Licence Appeal Tribunal File Number: 22-011765/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:
Zhi Qu
Applicant
and
Pembridge Insurance
Respondent
DECISION
ADJUDICATOR: Yanick Charbonneau
APPEARANCES:
For the Applicant: Ryan Olson, Paralegal
For the Respondent: Colleen Mackeigan, Counsel
HEARD: By way of written hearing
OVERVIEW
1Zhi Qu, the applicant, was involved in an automobile accident on December 8, 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, Pembridge 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. Is the applicant entitled to $1,047.34 (the balance of a partially approved treatment plan) for psychological services, proposed by Somatic & Treatment Clinic (“SATC”) in a treatment plan/OCF-18 (‘plan”) dated November 13, 2020?
ii. Is the applicant entitled to $2,804.20 for psychological services, proposed by SATC in a plan dated May 7, 2021?
iii. Is the applicant entitled to $2,804.20 for psychological services, proposed by SATC in a plan dated January 20, 2022?
iv. Is the applicant entitled to a s.10 special award, pursuant to Regulation 664?
v. Is the applicant entitled to payment of interest, as per s. 51 of the Schedule?
RESULT
3I find that the disputed treatment plans are not reasonable and necessary.
4The respondent is not liable to pay an award under Regulation 664.
5As no benefits are owing, no interests are payable.
6The application is dismissed.
ANALYSIS
Are the treatment plans reasonable and necessary?
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.
Is the applicant entitled to $1,047.34 for psychological services, proposed by SATC in a plan dated November 13, 2020?
8I find that the treatment plan for psychological services is not reasonable and necessary.
9The reasonableness and necessity of the treatment plan shall take into account the treatment goals and the reasonable degree of success of the treatment plan, as well as the reasonable overall costs of achieving these goals.
10This treatment plan for psychological and behavioral intervention in the amount of $3,701.88, including an estimated duration of 14 counselling sessions. Document and support activity is listed separately for a total of two hours. Its stated goal is for the applicant to return to activities of normal living. The applicant requests payment for the additional 0.5 hour required for psychological therapy per session.
11The applicant submits that the psychological services are reasonable and necessary given that the clinical notes and records (“CNRs”) of the General Practitioner and the treating Somatic Assessments and the Treatment Clinic document ongoing psychological issues, and that the treating psychologist, Dr. Cook, is the most qualified person to determine how long each psychological treatment sessions should be, in view notably of the language and cultural barriers. The applicant also argues that the s.44 assessor of the respondent, Dr. Salerno, did not justify that one-hour sessions are reasonable and necessary.
12The respondent argues that there are no contemporaneous diagnoses by the applicant’s General Practitioner, nor any complaints of depressive feelings found in the medical records. By the same token, the respondent submits that the last complaints of depressive symptoms to the General Practitioner dated back to 2019, shortly after the accident. Further, the respondent argues that the treatment plan was approved partially for the actual services rendered; the applicant admitted that the psychological services rendered pertain to one-hour sessions; hence, the excess half-hour sessions being requested are not reasonable and necessary. The respondent also questions whether the subjective feelings of psychological distress continue to be related to the accident, which, it argues, has not been proven by the applicant. Rather, they are related to family issues; these conclusions stem from the progress reports of Dr. Cook, his treatment provider. In the medical records, there is no evidence of exacerbation of any pre-existing medicals, if any.
13I agree with the respondent. First, the treatment plan has been partially approved based on the actual duration of the psychological treating sessions which last from 40 minutes to an hour; this was not denied by the applicant. Therefore, any time in excess of the psychological treating sessions, that is an additional half hour per session, cannot be deemed reasonable and necessary under the Schedule, as that extra time is not factored in the actual treatment provided to the applicant by his own treatment provider.
14Secondly, and perhaps most importantly, in looking at the medical records, it is difficult to discern to what extent the mood disorders sustained by the applicant are related to the accident. The progress reports of Dr. Cook are peppered with observations on family issues and the lack of self-confidence of the applicant. Also, it is noted that he has not regained employment before the accident. These observations align with the goal of the treatment plan, for building trust with others, and make the applicant return to social and driving confidence.
15In any event, there is limited contemporaneous objective medical evidence on file to substantiate the necessity and reasonableness of the proposed treatment plan.
16Further, I am convinced that the applicant’s treatments have reached a plateau to the extent that the applicant has not reported any notable progress in the two years of treatment that he has received from his treating practitioner.
17On balance, I am not convinced that the medical records provided substantiate that the psychological disorder is related to the accident. Although the applicant did complain of a mood disorder soon after the accident, his General Practitioner did not formally diagnose the applicant.
18I find that the applicant did not adduce evidence to demonstrate that the treatment plan is reasonable and necessary. For these reasons, I dismiss the request to approve the balance of the treatment plan.
Is the applicant entitled to $2,804.20 for psychological services, proposed by SATC in a plan dated May 7, 2021?
Is the applicant entitled to $2,804.20 for psychological services, proposed by SATC in a plan dated January 20, 2022?
19I find that such treatment plans for psychological services are not reasonable and necessary.
20I find that the applicant did not provide any contemporaneous objective medical evidence of psychological trauma sustained as a result of the accident, to corroborate that these treatment plans are reasonable and necessary.
21These two treatment plans each relate to fourteen weeks of additional psychological sessions and documentation, support activity; their stated goals remain unchanged, by comparison with the psychological treatment plan dated November 13, 2020.
22Relying on the Progress Report of Dr. Cook dated April 7, 2021, the treating psychologist, the applicant submits that these treatment plans for psychological services are both reasonable and necessary in view of his ongoing psychological symptoms and diagnosis. Further, he argues that the respondent’s s.44 assessor Dr. Salerno on which it bases the denial of the two treatment plans, failed to consider the Progress Report of Dr. Cook, and that Dr. Salerno did not complete any psychometric testing to rule out a diagnostic of depression.
23The respondent submits that the applicant has received double the amount of treatment recommended by Dr. Biswas, with partial results: the applicant did not prove that his feelings of psychological distress continue to be related to the accident. In any event, the respondent argues, in the progress report of Dr. Cook, it is recognized that the applicant’s family situation may be the reason why he is appearing to be flat or not responsive to the treatment. Finally, the respondent also submits that the applicant did not substantiate the proposed treatment with objective medical evidence that is contemporaneous to the requests for further treatment.
24From the outset, the complaints of anxiety, the depressive symptoms and physical pain of the applicant are captured in the medical records of his General Practitioner, shortly after the accident. The applicant was prescribed sleep medicine and physiotherapy. The applicant was referred to a psychiatrist. However, the applicant’s General Practitioner stops short of diagnosing the complaints of the applicant as mood disorder(s), such as anxiety or depression.
25While I accept that the applicant has complained of his mood disorders and anxiety to Dr. Cook, and that he has been examined and diagnosed for anxiety and depression by Nurse Practitioner Cheryl Yip, as documented at page 12 of the CNRs of HF Connecting Health Nurse Practitioner-led Clinic, at Tab 2 of the applicant’s book of evidence, I find that the bulk of the medical entries documenting the related complaints of the applicant are not specifically related to the accident.
26In applying the principles from the case-law, the applicant bears the onus of proving that the goals for treatment are being met to a reasonable degree and that the overall costs for achieving these goals are reasonable taking into consideration the degree of success of the treatment.
27On this note, I am not convinced that the continued treatment proposed, in alignment with that of the progress reports of Dr. Cooke dated December 5, 2019, March 31, 2020, and April 7, 2021, will have achieved the stated goals. By the same token, there are several mentions in the progress reports of the necessity for the applicant to receive support with his family issues and the lack of a job prospect; the treatment plan purports to focus on stress management.
28The bulk of the evidence shows there is little likelihood that the applicant will achieve full recovery, by virtue of the continued treatments.
29I also find the June 7 2021 Psychology assessment report of Dr. Salerno to be conclusive that there is “insufficient objective evidence to support a DSM-5 psychological diagnosis or a psychological impairment as a result of the MVA”. I find this report to be conclusive given that Dr. Salerno has had access to all the reports and the medical records of the applicant, but for one progress report of Dr. Cook.
30In fact, both IE assessors, Dr. Biswas and Dr. Salerno found that the tests results were highly indicative of feigning on the part of the applicant, or to take the words of Dr. Salerno, catastrophizing their symptoms, although Dr. Biswas saw this as a cry for help.
31Further, Dr. Biswas, also opined that the applicant would benefit from a slightly longer course of psychological treatment.
32Overall, I find that on balance, the applicant has not established that he has sustained a psychological trauma related to the accident.
Interest
33Due to there being no overdue payment of benefits, the applicant is not entitled to interest.
Award
34Given my conclusions that the treatment plans sought are not reasonable and necessary, and that, therefore, the plans are not payable, I dismiss the claim for a s.10 award.
ORDER
35For the reasons outlined above, I find that:
i. The applicant is not entitled to the disputed treatment plans.
ii. The respondent is not liable to pay an award under Regulation 664.
iii. The applicant is not entitled to interest.
Released: February 10, 2025
Yanick Charbonneau
Adjudicator```