Licence Appeal Tribunal File Number: 23-000326/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:
Pamela Coutu
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR: Caley Howard
APPEARANCES:
For the Applicant: Brianna Johns, Counsel
For the Respondent: Amanda Lennox, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Pamela Coutu, the applicant, was involved in an automobile accident on May 10, 2018, 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, The 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 $2,200.00 for a speech language pathology/cognitive communication assessment proposed by Abilities Rehabilitation in a plan submitted on March 22, 2022?
ii. Is the applicant entitled to $1,482.03 ($3,431.80 less $1,949.77 approved) for psychological services proposed by Abilities Rehabilitation in a plan submitted on May 25, 2022?
iii. Is the applicant entitled to $2,860.00 ($4,809.77 less $1,949.77 approved) for psychological services proposed by Abilities Rehabilitation in a plan submitted on October 13, 2022?
RESULT
3I find:
i. The applicant is entitled to $2,200.00 for a speech language pathology/cognitive communication assessment proposed by Abilities Rehabilitation in a plan submitted on March 22, 2022;
ii. The applicant is entitled to $2,540.00, plus tax, less the $1,949.77 already approved, for psychological services proposed by Abilities Rehabilitation in a plan submitted on May 25, 2022; and
iii. The applicant is entitled to $2,540.00, plus tax, less the $1,949.77 already approved, for psychological services proposed by Abilities Rehabilitation in a plan submitted on October 13, 2022.
PROCEDURAL ISSUE
4The parties advised in their submissions that issues 1, 2, 3, and 5, as set out in the Case Conference Report and Order dated August 16, 2023, were resolved.
ANALYSIS
Entitlement to treatment and assessment plans
5To 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.
The applicant is entitled to $2,200.00 for a speech language pathology/ cognitive communication assessment
6The applicant’s OCF-18 submitted March 22, 2022, indicates that the goal of the proposed assessment is to determine a need for cognitive communication interventions and address any such impairments caused by the accident. The applicant submits that she has experienced symptoms of cognitive communication impairments, such as word-finding problems, and difficulties with concentration and memory, since shortly after the accident and that further investigation by way of assessment is warranted.
7The applicant relies on the June 5, 2019, report of Dr. Labelle, the applicant’s family doctor, the psychological assessment of Dr. Deck, psychologist, dated December 30, 2020, the assessments Ms. McQuillan, occupational therapist, dated June 8, 2021, and Mr. Desroches, occupational therapist, dated March 8, 2022, and the neurological assessment of Dr. Gladstone, neurologist, dated May 16, 2022.
8The respondent denied the benefit on the basis that it was not satisfied that the assessment was required as a result of the injuries the applicant sustained in the accident, in particular because the applicant has suffered from unrelated health issues since the accident. The respondent relies on the assessments of Dr. Deck and Dr. Gladstone. In addition, it relies on the occupational therapy assessment of Mr. Beecroft, occupational therapist, dated June 20, 2022.
9Dr. Labelle, the applicant’s family doctor, documents the applicant’s first reported complaints of cognitive communication symptoms, namely difficulty with word-finding, concentration, and memory, on May 10 and May 28, 2018. Dr. Labelle recorded the applicant’s complaints of these symptoms on an ongoing basis until at least February 26, 2019. Dr. Labelle diagnosed the applicant with post-concussion syndrome.
10The respondent points out that the applicant has not produced the clinical notes and records of Dr. Labelle that correspond with all of the visits referred to in Dr. Labelle’s report of June 5, 2019. Specifically, the respondent refers to the dates of May 15, 2018, and May 28, 2018, for which no clinical notes and records of Dr. Labelle were produced. I note that there are off-work notes dated May 15, 2018, and May 28, 2018 signed by Dr. Labelle, which confirm that the applicant consulted with Dr. Labelle on those dates. Despite the absence of some of Dr. Labelle’s clinical notes and records, I find that Dr. Labelle’s June 5, 2019, report is likely an accurate account of the applicant’s post-accident complaints and put weight on this report.
11I find that the reports of Dr. Deck, Ms. McQuillan and Mr. Desroches, all confirm that the applicant continued to report trouble with word-finding, concentration and memory after the accident until at least March 2022, which is contemporaneous with the disputed treatment plan. Dr. Gladstone’s report, dated May 2022, also confirmed that the applicant endorsed ongoing difficulty with reading, focus and concentration.
12Dr. Gladstone performed a neurological assessment of the applicant in May 2022 and concluded that her cognitive symptoms, including issues with concentration and memory, are “likely multifactorial in nature”. Dr. Gladstone considered the following as likely causes of the applicant’s cognitive symptoms:
(a) chronic headaches, which Dr. Gladstone found were likely attributable to the whiplash injury or mild traumatic brain injury sustained in the accident and potentially exacerbated by post-accident mental health issues;
(b) pain. The applicant has been diagnosed with chronic regional pain syndrome in her right hand, which was caused by the accident; and
(c) cognitive sequelae of mental health symptoms. The psychological assessment of Dr. Deck diagnosed the applicant with major depressive disorder and an adjustment disorder and concluded that her mental health impairments were caused by the accident.
13The respondent submits that the applicant’s intervening health complications were not taken into account when the treatment plan was recommended. I find, however, that the applicant’s intervening health issues commenced in December 2019, when she was hospitalized for reasons unrelated to the accident. I find that her cognitive communication complaints were well-documented before this time and commenced within days of the accident.
14The respondent also submits that objective testing of the applicant has not identified any cognitive impairments sustained by the applicant as a result of the accident. For example, Dr. Deck, Psychologist, and Mr. Beecroft, Occupational Therapist, both performed objective cognitive testing of the applicant and found that she fell within the average range.
15I find that, as explained by Dr. Gladstone, the cognitive symptoms experienced by the applicant were likely caused by reasons other than cognitive impairment, such as pain, headaches, and sequelae of mental health symptoms. I further find that the evidence, in particular the timing of the applicant’s cognitive communication symptoms, demonstrates, on a balance of probabilities, that these symptoms were caused by the accident.
16I find that the evidence as a whole demonstrates reasonable grounds to believe that the applicant has a condition that warrants further investigation because: there is contemporaneous medical evidence that the applicant continued to report cognitive communication symptoms at the time of the disputed treatment plan (the reports of Dr. Desroches and Dr. Gladstone); and there is medical evidence that the applicant experienced the same cognitive communication symptoms shortly after the accident and before her intervening unrelated health issues (the report of Dr. Labelle).
17I further find that the cost of $2,200.00 for the proposed assessment is reasonable.
18I find that the applicant has demonstrated on a balance of probabilities that the proposed assessment is reasonable and necessary.
The psychological services treatment plans are payable in part
19The applicant’s OCF-18 dated May 5, 2022, was partially approved by the respondent by letter dated June 8, 2022. The applicant’s OCF-18 dated October 12, 2022, was partially approved by letter dated October 27, 2022.
20The parties agreed that psychotherapy treatment sessions in dispute are reasonable and necessary. This is based on the opinion of Dr. Deck, psychologist, who diagnosed the applicant with a major depressive disorder and an adjustment disorder as a result of the accident and recommended psychotherapy sessions.
21The respondent disputed the hourly rate of $162.50 set out in the OCF-18s and approved treatment at a rate of $91.43 on the basis that a registered psychotherapist is not a regulated health professional. The respondent also denied the fees proposed for brokerage services, documentation support activity and preparation service.
Hourly Rate for Psychotherapist
22I find that the applicant is entitled to an hourly rate of $130.00 for the applicant’s psychotherapy treatment.
23The applicant submits that Ms. Hirtle, who provided her psychotherapy treatment, is a registered psychotherapist and, as such, she should be paid the same rate as a psychologist. The applicant submits that an hourly rate of $130.00 is reasonable for a registered psychotherapist with Ms. Hirtle’s training and experience, providing psychotherapy treatment under the supervision of a psychologist or psychological associate. The applicant submits that this is the amount that the Tribunal found was reasonable in the decision of Johnson v. Aviva Inurance Company of Canada, 2023 CanLII 77315 (ON LAT) (“Johnson”). The applicant further relies on the Progress Report dated August 2, 2023, signed by Ms. Hirtle and Thomas Davidson, Psychologist, which specifies that Cognitive Behavioural Therapy (“CBT”) continues to be the intervention implemented in the applicant’s treatment.
24The respondent submits that the Professional Services Guideline does not dictate an hourly rate for a psychotherapist. Therefore, if the parties are unable to agree on an hourly rate, the applicant has the onus of demonstrating why a higher hourly rate is reasonable. The respondent directed me to three Tribunal decisions in which the Tribunal found that hourly rates of approximately $100 for psychotherapists were reasonable, as opposed to the higher hourly rates proposed in the relevant OCF-18s.
25The respondent directed me to Han v. Aviva General Insurance, 2023, in which the Tribunal found that the psychotherapist was not entitled to the same hourly rate as a psychologist on the basis that a psychotherapist does not have the same training and schooling as a psychologist. There was no mention of whether the applicant in this decision was receiving CBT treatment.
26The respondent also directed me to Hawes v. Aviva General Insurance Company, 2022 CanLII 70525 (ON LAT) and Baranov v. Aviva General Insurance, 2020 CanLII 87933 (ON LAT). In both of these decisions, the Tribunal declined to follow previous Tribunal decisions awarding a higher hourly rate for psychotherapists because the applicants failed to demonstrate that the treating psychotherapists were providing specialized CBT treatment.
27Tribunal decisions are not binding on me, and, in this case, I also find that the respondent’s cases are distinguishable. In contrast to all three of the decisions that the respondent relies upon, I find that the applicant has demonstrated that her treating psychotherapist is providing CBT treatment.
28I find that the applicant’s psychotherapist, Ms. Hirtle, in conjunction with a supervising psychologist, Mr. Davidson, is providing CBT treatment to the applicant. In these circumstances, I find the Tribunal’s reasons in Johnson most helpful in determining a reasonable hourly rate. I find on a balance of probabilities that an hourly rate of $130.00 is reasonable and necessary in relation to the two treatment plans for psychological services.
Fees for brokerage service, documentation support activity and preparation service
29I find that these fees are payable in part.
30The applicant submits that the fees for brokerage service, documentation support activity and preparation service are reasonable and necessary. The applicant submits that the brokerage service fee relates to the time that the treatment provider spends communicating with the applicant’s other treatment providers, the documentation support activity is for writing a progress report at the end of 12 sessions of therapy, and the preparation service fees are for planning each session, including the preparation of handouts and worksheets. The applicant relies on the OCF-18s in support of her claim.
31The respondent submits that such fees are administrative costs that should be incorporated in the treatment provider’s hourly rate.
32Ms. Hirtle’s additional comments, attached to the OCF-18s explain what each fee relates to. I find that the 3.00 hours of preparation time proposed in the OCF-18 is reasonable. This amounts to 15 minutes per session. Ms. Hirtle has indicated that she needs the time to prepare handouts and worksheets and to plan the session.
33With respect to the brokerage fee, I find that the applicant does not direct me to sufficient evidence in support of her submissions. The OCF-18s do not indicate which other treatment providers Ms. Hirtle is communicating with, how the applicant benefits from the proposed communication or why 2.00 hours is required.
34Similarly, the applicant does not direct me to sufficient evidence that a progress report is necessary after 12 sessions of therapy. The applicant submits that the progress report is important with respect to recommending further treatment. However, she does not explain why the progress report is necessary in addition to the provision of a new OCF-18. The respondent submits that it did not require a progress report from the treatment provider at that time.
35I find that the applicant has not demonstrated on a balance of probabilities that the brokerage service fees, and documentation support activity fees are reasonable and necessary. I find that the fees claimed for preparation services are reasonable and necessary and are payable at an hourly rate of $130.00.
36Therefore, the applicant is entitled to $2,540.00, plus the applicable taxes, less the $1,949.77 already approved, for each of the two treatment plans for psychological services proposed by Abilities Rehabilitation.
ORDER
37I find:
i. The applicant is entitled to $2,200.00 for a speech language pathology/cognitive communication assessment proposed by Abilities Rehabilitation in a plan submitted on March 22, 2022
ii. The applicant is entitled to $2,540.00 plus tax less the $1,949.77 already approved for psychological services proposed by Abilities Rehabilitation in a plan submitted on May 25, 2022; and
iii. The applicant is entitled to $2,540.00 plus tax less the $1,949.77 already approved for psychological services proposed by Abilities Rehabilitation in a plan submitted on October 13, 2022.
Released: December 9, 2024
__________________________
Caley Howard
Adjudicator