Licence Appeal Tribunal File Number: 21-006830/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:
Thi Ngoc My Vo
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR: Christin Carmichael Greb
APPEARANCES:
For the Applicant: Jessie Vi Tran, Paralegal
For the Respondent: Laura Emmett, Counsel
Written Hearing: By Way of Written Submissions
OVERVIEW
1Thi Ngoc My Vo, (“the applicant”) was involved in an automobile accident on October 29, 2018, and sought various 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 Co-operators General Insurance Company (“the respondent”) 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 medical benefits proposed by the Pain Rehabilitation Clinic Inc., as follows:
a. $2,600.00 for physiotherapy services, in a treatment plan/OCF-18 (“plan”), dated August 21, 2019;
b. $2,600.64 for physiotherapy services, in a plan dated January 15, 2020;
c. $3,800.96 for physiotherapy services, in a plan dated August 18, 2020;
d. $2,600.64 for physiotherapy services, in a plan dated September 29, 2021; and
e. $2,600.64 for physiotherapy services, in a plan dated August 24, 2022?
ii. Is the applicant entitled to the assessments proposed by the Pain Rehabilitation Clinic Inc., as follows:
a. $200.00 for a Disability Certificate (OCF-3), in a plan dated August 21, 2019;
b. $2,500.00 for a Social Work Assessment, in a plan dated August 7, 2019;
c. $4,830.00 for social work counselling services, in a plan dated October 9, 2019;
d. $2,200.00 for a Social Work Assessment, in a plan dated September 1, 2020;
e. $2,200.00 for a General Practitioner Assessment, in a plan dated January 12, 2021; and
f. $2,200.00 for a Psychiatric Assessment, in a plan dated March 16, 2021?
iii. Is the applicant entitled to the medical benefits proposed by Disability Medicine Specialists Inc., as follows:
a. $1,846.56 ($5,219.54 less $3,372.98 approved) for psychological counselling, in a plan dated January 7, 2021; and
b. $4,116.64 for psychological counselling, in a plan dated March 18, 2022?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the treatment and assessment plans in dispute.
4As there are no overdue benefits, no interest is payable.
ANALYSIS
Issue 1 (a)-(b): Are the treatment plans payable because of a breach of s. 38(8)?
5The applicant argues that she is entitled to all of the treatment plans in dispute because they are reasonable and necessary because of the injuries she sustained in the motor vehicle accident. She argues that some of the treatment plans should have been re-evaluated and approved once she was removed from the MIG’s monetary limits. The applicant relies on Yang v Dominion of Canada, 2022 CanLII 23412 (ON LAT) [Yang] to address the first two physiotherapy treatment plans and argue that once she was removed from the MIG, whether due to physical or psychological injuries, the treatment plans should have been re-evaluated and proper notice given.
6The respondent argues that the treatment plans are not reasonable or necessary. The respondent argues that the applicant was removed from the MIG due to psychological injuries, not physical ones and therefore the psychological treatment plans that were denied prior to the applicant being removed from the MIG will not be approved. The respondent relies upon 17-004357 v Aviva General Insurance, 2018 CanLII 13152 (ON LAT) to argue that removal from the MIG is a trigger to obligate the insurer to reassess the applicant medically.
7In this case, the two treatment plans were denied based on the opinion of Dr. Ballard and her June 19, 2019 Physiatry Insurer’s Examination report. Relying upon Dr. Ballard’s report, the respondent denied these treatment plans as they were not reasonable or necessary, not solely because the applicant was still in the MIG. S. 38(8) does not apply as it did in Yang because in that case, the treatment plans were denied solely based on the applicant being in the MIG (see also Saied v Intact Insurance Company, 2023 CanLII 44309 (ON LAT) at paras. 43-44 and Song v Aviva General Insurance Company, 2023 CanLII 119824 (ON LAT at para. 19).
8I find the respondent has not breached s. 38(8) of the Schedule and therefore the treatment plans are not payable.
Issue 1 (a)-(e): The applicant is not entitled to physiotherapy services
9I find that the applicant has not established that the physiotherapy services are reasonable and necessary.
10To 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.
11The goals for all five treatment plans were identical and included: pain reduction, increased range of motion, and increased strength with the functional goals of returning to normal activities, modified work activities, and pre-accident work activities. These goals would be achieved through multi-disciplinary sessions ranging including: 16 one-hour sessions, 16 x 1.33-hour sessions, and 24 x 1.33-hour sessions. The multi-disciplinary aspect of these sessions includes massage, chiropractic, acupuncture, physical therapy, and/or active rehabilitation.
12The applicant submits that the treatment plans for physiotherapy services are reasonable and necessary based on reports of her family doctor, Dr. Ngo, who continues to recommend physiotherapy sessions for her recovery from her injuries sustained in the accident. The applicant also submits that in the respondent’s IE assessor’s report of June 19, 2019, the assessor, Dr. Ballard, a physiatrist, stated that she had not reached maximum medical recovery. As well, she states that the recommendation of “participation in a more active program” from Dr. Ballard’s report was proposed in these five disputed treatment plans.
13The respondent submits that Dr. Ballard, in her report, concludes that the applicant’s injuries are soft tissue in nature, are minor in nature, and can be treated as such. Dr. Ballard’s report recommended 8 one-hour physical therapy sessions with a goal of continuing on independently, and these sessions were subsequently approved in a treatment plan which was submitted on March 3, 2020 (this treatment plan is not in dispute). As well, the respondent submits that the applicant was removed from the MIG for her psychological impairments and her physical injuries continue to remain minor in nature.
14The burden of proof to show that the treatment plans are reasonable and necessary falls on the applicant. Evidence must be presented before the Tribunal that an entitlement exists under the Schedule.
15Throughout her submissions, the applicant continues to rely upon Dr. Ballard’s comment that she had not reached maximum medical recovery and that Dr. Ballard’s recommendation was proposed in all five of treatment plans for physiotherapy services. While the applicant is correct that Dr. Ballard had commented on the applicant’s state of recovery, and the type of ongoing treatment that should be followed, the applicant fails to mention the specific amount of treatment recommended by Dr. Ballard of 8 one-hour physical therapy sessions, was approved by the respondent. The applicant also does not mention that Dr. Ballard recommends that following the 8 one-hour sessions, she continues doing exercises on her own to ensure full recovery and that no further sessions are necessary.
16The treatment plans in dispute were denied based on the applicant’s injuries being minor in nature with no further evidence that additional treatment was warranted. The recommendations of Dr. Ballard IE assessment of 8 one-hour physical therapy sessions were approved in a March 2020 treatment plan and beyond that no further treatment was recommended. Following this treatment plan, the applicant was to continue with exercises at home. The applicant does not address whether this recommendation was ever followed, or if she only completed exercises during a treatment session.
17I find that on the balance of probabilities, the applicant has not satisfied her onus in establishing that the physiotherapy sessions are reasonable and necessary.
Issue 2(a): The applicant is not entitled to a Disability Certificate (“OCF-3”)
18I find that the applicant has not established that the OCF-3 is reasonable and necessary.
19The applicant submits that the OCF-3 was necessary to inform the insurer of the applicant’s needs and rehabilitative requirements. The applicant relies upon 17-002589 v Wawanesa to argue the need for the OCF-3 and that it is required, “within the Schedule process to determine the types and levels of care required by the insured and injured party.” As well, the applicant submits that three other OCF-3s that were submitted were approved, indicating that this one should be as well.
20The respondent submits that as the OCF-3 was virtually identical to the previous two submitted, one only five months previous to the subject OCF-3, and that no new or updated information was provided to the insurer that there was no need to submit a subsequent OCF-3. As well, the insurer submits that they had not requested a new OCF-3 to be submitted by the applicant and as there was no new information to update in regard to the applicant’s injuries or impairments, the subject OCF-3 was not required and therefore not payable.
21I find that the applicant is not entitled to payment for the OCF-3 dated August 21, 2019. According to Section 25(1) of the SABS, an insurer shall pay reasonable fees for an OCF-3 if required under section 21, 36, or 37. There was no requirement for the applicant to submit an OCF-3 under these sections, and it had not been requested by the insurer. As well, there was no new or updated information contained in the OCF-3 that the insurer needed to be made aware of.
Issue 2 (b)-(d): The applicant is not entitled to Social Work Assessments and Social Work Counselling services
22I find the treatment and assessment plans for the social work assessments and counselling services are not reasonable and necessary.
23The applicant submits that she continues to suffer from psycho-social issues directly related to the accident. She goes on to argue that the plans, prepared by Dr. S. Bui note several issues including: psycho-social issues, problems in relationship with spouse or partner and with parents, problems related to housing and economic circumstances, and problems relating to employment and unemployment. The subsequent assessments, according to the applicant, both recommend social work counselling to deal with these reported issues.
24The respondent submits that while the applicant has given contrary information to s.25 and s.44 assessors, including the level of social interaction she participates in and whether she suffers a complete inability to perform the tasks of her employment. As well, the respondent argues that Dr. Bui, a chiropractor, who prepared the plan for the social work assessments, is not qualified to complete such a plan per the Ontario Psychological Association’s Guidelines for Assessment and Treatment in Auto Insurance Claims.
25The social work assessments were proposed by Dr. Bui. Dr. Bui is a chiropractor and social work plans are out of his area of expertise. For this reason, I find the treatment plans not reasonable or necessary. With respect to the social work counselling treatment plan, this was also proposed by Dr. Bui. There is no mention of any psychological complaints by the applicant in Dr. Ngo’s records in the 10 months following the accident. While there is a mention of “refer to psychologist” in August 2019, there is no notes stating a reason for the referral.
26For the reasons mentioned above, I do not find that the applicant has established that the treatment plans are reasonable and necessary.
Issue 2(e): The applicant is not entitled to a General Practitioner Assessment
27I find that the applicant has not established that the general practitioner assessment is reasonable and necessary.
28The applicant submits that, due to her injuries sustained in the accident, the assessment is reasonable and necessary. The applicant cites various diagnoses stated in the s. 25 assessment and due to these diagnoses, the assessment should be covered.
29The respondent submits that as the applicant was under the care of two family doctors, any conditions that the applicant seeks the assessment for must be proven with objective evidence and that there is nothing in the records which evidence an impairment that would require such an assessment. The respondent also argues that as per s. 47(2) of the SABS, a general practitioner assessment is unnecessary when the applicant can undergo an assessment with their family doctor. As the applicant did undergo an assessment with her family doctor, the respondent argues that the treatment plan is not reasonable or necessary.
30As stated previously, the applicant must prove on the balance of probabilities that the treatment plan is reasonable and necessary. The results of the assessment are no more than what the applicant’s family doctors had already recorded. The applicant replies state that Dr. Castro, who completed the assessment, was not only a family practitioner but also specialized in chronic pain, yet Dr. Castro recommended that she be seen by a chronic pain specialist. As the applicant had continued to be seen by her family physicians, there is no evidence that this treatment plan was reasonable and necessary.
Issue 2(f): The applicant is not entitled to a Psychiatric Assessment
31I find that the applicant has not established that the proposed psychiatric assessment is reasonable and necessary.
32The applicant submits that the assessment is necessary because, at the time of the assessment, she was already being seen by a psychotherapist and that psychiatry and psychology are two different disciplines and not interchangeable. The applicant goes on to argue that her assessor, Dr. Bismonte, a psychiatrist, diagnosed her with a chronic and moderately severe Major Depressive Episode and suggested an adjustment to her medication which was prescribed by her family doctor. As well, Dr. Bismonte recommended that the applicant continue her counselling sessions and treatments for pain management.
33The respondent submits that the applicant is not entitled to a psychiatric assessment as an OHIP-funded assessment was available but never referred. As well, a psychological assessment and treatment were approved by the respondent and there appears to be no change in the applicant’s psychological condition between the time the psychological assessment was approved, and the psychiatric assessment denied. The respondent goes on to submit that the main difference between a psychologist and a psychiatrist is the ability of the psychiatrist to prescribe medication and that if medication is the only reason for the assessment, the applicant can seek that prescription from her family doctor.
34While I agree with the applicant that the main difference between a psychiatrist and a psychologist is not just prescribing medication, but also the type of training required to become each type of specialist, the applicant does state that “most importantly, the psychiatric assessment allowed Dr. Bismonte to assess the applicant’s medication dosage.” As an OHIP-funded psychiatric assessment was available to the applicant, she was already being prescribed medication by her family doctor and was undergoing counselling sessions concurrently, I do not find that the applicant has met her onus to prove that a psychiatric assessment is reasonable and necessary.
Issue 3: The applicant is not entitled to psychological counselling
35I find that that applicant has not established that the remainder of the partially approved counselling sessions as well as the additional sessions are reasonable or necessary.
36The applicant submits that she is entitled to full payment of the partially approved counselling sessions as well as payment for additional sessions because the sessions were recommended by her psychologist, Dr. Langis, who proposed 14 sessions at 1.5 hours, and was partially approved for 12 sessions at 1 hour, and a further 10 sessions. The applicant goes on to cite Qu v. Allstate Insurance Company as evidence that the Tribunal has found that more, and longer sessions, are necessary. In regard to the further counselling sessions, the applicant submits that Dr. Langis’s Progress Report recommends further sessions as she continues to experience ongoing issues.
37The respondent submits that their s.44 assessment by Dr. Chan recommended an initial block of 12 sessions at 1 hour each, which was approved and any further counselling sessions beyond that are not necessary. As well, the respondent advises that Dr. Langis’s progress report omits the length of the additional sessions.
38While I agree with the applicant that the Tribunal has, in the past, found that 1.5-hour sessions for psychological counselling were reasonable and necessary, the Adjudicator Parish made the decision based on the fact that the treating psychologist had a history with the applicant. In this case, that history does not exist. Dr. Langis’s progress report has her initial assessment of the applicant in December 2020 and the partially approved treatment plan was dated January 2021, only a month following the initial assessment. Because the Tribunal has not accepted the length of sessions in the past does not make it an automatic for every subsequent case. The onus to prove that the psychological counselling sessions are reasonable and necessary still lies with the applicant.
Interest
39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits owing, no interest is payable.
ORDER
40For the reasons set out above, I find:
i. The applicant is not entitled to the treatment plans in dispute;
ii. Interest is not payable; and
iii. The application is dismissed.
Released: December 9, 2024
Christin Carmichael Greb
Adjudicator