Licence Appeal Tribunal File Number: 22-009932/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:
Danijela Marcijus
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rachel Levitsky
APPEARANCES:
For the Applicant:
Stefan Juzkiw, Counsel
For the Respondent:
Bruce Keay, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Danijela Marcijus, the applicant, was involved in an automobile accident on January 9, 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, Co-operators General Insurance Company, 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 $225.00 ($2,140.23 less $1,915.23 approved) for physiotherapy, proposed by iScope Concussion and Pain Centres in a treatment plan dated October 28, 2021?
(ii) Is the applicant entitled to $8,600.00 for chiropractic services, proposed by Pain Rehabilitation Clinic Inc. in a treatment plan dated February 8, 2022?
(iii) Is the applicant entitled to $1,550.00 for medical services, proposed by iScope Concussion and Pain Centres in a treatment plan dated February 16, 2022?
(iv) Is the applicant entitled to $22,459.00 ($34,659 less $12,200 approved) for a CAT Assessment, proposed by Biomedix Impairment and Diagnostic Centre Inc in a treatment plan dated November 9, 2021?
(v) Is the applicant entitled to $2,200.00 for a SPECT Assessment, proposed by Novo Medical Services Inc. in a treatment plan dated March 11, 2022?
(vi) Is the applicant entitled to $2,033.00 for a QEEG Assessment, proposed by iScope Concussion and Pain Centres in a treatment plan dated October 19, 2021?
(vii) Is the applicant entitled to $2,200.00 for a SPECT Assessment, proposed by iScope Concussion and Pain Centres in a treatment plan dated November 9, 2021?
(viii) Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
(ix) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3With respect to the treatment plan for catastrophic impairment assessments prepared by Biomedix Impairment and Diagnostic Centre Inc. dated November 9, 2021, the applicant is entitled to $2,000.00 for a neurological assessment, $200.00 for the completion of the OCF-19, and $176.00 for transportation expenses. The applicant is not entitled to the remaining amount in dispute for this treatment plan.
4The applicant is not entitled to the other treatment plans in dispute.
5The applicant is entitled to interest on overdue benefits pursuant to s. 51.
6The respondent is not liable to pay an award.
ANALYSIS
Issue (i) - $225.00 ($2,140.23 less $1,915.23 approved) for physiotherapy, proposed by iScope Concussion and Pain Centres in a treatment plan dated October 28, 2021
7I find that the applicant is not entitled to the remaining amount in dispute with respect to this treatment plan.
8To receive payment for a disputed treatment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that it 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.
9This treatment plan proposes 12 sessions of vestibular therapy, which was approved by the respondent. The amount in dispute is comprised of $25.00 for personal protective equipment (“PPE”), and $200.00 for an initial assessment report.
10I agree with the respondent that PPE is a cost to the treatment provider, and insurers are not liable to pay for administrative costs or expenses related to professional services that exceed the maximum rates under the Professional Services Guideline, Superintendent’s Guideline No. 03/14 (“Guideline”), or for charges that have the result of increasing the rates. The respondent approved vestibular therapy with a physiotherapist at a rate of $99.75 per hour, which is the maximum rate for a physiotherapist under the Guideline. Adding the proposed cost of PPE would effectively increase that rate to exceed the maximum amount allowable. I accordingly find that the applicant is not entitled to the expense for PPE.
11The applicant did not make any submissions regarding the reasonableness and necessity of the $200.00 for the initial assessment report. The respondent approved $200.00 for the preparation of the treatment plan, which presumably involved some form of assessment or evaluation in order for the recommendation for vestibular therapy to be made. Further, the respondent approved $199.50 for the completion of a progress report. Without any information from the applicant, I find that she has not met her burden in proving on a balance of probabilities why the cost of an initial assessment report is reasonable and necessary, especially where the respondent has already agreed to pay for the preparation of the treatment plan and a progress report.
Issue (ii) - $8,600.00 for chiropractic services, proposed by Pain Rehabilitation Clinic Inc. in a treatment plan dated February 8, 2022
Issue (iii) - $1,550.00 for medical services, proposed by iScope Concussion and Pain Centres in a treatment plan dated February 16, 2022
Issue (v) - $2,200.00 for a SPECT Assessment, proposed by Novo Medical Services Inc. in a treatment plan dated March 11, 2022
12I find that the applicant is not entitled to these treatment plans as there is no coverage for them under s. 20(1)(a) of the Schedule.
13Pursuant to s. 20(1)(a) of the Schedule, no medical, rehabilitation or attendant care benefits are payable for expenses incurred more than 260 weeks after the accident, in the case of an insured person who was at least 18 years of age at the time of the accident. The time limit does not apply in respect of an insured person who sustains a catastrophic impairment or who is entitled to optional benefits.
14The accident took place on January 9, 2017. At the time of the accident, the applicant was 30 years old. The parties disagree as to whether she is catastrophically impaired, and no determination has been made in that respect to date. There is no evidence before me that the applicant purchased optional benefits. By operation of s. 20(1)(a), the last day that the applicant could have claimed incurred expenses for the accident was January 3, 2022.
15As the treatment plans were prepared later than 260 weeks post-accident, they are not payable pursuant to s. 20(1)(a) of the Schedule.
Issue (iv) - $22,459.00 ($34,659 less $12,200 approved) for a CAT Assessment, proposed by Biomedix Impairment and Diagnostic Centre Inc in a treatment plan dated November 9, 2021
16I find that the applicant is entitled to $2,000.00 for a neurological assessment, $200.00 for the completion of the OCF-19, and $176.00 for transportation expenses. The applicant is not entitled to the remaining amount in dispute for this treatment plan.
17The applicant submitted a treatment plan for catastrophic assessments. The respondent approved the following:
(i) $2,000 for an orthopaedic assessment;
(ii) $2,000 for an executive summary and rating of whole person impairment
(iii) $2,000 out of a proposed $8,000 for a psychiatric assessment;
(iv) $2,000 out of a proposed $8,000 for a neuropsychological assessment;
(v) $2,000 for an occupational therapy in-home assessment;
(vi) $2,000 for an occupational therapy situational assessment; and
(vii) $200 for the completion of the treatment plan.
18The respondent denied the following:
(i) $2,000 for a medical file review with a chiropractor;
(ii) $4,000 for a neurological assessment;
(iii) $6,000 out of a proposed $8,000 for a psychiatric assessment;
(iv) $6,000 out of a proposed $8,000 for a neuropsychological assessment;
(v) $2,000 for an occupational therapist to communicate with family members and friends, and to prepare their report;
(vi) $200 for the completion of the OCF-19;
(vii) $399 for travel time for the occupational therapist;
(viii) $480 for the applicant’s mileage; and
(ix) $1,380 for translation services.
19The onus is on the applicant to prove, on a balance of probabilities, that each of the disputed components of the treatment plan are reasonable and necessary.
File Review
20I find that the applicant has not met her burden in proving that a separate file review is reasonable and necessary. She provided me with the catastrophic assessment reports of Dr. Gilman (neuropsychologist), Dr. Getahun (orthopaedic surgeon), Dr. Shahmalak (psychiatrist), and Mr. Amchislavsky (occupational therapist). Each assessor indicated that they completed their own file review, and each assessor summarized relevant medical documentation in their reports.
21The applicant has not provided any explanation as to why a separate file review is warranted when each assessor conducted their own file review. Further, the respondent relies on Wu v. Aviva General Insurance, 2022 CanLII 92741, where the Tribunal found that the plain language of s. 25(5) means that the cap of $2,000 applies to all parts of an assessment, and therefore a separate amount for a file review is not payable. Although I am not bound by this decision, I agree with and adopt the Tribunal’s reasoning. I accordingly find that the amount proposed for a separate file review is not reasonable and necessary.
Neurological Assessment
22I find that this assessment is partially reasonable and necessary in the amount of $2,000.00.
23I find that there is compelling evidence that the applicant may be experiencing neurological issues such that this assessment is reasonable and necessary. On March 4, 2019, the applicant underwent a quantitative EEG. Dr. Rosso, a radiologist, opined that the results were in keeping with a traumatic brain injury, and recommended an urgent consultation with a neurologist. The applicant was diagnosed with traumatic brain injury and post concussion syndrome by Dr. Punambolam, neurologist, on November 24, 2021. She also underwent a functional MRI on May 13, 2022. The results indicated that there was abnormal functional connectivity and objective evidence of brain dysfunction which was consistent with traumatic brain injury. Further, Dr. Getahun, orthopaedic surgeon, conducted a catastrophic impairment assessment on December 9, 2021. He recommended that the applicant undergo a neurological assessment for catastrophic impairment ratings. I am accordingly persuaded that, on a balance of probabilities, a neurological assessment is warranted.
24In denying this assessment, the respondent relies on a note from treating neurologist, Dr. Lewis, from June 5, 2019. The applicant underwent a brain MRI, and although a lesion was found, Dr. Lewis opined that her symptoms were very unlikely to be related from that finding. However, Dr. Lewis did opine that her presentation may be more consistent with post concussion syndrome, and recommended a multidisciplinary concussion program. Dr. Lewis also recommended a repeat MRI. I find that this evidence does not rule out the need for a neurological assessment as the respondent suggests, as even Dr. Lewis has identified that the applicant may be suffering from a concussion.
25The respondent also relies on the s. 44 physiatry report of Dr. Feloiu from June 30, 2017, where he was unable to identify any neurological deficit. I do not find this piece of evidence convincing in light of the results of the objective imaging that has taken place since Dr. Feloiu’s assessment.
26The applicant underwent a neurological assessment with Dr. Mehdiratta in April 2019, and the respondent submits that the proposed assessment would be a duplication of services. I disagree. The purpose of the proposed assessment is to determine if the applicant is catastrophically impaired. The treatment plan for catastrophic assessments was not submitted until November 2021, over two years after Dr. Mehdiratta’s assessment. Given the time that has passed since Dr. Mehdiratta’s assessment and the purpose of this assessment, I find that the proposed neurological assessment is not a duplication of services.
27The treatment plan proposes two neurological assessments with Dr. Rathbone in the amount of $2,000 each. They are only described in the treatment plan as “Neurological CAT Assessment Part 1” and “Neurological CAT Assessment Part 2”, with no further information. Section 25(5) states that an insurer shall not pay “more than a total of $2,000 in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it”. The applicant has not provided any explanation as to why two neurological assessments for the purpose of catastrophic determination are reasonable and necessary. I accordingly find, on a balance of probabilities, that the applicant is only entitled to $2,000 for one neurological assessment, which is the maximum amount set out in s. 25(5).
Psychiatric, Neuropsychological, and Occupational Therapy Assessments
28I find that the applicant is not entitled to the remaining amounts in dispute for these assessments.
29The psychiatric evaluation is broken down into four components of $2,000 each:
(i) Psychiatric assessment for catastrophic impairment determination, psychiatric testing, and review of external file material
(ii) Psychiatric scoring, using the occupational therapy reports
(iii) Communication with team members and preparation of report
(iv) Psychiatric testing
30It appears that the four components are duplicative of each other. “Psychiatric testing” was listed twice. Psychiatric scoring presumably relates to psychiatric testing and report preparation, and no explanation has been provided to show that it is functionally equivalent to a second assessment. Further, the preparation of a report is specifically included within the maximum amount outlined in s. 25(5). I have not been provided with an explanation of what “communication with team members” means, why it is required, or how this is equivalent to an additional assessment or examination. Finally, a file review by an assessor completing their own assessment and report is a necessary component of that assessment, and not a separate assessment or evaluation.
31The neuropsychological evaluation is broken down into the following four parts of $2,000 each:
(i) Neuropsychological assessment for catastrophic impairment determination, neuropsychological testing, and review of external file material
(ii) Neuropsychological scoring
(iii) Report preparation and communication with team members
(iv) Neurocognitive testing
32As above, these items are duplicative or unexplained, and all appear to be components of a single assessment. No explanation has been provided as to why each of these components are functionally equivalent to multiple assessments.
33The proposed $2,000 occupational therapy assessment is identified as the occupational therapist communicating with family members and friends, and preparation of their report. The respondent already approved both an occupational therapy in-home assessment and situational assessment. I have not been provided with an explanation as to how communication with friends and family is functionally equivalent to a separate assessment. Further, the preparation of a report is clearly included within the s. 25(5) cap of $2,000 for each assessment.
34Ultimately, the applicant has not made any submissions to explain why multiple assessments with the same practitioners are reasonable and necessary. Without any further explanation, it appears that the assessments were broken down into multiple parts in the treatment plan in an attempt to circumvent the s. 25(5) cap of $2,000. I find that the applicant has not discharged her onus and, on a balance of probabilities, she is not entitled to the amounts in dispute for these assessments.
OCF-19 Completion
35I find on a balance of probabilities that the applicant is entitled to $200.00 for the completion of the OCF-19.
36The respondent submits that this expense was denied because it was not known whether it was necessary or premature to approve it. However, Dr. Shahmalak and Dr. Gilman opined that the applicant met the test for catastrophic impairment. While I am not commenting on whether I agree with their opinions, I find that as the applicant’s assessors believe that she is catastrophically impaired, the preparation of an OCF-19 form is reasonable and necessary. The Tribunal has consistently held that the cost for completing an OCF-19 form is $200.00, so I find that the cost is reasonable.
Occupational Therapist Travel Time
37I find that the applicant has not met her burden to establish, on a balance of probabilities, her entitlement to this expense. The respondent denied this expense as it had already approved the maximum amounts under s. 25(5) for the occupational therapy assessments. The applicant has not made any submissions regarding this line item, and has accordingly not met her burden in proving that this expense should be paid outside of the s. 25(5) cap for each assessment.
Mileage
38I find that the applicant is entitled to $176.00 for transportation expenses.
39Pursuant to the Transportation Expense Guideline, Superintendent’s Guideline No. 04/16, an insurer is liable to pay a mileage expense for transportation of an insured person to and from assessments. A 50 kilometre “deductible” applies once for each round trip, and the rate that is used to calculate the expense is $0.40 per kilometre travelled.
40The treatment plan indicates that the applicant lived 80 kilometres away from the assessment centre, the proposed amount was based on $0.50 per kilometre, and the applicant would attend the clinic a minimum of six times. I must accordingly recalculate the amount payable based on the amount of times the applicant actually attended the clinic, and the appropriate rate. I must also factor in the deductible.
41Despite the applicant submitting that she attended a neurological assessment, there is no report before me from that assessment and I am therefore unable to confirm that it took place. The neuropsychological assessment took place over two days, and the physical and psychiatric assessments each took place on different days. The occupational therapy assessments took place in the applicant’s home and in her local community, and not at the clinic. The evidence before me is therefore that the applicant took four round trips to the assessment clinic. After the deductible, each round trip was comprised of 110 kilometres. Four of these trips payable at $0.40 per kilometre amounts to $176.00.
Translation Services
42I find that the applicant is not entitled to this line item. There is no compelling evidence before me that the applicant requires a translator for these assessments, nor did the applicant make any submissions regarding this item. Further, Dr. Shahmalak stated in his report that “she has a good working knowledge of the English language”, and Dr. Rowe also indicated that the applicant is fluent in English.
Issue (vi) - $2,033.00 for a QEEG Assessment, proposed by iScope Concussion and Pain Centres in a treatment plan dated October 19, 2021
43I find that the applicant is not entitled to this assessment.
44The applicant submits that the purpose of this assessment is to rule out any structural brain injury. However, the applicant already underwent a QEEG on March 4, 2019. The applicant has not directed me to any evidence as to why a second QEEG would be warranted. Without further information, I agree with the respondent that this would be a duplication of services, and it is not reasonable and necessary.
Issue (vii) - $2,200.00 for a SPECT Assessment, proposed by iScope Concussion and Pain Centres in a treatment plan dated November 9, 2021
45I find that the applicant is not entitled to this assessment.
46The applicant again submits that the purpose of this assessment is to rule out any structural brain injury. However, she has not explained why, after already undergoing a QEEG and MRI, this particular assessment is warranted. Aside from the treatment plan itself, the applicant has not directed me to any record or report from a medical professional who recommended this assessment. I accordingly find that the applicant has not met her burden in proving on a balance of probabilities that this assessment is reasonable and necessary.
Interest
47I find that interest is applicable on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
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. I find that the applicant is not entitled to an award.
49An insured person is not entitled to an award simply because an insurer made an incorrect decision. In order to attract an award, an insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.
50I have determined that the applicant is entitled to a neurological assessment, some transportation expenses, and the cost of the completion of the OCF-19. Although the applicant made submissions regarding some of the other treatment plans in dispute, she did not make any submissions regarding whether the respondent’s denial of these particular items was unreasonable. I find that the applicant has not met her burden in proving on a balance of probabilities that the respondent’s conduct was unreasonable such that it would attract an award.
ORDER
51With respect to the treatment plan for catastrophic impairment assessments prepared by Biomedix Impairment and Diagnostic Centre Inc. dated November 9, 2021, the applicant is entitled to $2,000.00 for a neurological assessment, $200.00 for the completion of the OCF-19, and $176.00 for transportation expenses. The applicant is not entitled to the remaining amounts in dispute for this treatment plan.
52The applicant is not entitled to the other treatment plans in dispute.
53The applicant is entitled to interest on overdue benefits pursuant to s. 51.
54The respondent is not liable to pay an award.
Released: November 15, 2024
Rachel Levitsky
Adjudicator