Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-014373/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:
Nikola Marshall
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Dagmara Szczudlo
APPEARANCES:
For the Applicant: Rajiv Kapoor, Paralegal
For the Respondent: Sivan Bune, Counsel
Heard by Videoconference: October 28, 2024
OVERVIEW
1Nikola Marshall, the applicant, sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) as a result of a fatal automobile accident involving her spouse on September 1, 2022. The applicant was denied benefits by the respondent, Intact 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 $3,230.27 ($4,959.75 less $1,729.48 approved) for psychological services, proposed by Center for Psychological and Counseling Services Inc. in a treatment plan/OCF-18 (“plan”) dated January 19, 2023?
ii. Is the applicant entitled to $2,633.50 ($4,959.75 less $2,326.25 approved) for psychological services, proposed by Center for Psychological and Counseling Services Inc. in a plan dated June 20, 2023?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
3At the hearing, the parties agreed that the treatment plan for psychological services listed as issue 3 in the Tribunal’s Case Conference Report and Order released May 8, 2024 (“CCRO”) was resolved. This is reflected in the issues above.
RESULT
4The applicant is not entitled to the unapproved portion of the January 19, 2023, treatment plan.
5The applicant is entitled to $50.39 for documentation fees up to the Financial Services Commission of Ontario Professional Services Guideline dated September 2014 (“FSCO Guideline”) maximum for the June 20, 2023, plan but is not entitled to the remaining unapproved balance.
6Interest is payable on any overdue amounts in accordance with s. 51 of the Schedule.
7The applicant is not entitled to an award under Regulation 664.
ANALYSIS
The applicant is not entitled to the unapproved portion of the January 19, 2023, treatment plan
8I find that the applicant has failed to demonstrate, on a balance of probabilities, that the unapproved balance of the treatment plan for psychological services is payable. The applicant is not entitled to the unapproved balance of $3,230.27 for the treatment plan dated January 19, 2023.
9To 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.
10The disputed elements of the treatment plan are fees for 16 - 1 hr counselling sessions as well as preparation/service fees to be provided by Mr. Hidayatulla Sherzad, licenced psychotherapist. All other items listed were fully funded by the respondent. The proposed hourly rate for the sessions is $149.61, which was approved at $58.19 per hour using the hourly rate for unregulated providers. The proposed preparation/service fees were denied at $1,196.96 and as per Mr. Sherzad’s testimony, cover preparation for counseling sessions including research and selecting appropriate homework activities for the applicant.
11Since the FSCO 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, and if they are unable to do so, the Tribunal must decide. The onus is on the applicant to demonstrate that the proposed rate is appropriate on the basis of the provider’s education, training, and experience.
12The applicant relies on Mr. Sherzad’s education including a Masters in Pastoral Studies, and several certificates in psychotherapy and counselling from recognized institutions. The applicant also relies on his registration with the College of Registered Psychotherapists, and his experience in the field since 2016 to submit that the hourly rate proposed for his services is reasonable. In addition, Mr. Sherzad testified that cognitive behavioural therapy (“CBT”) theory and application for a client is the same whether administered by a psychotherapist, a psychologist, or a psychiatrist, as these practitioners receive the same training for CBT as part of their education.
13The applicant further submits that psychotherapists are professionals regulated by the College of Registered Psychotherapists of Ontario (“CRPO”) and it is not appropriate to apply the FSCO Guideline maximum hourly rate for unregulated providers to the psychotherapist who provided treatment to the applicant. The applicant relies on a letter from Ontario Association of Consultants, Counsellors, Psychometrists and Psychotherapists (“OACCPP”) dated August 22, 2018, which states that psychotherapists are regulated healthcare professionals and advocates for inclusion of registered psychotherapists (“RPs”) in the FSCO Guideline at the same hourly rate as a psychologist or psychological associate, which is $149.61 per treatment hour.
14I agree with the applicant that RPs are regulated professionals, however, Mr. Sherzad testified at the hearing that he did not provide treatment to the applicant under this plan as it was determined that a female psychotherapist was better suited to assist the applicant in processing the unexpected and traumatic loss of her husband.
15The respondent submits that although Mr. Hidayatullah Sherzad is listed as a treatment provider on this OCF-18, the respondent was misled when the clinic substituted another treatment provider and did not amend the treatment plans to reflect the actual provider.
16The applicant relies on a progress note from the Center for Psychological and Counseling Services dated May 22, 2023, to suggest that Gilan Abdelaal, RP, provided the treatment outlined in this OCF-18 in lieu of Mr. Sherzad. This progress note was signed by Dr. Mohammed El-Saidi, psychiatrist, and Gilan Abdelaal, RP, and covers a therapy period of March 6, 2023, to May 22, 2023.
17The respondent submits that it is unproven who actually provided the treatment outlined in this OCF-18 because the progress note lists 12 treatment sessions and not 16 treatment sessions outlined in this specific OCF-18. A review of the applicable OCF-18 revealed that it was dated January 19, 2023, and the treatment period covered was for 16 weeks which would be to approximately May 11, 2023. Although there is a difference in the number of treatment sessions listed, I conclude that the progress note is for a time interval which overlaps with the proposed treatment period in the disputed OCF-18.
18I agree with the respondent that the progress note does not clearly state who actually provided psychotherapy for the applicant in the interval covered by the progress note. In the absence of other evidence before me, I am unable to conclude that it was in fact Gilan Abdelaal, RP, as suggested by the applicant.
19I find that neither Mr. Sherzad, nor the psychotherapist who actually provided the treatment proposed, should be paid the higher hourly rate of $149.61 in the circumstances. Although the applicant argues that another registered psychotherapist provided the proposed treatment, support for this submission and the credentials of this unspecified provider are not part of the evidentiary record. As such, there is no evidence that she has specialized training within the area of CBT nor that her experience warrants being paid an hourly rate similar to a psychologist and psychological associates. As a result, I find that $58.19 per hour is a reasonable hourly rate for psychotherapy services outlined in this plan and the unapproved portion of $1,462.72 in relation to this line item is not reasonable and necessary and not payable.
20With respect to the denied preparation/service fees in the amount of $1,196.96, Mr. Sherzad testified that this fee covers preparation for counseling sessions including research and selecting appropriate homework activities for the applicant. The respondent counters that preparation fees are included in the hourly rate for the service and the FSCO Guideline does not permit the addition of administration costs, overhead, and related costs, fees, expenses, charges and surcharges as listed in the denial letter dated February 6, 2023. I agree with the respondent that the unapproved portion of $1,196.96 in relation to this line item is not payable.
21For the reasons set out above, the applicant is not entitled to the unapproved balance of $3,230.27 for the treatment plan dated January 19, 2023.
The applicant is entitled to $50.39 of the unapproved portions of the June 20, 2023, plan only
22I find that the applicant is entitled to $50.39 for documentation fees up to the FSCO Guideline maximum as set out in the June 20, 2023, plan but is not entitled to the remaining unapproved portion.
23The disputed elements of the treatment plan are the fees for 16, 1 hr counselling sessions as well as preparation and documentation fees to be provided by Mr. Hidayatullah Sherzad. As in the previous treatment plan, the proposed hourly rate for the sessions is $149.61, which was approved at $58.19 per hour using the hourly rate for unregulated providers in the FSCO Guideline. The proposed preparation fees were denied at $731.36 and the proposed documentation fees were denied at $50.39.
24The applicant relies on the same information presented above in support of entitlement to the unapproved balance of this treatment plan and submits there was an administrative error in listing Mr. Hidayatullah Sherzad as a treatment provider on this OCF-18 as service was provided by another female psychotherapist.
25For the reasons included in paragraph [19], I find that $58.19 per hour is a reasonable hourly rate for psychotherapy services outlined in this plan and the unapproved portion of $1,462.72 in relation to this line item is not payable.
26With respect to the denied preparation fees in the amount of $731.36, Mr. Sherzad’s testimony is that this fee covers preparation for counseling sessions including research and selecting appropriate homework activities for the applicant also applies to this plan. In relation to this line item, the respondent counters that the cost of the hourly preparation rate was adjusted to reflect the type of professional completing the services and modified as follows:
i. Proposed: $74.81 per hour for 16 sessions = $1,196.96
ii. Paid: $58.19 per hour for 8 hours (0.5 hr * 16 sessions) = $465.60* *calculation error made by respondent, should be $465.52.
27I note that the reason for the denial of preparation fees in this treatment plan is different from the reason provided for the earlier plan, and the respondent elected to partially fund preparation fees at a reduced rate in this instance although there is no obligation to pay as per FSCO Guideline. However, since I found that there is no evidentiary basis to increase the professional fee for the services of a registered psychotherapist from $58.19 already, I decline to order the payment of outstanding preparation fees at the higher rate of $74.81 per hour, particularly since the treatment clinic made a calculation error in the proposed amount (preparation time listed was 0.5 hr for each of the 16 sessions, not 1 hr for each of the 16 sessions). The unapproved portion of $731.36 in relation to this line item is not reasonable and necessary and not payable.
28Proposed documentation fees were denied at $50.39 in this treatment plan whereas they were fully funded at $200.00 in the previous treatment plan. As per the FSCO Guideline, $200.00 is the maximum fee for a treatment and assessment plan (OCF-18) and it is unclear why the documentation fee was funded for one hour at $149.61 in this instance. As a result, I order the respondent to pay the unapproved amount of $50.39 for the OCF-18 form fee up to the maximum listed in the FSCO Guideline.
29The applicant is not entitled to the unapproved balance of $2,583.11 for the treatment plan dated June 20, 2023.
The respondent complied with s. 38(8) notice requirements for both treatment plans
30For the reasons that follow, I find that the respondent complied with s. 38(8) notice requirements for both treatment plans.
31As an alternative argument, the applicant submits that she is entitled to the unapproved portions of both treatment plans because the respondent failed to comply with s. 38(8) of the Schedule.
32Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.
33If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:
i. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
ii. The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).
34The applicant submitted that the denial letters dated February 6, 2023, and July 6, 2023, did not comply with s. 38(8) of the Schedule because the respondent did not:
i. Contact the treatment provider to discuss the hourly rate;
ii. Provide the service provider with the denial letter; and/or
iii. Provide reasoning that is simple enough for an unsophisticated and vulnerable individual to determine whether to accept or dispute the denial.
35The respondent submits that both treatment plans were denied within 10 days of submission in accordance with s. 38.
36There was no evidence that the applicant or her provider contacted the respondent regarding the proposed hourly rate in the plans. The applicant alleged that it was the respondent’s responsibility to contact the provider and negotiate a different rate for a psychotherapist and the claims adjuster did not submit a Provider Sign Back Form on June 28, 2023. I disagree with this submission. The FSCO Guideline is clear that services proposed which are not covered by the Guideline are subject to negotiation. It is the applicant’s burden to demonstrate that the proposed rates are reasonable and necessary and to negotiate an increase as required.
37Both denial letters provided to the applicant, dated February 6, 2023, and July 6, 2023, include detailed explanations for denied line items which are clear and simple to understand. The reasons for denying portions of the plans were not medical in nature, and in the circumstances, it was not necessary to construct medical reasons for the denials. I find that the respondent met their obligation to provide other reasons for denying components of the plan as outlined in the letters.
38There is no obligation by the respondent to provide a denial letter to the treatment provider, as treatment plan submission and denial information is conveyed electronically using the Health Claims for Auto Insurance (“HCAI”) system. I also note that the applicant received treatment from a psychotherapist at the Center for Psychological and Counseling Services Inc. and this dispute is not one where an unsophisticated and vulnerable individual was denied treatment and reasons for the denial were not clearly conveyed. Instead, it is the treatment provider who is in dispute with the respondent over billing, not treatment for the applicant.
39For these reasons, I find that both denial letters were compliant with s. 38(8) of the Schedule.
Interest
40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
41The applicant is not entitled to an award for the following reasons.
42The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable plus interest if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
43The applicant submits that the respondent’s conduct demonstrates it unreasonably denied portions of the disputed plans. The respondent counters that it acted reasonably within the prescribed limits of the Schedule and the FSCO Guideline.
44I agree with the respondent and find nothing to indicate that the respondent’s conduct demonstrates it unreasonably denied the treatment plans. Although the applicant disagreed with some of the decisions made by the respondent, a mere partial denial of a claim is not in itself an act that rises to the level of being “excessive, imprudent, stubborn, inflexible, unyielding or immoderate”.
45The applicant is not entitled to an award under Regulation 664.
ORDER
46The applicant is not entitled to the unapproved portion of the January 19, 2023, treatment plan.
47The applicant is entitled to $50.39 for documentation fees up to the FSCO Guideline maximum for the June 20, 2023 plan but is not entitled to the remaining unapproved balance.
48Interest is payable on any overdue amounts in accordance with s. 51 of the Schedule.
49The applicant is not entitled to an award under Regulation 664.
Released: January 8, 2025
Dagmara Szczudlo
Adjudicator