. Is the applicant entitled to $1,521.23 ($4,764.69 less $3,243.46 approved) for psychological services, proposed by Elite Specialist Group Inc., in a treatment plan dated September 6, 2022?
v. Is the applicant entitled to interest on any overdue payment of benefits?
3As outlined in the applicant’s submissions issue [2] iii is withdrawn.
RESULT
4I find that:
i. The applicant’s injuries are not predominately minor and therefore not subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the treatment plans in dispute;
iii. The applicant is not entitled to interest.
ANALYSIS
Applicability of the Minor Injury Guideline (“MIG”)
5The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.
7An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
8It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. The applicant submits she suffers from psychological and physical impairments the respondent did not make any MIG submissions.
The applicant suffers psychological injuries that warrant removal from the MIG
9I find that the applicant has provided sufficient evidence to demonstrate that her psychological impairments justify treatment beyond the MIG.
10An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule.
11In order to be removed from the MIG due to psychological impairments, the applicant must show that she has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.
12In support of her position, the applicant relies on the independent psychological assessment dated March 3, 2021, with Dr. Jacqueline Brunshaw, psychologist. Dr. Brunshaw diagnosed the applicant with Adjustment Disorder with Anxiety, Major Depressive Disorder as well as Specific Phobia (driving, being a passenger, and being a pedestrian). In addition to the diagnoses, the applicant supports the need for ongoing psychological treatment by relying on the clinical notes and records (“CNRs”) of Ms. Peggy-Gail DeHal Gunraj, psychotherapist, which indicate that the applicant continued to struggle with anxiety and fear of being a passenger in a travelling vehicle. Ms. DeHal Gunraj also provides that the applicant’s entire self-concept as a self-sufficient, capable individual has been compromised as a result of her post-motor vehicle accident psychological limitations. Lastly, the applicant relies on the CNRs of Dr. Dhun Sadry, family physician, that mention the applicant’s chronic anxiety, depression, and posttraumatic stress as a result of the accident.
13The respondent did not make any MIG submissions, but rather concentrated on the treatment plans.
14After reviewing the evidence, I agree with the applicant. I find there is compelling evidence from Dr. Brunshaw, Dr. Sadry, and Ms. DeHal Gunraj to show that the applicant suffers from a psychological impairment, including anxiety and fear as a result of the accident that would remove her from the MIG. Accordingly, the applicant has met her burden.
Is the applicant entitled to $1,346.22, $747.90 and $1,521.23 for psychological services
15I have combined my analysis on issues 2 [i], [ii], and [iv]. I find that the applicant is not entitled to the outstanding amounts for psychological services in treatment plans dated May 3, 2021, December 10, 2021, and September 6, 2022, respectively.
16Each of the three treatment plans for psychological services was partially approved by the respondent at a rate of $99.75 per hour, and not the proposed rate of $149.61 per hour. This left an outstanding amount for each of the treatment plans, for which the applicant is seeking the outstanding full cost of the treatment plan.
17The treatment plan dated May 3, 2021 was for 16 psychological counselling sessions with each session being 1.5 hours in duration with a psychotherapist’s hourly rate of $149.61. The treatment plan dated December 10, 2021 was for 10 psychological counselling sessions with each session being 1.5 hours in duration with a psychotherapist’s hourly rate of $149.61. The treatment plan dated December 10, 2021 was for 10 psychological counselling sessions with each session being 1.5 hours in duration with a psychotherapist’s hourly rate of $149.61. The treatment plan dated September 6, 2022 was for 16 psychological counselling sessions with each session being 1.5 hours in duration with a psychotherapist’s hourly rate of $149.61. The applicant submits that a psychologist’s rate of $149.61 for Ms. Gunraj is more appropriate for a psychotherapist as there are similar services provided between psychotherapists and psychologists.
18The respondent’s argument for all three treatment plans are identical, as each proposes treatment by a psychotherapist, not a psychologist. The respondent submits that the psychotherapy rate of a qualifying psychotherapist is $99.75 per hour. The rates of service providers are prescribed in the Professional Services Guideline (“PSG”). The hourly rate for services provided by psychologists for non-catastrophic claims is $149.61, and this is not a catastrophic claim. The hourly rate for an unregulated provider is $58.19, and where a service is not expressly covered by the PSG, the amount payable by an insurer are to be determined by the parties involved.
19The respondent submits that Ms. Gunraj is a qualifying psychotherapist, as noted in the progress report, and not an actual psychotherapist. It is the respondent’s position that Ms. Gunraj is an unregulated provider under the PSG, and therefore their hourly rate is less than the $149.61 requested by the three treatment plans, and as a qualifying psychotherapist, its approval of the $99.75 per hour rate was a reasonable hourly rate.
20I find at the time the treatment plan was submitted that Ms. Gunraj was qualifying psychotherapist, and I find that Ms. Gunraj has different licensing, educational, and professional requirements as a qualifying psychotherapist than a psychologist. I find that the applicant did not provide persuasive evidence as to why Ms. Gunraj would be entitled to $149.61 per hour, a rate reserved under the PSG for qualified psychologists and psychological associates. As such, the applicant has not met her onus in this regard.
21Accordingly, I find that the applicant has not met her onus to demonstrate that the qualifying psychotherapist listed in the disputed treatment plans should be paid an enhanced hourly rate. I find that the $99.75 per hour proposed and paid by the respondent in all treatment plans is reasonable and the outstanding balance is not payable as a result.
Interest
22As there are no overdue payment of benefits, the Applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
23For the reasons outlined above, I find that:
i. The applicant’s injuries are not predominately minor and therefore not subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the treatment plans in dispute;
iii. The applicant is not entitled to interest; and
iv. The application is dismissed.
Released: November 20, 2024
Monica Ciriello
Vice-Chair