[JG] v. BelairDirect, 2024 CanLII 56770

Citation: [JG] vs. BelairDirect, 2024 ONLAT 22-000790/AABS

Licence Appeal Tribunal File Number: 22-000790/AABS

In the matter of an application per subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

[JG]

Applicant

and

BelairDirect

Respondent

DECISION

ADJUDICATOR: Michael Beauchesne

APPEARANCES:

For the Applicant: Gordon Harris, Counsel

For the Respondent: Darrell March, Counsel

HEARD: By way of written submissions

OVERVIEW

1[JG] (the “applicant”) was involved in an automobile accident on April 24, 2019, 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 BelairDirect (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Is the applicant entitled to the following services proposed by DMA Rehability, as follows: i. Psychotherapy and other services in the amount of $1,450.25 ($2,630.00 less $1,179.75 approved), proposed in a treatment plan (“OCF-18”) dated October 9, 2020; and ii. Psychotherapy and other services in the amount of $2,704.25 ($4,567.24 less $1,843.25 approved), proposed in an OCF-18 dated August 9, 2021?
2. Is the applicant entitled to chiropractic and massage services in the amount of $814.24, proposed by Dr. Jason Price in an OCF-18 dated October 28, 2020?
3. Is the applicant entitled to a catastrophic determination examination in the amount of $12,702.39 ($23,052.00 less $10,349.61 approved), proposed by Dr. Kaplan and Dr. Levitt in an OCF-18 dated August 16, 2021?
4. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
5. Is the applicant entitled to interest on any overdue payment of benefits?

3The applicant withdrew issues no. 1, 3, 6, 7, and 9 as listed in the case conference report and order for this matter, released on February 14, 2023.

RESULT

4The applicant is entitled to:

1. The balance of treatment hours owing for both psychotherapy OCF-18s at the hourly rate of $99.75 plus interest per section 51 of the Schedule; and
2. Payment of all goods, services, assessments, and examinations proposed in the OCF-18 for catastrophic impairment determination per section 38(11)2 of the Schedule, plus interest per section 51 of the Schedule.

5The applicant is not entitled to any of the other disputed items, or an award.

ANALYSIS

The OCF-18s for psychotherapy treatment and other services

October 9, 2020, in the amount of $1,450.25 for equine-assisted psychotherapy and a form completion fee

6I find the applicant is not entitled to the balance of the form completion fee but is entitled to the balance owing for equine-assisted psychotherapy sessions as proposed in this OCF-18.

7Section 14 of the Schedule compels an insurer to pay medical benefits to—or on behalf of—an insured person who sustains an impairment resulting from an accident. Section 15(1) of the Schedule explains that these medical benefits shall pay for all reasonable and necessary expenses resulting from the accident. The applicant bears the onus of proving on a balance of probabilities that the claimed medical benefits are reasonable and necessary. In order to do so, an applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.

8For this OCF-18, the parties are disputing whether 90-minute psychotherapy sessions are reasonable and necessary. The respondent partially approved these sessions up to only 60 minutes each. The parties also dispute the reasonableness of the $200.00 form completion fee. The respondent partially approved this fee for $99.75.

9The applicant submits there is ample evidence to show she was suffering significant psychological sequelae at the time this OCF-18 was submitted and relies on the medical evidence of Ms. Connie Phillips (psychotherapist), Ms. Mary-Jo MacDonald (occupational therapist), and Ms. Breanna Easton (designation not specified) to show that 90-minute psychotherapy sessions are reasonable and necessary.

10The respondent argues that section 25 of the Schedule makes it responsible to pay only reasonable fees for the review and approval of OCF-18s, and that section 15(2) of the Schedule establishes the respondent is not responsible to pay medical benefits that exceed the maximum rate or amount of expenses established by the Schedule. The respondent adds that the maximum allowable hourly rate payable to an occupational therapist for non-catastrophic impairment services is $99.75.

11I find the applicant did not make submissions on the form completion fee. The OCF-18 indicates that Ms. Carey Duncan (occupational therapist) proposed a flat fee (i.e., not an hourly rate) of $200.00 to complete the OCF-18. While the applicant’s submissions speak to the respondent partially approving this fee in the amount of $99.75, she does not point to evidence that persuades me the balance owing is reasonable to pay. As such, I am not convinced the applicant is entitled to any further payment of the form completion fee.

12Concerning the proposed length of the psychotherapy sessions, I find the applicant has demonstrated that 90-minutes for this equine-assisted treatment is reasonable and necessary. While I place little weight on the evidence of Ms. MacDonald and Ms. Easton as led by the applicant, I was persuaded by the evidence of Ms. Phillips. The applicant does not point to evidence in Ms. MacDonald’s January 2020 or September 2020 reports that relates symptom severity to the reasonableness and necessity of 90-minute psychotherapy sessions. Further, I am not directed to an opinion voiced by Ms. MacDonald on the reasonableness and necessity of the proposed session length, and the applicant’s submissions fail to specify what aspects of Ms. Easton’s records she relies on to make her case.

13I find, however, that Ms. Phillips directly and convincingly addresses the need for 90-minute equine-assisted psychotherapy sessions in the OCF-18 dated July 21, 2020. While I recognize this is a different OCF-18 in dispute, I find that both the July and October OCF-18s involving psychotherapy propose the same equine-assisted treatment, and that it is reasonable to apply Ms. Phillips’ rationale to both OCF-18s. The applicant’s submissions point to the explanation offered by Ms. Phillips, who reasons that this amount of time is needed for the applicant to first emotionally prepare herself through body scans and other embodied exercises before connecting with the horse (i.e., 20 minutes of meditative grooming) and then going on to tell her story. Ms. Phillips adds that it is important to not rush this process as anything less than 90 minutes significantly takes away from the session and healing offered to the applicant.

14In my view, this reasoning is sufficient to establish, on balance, that 90 minutes is reasonable and necessary to complete one session of equine-assisted psychotherapy. The respondent’s submissions did not convince me otherwise as they offered no refuting arguments and presented no contrary evidence on session length for me to consider. I therefore find the applicant is entitled to the balance of psychotherapy treatment hours proposed in the OCF-18.

15Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Since I have determined that the applicant is entitled to this OCF-18, the applicant is entitled to payment of interest on any overdue benefits.

July 21, 2021, in the amount of $2,704.25 for equine-assisted psychotherapy, a form completion fee, and travel time.

16I find the applicant is not entitled to a form completion fee or travel time but is entitled to the balance owing for equine-assisted psychotherapy sessions as proposed in this OCF-18 at the hourly rate of $99.75.

17Section 14 of the Schedule compels an insurer to pay medical benefits to—or on behalf of—an insured person who sustains an impairment resulting from an accident. Section 15(1) of the Schedule explains that these medical benefits shall pay for all reasonable and necessary expenses resulting from the accident. The applicant bears the onus of proving on a balance of probabilities that the claimed medical benefits are reasonable and necessary. In order to do so, an applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.

18For this OCF-18, the parties are disputing whether 90-minute equine-assisted psychotherapy sessions are reasonable and necessary, as well as the reasonableness of the $200.00 form completion fee. The respondent partially approved 60-minute sessions and $99.75 for form completion. In addition, the parties do not agree on the hourly rate proposed by Ms. Phillips to conduct the sessions. Ms. Phillips indicated an hourly rate of $140.00 and the respondent partially approved $99.75 per hour. The parties also dispute travel time—the OCF-18 proposes four trips of two hours each at a total cost of $1,120.00 and the respondent denied this in full.

19The applicant’s submissions on session length and form completion were the same as those argued on the October OCF-18 for psychotherapy services addressed earlier in this decision. Regarding the hourly rate proposed to provide psychotherapy services, the applicant submits that psychotherapists should qualify for the same hourly rate as psychologists under the Professional Services Guideline (the “Guideline”) issued by the Financial Services Commission of Ontario (i.e., Superintendent’s Guideline 03/14), and relies on J.V. v. Intact Insurance Company, 2019 CanLII 76995 (ON LAT) (“J.V.”) to support her position on this hourly rate; specifically, the applicant reasons that Ms. Phillips is registered with the College of Physiotherapists of Ontario (the “College”), has a graduate degree, and conducts cognitive behavioural therapy. Pertaining to the disputed travel time, the applicant says there is a “plethora” of medical evidence that proves it is reasonable and necessary for some of her treatment to occur in-home, thereby requiring the service provider to incur the travel costs proposed in the OCF-18.

20The respondent argues that psychotherapists are unregulated professionals and therefore do not qualify for the higher regulated hourly rates in the Guidelines. The respondent says the applicant has produced no evidence to show Ms. Phillips is registered with the College. The respondent relies on Kane v. Aviva Insurance Company, 2021 CanLII 55137 (“Kane”) to show that the Tribunal has confirmed a psychotherapist with a graduate degree is nevertheless an unregulated service provider under the Guideline and thereby subject to an hourly rate of $99.75. The respondent further submits that the applicant failed to produce evidence that shows Ms. Phillips specializes in cognitive behavioural therapy and has provided such during her psychotherapy sessions.

21I first address the form completion fee and session length. I find this OCF-18 is substantively indistinguishable from the October 2020 OCF-18 addressed earlier in this decision as it specifically pertains to the form completion fee and session length. It too proposes 90-minutes per session and a $200.00 form completion fee. As the applicant and respondent rely on the same arguments and evidence offered for the October 2020 OCF-18 to support their positions here, it follows that I may rely on my earlier analysis and make the same findings. That is to say, I am not convinced the applicant is entitled to any further payment of the form completion fee, but find the applicant is entitled to the balance of psychotherapy treatment hours proposed in the OCF-18. The applicant is also entitled to payment of interest on any overdue benefits.

22I do not, however, agree the applicant is entitled to an hourly fee of $140.00 to deliver the equine-assisted psychotherapy services proposed in this OCF-18. Rather, I find the respondent reasonably determined that the appropriate hourly rate under the Guideline is $99.75. In my view, J.V. is distinguished here on a couple of factors that I find weighed heavily on that decision to award the higher hourly rate. First, I find the applicant failed to point to evidence of Ms. Phillips’ registration with the College. Second, I was not pointed to evidence of Ms. Phillips’ graduate degree. Third, while the applicant pointed to evidence of cognitive therapy being applied in the general context of equine-assisted therapy, I find the applicant did not direct me to evidence of this technique being proposed or used as part of the psychotherapy sessions contemplated by the OCF-18. As such, I find I have little to consider insofar as J.V.’s bearing on this case.

23The parties agree that psychotherapists like Ms. Phillips are not specifically listed in the Guideline, and that in cases like this, the Guideline provides that the applicable rate is to be determined by the parties. The default hourly rate for unregulated service providers under the non-catastrophic category of the Guideline is $58.19, and the hourly rate for psychologists and psychological associates is $149.61. The respondent submits it approved a rate of $99.75 per hour based on Kane. I find Kane is persuasive because, like this case, there is a lack of evidence that cognitive behavioural therapy is proposed as part of treatment. And even if the applicant had established that cognitive behavioural therapy was part of the treatment, I was not directed to evidence that Ms. Phillips specializes in this type of therapy.

24Taken together on balance, I find this analysis establishes that the applicant has fallen short on her onus to prove entitlement to an hourly rate of $140.00. In my view, the hourly rate of $99.75 approved by the respondent is reasonable in the context of the authorities relied upon by the parties. I therefore find that the hourly rate of $99.75 should be applied to the balance of the outstanding treatment hours proposed on this OCF-18.

25Turning now to travel costs, I am not convinced these costs, as proposed in the OCF-18, are reasonable.

26The applicant’s submissions make mention of medical evidence that documents the applicant’s driving anxiety and fear of leaving her home. The applicant reasons that it is reasonable and necessary for some of her psychotherapy treatment to take place in-home, thereby requiring travel time.

27The respondent did not address travel time in its submissions.

28I find the applicant has not established she suffers driving anxiety or a fear of leaving home. While the applicant speaks to a plethora of supporting medical evidence in her submissions, I find she fails to point me to this evidence. I note only a mention of a driving assessment in Ms. MacDonald’s January 2020 report, and a reference to driving rehabilitation in Ms. MacDonald’s September 2020 report. In my view, this evidence is not determinative of driving anxiety, and the applicant’s submissions do not direct me to persuasive evidence that supports a fear of leaving home. Even if the applicant had substantiated this symptomology, I find the applicant cannot rely on these factors to justify service provider travel expenses to a location other than the applicant’s home, which she reportedly fears to leave. In this case, Ms. Phillips, in the additional comments section of the OCF-18, proposes to travel once per month over the summer period (July to October) to provide four “direct sessions” in conjunction with ongoing equine-assisted psychotherapy at the applicant’s cottage. Further, I was not pointed to evidence that supports the amount of travel time proposed, or that convinces me an hourly travel cost of $140.00 is reasonable.

29Considering all this on balance, I find the applicant has not established that travel time is reasonable and necessary to provide psychotherapy, nor that the proposed hourly fee is reasonable. I therefore do not agree the applicant is entitled to the travel time documented on this OCF-18.

The OCF-18 for chiropractic services and massage therapy in the amount of $814.24

30I find the applicant is not entitled to this OCF-18.

31Section 14 of the Schedule compels an insurer to pay medical benefits to—or on behalf of—an insured person who sustains an impairment resulting from an accident. Section 15(1) of the Schedule explains that these medical benefits shall pay for all reasonable and necessary expenses resulting from the accident. The applicant bears the onus of proving on a balance of probabilities that the claimed medical benefits are reasonable and necessary. In order to do so, an applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.

32The applicant submits her physical injuries were diagnosed as sprain and strain of her thoracic spine and sacroiliac joint, as well as muscle strains and headaches. The applicant adds that the respondent had the records of Dr. Jason Price (chiropractor) and an “abundance” of other medical evidence that proves she suffered a multitude of physical sequalae. The applicant contends that the respondent’s denial is contrary to section 38(8) of the Schedule because this medical evidence was not sufficiently reviewed, and the correct test was not applied. The applicant says that determining whether an OCF-18 is reasonable and necessary does not require an insured person to sustain a physical injury, and reasons that psychological disorders can have significant negative impacts on physical health. The applicant underscores this point in her reply, where she contends that a “direct result of the accident” does not require she be struck by, or otherwise contact the vehicle involved in the accident.

33The applicant goes on in her reply to further assert that while causation may be a precondition for whether a treatment plan is reasonable and necessary as a result of the accident, causation does not require that the impairments be sustained on the exact date and at the exact time of the subject accident to establish a “sufficient nexus” or “causal relationship.”

34The respondent argues that the applicant was not struck by the vehicle involved in the accident, and that her accident-related hospital visit 10 days after the accident was mental health-related. The respondent relies on the records of Ms. Kristine Roth (occupational therapist), Dr. Nancy Abram (general practitioner), and Ms. Jackie Auger (occupational therapist) to show the applicant did not report any physical injuries or symptomology resulting from the accident that merits chiropractic treatment.

35While I agree the OCF-18 completed by Dr. Price is consistent with the applicant’s submissions on injuries and treatment goals, I find the applicant has not pointed me to medical evidence contemporaneous to the accident that supports the reasonableness and necessity of chiropractic treatment and massage therapy. Further, as demonstrated by the respondent’s submissions, the evidence of Ms. Roth, Ms. Auger, and Dr. Alban establishes the applicant has repeatedly denied physical injuries owing to the accident, which I find diminishes the probability that the treatment recommended in the OCF-18 is reasonable and necessary on balance.

36This is not to say I reject the applicant’s position that an insured person is not strictly required to sustain physical accident-related injuries to prove physical treatment is reasonable and necessary. On the contrary, the applicant pointed to scientific research that supports a link between physical symptoms and mental health. But given the applicant’s position (i.e., her physical symptomology is sequalae from accident-related psychological trauma), I would expect the applicant to provide medical evidence that establishes her physical injuries are interrelated with her psychological condition.

37I find the applicant has failed to do so. Her submissions do not pinpoint—in the clinical records of Dr. Price or otherwise—a medical opinion that supports a relationship between the applicant’s psychological disorders and her physical health (i.e., the physical injuries documented by Dr. Price in the OCF-18). Further, the applicant does not support her position by pointing me to a correlation between her psychological symptomology and her physical injuries as documented in the OCF-18. In my view, Dr. Price offers an inconsistent position to that of the applicant, as he indicates there are no barriers (i.e., the applicant’s psychological condition) to the applicant’s recovery from her physical injuries in Part 9 of the OCF-18.

38Taken together on balance, I am not convinced this evidence meets the applicant’s onus to prove her case, and I therefore find she is not entitled to this OCF-18.

The catastrophic determination examination OCF-18 in the amount of $12,702.39

39I find the applicant is entitled to the total body assessment and living skills assessment proposed in this OCF-18. The applicant is not entitled to any of the other disputed items in this OCF-18.

40Section 14 of the Schedule compels an insurer to pay medical benefits to—or on behalf of—an insured person who sustains an impairment resulting from an accident. Section 15(1) of the Schedule explains that these medical benefits shall pay for all reasonable and necessary expenses resulting from the accident. The applicant bears the onus of proving on a balance of probabilities that the claimed medical benefits are reasonable and necessary. In order to do so, an applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.

41For this OCF-18 in the amount of $23,052.00 (including tax), the respondent partially approved goods and services in the amount of $10,349.61. The parties dispute the reasonableness and necessity of the remaining services proposed in the OCF-18, which consist of planning in the amount of $2,000.00; total body assessment in the amount of $2,000.00; mental health testing in the amount of $2,000.00; living skills assessment in the amount of $2,000.00; service assessment in the amount of $2,000.00; and the $50.39 balance of a $200.00 documentation fee that was partially approved.

Compliance of denial notice with section 38(8) of the Schedule

42I find the applicant has shown the respondent’s denial notice does not comply with section 38(8) of the Schedule.

43For the purposes of this dispute, section 38(8) of the Schedule says the insurer shall give the insured person a notice that identifies the assessments and examinations described in the OCF-18 that the insurer agrees to pay for, and any the insurer does not agree to pay. As well, the insurer shall identify the medical reasons—and all of the other reasons—why the insurer considers any assessments and examinations, or their proposed costs, not to be reasonable and necessary. One of two remedies for non-compliance with section 38(8) is found at section 38(11)2 of the Schedule, which provides that the insurer shall pay for all assessments and examinations described in the OCF-18 that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a compliant notice.

44The applicant submits the respondent’s denial notice is deficient, and that the denied portions are payable under section 38(11)2 of the Schedule. Specifically, the applicant contends no medical reasons were provided for denial; that the notice format was neither clear nor specific enough for the applicant to understand; and that the notice did not provide a complete and detailed account of which assessments were denied and why they were denied.

45The respondent did not provide submissions on the compliance of its denial notice with the Schedule.

46I am not convinced the applicant has shown the notice to be sufficiently unclear or non-specific to prevent understanding. The applicant’s submissions do not point to examples which support her position that the notice template is deficient (i.e., language that is unclear, ambiguous, or complicated). Further, I am not persuaded that the notice fails to provide a complete and detailed account of which assessments were denied and why they were denied. Again, the applicant’s submissions fail to point me to specific deficiencies and I find the respondent’s notice is well laid out in this context.

47I do, however, agree with the applicant that the respondent’s notice does not provide medical reasons for denial. While I find there are clear and unambiguous non-medical reasons provided for each of the denied items in the OCF-18, I am not convinced this strictly complies with the requirements set out at section 38(8) of the Schedule. I find the procedural obligations of an insurer in responding to medical benefits are clearly set out in section 38(8) of the Schedule, as are the consequences for non-compliance in section 38(11). The Schedule obligates the respondent to provide medical and all of the other reasons for its denial. That is to say, a medical reason must be provided in addition to any other reasons relied upon by the insurer for its denial decision. In this case, I find only non-medical reasons were provided and, in my view, this is insufficient to comply with section 38(8) of the Schedule.

48As such, I find the respondent has failed to give a notice in accordance with section 38(8) of the Schedule. Therefore, section 38(11)2 of the Schedule applies.

Award

49I find the respondent is not liable to pay an award.

50The applicant seeks an award under section 10 of Regulation 664. Under section 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.

51The applicant submits she has been treated as an adversary rather than as an insured who pays a premium to the respondent for coverage. The applicant asserts the respondent consistently ignored medical evidence that reliably documented her physical sequalae and the severity of her psychological condition. The applicant adds that the respondent’s indifference to her condition is a significantly aggravating factor that goes to the value of the award—she relies on several authorities to show that a range of 30-to-50 per cent is reasonable, given the circumstances of this case. In her reply, the applicant points to the respondent’s characterization of her claim (i.e., a “strategic attempt” to validate the corresponding claims of her immediate family members) as evidence of frivolous and vexatious behaviour that amounts to an abuse of process that further supports her entitlement to an award.

52The respondent argues that it fairly investigated and assessed the applicant’s claim, while consistently treating the applicant in a courteous, professional, and fair manner.

53In my view, it is well settled that to attract an award under Regulation 664, the insurer’s conduct must rise to the high level of being excessive, imprudent, stubborn, inflexible, unyielding, and/or immoderate. I find little evidence of that here. The applicant’s submissions do not direct me to evidence that substantiates medical records pertaining to the benefits she is entitled to were ignored throughout her claim. In my view, the respondent’s partial approval of multiple OCF-18s in dispute does not support the applicant’s position that she was treated with indifference, or that her medical evidence was ignored. Rather, I find on balance that these partial approvals support the respondent’s position (i.e., that it proceeded in a manner consistent with courtesy, professionalism, and fairness). While I recognize the applicant is entitled to some of the disputed OCF-18s, I find this is not synonymous with the respondent unreasonably withholding or delaying payment of these benefits. This is because I was not pointed to evidence that convinces me the respondent’s denials were made in a behavioural manner consistent with the threshold for an award.

54I placed little weight on the adversarial tone of the respondent’s submissions because this is, in fact, an adversarial process. Further, the applicant did not show me how the respondent’s submissions contribute to an unreasonably withheld or delayed payment of a medical benefit.

55I therefore find on balance that the applicant has not met her onus to show the respondent is liable to pay an award.

Costs

56I find the respondent is not entitled to costs.

57The respondent’s submissions request costs. I decline to award costs to the respondent in this case. Rule 19.3 of the Licence Appeal Tribunal Rules (the “Rules”) specifies a submission on costs shall set out the amount being requested. This was not done. Rule 19.4 specifies that a submission on costs shall set out the reasons for the request and the particulars of the other party’s conduct alleged to be unreasonable, frivolous, vexatious, or in bad faith. The respondent failed to do this as well. As such, I see no basis on which to conclude the respondent should be awarded costs.

ORDER

58The applicant is entitled to:

i. The balance of treatment hours owing for both psychotherapy OCF-18s at the hourly rate of $99.75, plus interest per section 51 of the Schedule; and ii. Payment of all goods, services, assessments, and examinations proposed in the OCF-18 for catastrophic impairment determination per section 38(11)2 of the Schedule, plus interest per section 51 of the Schedule.

59The applicant is not entitled to any of the other disputed items, or an award.