Licence Appeal Tribunal File Number: 22-012472/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:
Madeline Parr
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
VICE-CHAIR: Tyler Moore
APPEARANCES:
For the Applicant: Jacob Sazio, Counsel
For the Respondent: Jason Kerr, Counsel
HEARD: By way of written submissions
OVERVIEW
1Madeline Parr, the applicant, was involved in an automobile accident on October 15, 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, 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 $6,200.00 for psychological services proposed by Kaplan & Levitt Psychotherapy in an OCF-18 dated February 28, 2022?
ii. Is the applicant entitled to $1,991.32 ($3,737.72 less $1,746.40 approved) for cardiac rehab proposed by Rehab First in an OCF-18 dated February 18, 2022?
iii. Is the applicant entitled to $521.70 ($4,105.51 less $3,583.81 approved) for PPE and provider mileage proposed by Rehab First in an OCF-18 dated May 11, 2022?
iv. Is the applicant entitled to $3,649.11 for cardiac rehab proposed by Rehab First in an OCF-18 dated December 30, 2022?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to $2,200.00 for a psychological assessment and OCF-18 completion proposed by Kaplan & Levitt. The applicant is not entitled to the balance of this treatment plan.
4The applicant is not entitled to the cardiac rehabilitation therapy proposed by Rehab First.
5The applicant is not entitled to $521.70 for PPE and provider mileage proposed by Rehab First.
6The applicant is entitled to interest.
7The application is granted in part.
BACKGROUND
8The applicant was the driver of a vehicle that was struck head on at a speed of approximately 80 km/hour and involved a secondary impact with another vehicle. She was taken by ambulance to hospital where she was diagnosed with a pneumothorax, fractured sternum, contusion of the abdomen, and a cardiac AV block. She was discharged from hospital on October 18, 2020. The applicant claims exercise intolerance as a result of the permanent AV heart block, and psychological injuries including generalized anxiety disorder with depressed mood and an adjustment disorder.
ANALYSIS
9To receive payment for a treatment 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.
10The purpose of an assessment is to determine whether a condition exists. The applicant also bears the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
The applicant is entitled to the treatment plan for psychological services, in part
11I find that the applicant has demonstrated that, on a balance of probabilities, the disputed treatment plan for psychological services is reasonable and necessary, in part.
12The treatment plan dated February 28, 2022 in the amount of $6,200.00 by Dr. Ron Kaplan, psychologist, proposes $2,000.00 for a psychological assessment, $2,000.00 for neuropsychological assessment, $2,000.00 for neuropsychological testing, and $200.00 for the completion of an OCF-18. The goal of the treatment plan is to diagnose the applicant’s impairments and provide other relevant information to guide the treatment process.
13The applicant submits that she self-funded the psychological assessment after it was denied by the respondent. Dr. Kaplan’s report dated April 25, 2022 lists the diagnoses as generalized anxiety disorder with depressed mood as well as other unspecified symptoms involving cognitive functions. The applicant has since undergone psychological treatment with Dr. Kaplan, which the respondent has approved. In response to Dr. Kaplan’s report, a s. 44 assessment and report was completed by psychologist Dr. Jay McGrory on June 7, 2022. Dr. McGrory diagnosed the applicant with an adjustment disorder with mixed anxiety and depressed mood, and he also recommended that the applicant participate in psychological treatment.
14The applicant submits that on February 22, 2022 her family physician, Dr. John Coady, noted his support for a psychological assessment and treatment. He did not, however, indicate support for a neuropsychological assessment and testing.
15The respondent maintains that the medical records (including ER and psychological assessments), as well as the applicant’s post-accident functioning do not support an accident-related impairment requiring a neuropsychological assessment or testing. The respondent submits that since the accident the applicant has completed university and is working full-time with no accommodations. In addition, Dr. Kaplan’s arguments for the proposed neuropsychological assessment include reference to physical symptoms such as the applicant’s difficulty with prolonged sitting as opposed to neuropsychological injury. The respondent argues that this undermines the reasonableness of the proposed assessments. In addition, Dr. Kaplan is the only medical provider to note self-reported post-accident memory problems, while acknowledging that there was no other record of accident-related brain injury/concussion.
16I find the applicant’s submissions and evidence regarding a neuropsychological assessment and testing to be unpersuasive because Dr. Coady has only endorsed a psychological assessment, and apart from Dr. Kaplan’s report no corroborating medical evidence has been presented that supports of ongoing accident-related cognitive impairment that would necessitate a neuropsychological assessment.
17I do find, however, that the applicant’s submissions regarding a psychological assessment are persuasive because both Dr. Kaplan and Dr. McGrory diagnosed the applicant with accident-related psychological conditions, and both recommended psychological treatment which the applicant has been attending. I am satisfied that the proposed psychological assessment is reasonable and necessary to assist in determining whether a psychological condition exists and to guide treatment.
18As such, I find that the applicant has partially demonstrated, on a balance of probabilities, that she is entitled to some of the costs of the proposed psychological services. Specifically, I find that the applicant is entitled to $2,200.00 for an incurred psychological assessment and completion of an OCF-18. I find that the applicant has not demonstrated, on a balance of probabilities, that she is entitled to the balance of this treatment plan.
The applicant is not entitled to $521.70 for PPE and provider mileage
19I find that the applicant is not entitled to the unapproved amount of $521.70 for PPE and provider mileage proposed by Rehab First in a treatment plan dated May 11, 2022. The applicant has not demonstrated that it is reasonable and necessary.
20The applicant acknowledges that mileage for treatment providers is not listed as payable under the Schedule, but submits that the expenses are legitimate costs she will have to bear to access treatment.
21The respondent maintains that s. 3(1) of the Schedule restricts coverage for authorized transportation expenses to those incurred by an insured or by the insured’s aide/attendant. There is no coverage for transportation expenses incurred by treatment providers. The respondent also submits that the Professional Services Guideline No. 03/14, specifically excludes expenses related to professional services such as administration costs, overhead, and related costs.
22I agree with the respondent. The applicant has not established how these expenses for PPE and provider mileage are payable/not excluded from the guidelines.
23I find that the applicant has not demonstrated, on a balance of probabilities, that she is entitled to the unapproved amount of $521.70 proposed by Rehab First.
The applicant is not entitled to the cardiac rehab proposed by Rehab First
24I find that the applicant is not entitled to the unapproved $1,991.32 for provider mileage and cardiac rehab proposed on February 28, 2022 or $3,649.11 for cardiac rehabilitation proposed on December 30, 2022. Both plans were proposed by Rehab First.
25Both plans in dispute propose kinesiologist supervised muscular strengthening and cardiovascular endurance exercise in a gym setting by using a spin bike and treadmill with the therapist monitoring the applicant’s heartrate. The proposed plans also included fees for provider mileage and provider travel time.
26The applicant submits that as a result of the accident she suffers from a heart block injury that causes high exertion exercise intolerance. She relies on the recommendation from her treating cardiologist, Dr. Paul Dorian, for ongoing cardiac rehabilitation, as proposed. Specifically, on January 20, 2023, Dr. Dorian wrote a letter recommending ongoing supervised low intensity aerobic exercise to specific heart rate targets to improve peripheral oxygen extraction and ventricular function. On December 8, 2022 Dr. Dorian wrote another letter indicating that it is most likely that the applicant’s heart condition was caused by blunt chest trauma at the time of the accident. The consequences of the condition were a limited ability to perform vigorous physical activities such as hiking and running. Dr. Dorian indicated that the probability of significant improvement was small, but deterioration was unlikely.
27The respondent maintains that provider mileage is not payable under the Schedule. The respondent also relies on a s. 44 assessment report dated March 17, 2023 by cardiologist, Dr. Myers, which concluded that the applicant had an isolated first-degree AV heart block but no evidence of cardiac injury on multiple tests. Dr. Myers noted that it was unknown whether the prolonged AV block was pre-existing and that the relationship between the heart block and the accident was purely speculative. Dr. Myers indicated that the heart block was not expected to progress, and that the applicant was very active with no significant limiting cardiovascular symptoms. The applicant went regularly to the gym and skied. Dr. Myers did not find any cardiac indication for the proposed supervised exercise that would render it reasonable and necessary.
28I find the applicant’s submissions and evidence regarding further cardiac rehabilitation to be unpersuasive. The applicant has previously participated in approved treatment plans for the same cardiac rehabilitation. I recognize that the applicant finds benefit from the supervised exercise and that Dr. Dorian is supportive of this. However, given her previous participation in the same rehab therapy and the fact that no lasting cardiac improvement is anticipated, I am not convinced that the applicant requires the proposed supervised exercise heart rate monitoring or that the applicant is not already well versed in the how to safely exercise. I am persuaded by Dr. Myers’ report that there is no cardiac indication for the proposed plans, and as outlined above, the applicant has failed to establish how provider mileage is payable under the Schedule.
29For the above reasons, the applicant has not met her burden and demonstrated, on a balance of probabilities, that both the unapproved portion of the February 28, 2022 plan or the entire December 30, 2022 plans are reasonable and necessary.
Interest
30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest related to the incurred psychological assessment by Dr. Kaplan.
ORDER
31The applicant is entitled $2,200.00 for a psychological assessment/OCF-18 completion proposed by Kaplan & Levitt. The applicant is not entitled to the balance of the treatment plan.
32The applicant is not entitled to $521.70 for PPE and provider mileage proposed by Rehab First.
33The applicant is not entitled to the cardiac rehabilitation therapy proposed by Rehab First.
34The applicant is entitled to interest related to the incurred psychological assessment/OCF-18 completion.
35The application is granted in part.
Released: October 16, 2024
Tyler Moore
Vice-Chair