Tribunal File Number: 18-002429/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:

I. A.

Appellant(s)

and

Allstate Insurance

Respondent

DECISION

ADJUDICATOR: Robert Watt

Appearances:

Counsel for the Applicant: Aline Avanessy Parminder Saini

Counsel for the Respondent: Tom Yen

HEARD by Written Hearing: October 2, 2018

OVERVIEW

1The applicant was injured in an automobile accident on February 8, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule-effective September 1, 2010 (“Schedule”).

2The applicant filed an application with the Licence Appeal Tribunal-Automobile Accident Benefits Service (“Tribunal”) on March 21, 2018.

3A case conference for this matter was held on June 21, 2018 before Adjudicator Paluch. The matter on consent of the parties was scheduled for a combination hearing (written and in person) with the in-person component to be heard on October 2, 2018. The in-person component was withdrawn.

ISSUES IN DISPUTE

4The issues in dispute are as follows:

i. Is the applicant entitled to an attendant care benefit in the amount of $434.07 per month, for the period of February 8, 2016 to February 28, 2017?

ii. Is the applicant entitled to a medical benefit in the amount of $1,108.50 for physiotherapy services recommended by [a healthcare centre] in a treatment plan (OCF-18) submitted on April 22, 2016, and denied on April 26, 2016?

iii. Is the applicant entitled to a medical benefit in the amount of $1,105.10 for chiropractic services recommended by [a healthcare centre] in a treatment plan (OCF-18) submitted on February 7, 2017, and denied on February 8, 2017?

iv. Is the applicant entitled to the costs of an examination in the amount of $1,499.35 for Functional Abilities Assessment recommended by [a healthcare centre] submitted on August 29, 2016, and denied on September 12, 2016?

v. Is the applicant entitled to the cost of an examination in the amount of $2000.00 for a Chronic Pain Assessment recommended by [a healthcare centre] submitted on January 19, 2017 and denied on January 30, 2017?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

vii. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

5The applicant is not entitled to an attendant care benefit in the amount of $434.07 per month, for the period of February 8, 2016 to February 28, 2017.

6The applicant is not entitled to a medical benefit in the amount of $1,108.50 for physiotherapy services recommended by [a healthcare centre] in a treatment plan (OCF-18) submitted on April 22, 2016, and denied on April 26, 2016?

7The applicant is not entitled to a medical benefit in the amount of $1,105.10 for chiropractic services recommended by [a healthcare centre] in a treatment plan (OCF-18) submitted on February 7, 2017, and denied on February 8, 2017?

8The applicant is not entitled to the costs of an examination in the amount of $1,499.35 for Functional Abilities Assessment recommended by [a healthcare centre] submitted on August 29, 2016, and denied on February 12, 2017?

9The applicant is not entitled to the cost of an examination in the amount of $2000.00 for a chronic pain assessment recommended by [a healthcare centre] submitted on January 19, 2017 and denied on January 30, 2017?

10The applicant is not entitled to any interest as there are no overdue payments owed.

11The applicant is not entitled to an award under Ontario Regulation 664.

BACKGROUND and ANALYSIS

12The applicant was a passenger in a low velocity collision on February 8, 2016. She did not require any medical assistance at the scene of the accident. She attended at the hospital and was diagnosed with “mvc/mask neck pain”¹. The applicant complained that she suffered as a result of the accident, injuries to her back, neck, right knee, right shoulder, abdomen and post –traumatic stress disorder.

13The applicant returned to work initially part-time 2 days per week and then went back to work full-time, as a pharmacy technician at New Life Fertility Centre, where she had been employed full time prior to the accident.

14The applicant had pre-existing ailments set out in clinical notes of her family doctor, Dr. Samir Abouna. The clinical notes covered the years 2013-2015 showing those ailments as being: left wrist and finger numbness, headaches and high blood pressure, neck pain, back pain and left hip pain.²

15On February 10, 2016, Dr. Abouna diagnosed the applicant with soft tissue injuries of the neck and low back secondary to MVA.³

16On March 31, 2017 the applicant saw Dr. Reem Nahab who noted that the back pain would come and go. The applicant at this time reported no other neurological symptoms or weakness or numbness.⁴

17The applicant reported to her cardiologist on September 19, 2017, that she would take an hour long walk every day.⁵

18Dr. F. Ismail, a neurologist in his IE report dated July 20, 2017, reported that the applicant is independent with all self- care activities of daily living and without any assistive devices. He noted that the applicant hires someone to clean the house. His report indicated that the applicant had no ongoing accident related musculoskeletal or neurological impairment. The applicant had soft tissue injuries. Dr. Ismail indicated that further facility based treatment is not reasonable and necessary. The report indicated that from a physiatrist perspective, the applicant has achieved maximum medical recovery with respect to injuries suffered in the accident.⁶

ATTENDANT CARE

19The Schedule requires all attendant care benefits to be paid for all reasonable and necessary expenses⁷

20The applicant submitted an OCF-3 dated August 6, 2016, stating that she was unable to perform housekeeping, home maintenance and everyday personal care. The applicant used the services of [a Healthcare and Nursing centre] from June 1, 2016, until March 31, 2017. The attendant care services provided included personal hygiene care, grooming, washing and bathing, basic hand and foot care, dressing and assistance with eating.⁸ The total of the expenses submitted for the total time period were for the amount of $2,398.00.

21An Assessment of Attendant Care Needs was prepared by Jessica Oh, Occupational Therapist (OT) on April 26, 2017 which found that the applicant did not require any attendant care assistance. Ms. Oh on May 10, 2017 prepared an IE Occupational Therapy Assessment Report finding that the applicant did not require attendant care assistance.⁹ Ms. Oh found the applicant to demonstrate fluid and functional active range of motion, functional strength for light tasks and functional tolerances for light to medium tasks. During the assessment, the applicant reported independence with her self-care tasks, with the exception of toenail care.

22The applicant on April 18, 2016 reported to Previn Kedar OT at [the clinic] during an Attendant Care Needs Assessment that she had returned to work.¹⁰ Dr. Faroog Ismail, Neurologist, conducted an IE Physiatry Assessment on July 20, 2017, and his report indicated that the applicant was independent with all of her self- care activities.¹¹

23Based on the medical reports of Jessica Oh, Dr. Faroog Ismail, Previn Kedar and the applicant’s self- reporting, I find that the applicant is not entitled to a monthly payment for attendant care benefits. The attendant care benefits are not needed and therefore the expenses would not be reasonable and necessary.

24Also, in relation to the past expenses incurred, the applicant did not submit a Form 1 or attendant care assessment in support of entitlement. Further, no details pertaining to the expenses incurred and hours worked for past services were provided. This results in not knowing whether the recommended fee schedule was followed and therefore whether those expenses were reasonable and necessary.

MEDICAL BENEFITS/ COST OF EXAMINATION

25The Schedule requires an insurer to pay for all reasonable and necessary medical expenses incurred by an insured who sustains an injury as a result of the accident.¹²

26The Schedule also requires an insurer to pay for reasonable fees charged by a health practitioner for reviewing and approving a treatment and assessment plan including any assessment or examination necessary for that purpose.¹³

27The applicant submitted an OCF-18 on April 22, 2016, requesting physiotherapy services to assist the applicant to resume full time employment and normal activities by reducing pain, increasing strength and increasing range of motion.

28The applicant has the onus to show adequate medical reasons supporting the plan and how the proposed plan is effective to assist the applicant in recovery.¹⁴ A benefit must be reasonable with respect to its goals, its ability to achieve these goals and its overall costs of achieving these goals.¹⁵

29I find that the applicant has not met her onus in demonstrating that the treatment plan for physiotherapy was reasonable and necessary. The applicant has submitted a treatment plan for a medical benefit without any medical recommendations to support the physiotherapy services. There is not sufficient medical evidence to support the recommendations. I therefore find that the applicant has not met her onus to explain how this treatment plan meets the test of being reasonable and necessary.

30The applicant submitted an OCF-18 on February 7, 2017 for chiropractic treatment. The applicant submitted no medical evidence to support the chiropractic treatment. Dr. Farooq Ismail on an IE, reviewed the clinical notes and records of Dr. Abouna and [the healthcare clinic] and found no ongoing accident related musculoskeletal or neurological impairment. Dr. Ismail recommended against further facility based treatment indicating that the applicant had achieved maximal medical recovery. I accept Dr. Ismail’s report in that he found no ongoing accident related musculoskeletal impairment, to require further chiropractic treatment. I find that this proposed treatment plan is not reasonable or necessary.

31The applicant submitted an OCF-18 dated August 29, 2016 for a Functional Abilities Assessment which was denied by the respondent. The OCF-18 noted that the applicant did not suffer a complete inability to carry on a normal life. The applicant had returned to work at what appears to be her pre-accident hours and duties.

32I find therefore that the requested Functional Abilities Assessment is not reasonable or necessary.

CHRONIC PAIN ASSESSMENT

33The applicant had pre-existing heart issues, neck pain, back pain, left hip pain as set out in the clinical notes of her family doctor Dr. Abouna and Dr. Pourdowlat. There is no medical evidence before me to show that that pain has been exacerbated by the accident. On March 31, 2017, the applicant saw Dr. Reem Nahab who noted in his report that the applicant indicated that the back pain would come and go. The applicant at this time reported no other neurological symptoms or weakness or numbness.

34The applicant claims that she has psychological issues and therefore there should be an assessment for chronic pain. The applicant did attend 10 psychological counselling for post- accident anxiety. Dr. Andrew Shaul a psychologist, recommended 14 counselling sessions to deal with this issue.¹⁶. The fact that the applicant reported to Dr. Nahab of having no further neurological symptoms and the fact that she did not attend all of the psychological counselling sessions recommended by Dr. Shaul, would lead me to believe that the applicant has no further psychological issues which would require a chronic pain assessment.

35Based on the applicant’s self- reporting, the report of Dr. Nahab, the report of Dr. Ismail, I find that the applicant has no further psychological issues and/or has reached maximal medical improvement. Therefore the proposed chronic pain assessment based on psychological issues is not reasonable or necessary.

INTEREST

36There is no interest owing as there are no benefits owing.

AWARD

37There is no evidence before me to show that the insurer has unreasonably withheld or delayed payment, as required under section 10 of Ontario Regulation 664.

ORDER

38I order that the application be dismissed.

Footnotes

1. 1Emergency Treatment Record Tab 1 Respondent’s Brief of Documents
2. 2Clinical notes and records of Dr. Samir Abouna Tabs A, K of Applicant’s Submissions
3. 3Ibid 2
4. 4Clinical notes and records of Dr. Reem Nahab Tab 3
5. 5Cardiac consultation dated September 19, by Dr. Afsaneh Pourdowlat Tab K Applicant’s submissions
6. 6Insurer’s Examination Multidisciplinary Report dated August 9, 2017 Tab 8 Respondent’s written Submissions.
7. 7Schedule (19)
8. 8Tab Q Applicant’s written submissions.
9. 9Assessment of attendant care needs (form 1) dated April 26, 2017 and Insurer’s Examination Occupational Therapy Assessment Report dated May 10, 2017 Tab 6 Respondent ‘s written submissions
10. 10Attendant Care Needs Assessment Report dated April 18, 2016 by Pravin Kedar at p 5 Tab 2
11. 11Insurer’s Examination Multidisciplinary Assessment Report dated August 9, 2017 Tab 8 Respondent’s written Submissions.
12. 12Schedule Sec 14, 15
13. 13Schedule Sec 25(1)
14. 1417-000208 v. The Personal Insurance company, 2017 CanLII 1146353 (ON LAT) RBA Tab 1
15. 1516-000536 v. The Co-operators General Insurance Company 2016 CanLII 93133 (ON LAT) RBA Tab4
16. 16Report dated June 14 2016 Dr. A. Shaul