Licence Appeal Tribunal File Number: 22-005097/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:
Saima Faisal
Applicant
and
CUMIS General Insurance Company
Respondent
DECISION
VICE-CHAIR:
Monica Ciriello
APPEARANCES:
For the Applicant:
Alex Nikolaev, Counsel
For the Respondent:
Branson Wong, Counsel
Written Hearing:
March 9, 2024
OVERVIEW
1Saima Faisal, the applicant, was involved in an automobile accident on December 9, 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, CUMIS 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 psychological services in the amount of $1,105.42 ($3,342.59 less $2,237.17 approved), proposed by Hal Disability, in a treatment plan dated October 7, 2021?
ii. Is the applicant entitled to a chronic pain assessment in the amount of $2, 686.00 proposed by Hal Disability, in a treatment plan dated October 7, 2021?
iii. Is the applicant entitled to psychological services in the amount of $1,105.42 ($3,342.59 less $2,237.17 approved), proposed by Hal Disability, in a treatment plan dated February 24, 2022?
iv. Is the applicant entitled to physiotherapy services in the amount of $2,958.98, proposed by We Care Rehab, in a treatment plan dated June 15, 2022?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant is not entitled to psychological services in the amount of $1,105.42 ($3,342.59 less $2,237.17 approved), proposed by Hal Disability, in a treatment plan dated October 7, 2021;
ii. The applicant is entitled to a chronic pain assessment in the amount of $2, 686.00 proposed by Hal Disability, in a treatment plan dated October 7, 2021;
iii. The applicant is not entitled to psychological services in the amount of $1,105.42 ($3,342.59 less $2,237.17 approved), proposed by Hal Disability, in a treatment plan dated February 24, 2022;
iv. The applicant is not entitled to physiotherapy services in the amount of $2,958.98, proposed by We Care Rehab, in a treatment plan dated June 15, 2022;
v. The applicant is entitled to interest on any overdue payment of benefits.
ANALYSIS
4Both parties agree that the applicant’s injuries do not fall within the Minor Injury Guideline. The respondent has paid $13,643.22 in medical, and rehabilitation benefits out of the $65,000.00 limit.
5The 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.
Psychological services in the amount of $1,105.42 in treatment plans dated October 7, 2021, and February 24, 2022
6I have combined an analysis on issues 2(i) and (iii). I find that the applicant is not entitled to the outstanding amount of $1,105.42 ($3,342.59 less $2,237.17 approved), for neither of the psychological service treatment plans dated October 7, 2021 and February 24, 2022, respectively.
7Each of the two psychological service treatment plans recommended 12 counselling sessions, documentation, and education with the goal of the applicant returning to activities of normal life. Each treatment plan was submitted by the applicant for $3,292.59, the respondent paid $2,187.17, leaving an outstanding amount of $1,105.42. The applicant sought the outstanding amount denied by the respondent.
8The applicant submits that the psychological treatment plans are reasonable and necessary. The applicant relies on the insurer examination (“IE”) of Dr. Kofi Ofosu, psychiatrist, dated September 30, 2021. Dr. Ofosu, concluded that the applicant suffers from major depressive disorder, moderate to severe anxiety, specific phobia, situational fear, and somatic symptom disorder with predominant pain. Dr. Ofosu recommends ongoing counselling. This is further supported by the clinical notes and records (“CNRs”) of Mr. David Ross, Social Worker, who also recommends that the applicant continue with further psychotherapy sessions. Lastly, the applicant also relies on the CNRs of Dr. David Fudge, medical lead psychiatric emergency services, who recommended that the applicant should be treated with ongoing support from her psychologist.
9The respondent agrees with the applicant that the psychological treatment plans are reasonable and necessary, however takes issue with the social worker rate requested in the treatment plans. The respondent submits that the rate of $149.61 per hour for Mr. Ross, a social worker, is excessive. The respondent relies on the Professional Service Guidelines (“PSG”) which provides that $149.61 is the hourly rate that can be charged by Psychologists and Psychological Associates. The PSG does not set out a specific rate for social workers, but an “unregulated provider” under the PSG is $58.19 per hour. The amounts payable by an insurer related to professional services not covered by the PSG are to be determined by the parties involved.
10The respondent provided to the applicant in the treatment and assessment plan response dated October 21, 2021, and March 10, 2022, that $91.43 per hour for Mr. Ross was a reasonable rate. This was based on the amounts generally payable for social workers in the community at large, furthermore, it was guided by previous Tribunal decisions that found a rate of approximately $100.00 per hour was a reasonable fee for social workers. In reply submissions, the applicant concedes that an appropriate hourly rate for social workers is $100.00 per hour, relying on various Tribunal decisions. The applicant reaffirms the CV of Mr. Ross, and his 20 years of experience.
11I find that both parties agree that Mr. Ross is a social worker, as a result I find that Mr. Ross has different licensing, educational and professional requirements as a social worker than a psychologist. I find that the applicant did not provide persuasive evidence as to why Mr. Ross would be entitled to $149.61 per hour, a rate reserved under the PSG for qualified psychologists and psychological associates. Furthermore, I am not persuaded by the applicant’s submissions that Mr. Ross would be entitled to $100.00 per hour opposed to $91.43 per hour that was paid by the respondent. I do not have sufficient evidence before me to consider whether his qualifications and experience warrant a higher hourly rate proposed by the applicant, as it is the same submissions the applicant relied on for the $149.61 per hour rate. As such, the applicant has not met her onus in this regard.
12Accordingly, I find that the applicant has not met her onus to demonstrate that the social worker listed in the disputed treatment plans should be paid an enhanced hourly rate. I find that the $91.43 per hour rate proposed by the respondent in both treatment plans is reasonable and the outstanding balance is not payable as a result.
Chronic pain assessment in the amount of $2,686.00 in a treatment plan dated October 7, 2021
13I find that the applicant is entitled to a chronic pain assessment in the amount of $2,686.00 dated October 7, 2021.
14The applicant submits that the chronic pain assessment is reasonable and necessary as it has been documented by multiple healthcare practitioners including in an independent chronic pain assessment of Dr. Tajedin Getahun, orthopaedic surgeon, dated October 5, 2021, which concluded that the applicant met the definition of chronic pain syndrome. The applicant further submits that even the respondent’s IE psychological assessor, Dr. Ofosu, found that the applicant has a somatic symptom disorder.
15The respondent submits that the chronic pain assessment is not reasonable and necessary. The respondent argues that the treatment plan recommendation was completed by Mr. Dahir Hashi, chiropractor, who is not qualified to diagnose chronic pain. The respondent also relies on the absence of a chronic pain diagnosis or referral by Dr. Radfid Mahdi, family doctor, Mr. Ross and Mr. Nileshkumar Patel, physiotherapist in the CNRs.
16Both parties reference the American Medical Association Guides (“AMA Guides”). The AMA Guides are not binding on the Tribunal. However, several of the Tribunal’s decisions have found the AMA Guides to be a useful interpretative tool for evaluating chronic pain claims. The AMA Guides provides that you can be diagnosed with chronic pain when you have three or more of the six criteria. The applicant relies on the opinion of Dr. Getahun who concluded that the applicant met more than three criteria and therefore met the definition of chronic pain syndrome. To the contrary, the respondent found that the applicant failed to meet any of the criteria.
17The goal of the treatment plan is to design and develop strategies to assist the applicant with pain management and increase everyday functioning. The treatment plan in dispute was completed by Mr. Hashi, chiropractor, and I agree with the respondent and find that it is beyond a chiropractor’s scope of practice to diagnose chronic pain. Furthermore, I take into account the lack of a referral by the applicant’s primary care provider. However, I am persuaded by the medical evidence of Dr. Getahun and Dr. Ofosu who both diagnose the applicant with chronic pain syndrome which impacts her daily living, her ability to work and ability to function. I find the treatment plan reasonable and necessary to assist the applicant with pain management and everyday functioning.
Physiotherapy services in the amount of $2,958.98, in treatment plan dated June 15, 2022
18I find that the applicant is not entitled to physiotherapy services in the amount of $2,958.98 dated June 15, 2022.
19The applicant submits that the treatment plan is reasonable and necessary, and supported by multiple healthcare practitioners including Dr. Mahdi, Dr. Ofosu, Mr. Ross, and Dr. Getahun who have concluded that the applicant suffers from a pain disorder and that her ongoing pain and limitations are contributing to her psychological impairments. In the alternative, the applicant argues that the respondent failed to comply with the requirements set out in s. 38(8) of the Schedule regarding its notices denying the treatment plans in dispute, and the applicant did not understand the denial and could not make an informed decision on whether or not to dispute the denial.
20The respondent submits that the evidence does not suggest that the applicant is still suffering from accident-related injuries and takes issue with the broad statement made by the applicant that multiple healthcare practitioners recommend physiotherapy. The respondent also relies on the physiatry assessment reported of Dr. Shariff Esmat Dessouki, dated September 30, 2021, and an addendum physiatry report dated November 17, 2021, that concluded the applicant had no accident-related physical impairments present and no physiotherapy was recommended.
21The treatment plan proposes a 12-week physiotherapy plan with the goal of pain reduction, increase strength and motion, and to return to pre-accident activities.
22In reviewing the medical evidence, I agree with the respondent that the bulk of the medical evidence does not support or recommend physiotherapy as suggested by the applicant. Specifically, I am persuaded that Dr. Mahdi does not provide a physiotherapy recommendation and that Dr. Fudge only assessed the applicant during a short hospital stay in December 2021 for psychological concerns. Further, Dr. Ofosu, Dr. Harris and Mr. Ross are respectively, a psychiatrist, a psychologist, and a social worker, and they are not trained to diagnose physical injuries and or impairments and were not even providing an opinion on the treatment plan in dispute. I find that these medical opinions, if made, would fall outside their area of expertise.
23Lastly, I am not persuaded that the respondent failed to comply with s. 38 of the Schedule. I find that the respondent’s reference in its denial letter to the physiatry assessment report and addendum report of Dr. Dessouki provided sufficient details and proper medical reasons to satisfy the requirements of s. 38.
24Accordingly, I find that the applicant has not met her onus to demonstrate that the treatment plan is reasonable and necessary.
INTEREST
25The applicant is entitled to interest on any overdue payment of benefits.
ORDER
26I find that:
i. The applicant is not entitled to psychological services in the amount of $1,105.42 ($3,342.59 less $2,237.17 approved), proposed by Hal Disability, in a treatment plan dated October 7, 2021;
ii. The applicant is entitled to a chronic pain assessment in the amount of $2, 686.00 proposed by Hal Disability, in a treatment plan dated October 7, 2021;
iii.
iv. The applicant is not entitled to psychological services in the amount of $1,105.42 ($3,342.59 less $2,237.17 approved), proposed by Hal Disability, in a treatment plan dated February 24, 2022;
v. The applicant is not entitled to physiotherapy services in the amount of $2,958.98, proposed by We Care Rehab, in a treatment plan dated June 15, 2022;
vi. The applicant is entitled to interest on any overdue payment of benefits.
Released: June 4, 2024
________________________
Monica Ciriello
Vice-Chair