Mohammad Almasalmah v. The Dominion of Canada General Insurance Company, 2024 CanLII 2645

Citation: Almasalmah v. Travelers Insurance, 2024 ONLAT 21-010133/AABS

Licence Appeal Tribunal File Number: 21-010133/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:

Mohammad Almasalmah

Applicant

and

The Dominion of Canada General Insurance Company

Respondent

DECISION

VICE-CHAIR: Julian DiBattista

APPEARANCES:

For the Applicant: Andrew Franzke, Counsel

For the Respondent: Sara Baum, Counsel

HEARD: By way of written submissions

OVERVIEW

1Mohammad Almasalmah, the applicant, was involved in an automobile accident on February 16, 2021 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 Dominion of Canada 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 a functional abilities evaluation in the amount of $2,757.20 as recommended by Spinetec Healthcare Solutions in an OCF-18 (“plan”) submitted May 19, 2021?

ii. Is the applicant entitled to medical/rehabilitation benefits in the amount of $2,007.67 ($10,606.01 less $8,598.34 partially approved) for mental health counselling, recommended by Meditecs Independent Medical Examinations in a treatment plan submitted October 4, 2021?

iii. 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?

RESULT

3I find that the applicant has not proven entitlement to any benefits.

4The application is dismissed.

ANALYSIS

The applicant is not entitled to a functional abilities’ evaluation.

5I find that the applicant has not proven a functional abilities evaluation is reasonable or necessary.

6To 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 the assessment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

7The applicant submits that the assessment is necessary to supplement his treatment by providing standardized and objective data regarding the applicant’s functional activities of daily living and work-related tasks.

8The respondent counters that the objectives of this treatment plan have already been provided in the s. 25 psychological assessment of Dr. L. Steiner on August 20, 2021 and the s. 25 orthopaedic assessment conducted by Dr. J. Kwok on September 16, 2021.

9The evidence supports the respondent’s position with regards to this assessment. In his orthopaedic assessment, Dr. Kwok notes the impact on the applicant’s ability to complete housekeeping duties, his personal care tasks, social and recreational activities, and functional restrictions on other normal activities of daily living. Dr. Kwok recommended the applicant receive an MRI of the shoulders and spine, in addition to a psychological assessment, neurological assessment and chronic pain assessment. He also recommended physiotherapy, massage, chiropractic treatment and active rehabilitation.

10In his psychological assessment, Dr. Steiner notes the psychological impacts on his functional abilities and social interaction. Dr. Steiner also recommends Cognitive Behavioural Therapy and a vehicular-reintegration assessment.

11These reports were commissioned by the applicant with providers chosen by the applicant. While both assessors provide specific recommendations for treatment, neither of these reports recommend a functional abilities evaluation, meaning they do not support the treatment plan in dispute here as being reasonable and necessary.

12Treatment plans are not medical evidence. Similarly, comments within a treatment plan cannot be used to justify whether the treatment plan itself is reasonable or necessary, even if they may provide helpful context. Additional medical evidence must be provided to support a course of treatment or an assessment. In this case, the reports referenced above, while supportive of treatment generally, do not support the reasonableness or necessity of the denied treatment plan in dispute here.

13For the reasons above, I find that the applicant is not entitled to a functional abilities evaluation.

The applicant is not entitled to any further amounts on the treatment plan submitted on October 4, 2021

14I find that the applicant is not entitled to any additional amount beyond the $8,598.34 previously approved.

15A treatment plan was submitted for $10,606.01 on October 4, 2021. The individual items in this treatment plan were set out as follows:

16The applicant disputes the denial for line two, line three and line eight.

The applicant is not entitled to additional fees for planning service and documentation support beyond the FSCO guidelines

17I find that the respondent is not liable for additional fees beyond the Professional Services Guideline (“PSG”).

18The applicant submits that the denied line items are not an expense under the PSG and claims entitlement.

19The respondent submits that these line items are a covered expense under the PSG and subject to the hourly limits.

20The maximum fees which an insurer is liable to pay have been set in the PSG issued by the Superintendent of the Financial Services Commission of Ontario. The PSG states the following regarding Expenses Related to Professional Services:

I. Expenses related to professional services” as referred to in the SABS and the Professional Services Guideline include all administration costs, overhead, and related costs, fees, expenses, charges and surcharges. Insurers are not liable for any administration or other costs, overhead, fees, expenses, charges or surcharges that have the result of increasing the effective hourly rates, or the maximum fees payable for completing forms, beyond what is permitted under the Professional Services Guideline.

21The maximum hourly rate for Psychologists and Psychological Associates which was applied for this treatment plan is $149.61. This is equal to the amount submitted by the applicant and authorized by the respondent for Ms. Naji to provide psychological services.

22It is my view that the additional document support activity which is charged per session is a clear example of a surcharge which has the impact of increasing the effective hourly rate beyond the PSG allowable amount.

23It is also my view that the planning service fee is an administration fee under this section of the PSG.

24As per the PSG, the respondent is not liable for such charges.

25I find that the applicant has not proven an entitlement to the denied administrative charges as she has not demonstrated that they are reasonable and necessary or payable under the PSG.

In this context, Social Work is a tax exempt service

26I find that Social Work is exempt from HST in the context of the treatment provided.

27The applicant submits that because the respondent did not specify the section of the Excise Tax Act, they did not provide a valid denial. The respondent submits that Social Work, as provided in the context of this treatment plan, is exempt from HST.

28In accordance with section 7.2 of Part II of Schedule V to the Excise Tax Act, a supply of a service rendered in the practice of the profession of social work is exempt from GST/HST where:

i. The service is rendered to an individual within a professional-client relationship between the social worker and the individual; and

ii. The service is provided for the prevention, assessment or remediation of a physical, emotional, behavioural, or mental disorder or disability of that individual or to assist that individual in coping with such a disorder or disability.

29The services rendered in this treatment plan meet both criteria referenced above.

30The respondent is not liable to pay HST on services that are HST exempt.

31Denying sales tax on a tax-exempt service is a black and white matter that does not require a detailed explanation. The services in question are HST-exempt, therefore the respondent is not liable to pay HST. This should never have been part of the treatment plan as the provider is neither liable to collect nor remit HST on these services.

32As these are tax exempt services, I find that the applicant is not entitled to HST on the treatment plan.

There is no interest payable

33As there are no benefits owing, no interest is payable.

The applicant is not entitled to an award

34As I have found there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.

ORDER

35For the reasons above I find that:

i. The applicant is not entitled to a functional abilities evaluation;

ii. The applicant is not entitled to further psychological treatment;

iii. The applicant is not entitled to an award; and

iv. This application is dismissed.