Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 21-015524/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:
Delroy Holness Applicant
and
Aviva General Insurance Respondent
DECISION
ADJUDICATOR: Lisa Yong
APPEARANCES:
For the Applicant: Yousef Jabbour, Counsel
For the Respondent: Bhavpreet Saini, Counsel
HEARD: By way of written submissions
OVERVIEW
1Delroy Holness, the applicant, was involved in an automobile accident on February 27, 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, Aviva General Insurance, 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. $2,680.00 for a neurological assessment proposed in a treatment plan/OCF-18 (“plan”) submitted June 14, 2021?
ii. $997.28 ($3,592.16 less amount approved $2,594.88) for psychotherapy services proposed in a plan submitted July 6, 2021?
iii. $220.00 ($2,680.00 less amount approved $2,460.00) for an orthopaedic assessment proposed in a plan submitted September 29, 2021?
iv. $1,953.78 for physiotherapy services proposed in a plan submitted July 12, 2022?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the plans in dispute as they are not reasonable and necessary.
4As no benefits are owing, no interest is payable pursuant to s. 51 of the Schedule.
ANALYSIS
The applicant is not entitled to $2,680.00 for a neurological assessment
5The applicant is not entitled to payment of the plan for a neurological assessment as it is not reasonable and necessary.
6The disputed plan concerns a neurological assessment proposed by Dr. Rahim Jessa, chiropractor, who indicated in the OCF-18 that the applicant’s injuries prevent him from carrying out the tasks of his employment and activities of daily living and the goals of the plan were to document the applicant’s current function, to help improve his biopsychosocial capabilities, to enable the applicant to return to modified work activities and pre-accident work activities.
7To 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.
8The applicant argues that the plan for neurological assessment is reasonable and necessary as he suffers from ongoing chronic pain and has not reached maximum medical recovery. He relies on the clinical notes and records (“CNR”) of his family doctor, Dr. Peter Dobson, and from various treating providers from Complete Rehab Centre, the MRI results of his cervical and lumbar spine, and the s. 25 neurological assessment report dated August 13, 2021, by Dr. Lance Majl, neurologist.
9The respondent relies on the hospital records from Dr. Michael Angel, neurologist from Brampton Civic Hospital, who opined that the applicant did not demonstrate signs of upper motor neuron dysfunction and electrodiagnostic studies were normal. It also relies on the s. 44 insurer examination (“IE”) report and addendum report dated August 19, 2021, by Dr. Tilak Mendis, neurologist, who determined that a neurological assessment was not reasonable and necessary.
10Upon review of the evidence, I find the applicant has not satisfied his burden to prove that the plan for a neurological assessment is reasonable and necessary for the following reasons.
11I find that Dr. Dobson diagnosed the applicant with WAD-II, neck strain, back strain and left knee strain immediately after the accident. On May 10, 2021, Dr. Dobson recommended an MRI of the applicant’s cervical and lumbar spine, and an electromyography (“EMG”) for his left hand, due to the applicant’s post-accident complaint of tingling sensation in his left fingers. The MRI scan of the applicant’s cervical and lumbar spine revealed degenerative changes.
12Despite having received a referral from Dr. Dobson on May 10, 2021, the applicant did not follow through with the EMG until July 19, 2022 (one year and five months post-accident), when he saw Dr. Michael Angel, neurologist at the Brampton Civic Hospital.
13I give weight to Dr. Angel’s EMG consultation report dated July 18, 2022, as the EMG consultation is similar to a neurological assessment and the applicant was able to secure such an assessment through the Ontario Health Insurance Plan (“OHIP”) system.
14In his report dated July 18, 2022, Dr. Angel stated the appointment was a neurological consultation and electrodiagnostic evaluation of the applicant’s left leg incoordination weakness, that the applicant attributes to the subject accident. I note that although Dr. Dobson, family physician, referred the applicant to an EMG of the applicant’s left hand, the applicant did not complain about his left hand during his appointment with Dr. Angel. Instead, Dr. Angel examined and addressed the applicant’s complaints regarding his left leg. After conducting electrodiagnostic tests and a neurological examination on the applicant, Dr. Angel opined that the applicant was able to “walk virtually without difficulty (and) is in Star [sic] contrast with his inability to at times generate even a flicker of muscle activity during formal confrontational examination of strength. There are no signs of upper motor neuron dysfunction. Electrodiagnostic studies are normal” and opined that “[t]his may be a stress reaction versus malingering or symptom amplification”. Dr. Angel did not recommend any options for treatment to the applicant.
15Upon review of Dr. Majl’s s. 25 neurological report dated August 13, 2021, like Dr. Dobson’s CNRs, he also diagnosed the applicant with a moderate myofascial injury of the cervical and lumbar spines and recommended an MRI and EMG. I find that Dr. Dobson had already made similar recommendations and provided the referrals for these tests. Further, Dr. Majl recorded that, other than the applicant’s demonstrated moderately limited range of motion and rotation in his cervical spine, his ranges of motion in other parts of his body were within normal limits. With respect to the applicant’s gait and left leg functionality, I find that Dr. Majl’s observations are consistent with that of Dr. Angel during his neurological assessment on July 18, 2022.
16I am persuaded by Dr. Mendis’ IE neurological assessment report dated August 21, 2021. Like Dr. Dobson and Dr. Majl, Dr. Mendis’ also diagnosed the applicant with WAD-II and a whiplash injury to his neck. He examined the applicant, reviewed documents and opined that from a neurological perspective, the applicant had reached maximal medical recovery and the remaining symptoms fall outside the area of neurology and are deferred to other assessors in the psychological and musculoskeletal practice areas. Dr. Mendis’ opined that the proposed plan for a neurological assessment is not reasonable and necessary but, in view of the applicant’s “symptoms of radiculopathy (but without objective neurological findings)” he opined that it may be appropriate to do EMG studies. As mentioned above, I note that the applicant’s family doctor, Dr. Dobson had already provided a referral and the applicant had already seen Dr. Angel for the EMG examination.
17Given the above reasons, I find the applicant is not entitled to a neurological assessment as it is not reasonable and necessary.
The applicant is not entitled to $997.28 for psychotherapy services in a plan submitted July 6, 2021
18I find the applicant is not entitled to the balance of $997.28 of the plan for psychotherapy services as it is not reasonable and necessary.
19This dispute concerns the hourly rate of the psychotherapist proposed in the plan for psychotherapy and the rate approved by the respondent.
20The Professional Services Guideline (“Guideline”) by Financial Services Commission of Ontario (“FSCO”) provides that, when a person has not sustained a catastrophic impairment as a result of the accident, the maximum hourly rate for psychologists and psychological associates is $149.61 per hour; and unregulated providers such as psychometrists is $58.19 per hour. The Guideline does not specify an hourly rate for a psychotherapist.
21The applicant submits that the psychotherapist’s hourly rate should be $149.61 per hour in accordance with the rate of a psychologist as set out in the Guideline. He relies on the Tribunal case on I.B. v. Aviva Insurance Company of Canada, 2020 CanLII 40329 (ONLAT) (“I.B. v. Aviva”) and submits that the cognitive behavioural therapy provided by the psychotherapist to the applicant is akin to the services provided by a psychologist.
22The respondent submits that the psychotherapist’s hourly rate should be $99.75 per hour as there is no evidence that Ms. DeHal Gunraj, psychotherapist, received specialised training within the area of cognitive behavioural therapy, which can be distinguished from the Tribunal’s case of J.V. v. Intact Insurance Company, 2019 CanLII 76995 (ONLAT) (“J.V. v. Intact”), where it was held that the psychotherapist had specialised training and ought to be paid at the same rate as a psychologist.
23The CNRs from Complete Rehab Centre revealed that the applicant received psychotherapy between August 30, 2021 to January 31, 2022, from another psychotherapist, Ms. Nicole Presutti, a registered psychotherapist with the College of Registered Psychotherapists of Ontario (“CRPO”).
24While I am not bound by the Tribunal’s past decisions, I find J.V. v. Intact to be persuasive as a review of the relevant psychotherapists’ credentials, education and experience would be helpful in the determination of the hourly rate payable to a psychotherapist. I also agree with the Tribunal, in the case of I.B. v. Aviva, that a psychotherapist is a regulated profession in Ontario, and hence the unregulated provider rate of $58.19 per hour in the Guideline is not applicable.
25As the applicant did not provide details such as the curriculum vitae of Ms. Presutti’s showing her education, training and experience and further evidence for why a psychotherapist should be paid at the same rate as a psychologist, I find the applicant has not satisfied his burden to prove that the higher rate of $149.61 per hour is reasonable.
26In the absence of proof of higher education or specialised training by the psychotherapist, I find the respondent’s proposed hourly rate of $99.75 for the psychotherapist to be appropriate and reasonable.
The applicant is not entitled to payment of $220.00 for the transportation costs in relation to the plan for an orthopaedic assessment
27The applicant is not entitled to payment of $220.00 being the balance of the plan for orthopaedic assessment as it is not reasonable and necessary.
28According to the parties’ submissions, this dispute is about the denied amount of $220.00 in transportation expenses that were included in the plan dated September 29, 2021, for an orthopaedic assessment for the total amount of $2,680.00. The respondent approved $2,460.00 but denied $220.00 for the transportation expenses line item.
29Pursuant to s. 268.3 of the Insurance Act, R.S.O. 1990, c. I.8, FSCO published a Transportation Expense Guideline (“the Guideline”). The Guideline provides a framework for insurers and insured persons to determine the circumstances under which expenses related to the transportation of an insured person, and his/her aide or attendant, to and from treatment sessions, counselling sessions, training sessions, assessments and examinations, must be paid by an insurer. This Guideline sets out authorized expenses and applicable rates for the purpose of ss. 15(2)(c), 16(4)(f), 19(1)(b) and 25(4) of the Schedule.
30Pursuant to s. 25(4) of the Schedule, the insurer is liable to pay for all reasonable and necessary transportation expenses for each trip that the insured person makes to and from treatment sessions, counselling sessions, training sessions, assessments or examinations. The insurer is also liable to pay for all reasonable and necessary transportation expenses of the insured person’s aide or attendant. Transportation expenses are calculated based on the most direct route, excluding the first 50 kilometres (km) of each round-trip. The 50 km “deductible” is only applicable once in any round-trip. In any event, the applicant bears the onus to prove that the disputed costs are reasonable and necessary as a result of the accident.
31The applicant submits that while the respondent approved the costs of transportation, excluding the first 50 km, he was unreasonably obliged to explain why he chose an assessor who is located over 50 kilometers, round trip from his place of residence. He submits that a round trip from his home to the assessor’s clinic is approximately 70.6 km, thus meeting the deductible and the respondent should pay the cost of his transportation expenses.
32The respondent relies on its letter dated December 30, 2021, which stated that it approved the “transportation to and from the assessment” but requested the applicant to provide evidence of any transportation expenses or to have the transportation facility send the invoice directly to the respondent. It submits that the applicant failed to provide any such evidence of transportation expenses.
33Although the applicant provided a Google search to show the distance of a round trip from his home to the assessor’s clinic, I agree with the respondent that the applicant has not provided evidence of any incurred transportation expenses in order for me to determine whether the cost is reasonable and necessary.
34Therefore, I find that the applicant is not entitled to the payment of the balance for transportation cost because the applicant has not provided sufficient evidence to demonstrate that the unapproved balance is reasonable and necessary.
The applicant is not entitled to payment of $1,953.78 for physiotherapy services submitted July 12, 2022
35The applicant is not entitled to the plan for physiotherapy as it is not reasonable and necessary.
36The applicant submits that he continued to experience left leg pain, back pain and was unable to sleep due to stress as a result of the accident. He relies on the CNRs from Dr. Dobson’s and Complete Rehab Centre.
37The respondent relies on the IE physiatry report dated September 15, 2022, by Dr. Greg Jaroszynski, orthopaedic surgeon, who opined that that there was no objective evidence of any musculoskeletal impairment attributable to the accident and that the plan was not reasonable and necessary.
38Upon review of the CNRs from Dr. Dobson during the period around July 12, 2022, when the plan was submitted, I find that Dr. Dobson did not recommend physiotherapy or any other options for treatment or medications as a result of the applicant’s accident-related complaints. I am also persuaded by Dr. Angel’s report dated July 18, 2022, where Dr. Angel reported that the applicant was able to walk without any difficulty and did not recommend any treatment after his assessment.
39I find that that applicant did not demonstrate that the goals of the plan were reasonably met and has not satisfied on the balance of probabilities that the plan is reasonable and necessary.
40The goals of the plan were to achieve pain reduction, increase range of motion, increase in strength, increase cardiovascular fitness levels, endurance, flexibility, improve motor control of lumbopelvic and cervicothoracic muscles and to return to activities of normal living.
41The CNRs from Complete Rehab Centre revealed that despite the applicant receiving physiotherapy for more than a year after the accident, he continued to report pain and did not demonstrate or report relief of pain to any degree with the past physiotherapy treatment. In the CNR dated October 18, 2022, the applicant reported “increased pain in his left scapular region, left shoulder, upper and lower back… He reports that he feels “stuck” as not much has been progressing with his situation”. In my opinion, as the applicant has shown limited improvement, I find that the plan for physiotherapy is not reasonable and necessary.
42I am not persuaded by the s. 25 orthopaedic assessment report dated January 27, 2022, by Dr. Manjob Bhargava, orthopaedic surgeon, where he opined that the applicant’s injuries are of serious in nature and render the applicant “partially disabled in the realms of housekeeping and self-care, and completely disable in regards to [sic] his pre-accident employment”, as it is not in line with the rest of the medical evidence.
43Given the above reasons, I find the applicant is not entitled to the plan for physiotherapy as it is not reasonable and necessary.
Interest
44Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, no interest is payable.
ORDER
45The applicant is not entitled to the plans in dispute as they are not reasonable and necessary.
46As no benefits are owing, no interest is payable pursuant to s. 51 of the Schedule.
47The application is dismissed.
Released: April 4, 2024
Lisa Yong Adjudicator