Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-008458/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:
Sandeep Cheema
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Alim Ramji, Counsel
For the Respondent:
Hussein Pirani, Counsel
Keisha Tucker, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Sandeep Cheema, the applicant, was involved in an automobile accident on February 26, 2022, 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, Aviva General 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 the treatment and assessments proposed by Complete Rehab Centre, as follows:
a. $569.41 ($2,460.00 less $1,890.59) for a psychological assessment submitted in a treatment plan, dated November 22, 2022;
b. $985.90 ($3,610.50 less approved $2,624.60) for psychological services submitted in a treatment plan, dated March 10, 2023?
c. $1,288.93 for chiropractic and massage therapy services submitted in a treatment plan, dated September 26, 2023?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
3The Case Conference Report and Order (“CCRO”), dated January 22, 2024, lists the amount in dispute for issue ii as $1,832.45 for psychological services. Upon review of the evidence provided in the respondent’s submissions, I find that the outstanding amount in dispute is $985.90. Therefore, I have amended issue ii above to reflect this amount.
4The CCRO lists the date of issue iii as October 5, 2023. The actual date of the treatment plan is September 26, 2023. In addition, the CCRO lists the treatment plan for physiotherapy services. The plan is for chiropractic and massage therapy services. Therefore, I have amended issue iii above to reflect these changes as listed in the treatment plan in dispute.
RESULT
5I find that the applicant is not entitled to any of the disputed benefits or interest.
ANALYSIS
The applicant is not entitled to the unapproved amount of the treatment plan for a psychological assessment
6I find that the applicant has not proven on a balance of probabilities that the unapproved amount of the treatment plan dated November 22, 2022, for a psychological assessment is reasonable.
7To receive payment for a treatment plan under sections 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.
8The applicant claims entitlement to the outstanding balance of the treatment plan for a psychological assessment, proposed by Dr. Jacqueline Brunshaw, psychologist, of Complete Rehab Centre, dated November 22, 2022. The plan recommends a psychological assessment in the amount of $2,000.00; along with documentation, support activity in the amount of $200.00; and taxes in the amount of $260.00. There are no further particulars in the treatment plan.
9Pursuant to an Explanation of Benefits (“EOB”) letter dated May 3, 2023, the respondent partially approved the treatment plan in the amount of $1,890.59. The EOB notes that the $2,000.00 assessment fee is not a flat fee and payment is dependent on the applicable rate of the service provider, the individual completing the services and the duration of the service. The EOB notes that a Psychology Insurer’s Examination (“IE”) report, prepared by Dr. Rakesh Ratti, clinical psychologist, dated May 3, 2023, concluded that 10 hours of service time is reasonable to complete the proposed psychological assessment with the additional documentation fee of $200.00. The EOB requested an itemized breakdown of the examination components including the name and registration information of the service provider, the date, time, and duration of each component of the completed examination.
10The applicant submits that she is entitled to the balance of the treatment plan recommending a psychological assessment. The applicant submits that Dr. Ratti’s statement that the cost of a psychological assessment need not exceed $1,890.59 is a bald assertion that is unsupported by any other evidence. The applicant submits that Dr. Ratti does not account for factors that may contribute to longer sessions, nor does he discuss why a longer period would be unreasonable. The applicant further submits that Dr. Ratti has failed to clarify why the proposed assessment would be unreasonable.
11The respondent submits that the applicant has not discharged her onus of establishing that the full amount claimed for the proposed psychological assessment is reasonable and necessary. The respondent relies upon the IE report of Dr. Ratti detailed above. The respondent further submits that the applicant has failed to adduce any evidence to counter the opinion of Dr. Ratti. In addition, the applicant has not provided any particulars to justify claiming the maximum amount permitted under s. 25(5)(a) of the Schedule for the psychological assessment.
12I find that the applicant has not provided sufficient medical evidence to support that she is entitled to the balance of the psychological assessment. I find that there is no breakdown of the proposed services requested in the treatment plan. I find that despite the respondent requesting further particulars from the applicant with respect to the examination components, the applicant did not respond to this request and has not provided any submissions with respect to same in this hearing. I note that the treatment plan in dispute indicates that the psychological assessment would be conducted by psychologist, Dr. Brunshaw. However, upon review of the s.25 psychological assessment report, it is co-signed by Nicole Presutti, psychotherapist, and it indicates that Dr. Brunshaw was acting as a supervisor. While Dr. Brunshaw has co-signed the report, there is no suggestion about what her role in the assessment was beyond supervising. I find that the applicant has not provided any submissions as to what Dr. Brunshaw’s involvement in the assessment was in response to the respondent’s submissions. I find that while the respondent has determined that a psychological assessment is necessary, the applicant must still prove on a balance of probabilities that the cost of the assessment is reasonable.
13I accept the detailed breakdown of the reasonable cost for the proposed psychological assessment provided by Dr. Ratti in his report. He stated that,
A total of 10 hours is reasonable and sufficient for the proposed mental health assessment. This includes the following: 2 hours for the clinical interview; 2 hours for the testing; 3 hours for report writing; 1 hour for consultation with other professionals; 1 hour for document review; and 1 hour feedback to claimant.
14I find that the applicant has not provided sufficient evidence to counter the opinion of Dr. Ratti that the fees claimed in the treatment plan are not reasonable.
15While the applicant relies upon the Tribunal decision in M.P. v. Aviva General Insurance Company, 2019 CanLII 119736 (ON LAT), I am not bound by this decision. The applicant submits that an assessor must consider both why the assessor’s proposed time is sufficient and why the alternate proposed time is excessive. I find that Dr. Ratti has given consideration to the proposed time by providing a breakdown in his report of what is reasonable after completing his own assessment of the applicant.
16For the reasons stated above, I find that the applicant has not met her onus of proving on a balance of probabilities that the unapproved amount of the psychological assessment is reasonable.
The applicant is not entitled to the unapproved amount of the treatment plan for psychological services
17I find that the applicant has not proven on a balance of probabilities that the unapproved amount of the treatment plan dated March 10, 2023, for psychological services, is reasonable.
18The applicant claims entitlement to the outstanding balance of the treatment plan for psychological services, proposed by Dr. Jacqueline Brunshaw, psychologist, of Complete Rehab Centre, dated March 10, 2023. The plan recommends fourteen, 1.25-hour psychological sessions with Ms. Presutti, psychotherapist, at the rate of $149.61 per hour; documentation, support activity for claim form in the amount of $200.00; and documentation support activity in the amount of $400.00. Charmy Patel, psychotherapist, subsequently provided the services in the proposed treatment plan.
19The unapproved portion of the treatment plan in dispute relates to the hourly rate payable for services provided a psychotherapist. The applicant claims that the hourly rate should be $149.61 per hour and the respondent claims that the hourly rate should be $99.75 per hour.
20The fee for services provided through the Schedule is governed by the Professional Services Guideline issued as Superintendent’s Guideline No. 03/14 (the “Guideline”). The Guideline establishes the maximum expenses payable for a range of health care services, medical benefits and case management services. The maximum hourly rate for psychologists and psychological associates is $149.61 per hour.
21The Guideline does not specify a rate for psychotherapists. Rather, the rate stipulated for unregulated providers, such as counsellors and psychometrists, is $58.19 per hour. Given the Guideline is silent on the maximum hourly rate for a psychotherapist, it is left to the parties to determine what the acceptable hourly rate would be. The applicant must prove that the higher hourly rate is reasonable on a balance of probabilities.
22The applicant submits that Ms. Patel, psychotherapist, is entitled to the hourly rate of $149.61, because she was providing the same type of psychological services that a psychologist provides. The applicant submits that it is clear from the treatment plan, as well as the clinical notes and psychological progress report, that Cognitive Behavioural Therapy (“CBT”) techniques have been used in helping the applicant cope with her symptoms. The applicant cites three Tribunal decisions, J.V. v. Intact Insurance Company (“J.V.”) 2019 CanLII 76995 (ON LAT), I.B. v. Aviva Insurance Company of Canada (“I.B.”), 2020 CanLII 40329 (ON LAT), and A.S. v. Aviva Insurance Company (“A.S.”), 2020 CanLII 12787 (ON LAT), where the Tribunal determined that a psychotherapist who was providing CBT was entitled to be paid the same rate as a psychologist.
23The respondent submits that the applicant has not provided any evidence to support the extent of Ms. Patel’s training, experience, and credentials. The applicant has not led any evidence indicating that Ms. Patel has specialized training, is qualified in CBT or provided services similar to what a psychologist would provide. The respondent cites the Tribunal decision in Barrie v. Intact, 2022 CanLII 45260 (ON LAT), where the adjudicator disagreed with the findings in A.S. and concluded that the Guideline distinguishes hourly rates based on the health care profession or provider, not on the type of services provided. The respondent submits that it cannot be assumed that an individual who is registered as a psychotherapist has demonstrated the education, training and/or experience at a level equivalent to that of an individual who has been registered as a psychologist.
24I find that the applicant’s submission that Ms. Patel, psychotherapist, is providing similar services to a psychologist, is not persuasive for the following reasons.
25Firstly, the Tribunal decisions that the applicant relies on relate to registered psychotherapists who specialized in CBT. I find that the authority in J.V. is distinguishable from the factual scenario before me. In J.V., the adjudicator found that a registered psychotherapist was doing the same work as a psychologist in providing CBT and should be paid at the same rate. The adjudicator found that the psychotherapist had specialized training to conduct CBT and was therefore qualified to provide CBT. I agree with the respondent’s submissions that the applicant has not provided any evidence indicating that Ms. Patel has specialized training or is qualified in CBT. I find that the applicant has not provided any submissions or evidence on the qualifications of Ms. Patel to support that her experience warrants being paid at an hourly rate similar to a psychologist. For instance, no Curriculum Vitae was provided by the applicant.
26Secondly, A.S. is not binding on me and I do not find it persuasive. In my view and given that the Guideline distinguishes hourly rates based on the health care profession and provider, not solely on the basis of the services provided, the type of services they provide is not singularly determinative of the hourly rate payable to a professional.
27Thirdly, upon review of the Psychological Progress report, dated March 10, 2023, while Ms. Patel states that “CBT techniques” have been used in the treatment of the applicant, no particulars of what these techniques are is provided. I find that the applicant has not provided evidence that Ms. Patel has specialized training within the area of CBT nor that the services provided were the same as those provided by a psychologist.
28As a result, I find that the applicant has not met her onus of demonstrating on a balance of probabilities that Ms. Patel, psychotherapist, should be paid at the enhanced hourly rate for a psychologist. As such, the applicant has not demonstrated entitlement to the unapproved amount of the treatment plan for psychological services.
The applicant is not entitled to the treatment plan for chiropractic and massage services
29I find that the applicant has not proven on a balance of probabilities that the treatment plan for chiropractic and massage services is reasonable and necessary.
30The applicant claims entitlement to $1,288.93 for chiropractic and massage services, proposed by Dr. Rahim Jessa, chiropractor of Complete Rehab Centre, in a treatment plan dated September 26, 2023. The plan recommends the following services:
i. Chiropractic treatment, 8 one-hour sessions: $902.48
ii. Massage therapy, 3 half-hour sessions: $165.00
iii. Documentation, support activity for claim form: $200.00
31The goals of the treatment plan are pain reduction; increase in strength; increased range of motion; increase cardiovascular fitness levels; increase strength, endurance and flexibility; improve motor control of lumbopelvic and cervicothoracic muscles; return to activities of normal living; and return to pre-accident work activities.
32The applicant submits that she is entitled to the treatment plan in dispute because she continues to struggle with chronic pain that significantly impedes her ability to engage in pre-accident activities and activities of daily living. The applicant relies upon the Chronic Pain Assessment report of Dr. Grigory Karmy, dated May 2, 2023.
33The respondent submits that Dr. Karmy’s report is unreliable because the applicant’s self-reporting of her post-accident injuries, employment and functional limitations are contrary to the evidence she provided, along with the subjective complaints she made to other assessors and her family physician. The respondent submits that the applicant does not suffer from chronic pain. The respondent relies upon the IE report of Dr. Ijaz Chaudhry, physician, dated May 2, 2023 which concludes that the treatment plan in dispute is not reasonable and necessary.
34I find that the applicant has not provided sufficient evidence to establish that the treatment plan is reasonable and necessary for the following reasons.
35Firstly, I find that, aside from the s. 25 report of Dr. Karmy, the applicant has not directed me to other contemporaneous medical evidence that supports or recommends the proposed treatment at the time the treatment plan was prepared on September 26, 2023. Upon review of the clinical notes and records (“CNRs”) of Dr. Lisa Chandler, family physician, the last time the applicant saw Dr. Chandler was on June 28, 2022, over a year before the treatment plan in dispute was submitted. I then find that, upon review of the CNRs of Complete Rehab Centre, the applicant was last seen for treatment on January 13, 2023.
36Secondly, the applicant has not directed me to any CNRs where Dr. Chandler proposed chiropractic or massage treatment. The CNRs of Dr. Chandler note that the applicant was attending for physiotherapy. No further recommendations for treatment were made by Dr. Chandler.
37Thirdly, I do not find the CNRs of Complete Rehab Centre, or the treatment plan, to be sufficient evidence establishing the need for ongoing treatment. While the treatment plan itself notes that the applicant reports that she feels better when attending therapy, no further particulars are provided. I find that treatment plans alone are not sufficient evidence of their own reasonableness or necessity. Rather, additional medical evidence is required. I also find that despite the applicant attending Complete Rehab Centre following the accident, no progress reports were provided to describe the applicant’s progress.
38Fourthly, I find that the s. 25 report of Dr. Karmy has limited evidentiary value. While Dr. Karmy recommended a course of comprehensive multi-disciplinary rehabilitation therapy such as an active exercise program, physiotherapy, acupuncture, massage therapy, chiropractic adjustments and spinal decompression therapy, he provided no rationale or particulars as to how this treatment would address the applicant’s ongoing pain. Further, other than stating that the applicant received physiotherapy, massage and therapeutic exercises, Dr. Karmy did not inquire from the applicant about how effective the treatments were, despite the applicant advising him that she had received these treatments.
39Finally, I find the May 2, 2023 IE report of Dr. Chaudry, persuasive based on his comprehensive assessment of the applicant’s injuries and his analysis. Dr. Chaudry concluded that the applicant’s pain in the bilateral shoulders and the cervical and lumbar spine is from a sprain/strain injury. He stated that the applicant’s range of motion and strength testing presented ROM limitations in the lumbar spine and shoulders which he opined are due to self-limiting behaviours. He concluded that the applicant’s condition had plateaued and there was no further benefit from facility-based therapy. I find that the applicant has not provided sufficient evidence to refute Dr. Chaudry’s findings.
40For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she is entitled to the treatment plan for chiropractic and massage therapy services.
Interest
41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is not entitled to the treatment plans in dispute, no interest is payable by the respondent.
ORDER
42For the reasons outlined above, I find that the applicant is not entitled to the benefits in dispute or interest. The application is dismissed.
Released: March 17, 2025
Melanie Malach
Adjudicator