Houaida El-Saikali v. The Commonwell Mutual Insurance Group, 2024 CanLII 92078

Citation: El-Saikali v. The Commonwell Mutual Insurance Group, 2024 ONLAT 22-009317/AABS

Licence Appeal Tribunal File Number: 22-009317/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:

Houaida El-Saikali

Applicant

and

The Commonwell Mutual Insurance Group

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Tracy Lyle, Counsel Hamish Mills-McEwan, Counsel

For the Respondent: Saro Setrakian, Counsel

HEARD: By way of written submissions

OVERVIEW

1Houaida El-Saikali, the applicant, was involved in an automobile accident on October 20, 2018, 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, Insurer, 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 an income replacement benefit (“IRB”) in the amount of $400.00 per week from July 2, 2022 to April 23, 2023?
2. Is the applicant entitled to $3,769.52 for social work therapy, proposed by FunctionAbility in a treatment plan (“OCF-18”) dated July 5, 2022?
3. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3After reviewing the submissions of both parties and all of the evidence I find the applicant is not entitled to any of the benefits claimed, interest or an award. The application is dismissed.

PROCEDURAL ISSUES

Appellant’s Objection to Surreply filed by the Respondent

4The applicant opposed the respondent’s submission of a surreply on the basis that the applicant’s reply submissions did not raise any new arguments or evidence that was not relied upon at first instance.

5The respondent submits that a surreply should be permitted because the applicant’s reply raises several points that should have been addressed in their initial submissions and are not proper reply. Further, there are statements in the applicant’s reply that may be confusing to the Tribunal which require clarification. It submits that the point of reply is only to respond to specific arguments raised by the respondent that were unforeseen or could not have been addressed in the initial submissions.

6The respondent has not persuaded me that the applicant raised new arguments in her reply submissions which were not part of her initial submissions. For example, in the applicant’s initial submissions the Tribunal was directed to the evidence of Ricci and Associates. Further, the applicant also made arguments that she received psychological treatment by her family doctor. As a result, I find the respondent’s filing of a surreply unwarranted. In addition, the Tribunal’s case conference report and order did not provide the respondent with the right of filing a surreply. It is well established that the onus is on the applicant to prove entitlement to the disputed benefits. I find it would be procedurally unfair to allow the respondent to file submissions in response to the applicant’s reply to bolster its position. Consequently, I have not considered the surreply filed by the respondent in this decision. However, in light of my decision, the respondent’s surreply was unnecessary.

BACKGROUND

7The applicant sustained a concussion and soft tissue injuries as a result of the accident, which resulted in chronic pain and a psychological impairment. Following the accident, the applicant did not return to her employment and the respondent paid her an IRB. The respondent had also previously approved 12 counselling sessions with Ricci and Associates.

8On April 23, 2021, the respondent sent the applicant an Explanation of Benefits (“EOB”) enclosing copies of its multi-disciplinary insurer examinations (“IEs”) which advised her that she did not meet the post-104 IRB test from a physical perspective. However, Dr. Nemeth, its psychological assessor agreed that the applicant sustained a psychological impairment because of the accident and met the post-104 test for IRBs.

9Dr. Nemeth recommended 15 to 20 sessions of treatment with a rehabilitation or clinical psychologist and that the applicant’s family doctor should refer her to the Ottawa Pain Clinic. The respondent requested that the applicant provide confirmation once she had been referred to the pain clinic and advised that she had an obligation to comply with treatment and that payment of her benefits could be suspended for non-compliance pursuant to s. 57 of the Schedule.

10On September 23, 2021, the respondent wrote the applicant and indicated that it had received confirmation that she had only attended three out of 12 approved social work sessions with Ricci and Associates. Further, to date, it had not received an OCF-18 for psychological treatment with a psychologist as per Dr. Nemeth’s recommendations. Nor, had it received confirmation that the applicant’s family doctor had referred her to the pain clinic. The respondent informed the applicant that it intended to stop payment of IRBs if she did not provide confirmation of psychological intervention by October 15, 2021. The applicant did not comply with this request.

11On June 22, 2022, the respondent sent the applicant an EOB indicating that she had only attended three social work sessions over nine months. Moreover, that she had been advised on September 23, 2021, that payment of her IRBs would be stopped if she failed to participate in psychological treatment. As a result, it was terminating IRB payments as of July 2, 2022, in accordance with s. 57(5) and s 37(2) (f) of the Schedule.

12On July 13, 2022, the applicant submitted an OCF-18 in the amount of $3,769.52 for social work treatment, proposed by FunctionAbility. The respondent sent the applicant an EOB dated July 28, 2024, denying the OCF-18 because it did not comply with Dr. Nemeth’s recommendations that the applicant be seen by a psychologist and the fees were outside of the Financial Services Commission of Ontario’s Professional Fee Guideline (“Guideline”). On the same date, the respondent sent the applicant another letter where it indicated it was maintaining its position on the applicant’s non-compliance with s. (57) of the Schedule. It also made a s. 33 request for the applicant to provide income tax notice of assessments from 2017 to 2022.

13The respondent reinstated the applicant’s IRB payments when she submitted an OCF-18 for psychological treatment with a psychologist on April 23, 2023.

ANALYSIS

Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from July 2, 2022 to April 23, 2023?

14I find the applicant is not entitled to payment of an IRB between July 2, 2022 to April 23, 2023 because she did not comply with s. 57(2) of the Schedule.

15Section 6(2)(b) of the Schedule states that an insurer is not required to pay an IRB after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which the insured is reasonably suited by education, training or experience. It is undisputed that the applicant meets the post-104 disability test for an IRBs.

16Section 57(2) of the Schedule states that an insured person who is entitled to a specified benefit shall obtain treatment and participate in such rehabilitation as is reasonable, available and necessary to permit the insured person to engage in employment or self-employment for a person entitled to an IRB or shorten the period during which the benefit is payable. If an insured does not comply with s.57(2), under s.57(4) an insured may notify an insured of their intention to stop payment.

17The applicant argues that she complied with s. 57 of the Schedule because in addition to the three treatment sessions she attended with Ricci and Associates she also saw a neurologist on two occasions in January and June of 2022. Further, she sought psychological treatment from her family doctor which is confirmed by the OHIP Summary entries on January 18, March 11, April 26, and May 19, 2022. In addition, the respondent thwarted the applicant’s attempts to obtain treatment following its suspension because it unreasonably denied the OCF-18 for social work treatment submitted by FunctionAbility.

18The applicant also submits that the respondent ignored her request to resume payment of the benefit because there was a shortage of psychologists in Ontario who would work for the rates prescribed by the Schedule. In addition, she submitted confirmation from Capital Region Psychological Services that there was a five-month waitlist to see a psychologist. As a result, treatment by a psychologist was not reasonably available. Finally, the respondent dealt with the applicant’s claim in bad faith by making s.33 requests in an attempt to rationalize its improper suspension of the IRB and denial of the OCF-18 for social work. The applicant relies on this Tribunal’s decision in P.M. v Aviva General Insurance, 2020 CanLII 63584 (ON LAT) (“P.M.”) where the adjudicator determined that the insured complied with s. 57 of the Schedule because there was evidence that they sought and received treatment during the period the benefit was suspended.

19The respondent submits that the applicant did not comply with s. 57 of the Schedule because prior to the date of suspension she received minimal psychological intervention and did not comply with Dr. Nemeth’s recommendation and submit an OCF-18 for psychological treatment or confirm that she had been referred to a pain clinic. Further, both the applicant and the respondent’s assessors recommended that she receive psychological treatment. The respondent submits that it had already approved an OCF-18 for social work with a psychotherapist, which the applicant did not consume. Additionally, the disputed OCF-18 is for a social worker and does not comply with either the applicant or the respondent’s assessor’s recommendations.

20The respondent maintains that the applicant has not provided sufficient evidence of inquiries that she made supporting her position that she could not find a psychologist in Ottawa to provide treatment in accordance with the rates provided for in the Schedule or Guideline. Finally, the applicant has sought a catastrophic determination based solely on a psychological impairment. As a result, it is unreasonable that the applicant failed to comply with the recommendations of the various assessors and receive treatment from a psychologist. The respondent relies on this Tribunal’s decision in Gamble v Allstate, 2022 CanLII 68295 (ONLAT), where the adjudicator upheld a s. 57 suspension because the applicant had not obtained psychiatric treatment to address her psychological issues. The respondent submits that this case is similar to the one before me because the insured’s entitlement to an IRB in Gamble was also based solely on a psychological impairment. Further, the adjudicator rejected the insured’s evidence that being treated by her family doctor was sufficient evidence that they were complying with their obligation to receive psychological treatment. The respondent submits that the s. 57 suspension of benefits should be upheld in this case.

21I find that the applicant has not complied with section 57(2) of the Schedule for the following reasons.

22First, I agree with the respondent that prior to it suspending the applicant’s IRBs she had not complied with her obligation to receive psychological treatment because she had only attended three sessions with a psychotherapist over nine months with Ricci and Associates. Although the psychotherapist the applicant was seeing from Ricci and Associates had gone on maternity leave in late 2021, the applicant did not take any steps in response to the respondent’s September 2021 correspondence where it provided her with an opportunity to comply with its request and advised her of the consequences for failing to do so. I find the respondent demonstrated flexibility because it could have suspended her benefits for non-compliance in October 2021, but instead waited another nine months to do so.

23Second, Dr. Nemeth recommended that the applicant receive treatment from a psychologist not a social worker. Further, the applicant had reported to assessors that she did not feel comfortable attending treatment virtually at Ricci and Associates and that she found the idea of psychological treatment difficult. Of significance, Dr. Reesor, the applicant’s assessor rendered an opinion that the applicant’s psychological impairment meets the catastrophic threshold and recommended psychological intervention. Based on the potential severity of the applicant’s psychological impairment, I find that receiving treatment from a psychologist to be reasonable because previous treatment was not successful in addressing the applicant’s impairment. Although I agree with the applicant that psychologists and social workers are both qualified to provide psychotherapy, they have different approaches to treatment. Based on the applicant’s history of non-compliance in participating in treatment with the psychotherapist, I find Dr. Nemeth’s recommendation that she be seen by a clinical or rehabilitation psychologist to be reasonable.

24Third, I find the facts of this case distinguishable from the decision of PM relied on by the applicant because the adjudicator in that case determined that the insured regularly attended treatment with a social worker during the suspension period, who assisted them with being referred to a psychologist. In the present case, the applicant followed up with a neurologist twice to address headaches and concussion symptoms. I find that this was not sufficient to address her accident-related psychological symptoms which evolved into her primary impairment. I also find the OHIP summary referencing the applicant’s visits to her family doctor to address psychological symptoms unhelpful because no context or details were provided for those visits. In addition, I find the applicant’s family doctor is not qualified to provide the applicant with psychotherapy.

25Finally, I find the applicant has provided insufficient evidence to support her position that there were no psychologists in Ottawa who would treat her in accordance with the Guideline rates or that there was a five-month waitlist to see any psychologist in the Ottawa area. In my view, evidence from a few more clinics on these points would have been helpful.

26For the above-noted reasons, based on the applicant’s failure to comply with section 57(2) of the Schedule, she is not entitled to the IRB for the time period in dispute. For the same reasons, I find the respondent did not wrongfully withhold the payment of the benefit.

Is the applicant entitled to $3,769.52 for social work therapy, proposed by FunctionAbility in a treatment plan/OCF-18 (“plan”) dated July 5, 2022?

27I find the applicant is not entitled to the OCF-18 in the amount of $3,769.52 for social work therapy recommended by Functionability.

28Section 15 of the Schedule states that an insurer shall pay medical benefits to, or on behalf of an applicant so long as said person sustains an impairment as a result of an accident and that the medical benefit in dispute is a reasonable and necessary expense incurred by the applicant as a result of the accident. The guiding principles to consider when determining if a treatment plan is reasonable and necessary are: whether the treatment goals are reasonable whether the goals are being met to a reasonable degree, and whether the costs, both financial and investment of time, of achieving these goals is reasonable taking into consideration the degree of success and the availability of other treatment alternatives.

29As noted above, on July 13, 2022, the applicant submitted an OCF-18 proposing social work treatment with Lisa Honeywell, registered social worker. The goal of the OCF-18 was to address psychosocial and emotional functioning, coping and adjustment to injury, community reintegration, and linking to community resources. And Supportive counselling to develop effective coping strategies to help manage daily stress and emotional sequelae (i.e., panic, anxiety, sadness, etc.). The OCF-18 recommended four one and a half hour sessions of treatment ($208.50 per hour) in the amount of $834.00, provider travel time in the amount of $928.52; brokerage services in the amount of $695.00; $200.00 for form completion and $1,112.00 for documentation.

30On July 28, 2022, the respondent sent the applicant an EOB denying the OCF-18 for social work because it did not comply with Dr. Nemeth’s recommendations that the applicant receive 15 to 20 one-hour sessions with a psychologist. In addition, it advised the applicant that the goals of the OCF-18 were not consistent with Dr. Nemeth’s recommendations, the hourly rates did not comply with FSCO’s Guideline and there was no explanation for travel time of $928.52, $1,112.00 for documentation or $695.00 for brokerage services.

31On November 7, 2022, Ms. Honeywell wrote to the respondent advising that based on the wait list to see a psychologist, social work is the most timely intervention. Further she is trained in cognitive behavioural therapy and psychologists are more expensive. Moreover, social workers are not listed in the Guideline and the hourly rate provided are based on the hourly rates approved by the Ontario Association of Social Workers average billing. Ms. Honeywell further explained that she provides community based social work treatment at the client’s home. Further, the applicant does not have her licence which is a barrier to treatment and the brokerage fee is for file review, completing referrals and to communicate with healthcare and rehab resources. Finally, the amount charged for documentation is to provide a progress report at the end of treatment.

32I find the cost of the OCF-18 excessive and the hourly rate above the amount outlined in the Guideline for psychologists which places a cap at $149.61 per hour. The rates permitted for unregulated providers such as family counsellors under the Guideline is $58.19 per hour. As a result, I find the $208.50 per hour charged by Ms. Honeywell excessive and above the amount allowed for in the Guideline. In addition, Ms. Honeywell’s explanation for the amount of time allotted for travel lacked details and the amount was more than the treatment itself. In addition, I find the hourly rate approved by the Ontario Association of Social Workers irrelevant because it is not incorporated into the Schedule whereas the Guideline is.

33Lastly, as already noted above because of the applicant’s history of non-compliance with participating in treatment with the psychotherapist at Ricci and Associates, I agree that seeing a social worker is similar type treatment. Further, I find the progress notes of Ricci and Associates unhelpful in demonstrating that the past treatment received by the applicant from the psychotherapist was beneficial in addressing her psychological symptoms because they were brief and lacked details noting any progress. For these reasons, I find that the applicant has not proven on a balance of probabilities that OCF-18 for social work is reasonable and necessary.

Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

34The 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 argues that the respondent unreasonably terminated her IRBs for non-compliance with s. 57 of the Schedule. Further, it made unnecessary s.33 requests for income tax records to bolster its denial. Further, it unreasonably denied the OCF-18 for social work treatment. In light of my decision above, I find an award is not payable because I have not determined that the respondent unreasonably withheld or delayed the payment of benefits.

Is the applicant entitled to interest on any overdue payment of benefits?

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest because I have not determined that any benefits are overdue.

ORDER

36For all of the above reasons, I order as follows:

a) The applicant is not entitled to any of the benefits claimed, interest or an award. The application is dismissed.