Licence Appeal Tribunal File Number: 23-008118/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:
Stephanie Cianchino
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR: Laura Goulet
APPEARANCES:
For the Applicant: Joel McCoy, Counsel
For the Respondent: Arfa Saeed, Counsel
HEARD: By way of written submissions
OVERVIEW
1Stephanie Cianchino, the applicant, was involved in an automobile accident on March 25, 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, TD 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 $2,221.00 for a new mattress proposed by Gabriel Paudyn in a treatment plan/OCF-18 (“plan”) dated January 23, 2023?
ii. Is the applicant entitled to $4,115.00 for cognitive behaviour therapy services proposed by iScope Concussion & Pain Centres (“iScope”) in a plan dated January 19, 2023?
iii. Is the applicant entitled to $4,376.50 for cognitive therapy and concussion focused counseling proposed by Toronto Concussion Clinic Inc. (“TCC”) in a plan dated February 15, 2023?
iv. Is the applicant entitled to $1,400.00 for a concussion treatment program proposed by TCC in a plan dated March 1, 2023?
v. Is the applicant entitled to $7,190.75 for optometric services proposed by Dr. Patricia Fink in a plan dated November 25, 2020?
vi. Is the applicant entitled to $4,000.00 for an EMG assessment proposed by TCC in a plan dated March 1, 2023?
vii. Is the applicant entitled to $2,486.00 for a psychiatric assessment proposed by National IME Centres in a plan dated February 27, 2023?
viii. Is the applicant entitled to $1,104.00 for a sleep study analysis assessment proposed by iScope in a plan dated May 3, 2021?
ix. Is the applicant entitled to $745.00 for massage, chiropractic, occupational therapy, and physiotherapy services submitted on a claim form (OCF-6) dated May 15, 2023?
x. Is the applicant entitled to $1,223.37 for massage and acupuncture therapy services submitted on an OCF-6 dated December 22, 2022?
xi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
xii. Is the applicant entitled to interest on any overdue payment of benefits?
3In her submissions, the applicant withdrew issues 5, 8, 10, 11, 15, and 16 as set out in the Case Conference Report and Order (“CCRO”) dated February 7, 2024.
4In her submissions, the applicant advises that the plan at issue iii, above, was wrongly labeled as vision and biofeedback therapy in the CCRO, and that it is a plan for cognitive therapy and concussion focused counseling.
RESULT
5The applicant is partially entitled to the plan for cognitive behaviour therapy services dated January 19, 2023.
6The applicant is entitled to the plan for cognitive therapy and concussion focused counseling dated February 15, 2023, and the plan for a psychiatric assessment.
7The applicant is not entitled to the remaining plans in dispute or the OCF-6s.
8The respondent is liable to pay an award as it relates to the plan for cognitive behaviour therapy services and the plan for a psychiatric assessment.
9The applicant is entitled to interest on any overdue payment of benefits.
ANALYSIS
10To 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.
The applicant is not entitled to the plan for a new mattress and cervical pillow
11The applicant has not demonstrated on a balance of probabilities that the plan for a new mattress and cervical pillow is reasonable and necessary.
12The plan was proposed by Gabriel Paudyn, occupational therapist. The plan proposes the cost of documentation and support activity, a therapeutic mattress, a cervical pillow, and delivery. The goals of the plan are pain reduction, to enhance sleep hygiene and reduce daytime fatigue, to promote activity reengagement, and to return to activities of normal living.
13The applicant submits that her post accident medical history outlines issues with sleep caused by the accident. She further submits that she has struggled with chronic pain caused by the accident and a properly supportive and comfortable mattress has been very helpful in assisting her with sleep hygiene. The applicant submits that she has incurred the expense of the mattress even though it was denied because she knew that it would help her.
14The applicant submits that she has not bought specialized pillows, but her ongoing pain make them a reasonable and necessary expense. She further submits that the documentation necessary for the benefit is also reasonable and necessary for it to be considered by the respondent.
15The applicant directed me to evidence that she reported having sleep issues to Dr. Kyla Wright, physician, on May 30, 2019, and to Melnie Sajan, occupational therapist on July 18, 2021. Further, the applicant reported neck pain to several treatment providers on eleven occasions between May 30, 2019, and February 21, 2023.
16In her Occupational Therapy Functional Assessment Report dated May 30, 2019, Ms. Sajan recommended a cervical neck pillow and a firm mattress to promote the applicant’s participation in activities of daily living, minimize pain with activity and minimize overall disability.
17The respondent refers to the s. 44 Occupational Therapy In-Home Assessment report prepared by Atul Kaul, occupational therapist, dated April 20, 2023. In his report, Mr. Kaul concludes that the applicant continues to remain independent with her personal care, household chores, and job responsibilities. He notes that the applicant had been challenged pre-accident with issues related to fatigue, and sleeping a lot as documented in 2016, and that these continue to be challenging for her after the accident. Mr. Kaul indicated that the applicant purchased a mattress on her own. He was of the view that the mattress would not change the functionality of the applicant’s sleep cycle, as her issue is that she sleeps a long time, and despite a change of mattress, this has not been affected. The applicant reported to Mr. Kaul that she is exhausted and has chronic fatigue despite sleeping more than she should. Mr. Kaul concluded that there is no indication that any of the assistive devices in the disputed plan would provide any relief for the applicant’s complaints.
18I find that the applicant reported having sleep issues on May 30, 2019, and on July 18, 2021, and according to her reporting to Mr. Kaul on April 20, 2023, despite having purchased a new mattress, she continues to suffer from chronic fatigue. Further, although the applicant has had continuous neck pain complaints throughout 2019 and 2023, other than in the disputed treatment plan, there is only one recommendation for a mattress and a cervical pillow to address the issue. This recommendation was made by Ms. Sajan on July 18, 2021, one year and six months prior to the proposed plan. As such, the recommendation was not made contemporaneously with the treatment plan. Based on the evidence before me, I am not persuaded that a new mattress and a cervical pillow are reasonable and necessary to address the applicant’s pain and sleep issues.
19For these reasons, I find that the applicant has not established on a balance of probabilities that the plan for a new mattress and cervical pillow is reasonable and necessary.
The applicant is partially entitled to the plan for cognitive behaviour therapy services
20The applicant has demonstrated on a balance of probabilities that the therapy sessions and the documentation and support activity in the plan for CBT services is reasonable and necessary. However, I find that the applicant is not entitled to the portion of the plan for planning and service.
21The plan was proposed by Helen Leimonis, occupational therapist, and Sarah McGilvary, social worker. The plan proposes fifteen sessions of therapy totalling $2,025.00, planning and service totalling $1,215.00, and documentation and support activity totalling $875.00. The goals of the plan are the management and treatment of psycho-emotional and psycho-social impairments, the establishment of coping strategies to support activity reengagement, and to return to activities of normal living.
22The applicant argues that cognitive behaviour therapy (“CBT”) is a reasonable and necessary expense because of the nature of her injuries and the long-term suffering she has endured. The applicant submits that she suffered two concussions within six weeks, the second of which was caused by the accident, and that she has been diagnosed with psychological injuries because of the accident. The applicant submits that CBT helps people learn to identify, question, and change how their thoughts, attitudes and beliefs relate to the emotional and behavioural reactions that cause them difficulty. The applicant further submits that CBT is one of the most effective treatments for psychological complaints.
23The applicant points out that the respondent’s assessor, Dr. Breslin, confirmed that she would benefit from CBT. I have reviewed the reports put into evidence dated May 17, 2021, and October 20, 2023, prepared by Dr. Calvin Breslin, ophthalmologist, and I note that Dr. Breslin did not recommend psychological treatment in these reports. I note, however, that the respondent’s assessor Dr. Sadiq Hasan, psychiatrist, confirmed in his report dated May 23, 2023, that the applicant would benefit from psychological treatment, including twelve sessions of CBT. I also note that Dr. Hasan diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood, persistent, as a result of the accident.
24The applicant also refers to the clinical notes and records of Dr. Taher Chugh, physician, dated February 21, 2023, where he recommends CBT.
25The respondent submits that, on May 30, 2023, based on Dr. Hasan’s recommendation, it considered the plan partially reasonable and necessary, and it approved twelve sessions of CBT totalling $1,620.00 as well as the documentation and support activity totalling $875.00. In reply, the applicant submits that despite the plan being incurred and proof provided to the respondent, it has refused to pay any amount of the plan. The applicant points out that she has incurred $3,428.40 for cognitive therapy and concussion treatment despite the respondent’s denial.
26I have reviewed the progress report prepared by Ms. McGilvary dated August 9, 2022, where she indicated that the applicant reported that she benefits from the therapy sessions and that she has noticed an improvement in her depression, anxiety, and PTSD. In another progress report dated February 27, 2023, Ms. McGilvary indicated that the applicant has been actively engaged in all her therapy sessions, and that she has demonstrated improvement with her fear of driving, low moods, and emotional dysregulation.
27I am satisfied based on the diagnosis that was made by Dr. Hasan, the recommendation for CBT treatment by Dr. Chugh that is contemporaneous with the treatment plan, as well as the evidence of Ms. McGilvary that the applicant is benefitting from the CBT therapy, that the counselling sessions proposed in the plan are reasonable and necessary. I am satisfied that the documentation and support activity is reasonable and necessary because it was approved by the respondent. I find that the applicant is not entitled to the portion of the plan for planning and service because she did not make submissions with respect to why the planning and service is reasonable and necessary.
28For these reasons, I find that the applicant has established on a balance of probabilities that the documentation and support activity and the therapy sessions in the plan for CBT services is reasonable and necessary. However, I find that the applicant is not entitled to the portion of the plan for planning and service.
The applicant is entitled to the plan for cognitive therapy and concussion focused counseling
29The applicant has demonstrated on a balance of probabilities that the plan for cognitive therapy and concussion focused counseling is reasonable and necessary.
30The plan was proposed by Dr. Chugh. The goals of the plan are to decrease headache severity, frequency and/or duration, to decrease neck pain, to increase range of motion, to improve neuromuscular control, to reduce dizziness and improve balance, to improve comfort with reading, to promote less sensitivity to visual tasks, to make suggestions to improve safety and function, to improve exercise ability and sequelae (cognition, sleep, energy, headache, balance), to coordinate patient efforts to increase efficacy of treatments, to give timely advice for treatment changes/advancements, and to increase productivity in the face of cognitive impairment.
31The applicant submits that she has significant ongoing post-concussion and psychological injuries which are well documented.
32The applicant further submits that, despite the respondent’s denials, she has incurred $3,428.40 in treatment for cognitive therapy and concussion treatment. The applicant argues that the plan is reasonable and necessary because she was beginning to see improvement with her concussion symptoms as noted by Dr. Peter Katis, physician, in September of 2023.
33The respondent submits that the plan in dispute is not reasonable and necessary based on the s. 44 report of Dr. Sadiq Hasan, psychiatrist, dated May 23, 2023. Based on his assessment of the applicant, Dr. Hasan diagnosed her with Adjustment Disorder with Mixed Anxiety and Depressed Mood as a result of the accident and twelve one-hour sessions of CBT. He opined that from a strictly psychiatric perspective, the disputed plan is not reasonable and necessary.
34The respondent further submits that on April 2, 2024, the applicant reported to Dr. Gaurav Gupta, chronic pain assessor, that after the accident, she did not meet the criteria for post concussive syndrome and could run 5 km without headaches and neck/shoulder pain, however after she received the COVID vaccine, her headaches, fatigue, and neck/shoulder pain became worse. The respondent also points out that after the accident but prior to the COVID vaccine, the applicant reported to Dr. Gupta having recovered to 80% of her pre-accident baseline, whereas after the vaccine in 2021 she was at 25% of her pre-accident baseline. The respondent further submits that on July 22, 2023, the applicant hit her head while loading a cart at work and experienced worsening neck pain and concussion.
35The respondent also refers to the assessment conducted by Mr. Kaul, dated April 20, 2023, who found that the applicant continues to remain independent with her personal care and household chores, and she continues to perform her job responsibilities.
36In reply, with respect to the respondent’s submission that her accident-related injuries were worsened by the COVID vaccine, the applicant submits that she would not have had symptoms to worsen but for the accident.
37I note that, on March 26, 2018, Dr. Keith Martin, physician, diagnosed the applicant with a concussion because of the accident. During an attendance at the hospital on May 2, 2018, Dr. Alyssa Wong, physician, noted that the applicant scored a total number of 19/22 symptoms on a concussion symptom score sheet. Further, the applicant’s family physician, Dr. Sherief Ahmed, diagnosed the applicant with a concussion in an OCF-3 dated June 13, 2018.
38I also note that the applicant reported to various health care workers her psychological and concussion symptoms including vision issues, headaches, migraines, fatigue, dizziness, nausea, sensitivity to light and noise, difficulty concentrating, depression, irritability, anxiety, anxiety while in vehicles, low energy, increased irritability, memory issues, and difficulty concentrating to various health care workers as follows:
i. To Dr. Ahmed on June 11, October 1, and December 3, 2018, on November 21, 2019, on November 11, 2020, as well as on March 2 and June 29, 2021;
ii. On May 30, 2019, to Dr. Wright;
iii. On December 12, 2019, to her physiotherapist, Giacomo Sylvestri;
iv. On October 5, 2020, to Vi Phan, social worker;
v. On November 9, 2020, to Dr. Patricia Fink, optometrist;
vi. On March 30, 2021, too Linda Johnson, neurology nurse practitioner;
vii. On July 9, 2021, to Sarah McGilvary, and complaints are noted in Ms. McGilvary’s progress reports dated January 25, 2022, August 9, 2022, and February 27, 2023;
viii. On July 18, 2021, to Melnie Sajan;
ix. On November 29, 2022, to Dr. Rakesh Jetly, psychiatrist;
x. On December 21, 2022, to Dr. Vincenzo Basile, neurologist; and
xi. On February 21, 2023 to Dr. Chugh.
39In the clinical notes and records (“CNRs”) of Dr. Katis dated September 7, 2023, he noted that the applicant’s migraines and dizziness were slowly getting better, and her nausea and sleep has improved.
40Based on the evidence before me, I find that the applicant suffered a concussion because of the accident and that she has suffered from concussive symptoms on a regular basis since the accident, as evidenced by her reporting to several health care practitioners. This evidence corroborates that the treatment plan is reasonable and necessary. The applicant has incurred the expense of the treatment and is benefitting from it.
41For these reasons, I find that the applicant has demonstrated on a balance of probabilities that the plan for cognitive therapy and concussion focused counseling is reasonable and necessary.
The applicant is not entitled to the plan for a concussion treatment program
42The applicant has not demonstrated on a balance of probabilities that the plan for a concussion treatment program is reasonable and necessary.
43The plan was proposed by Dr. Chugh. The goals of the plan are to identify the domains of musculoskeletal pain, dizziness, imbalance, and athletics that are dysfunctional and require rehabilitation, balance and spatial awareness improvement, binocular vision performance improvement allowing for comfortable and efficient reading, neuromuscular skeletal stability motor control repatterning to allow for efficient pain-free motion, CBT-insomnia allowing for successful sleep, autonomic dysreflexia training with biofeedback and exercise regimen to improve energy, sleep, cognition, mood, and headache, and to improve cognitive performance in different contexts. In the additional comments section, there is an indication that the plan is for a Computerized Vision Home Exercise Program.
44The applicant submits that the plan is reasonable and necessary to treat her concussion and psychological injuries. The applicant further submits that it is reasonable given that she was beginning to see improvement with her concussion symptoms as noted by Dr. Katis in September of 2023.
45I have reviewed the clinical notes and records of Dr. Katis dated September 7, 2023, and I note that he suggested various treatment, including physiotherapy, CBT-i, and psychotherapy, however he indicated that he did not specifically make any recommendations for vision therapy because he believed that the therapies he proposed are the most high yielding at this stage.
46The respondent relies on the opinion of Dr. Calvin Breslin, specialist in ophthalmology, who examined the applicant and prepared a report dated October 4, 2023, opining that the applicant did not manifest an oculovisual impairment that is causally related to the accident. In reply, the applicant submits that on November 9, 2020, Dr. Patricia Fink, an optometrist trained in vision therapy and rehabilitation, diagnosed the applicant with traumatic vision syndrome. The applicant further submits that Dr. Breslin agreed that her post-concussion symptoms are a cause of her vision issues.
47I note that Dr. Fink’s recommendation for office and home vision therapy is based on her diagnosis of post traumatic vision syndrome. After his examinations on May 17, 2021, and October 4, 2023, Dr. Breslin opined that the applicant did not have optometric post trauma vision syndrome. I prefer the opinion of Dr. Breslin because he is a specialist in ophthalmology, and his examinations are more contemporaneous with the disputed plan. Dr. Fink’s recommendation was made on November 9, 2020, over two years and three months prior to the proposed plan.
48The treatment plan on its own is not compelling evidence in support of treatment. The applicant does not direct me to contemporaneous evidence of any of her treating health practitioners recommending the need for the particular services proposed in this plan to treat her concussion symptoms. The plan includes broad goals and many services which are not corroborated by the evidence before me. Further, Dr. Katis, who was treating the applicant in 2023, specifically did not make any recommendations for vision therapy because he believed that other therapies he recommended would have the most benefit.
49For these reasons, I find that the applicant has not established on a balance of probabilities that the plan for a concussion treatment program is reasonable and necessary.
The applicant is not entitled to the plan for optometric services
50The applicant has not demonstrated on a balance of probabilities that the plan for optometric services is reasonable and necessary.
51The plan was proposed by Dr. Fink. The goals of the plan are to remediate visual dysfunctions and to return to activities of normal living.
52The applicant submits that she has complained of ongoing vision issues and has been diagnosed with post traumatic vision because of the accident, and that the injury has gone largely untreated as it requires specialized vision therapy. I note that the applicant has reported vision issues to several treatment providers, including Dr. Alyssa Wong, physician, Dr. Ahmed, Dr. Wright, Giacomo Sylvestri, Linda Johnson, Dr. Jetly, Dr. Basile, and Dr. Chugh.
53The applicant refers to Dr. Fink’s assessment of November 9, 2020, where Dr. Fink noted that the applicant was having several vision issues related to her concussion, including double vision when fatigued, light sensitivity and headaches with the overuse of her eyes. After having conducted several tests, Dr. Fink diagnosed the applicant with post traumatic vision syndrome including ocular motor dysfunction, intermittent left exotropia and basic exophoria, low PRA and NRA, fragile sensory fusion, dysfunction in laterality/directionality, visual perceptual skill deficits, and issues with focus. Dr. Fink recommended in-office and home vision therapy to improve the applicant’s visual skills.
54The applicant submits that on February 21, 2023, Dr. Chugh indicated that he believed she would benefit from vision therapy. I have reviewed his clinical notes and records from February 21, 2023, and I note that Dr. Chugh advised the applicant to seek a binocular vision examination of visual efficiency, however he did not recommend vision therapy.
55The respondent relies on the s. 44 assessment of Dr. Calvin Breslin, specialist in ophthalmology, dated May 17, 2021, who concluded that the disputed plan was not reasonable and necessary. After examining the applicant, Dr. Breslin opined that she did not suffer from an oculovisual impairment as a direct result of the accident. Dr. Breslin believed that her ocular symptomatology is secondary to her Dry Eye Disease and to the presence of Persistent Post Concussion Symptoms. Dr. Breslin indicated that his assessment did not support the diagnosis of optometric post trauma vision syndrome. Dr. Breslin examined the applicant again on October 4, 2023, and reiterated that she did not sustain an oculovisual impairment that is causally related to the accident.
56The respondent submits that the applicant has not provided any medical records to support that vision therapy is reasonable and necessary because of the accident.
57Other than the recommendation in the disputed plan, the applicant does not direct me to evidence that any of her treating health practitioners recommended the need for the services proposed in the plan. I note that Dr. Fink’s recommendation for vision therapy is based on her diagnosis of post traumatic vision syndrome. For the reasons indicated above at paragraph 47, I prefer the opinion of Dr. Breslin.
58For these reasons, I find that the applicant has not established on a balance of probabilities that the plan for optometric services is reasonable and necessary.
The applicant is not entitled to the plan for an EMG assessment
59The applicant has not demonstrated on a balance of probabilities that the plan for an EMG assessment is reasonable and necessary.
60The plan was proposed by Dr. Chugh. The plan proposes a total body assessment and electrophysiological measurement of the muscles of the head and neck. The goals of the plan are to decrease headache severity, frequency and/or duration, to decrease neck pain, to increase range of motion, to improve neuromuscular control, to reduce dizziness and improve balance, to improve comfort with reading and promote less sensitivity to visual tasks, to provide suggestions to improve safety and function, to improve exercise ability and sequelae (cognition, sleep, energy, headache, balance), to coordinate the applicant’s efforts to increase efficacy of treatments and give timely advice for treatment changes/advancement, to improve motivation for rehabilitation, to decrease pain, and to improve ability to take care of activities that increase physical activity. In the comments section, there is an indication that this is a cognitive assessment, which will lead to a home exercise plan focusing on memory, language, attention, executive functioning, and processing speed.
61The applicant submits that she has ongoing muscle and pain complaints that have not healed within the respondent’s assessors’ expected time frames, and that her pain complaints have been diagnosed as being chronic in nature. The applicant points out that electromyography measures muscle response or electrical activity in response to a nerve’s stimulation of the muscle, and that this assessment would help identify any anomalies in her neuromuscular system. The applicant submits that this plan is reasonable and necessary to assess her injuries, and it would be helpful in treating her pain should abnormalities be found.
62The respondent relies on the report of Dr. David Berbrayer, specialist in physiatry, who assessed the applicant on May 8, 2023. Dr. Berbrayer reviewed the applicant’s medical records and several imaging studies and conducted a physical examination of the applicant. Dr. Berbrayer concluded that given that the accident occurred in 2018, and based on the musculoskeletal examination, the applicant has soft tissue injuries, and that further facility-based assessments are not indicated as they would not provide further clinical benefits. Dr. Berbrayer opined that the disputed plan was not reasonable and necessary.
63The respondent also relies on the addendum report of Dr. Berbrayer dated August 17, 2023. Dr. Berbrayer reviewed additional medical documentation including various CNRs and MRIs and indicated that this information did not alter his opinion in the previous report.
64The purpose of an assessment is to determine whether a condition exists. The applicant 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. Other than the recommendation in the disputed plan, the applicant has not directed me to evidence that any of her treating health practitioners recommended the need for this assessment. Further, I am persuaded by the opinion of Dr. Berbrayer because he is a specialist in physiatry, and he came to his opinion after an extensive review of the applicant’s medical records and after having conducted a recent physical examination of the applicant.
65For these reasons, I find that the applicant has not established on a balance of probabilities that the plan for an EMG assessment is reasonable and necessary.
The applicant is entitled to the plan for a psychiatric assessment
66The applicant is entitled to the plan for a psychiatric assessment because it was approved by the respondent and the amount of the plan was incurred.
67The plan was proposed by Dr. Rakesh Jetly, physician. The goals of the plan are to complete a psychiatric assessment and identify impairments.
68The applicant submits that the plan was originally denied, but subsequently approved by the respondent after its assessor, Dr. Hasan, found it reasonable and necessary. The applicant further submits that the respondent has refused to confirm that the plan will be reimbursed despite numerous requests from the applicant.
69The respondent submits that to date, the applicant has not provided proof or an invoice that a psychiatry assessment in the amount of $2,486.00 has been incurred, and as such, the applicant is no longer entitled to the assessment.
70In reply, the applicant put into evidence an invoice dated February 28, 2023 in the amount of $10,819.75 from Dr. Jetly for a psychiatric assessment that was provided to the respondent’s counsel on February 12, 2024. The applicant submits that the respondent would not agree to pay the approved portion. The applicant also put into evidence correspondence from her counsel to the respondent’s counsel indicating that she provided the psychiatric report to the respondent sometime in February 2023.
71The respondent did not provide submissions with respect to why it did not pay for the psychiatric assessment up to the approved amount of $2,486.00 after it received the invoice from the applicant.
72I find that the applicant is entitled to the plan for a psychiatric assessment because it was approved by the respondent in the amount of $2,486.00 and there is evidence before me that this amount was incurred by the applicant.
The applicant is not entitled to the plan for a sleep study analysis assessment
73The applicant has not established on a balance of probabilities that the plan for a sleep study analysis assessment is reasonable and necessary.
74The plan was proposed by Linda Johnson. The goals of the plan are to identify the presence of sleep disturbances and to provide the appropriate treatment based on the findings.
75The applicant submits that she has not returned to her pre-accident sleep pattern and quality since the accident. She further submits that she continues to oversleep, and despite the extra sleep, she continues to experience severe fatigue and wakes up feeling unrested. The applicant argues that a sleep study might help determine a treatment plan if she is diagnosed with a sleep disorder, or it might help to adjust her treatment. The applicant submits that her sleep issues are well documented and have gone untreated because of the respondent’s refusal to pay for the reasonable and necessary expense.
76The respondent relies on the s. 44 report of Dr. Nagib Yahmad, neurologist, dated July 14, 2021. After reviewing the applicant’s medical records and conducting an examination of the applicant, Dr. Yahmad opined that there was no objective evidence of myelopathy, plexopathy, active ongoing radiculopathy, neuropathy or neurological sequelae that would require a sleep study from a neurological perspective. Dr. Yahmad concluded that this plan was not reasonable and necessary.
77The respondent submits that the medical records confirm that the applicant had pre-existing issues with fatigue and sleep, and that she has not provided any medical records to support that a sleep study is reasonable and necessary because of the accident.
78I accept the opinion of Dr. Yahmad because he is a neurologist, and he formed his opinion after a review of the applicant’s medical records as well as after having conducted a physical examination. Further, other than the recommendation in the disputed plan, the applicant has not directed me to evidence that any of her treating health practitioners recommended the need for this assessment.
79For these reasons, I find that the applicant has not demonstrated on a balance of probabilities that the plan for a sleep study analysis assessment is reasonable and necessary.
The OCF-6 claims
80The applicant bears the onus of establishing on a balance of probabilities that the goods and services claimed on an OCF-6 are reasonable and necessary.
The applicant is not entitled to the expenses incurred on the OCF-6 dated May 15, 2023
81The applicant has not established on a balance of probabilities that she is entitled to the expenses incurred on the OCF-6 dated May 15, 2023 for the following reasons.
82The OCF-6 dated May 15, 2023 lists a chiropractic initial assessment, massage treatment, chiropractic treatment, an initial physiotherapy assessment, occupational therapy, and chiropractic follow-up, for a total of $745.00.
83The applicant put into evidence the following receipts totalling $745.00:
i. Chiropractic initial assessment and treatment paid on January 25, 2023;
ii. Massage treatment paid on February 3, 2023;
iii. Chiropractic treatment paid on February 15, 2023;
iv. Initial physiotherapy assessment paid on February 22, 2023;
v. Occupational therapy treatment incurred on March 7, 2023;
vi. Chiropractic follow-up paid on March 14, 2023; and
vii. Chiropractic follow-up paid on March 21, 2023.
84The applicant submits that she incurred expenses for treatment because the respondent has denied all treatment plans since November 28, 2022. The applicant further submits that she manages her chronic pain by seeking treatment when she can afford it and that the expenses are reasonable and necessary because of her ongoing injuries and the respondent’s repeated and improper denials. The applicant argues that the respondent has approved these treatments in the past, and that all the expenses were incurred prior to the 260-week limit.
85The respondent relies on s. 38(2) of the Schedule, which provides that an insurer is not liable to pay an expense that was incurred before the insured person submits a treatment plan. The respondent submits that the OCF-6 was denied on the basis that it did not waive the requirement set out in s. 38(2), nor did the applicant contact the respondent seeking prior approval.
86I find that the expenses were incurred by the applicant on dates prior to the submission of the OCF-6, and are therefore not payable, pursuant to s. 38(2).
87For these reasons, I find that the applicant has not established on a balance of probabilities that she is entitled to the expenses incurred on the OCF-6 dated May 15, 2023.
The applicant is not entitled to the expenses incurred on the OCF-6 dated December 22, 2022
88The applicant has not established on a balance of probabilities that she is entitled to the expenses incurred on the OCF-6 dated December 22, 2022 for the following reasons.
89The OCF-6 dated December 22, 2022 lists herbs and nutrition, a homeopathic supplement and consultations, medications, parking, a mattress set, as well as massage and acupuncture therapy.
90The applicant submits that she incurred expenses for treatment because the respondent has denied all treatment plans since November 28, 2022. The applicant further submits that she manages her chronic pain by seeking treatment when she can afford it and that the expenses are reasonable and necessary because of her ongoing injuries and the respondent’s repeated and improper denials. Additionally, the applicant submits that the respondent had always agreed to pay for the treatment on past occasions at the prescribed rate.
91The respondent submits that the denials were proper for expenses that were incurred without seeking prior approval, pursuant to s. 38(2) of the Schedule. The respondent further submits that the partial payments that were made were in accordance with the Financial Services Regulatory Authority of Ontario Fee Guidelines (“Guidelines”).
92The partial denial letter dated January 12, 2023 from the respondent to the applicant was put into evidence. It indicates that the parking expenses were paid, and partial payment was made with respect to the massage and acupuncture treatments. The letter indicates that some items were denied or partially approved as follows:
i. The massage therapy treatments were paid at the maximum hourly rate in accordance with the Guidelines;
ii. The respondent took the position that acupuncture is considered experimental in nature, however as this passive therapy is similar in nature to massage therapy, it was paid at the same hourly rate as massage therapy, in accordance with the Guidelines;
iii. The respondent required prescriptions and clinical reports from the applicant’s physicians to support that the medications submitted were necessary because of the accident;
iv. The cost of a mattress set was denied because the applicant did not seek prior approval for the expense and did not attend an insurer’s examination; and
v. The respondent took the position that the homeopathic items and consultations listed on the OCF-6 are experimental in nature and therefore not payable pursuant to s 15(2)(a) of the Schedule.
93The applicant did not make submissions with respect to why the service providers should be paid at a rate higher than the amount set out in the Guidelines. Further, the applicant did not make submissions with respect to the medications proposed in the OCF-6 or the items that were denied because the respondent believed they were experimental in nature. In addition, I note that the mattress set was incurred on May 29, 2022, prior to the submission of the OCF-6.
94For these reasons, I find that the applicant has not established on a balance of probabilities that she is entitled to the expenses incurred on the OCF-6 dated December 22, 2022.
Interest
95Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
96The 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. For the plans and OCF-6s for which I found that the applicant is not entitled, since there are no benefits unreasonably withheld or delayed, no award is payable.
97The applicant submits that the respondent is liable to pay an award with respect to the plan for CBT services, the plan for cognitive therapy and concussion focused counseling, and the plan for a psychiatric assessment.
The plan for cognitive behaviour therapy services
98The applicant submits that the respondent should be liable to pay an award with respect to its denial of this plan because, despite the applicant providing proof that the treatment was incurred, it has refused to pay any amount, even though it agrees that the plan is at least partially reasonable and necessary. The applicant does not suggest the amount of the award.
99The respondent does not make submissions as it relates to an award with respect to this plan. Further, although the respondent submits it approved twelve sessions of CBT totalling $1,620.00 as well as the documentation and support activity totalling $875.00, it does not make submissions with respect to why this amount was not paid.
100It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, to attract an award under Reg. 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.
101I find that the respondent’s conduct in not paying for the services it approved was stubborn and inflexible. I find that the respondent’s conduct should not attract the maximum award, however. In keeping with the fact that the respondent did not pay for the amount approved and it was incurred by the applicant, I find that 25% is sufficient to remind the respondent to provide timely payment for approved claims. As a result of the respondent’s non-payment of the approved amount, the applicant was forced to seek relief from the Tribunal, which resulted in additional cost to her, in addition to incurring the plan.
102In these circumstances, I find on a balance of probabilities that the respondent is liable to pay an award of 25% of the amount of $1,620.00 for the CBT sessions as well as the documentation and support activity totalling $875.00 in the plan for cognitive behaviour therapy services, plus interest under the Schedule, plus compound interest as calculated pursuant to s. 10 of Reg. 664.
The plan for cognitive therapy and concussion focused counseling
103The applicant submits that had the respondent approved this plan, she could have received additional improvement and treatment that she has been otherwise unable to fully fund on her own. The applicant further submits that the denial of the treatment has caused additional stress and suffering. The applicant argues that she is entitled to an award of 50% of this plan because of its improper denial.
104The respondent submits that it acted reasonably and in good faith in adjusting the applicant’s claim. It further submits that the issues in dispute were denied, and multiple s. 44 examinations were scheduled, which were provided to the applicant.
105With respect to the denial of this plan, the applicant did not direct me to evidence that the respondent’s actions rose to the level of excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.
106I find that the respondent considered the plan and denied it based on the opinion of Dr. Hasan and Mr. Kaul, and the applicant’s reporting to Dr. Gupta.
107For these reasons, I find that there is no basis for considering an award under Reg. 664 as it relates to the denial of the plan for cognitive therapy and concussion focused counseling.
The plan for a psychiatric assessment
108The applicant submits that an award of 50% should be payable with respect to this plan because, despite the plan being incurred and proof provided to the respondent, it has refused to pay any amount, even though it agrees that the plan is at least partially reasonable and necessary.
109The respondent submits that to date, it has not received an invoice for the OCF-18 in the amount of $2,486.00, as required under s. 38(15) of the Schedule.
110Section 38(15) sets out that the insurer shall pay for goods and services it agreed to pay for within 30 days after receiving an invoice for them. I find that the applicant did provide an invoice for a psychiatric assessment, although the amount on the invoice was higher than the amount on the OCF-18. I find that because the amount in the plan was incurred, the respondent is liable to pay the amount of $2,486.00 that it approved.
111I find that the respondent’s conduct as it relates to the denial of the psychiatric assessment was stubborn, inflexible, and unyielding. The respondent refused to pay the plan in dispute because the invoice total did not match the dollar amount on the treatment plan. It is clear from the evidence that the amount of $2,486.00 was incurred, and the invoice as well as the assessment was provided to the respondent.
112For the reasons as set out in in paragraph 101, above, I find that an award of 25% is appropriate.
113In these circumstances, I find on a balance of probabilities that the respondent is liable to pay an award of 25% of the amount payable for the plan for a psychiatric assessment in the amount of $2,486.00, plus interest under the Schedule, plus compound interest as calculated pursuant to s. 10 of Reg. 664.
ORDER
114For the above reasons, I find:
i. The applicant is entitled to the documentation and support activity and the therapy sessions in the plan for CBT services dated January 19, 2023.
ii. The applicant is entitled to the plans for the plan for cognitive therapy and concussion focused counseling dated February 15, 2023, and the plan for a psychiatric assessment.
iii. The applicant is not entitled to the remaining plans in dispute or the OCF-6s.
iv. The respondent is liable to pay an award of 25% of the amount of $1,620.00 for the CBT sessions as well as the documentation and support activity totalling $875.00 in the plan for cognitive behaviour therapy services, plus interest under the Schedule, plus compound interest as calculated pursuant to s. 10 of Reg. 664
v. The respondent is liable to pay an award of 25% of the amount payable for the plan for a psychiatric assessment in the amount of $2,486.00, plus interest under the Schedule, plus compound interest as calculated pursuant to s. 10 of Reg. 664.
vi. The applicant is entitled to interest on any overdue payment of benefits.
Released: May 22, 2025
Laura Goulet
Adjudicator
