Licence Appeal Tribunal File Number: 24-004075/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:
Hiba Malik
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Kathleen Wells
APPEARANCES:
For the Applicant:
Bianca Crocetti, Paralegal
For the Respondent:
Peter Durant, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Hiba Malik, the applicant, was involved in an automobile accident on May 7, 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, Co-operators 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:
Is the applicant entitled to $1,777.12 ($3,777.50 less $2,000.38 approved) for psychological services, proposed by Life Point Medical Inc. in a treatment plan/OCF-18 (“treatment plan”) submitted November 23, 2022?
Is the applicant entitled to $1,554.98 ($3,305.00 less $1,750.02 approved) for psychological services, proposed by Life Point Medical Inc. in a treatment plan submitted June 21, 2023?
Is the applicant entitled to $2,200.00 for an orthopedic assessment, proposed by Life Point Medical Inc in a treatment plan submitted November 8, 2022?
Is the applicant entitled to $277.08 ($2,537.08 less $2,260.00 approved) for a TMJ assessment, proposed by Q Medical in a treatment plan submitted July 26, 2022?
Is the applicant entitled to $640.00 ($2,644.96 less $2,004.96 approved) for chiropractic services, proposed by Life Point Medical Inc. in a treatment plan submitted February 6, 2023?
Is the applicant entitled to $2,200.00 for a chronic pain assessment proposed by Life Point Medical Inc., in a treatment plan submitted March 7, 2023?
Is the applicant entitled to $2,444.96 for chiropractic services, proposed by Physiomed Oakville in a treatment plan submitted June 23, 2023?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
3The applicant withdrew the following issues: $950.00 for a nutritional assessment set out as issue #6 in the Case Conference Report and Order (‘CCRO”), $1,900.00 for an attendant care assessment set out as issue # 7ii in the CCRO, and $2,200.00 for a cognitive assessment as set out as issue # 7iv the CCRO.
RESULT
4I find that:
The applicant is not entitled to the remaining balance of $1,777.12 for psychological services in the treatment plan submitted November 23, 2022.
The applicant is not entitled to the remaining balance of $1,554.98 for psychological services, in the treatment plan submitted June 21, 2023.
The applicant is not entitled to $2,200.00 for an orthopedic assessment, in the treatment plan submitted November 8, 2022.
The applicant is not entitled to the remaining balance of $277.08 for a TMJ assessment in the treatment plan submitted July 26, 2022.
The applicant is not entitled to the remaining balance of $640.00 for chiropractic services in the treatment plan submitted February 6, 2023.
The applicant is entitled to $2,200.00 for a chronic pain assessment in the treatment plan submitted March 7, 2023.
The applicant is not entitled to $2,444.96 for chiropractic services, in the treatment plan submitted June 23, 2023.
The applicant is entitled to interest on any outstanding payment in accordance with s. 51 of the Schedule.
The applicant is not entitled to an award.
ANALYSIS
5To 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.
6The purpose of an assessment is to determine whether a condition exists. For an insured, they bear 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.
Is the applicant entitled to $1,777.12 ($3,777.50 less $2,000.38 approved) for psychological services in a treatment plan submitted November 23, 2022?
7I find that the applicant has not established on a balance of probabilities that the remaining balance of the treatment plan dated November 23, 2022 is reasonable and necessary.
8The goals of the treatment plan, prepared by Mandeep Singh, psychological associate, are: pain reduction, improving sleep, reduction of psychological symptoms, and a return to the activities of daily living. It seeks $3,777.50 including:
i. $200.00 for the completion of the OCF-18 form,
ii. $2,160.00 for 16 1-hour sessions of therapy at a rate of $135.00 per hour,
iii. $1,080.00 for 16 1/2-hour planning sessions at a rate of $135.00 per hour,
iv. $135.00 for a mental health test, and
v. $202.50 for document/support activities.
9The treatment plan was partially approved in the amount of $2000.38, including 16 1-hour sessions of therapy, the mental health test, and $200.00 for the completion of the OCF-18 form. The remaining amount in dispute is $1,777.12.
10The applicant submits that she is entitled to the treatment plan because she suffered a psychological impairment as a result of the accident and that Mr. Singh recommended psychotherapy in his November 22, 2022 s. 25 psychological assessment report. The applicant also submitted that Dr. Sarah Talebizadeh, psychologist, opined that the treatment plan was reasonable and necessary in her December 16, 2022 s. 44 insurer’s examination (“IE”) report. However, on review of the evidence I note that the IE report reveals that Dr. Talebizadeh did not opine on the November 23, 2022 treatment plan, rather she opined that an earlier treatment plan, dated October 16, 2022, for a psychological assessment was reasonable and necessary.
11The respondent submits that the treatment plan was partially approved, and that the applicant has not met her onus to prove that the remaining amount of $1,777.12 is reasonable and necessary, because the applicant has not made specific submissions or lead evidence to address the items which were not approved in the treatment plan. The respondent submits that the remaining amount is comprised of $697.12 resulting from a difference in the hourly rate it agreed to pay for the treatment provider, and $1,080.00 for planning services that the respondent denied on the basis that the fees were excessive.
12The evidence reveals that the treatment plan sought an hourly rate of $135.00 for the treatment provider, who is a registered psychotherapist. The respondent argues that the Professional Services Guideline Number 03/14 (“Guideline”), published by Financial Services Commission of Ontario, does not provide a rate for psychotherapists, and the respondent agreed to pay $91.43, which is in excess of the rate set out in the Guideline for other service providers of $58.19. The applicant did not make submissions or lead evidence to support the hourly rate of $135.00 sought in the treatment plan.
13Additionally, the applicant has not made submissions or directed me to evidence to support the 16 30-minute planning sessions set out in the treatment plan. I note that in his s. 25 report, Dr. Singh recommended “up to two hours” for psychometric testing and communication with others, which is not consistent with the total of 8 hours set out in the treatment plan, above the amount of $202.50 the respondent approved for documentation /support activities.
14For these reasons, I find that the applicant has not met her onus to prove on a balance of probabilities that the remaining balance of the treatment plan is reasonable and necessary.
15Accordingly, the applicant is not entitled to the remaining balance of $1,777.12 for psychological services in the treatment plan submitted on November 23, 2022.
Is the applicant entitled to $1,554.98 ($3,305.00 less $1,750.02 approved) for psychological services, proposed by Life Point Medical Inc. in a treatment plan submitted June 21, 2023?
16I find that the applicant has not established on a balance of probabilities that the remaining amount of $1,554.98 in the June 21, 2023 treatment plan is reasonable and necessary.
17The goals of the treatment plan, prepared by Mr. Singh are: pain reduction, improving sleep, reduction of psychological symptoms, and a return to the activities of daily living. It seeks $3,305.00, inclusive of 14, 90-minute, sessions of therapy at an hourly rate of $135.00; $202.50 for documentation/support activities; and $200.00 for the completion of the OCF-18 form.
18The applicant submits that the treatment plan is reasonable and necessary, but as the respondent notes, the treatment plan was partially approved for 14 one-hour sessions of psychotherapy at a rate of $91.43. While Mr. Singh recommends treatment sessions of 90-minute duration in the additional comments section of the treatment plan, the applicant has not made submissions or directed me to medical evidence to support 90-minute therapy sessions. Nor has the applicant provided submissions or directed me to evidence to support the $135.00 per hour rate for a psychotherapist sought in the treatment plan, similar to my analysis above from the November 2022 treatment plan.
19For these reasons, I find that the applicant has not met her onus to prove on a balance of probabilities that the remaining balance of $1,544.98 is reasonable and necessary.
Is the applicant entitled to $277.08 ($2,537.08 less $2,260.00 approved) for a TMJ assessment in a treatment plan submitted July 26, 2022?
20I find that the applicant has not established on a balance of probabilities that the remaining balance of $277.08 in the July 26, 2022 is reasonable and necessary.
21The treatment plan, prepared by Dr. Dan Shlepakov, chiropractor, seeks $2,537.08 for a TMJ assessment.
22The applicant makes general submissions that the treatment plan is reasonable and necessary, but does not direct me to evidence or make specific submissions with respect to the remaining amount of $277.08.
23The respondent argues that the TMJ assessment was approved, and that the remaining amount was denied because it is above the $2,200.00 maximum set out in s.25 of the Schedule for an assessment.
24As the applicant has not made submissions or led evidence with respect to the amount in dispute, I find that the applicant has not met her onus to prove on a balance of probabilities that the remaining amount of $277.08 in the treatment plan submitted on July 26, 2022 is reasonable and necessary.
Is the applicant entitled to $2,200.00 for an orthopaedic assessment, in a treatment plan submitted November 8, 2022?
25I find that the applicant has not established on a balance of probabilities that the November 8, 2022 treatment plan is reasonable and necessary.
26The treatment plan was prepared by Dr. Khal Efala, physician, and seeks $2,200.00 for an orthopaedic assessment.
27The applicant has not made any specific submissions with respect to the treatment plan. The respondent argues that the applicant has not met her onus to prove that the treatment plan is reasonable and necessary.
28The CNRs of the applicant’s family doctor, Dr. Nataliya Vasylevych, reveal that she diagnosed the applicant with soft tissue injuries on May 9, 2022, and the applicant attended her office with complaints of back pain on two further occasions in the 3 months following the accident. Dr. Vasylevych referred the applicant for physiotherapy and massage after her June 17, 2022 appointment, and gave her a brochure for back exercises at her July 22, 2022 visit. Dr. Vasylevych did not send the applicant for imaging or refer her to a specialist.
29Dr. Vasylevych’s CNRs further reveal that the applicant’s most recent complaint of back pain prior to the submission of the treatment plan was on September 26, 2022, which Dr. Vasylevych attributed to the epidural the applicant received when giving birth 6 days earlier. Otherwise, the CNRs reveal no mention of the accident, or accident-related injuries in the seven months between the applicant’s July 22, 2022 appointment and February 24, 2023, which was more than three months after the treatment plan was submitted.
30The Tribunal has long held that a treatment plan must be supported by corroborating, contemporaneous medical evidence. As the applicant has not directed me to such evidence, and has not made any submissions as to why the treatment plan is reasonable and necessary, I find that the applicant has not met her onus to prove on a balance of probabilities that there are reasonable grounds to believe that a condition exists to warrant an orthopaedic assessment.
31Accordingly, the applicant is not entitled to $2,200.00 for the treatment plan for an orthopaedic assessment dated November 8, 2022.
Is the applicant entitled to $640.00 ($2,644.96 less $2,004.96 approved) for chiropractic services, in a treatment plan submitted February 6, 2023?
32I find that the applicant has not established on a balance of probabilities that the remaining balance of $640.00 in the February 6, 2023 treatment plan is reasonable and necessary.
33The goals of the treatment plan, prepared by Dr. Jason Lemieux, chiropractor are: pain reduction, improved strength, improved range of motion, and a return to activities of daily living and pre-accident work activities.
34The treatment plan sets out $200.00 for a total body assessment, 16 one-hour sessions of exercise for a cost of $1,804.96, and 16 sessions of therapy at a cost of $40.00 per session for a cost of $640.00.
35The applicant submits that the treatment plan is reasonable and necessary to treat the applicant’s accident-related injuries. The respondent submits that it approved $2,004.96, which included the 16 sessions of exercise and the total body assessment. The respondent denied $640.00 for the 16 sessions of therapy, and argues that the applicant did not provide submissions or evidence with respect to the remaining amount in dispute.
36I agree with the respondent that the applicant has not made specific submissions or directed me to medical evidence to establish that the $640.00 for therapy is reasonable and necessary. Further, the treatment plan itself does not provide any additional comment with respect to the therapy.
37As a result, I find that the applicant has not met her onus to prove on a balance of probabilities that the remaining amount of $640.00 in the treatment plan dated February 6, 2023 is reasonable and necessary.
Is the applicant entitled to $2,200.00 for a chronic pain assessment, in a treatment plan submitted March 7, 2023?
38I find that the applicant has established on a balance of probabilities that there is reason to believe that the treatment plan for a chronic pain assessment is reasonable and necessary.
39The treatment plan, dated March 7, 2023, was prepared by Dr. Mark Goldstein, physician, and seeks $2,200.00 for a chronic pain assessment.
40The applicant submits that she has suffered from pain in her back, shoulders, neck and knees since the accident, and that a chronic pain assessment is warranted.
41The respondent argues that the applicant has not met her onus to prove that the treatment plan is reasonable and necessary, and relies on the April 5, 2023 s. 44 physiatry report of Dr. Shariff Dessouki, physiatrist, who opined that the treatment plan was not reasonable and necessary.
42I find that the evidence establishes that there are reasonable grounds to believe that the applicant is experiencing pain that requires further investigation by way of an assessment, including whether the pain is accident-related. The treatment plan identifies sprain and strain to the jaw, and pain in the neck and lower and thoracic spine, as well as joint pain, which is consistent with contemporaneous CNRs of Physiomed Inc. The applicant complained of low back pain to her family doctor on February 24, 2023, and was referred for an MRI of her lower spine, which identified a small disc bulge, however it is unclear whether Dr. Vasylevych attributed its cause to the accident, as the notation in the CNR reads “pt told that her back pain after MVA” and appears to be incomplete. The applicant was prescribed with Vivomo and Cyclobenzadrine.
43Further, in his TMJ Assessment report, dated January 24, 2023, Dr. Kevin Treger, dentist, diagnosed the applicant with TMJ disorder which included pain in her left and right jaw and chronic headaches as a result of the injuries she sustained in the accident.
44I assign less weight to the April 5, 2023 IE report of Dr. Dessouki, and subsequent paper review, dated May 13, 2023 in which Dr. Dessouki opined that the treatment plan was not reasonable and necessary, because Dr. Dessouki deferred comment on the applicant’s headaches, and did not mention the TMJ report in his document review.
45For these reasons, I find that the applicant is entitled to $2,200.00 for a chronic pain assessment in the treatment plan dated March 7, 2023.
Is the applicant entitled to $2,444.96 for chiropractic services in a treatment plan submitted June 23, 2023?
46I find that the applicant has not established that the June 23, 2023 treatment plan for chiropractic services is reasonable and necessary.
47The applicant makes general submissions that the treatment plan is reasonable and necessary, but as noted above, the applicant has not directed me to contemporaneous medical evidence of ongoing accident-related symptoms, nor has the applicant made submissions with respect to how the goals of the treatment plan will be met, or whether the costs of the treatment plan are reasonable and necessary.
48The respondent argues that the treatment plan is not reasonable and necessary, and relies on Dr. Dessouki’s IE reports, in which Dr. Dessouki opined that there was no objective evidence of an ongoing impairment from her accident-related injuries and opined that the applicant would not benefit from any further facility-based treatment.
49For these reasons, I find that the applicant has not met her onus to prove on a balance of probabilities that the treatment plan is reasonable and necessary.
50Accordingly, the applicant is not entitled to $2,444.96 for chiropractic services in a treatment plan for chiropractic services submitted on June 23, 2023.
Interest
51The applicant is entitled to interest on any outstanding payments in accordance with s. 51 of the Schedule.
Award
52The 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.
53As the applicant has not made any submissions or directed me to evidence with respect to an award, I find that the applicant has not established on a balance of probabilities that any payments have been unreasonably withheld or delayed. Accordingly, I find that the applicant is not entitled to an award.
ORDER
54I find that:
The applicant is not entitled to the remaining balance of $1,777.12 for psychological services in the treatment plan submitted November 23, 2022.
The applicant is not entitled to the remaining balance of $1,554.98 for psychological services, in the treatment plan submitted June 21, 2023.
The applicant is not entitled to $2,200.00 for an orthopedic assessment, in the treatment plan submitted November 8, 2022.
The applicant is not entitled to the remaining balance of $277.08 for a TMJ assessment in the treatment plan submitted July 26, 2022.
The applicant is not entitled to the remaining balance of $640.00 for chiropractic services in the treatment plan submitted February 6, 2023.
The applicant is entitled to $2,200.00 for a chronic pain assessment in the treatment plan submitted March 7, 2023.
The applicant is not entitled to $2,444.96 for chiropractic services, in the treatment plan submitted June 23, 2023.
The applicant is entitled to interest on outstanding payment in accordance with s. 51 of the Schedule.
The applicant is not entitled to an award.
Released: January 23, 2026
Kathleen Wells
Adjudicator