Licence Appeal Tribunal File Number: 22-003035/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:
Jun Hua He
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
VICE-CHAIR:
Monica Ciriello
APPEARANCES:
For the Applicant:
Ryan Olson, Paralegal
For the Respondent:
Julianne Brimfield, Counsel
HEARD: In Writing
March 20, 2024
OVERVIEW
1Jun Hua He, the applicant, was involved in an automobile accident on May 12, 2020, 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 following issues are to be decided:
i. Is the applicant entitled to the amount of $1,581.78 for psychological services, proposed in a treatment plan (“plan”) dated January 15, 2021?
ii. Is the applicant entitled to the amount of $1,581.78 ($3,701.88 less $2,120.10 approved) for psychology care proposed by Somatic Assessments and Treatment Clinic in a plan dated March 9, 2022?
iii. Is the applicant entitled to the amount of $3,701.88 for psychology care proposed by Somatic Assessments and Treatment Clinic in a plan dated June 22, 2022?
iv. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons that follow, I find that the applicant is not entitled to the disputed treatment plans, nor an award or interest.
ANALYSIS
4To receive payment for the disputed treatment plans under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefits are 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 not entitled to the two psychological services each in the amount of $1,581.78
5The applicant is seeking entitlement to the denied portions of two partially approved treatment plans dated January 15, 2021, and March 9, 2022. The treatment plans each proposed $3,701.88 in psychological treatment. The respondent partially approved the treatment plans in the amount of $2,2120.10, leaving a denied portion in each in the amount of $1,581.78.
6The applicant submits that his psychological injuries are well documented. The clinical notes and records (“CNRs”) of Dr. Arulanantham Raveendran, family physician, reveal complaints of insomnia, nightmares and anxiety. The applicant also relies on the psychological assessment report of Dr. Bruce Cook, psychologist, dated July 18, 2020, and a subsequent psychological progress report of Ms. Xiaolan Yang, psychotherapist, and Dr. Sharleen McDowall, psychologist, dated January 10, 2021. Dr. Cook diagnosed the applicant with Adjustment Disorder, Mixed and Anxiety and Depressed Mood, and Ms. Yang noted emotional and cognitive impairments.
7The respondent submits that $1,581.78 is not payable because the hourly rate on each plan was for a psychologist, while the applicant’s therapy sessions have been with Ms. Xiaolan Yang, a psychotherapist. Ms. Yang was supervised by Dr. McDowall, however the treatment notes reveal that the Ms. Yang was conducting the sessions with the applicant. The respondent only agreed to fund $91.43 per hour for treatment with a psychotherapist. The applicant did not provide submissions on the hourly rate.
8I find that the fee for services provided through the Schedule is governed by the Professional Services Guideline (“PSG”) as outlined in section 49(1) of the Schedule. Pursuant to the PSG, the respondent is not liable to pay for expenses related to professional services rendered to an insured person that exceed the maximum hourly rates set out in it. Further, the PSG provides that the maximum hourly rate for psychologists is $149.61 per hour, while the PSG makes no reference to an hourly rate for psychotherapists. Therefore, the psychotherapy is not covered by the PSG and it is left to the parties to decide on what an acceptable hourly rate for the services.
9While I am persuaded by the evidence that the two treatment plans for psychological services were reasonable and necessary, I find that the treatment plans indicate at Part 4 that the psychological services were to be provided by Dr. McDowall, a psychologist, and were costed accordingly. However, I agree with the respondent’s position that it was only obligated to cover a portion of the treatment plan because the services were provided by Ms. Yang, a psychotherapist, and not by Dr. McDowall, a psychologist. I find that $91.43 is a reasonable and appropriate hourly rate in this case for the psychotherapy services provided by Ms. Yang.
10In light of the above, I find that the applicant has not met his onus to demonstrate that he is entitled to an enhanced hourly rate for psychotherapy services and is therefore not entitled to the remaining unpaid balance of either treatment plan in dispute.
The applicant is not entitled to the balance of the psychological services in the amount of $3,701.88
11I find that the applicant has failed to demonstrate, on a balance of probabilities, that the treatment plan for psychological services is reasonable and necessary. As such, the applicant is not entitled to $3,701.88 dated June 22, 2022.
12The treatment plan proposes therapy with the goal of allowing the applicant to return to activities of normal living.
13The applicant submits that his psychological injuries are well documented, relying on the CNRs of Dr. Raveendran, the psychological assessment report of Dr. Bruce Cook, and the subsequent psychological progress report of Ms. Yang. The applicant also refers to the May 6, 2021 CNRs from the Woodbine Steeles Sleep Clinic indicating that the applicant suffers from chronic initial and maintenance insomnia.
14The respondent submits that the treatment plan is not reasonable or necessary with no evidence of ongoing psychological injuries two years after the accident. The respondent relies on the in-person section 44 psychological assessment report of Dr. Shulamit Mor, psychologist, dated August 18, 2022, which concluded that no further counselling was recommended, and the plan was not reasonable or necessary. This is supported by the applicant’s own admission during the assessment that he had received no benefit from psychotherapy. Furthermore, the respondent submits that the CNRs of Dr. Raveendran around June 2022 do not include reference to ongoing psychological issues, nor any referrals to a psychologist.
15I find that the treatment plan is not reasonable and necessary. While I am persuaded by the 2020 and 2021 findings of Dr. Cook and Ms. Yang, consecutively, I prefer the 2022 medical opinion of Dr. Mor. I find that there is insufficient evidence presented by the applicant to demonstrate that he suffers from ongoing psychological injuries. This is supported by reviewing the CNRs of Dr. Raveendran which do not contain ongoing reference to psychological injuries nor a referral to a psychologist. Lastly, I take into account the applicant’s own admission that he has received no benefit from therapy to date.
16For these reasons, I find that the treatment plan is not reasonable or necessary, and the applicant is not entitled to psychological services in the amount of $3,701.88.
Interest
17Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are overdue, no interest is payable.
Award
18The 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. The applicant does not provide persuasive evidence that the respondent withheld psychological services. Since no benefits are payable, there is nothing on which to base an award. No award is granted.
ORDER
19For the reasons outlined above, I find that the applicant is not entitled to the disputed treatment plans, nor an award or interest.
20The application is dismissed.
Released: April 19, 2024
__________________________
Monica Ciriello
Vice-Chair