Citation: Alamsjah v. TD General Insurance Company, 2021 ONLAT 20-006977/AABS

Licence Appeal Tribunal File Number: 20-006977/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c I.8, in relation to statutory accident benefits.

Between:

Erna Alamsjah

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Wei Guo, Paralegal

For the Respondent:

Tessie Kalogeras, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1The applicant, Erna Alamsjah, was injured in an automobile accident on March 31, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from TD General Insurance Company, the respondent.

2The respondent denied the applicant’s claim for various treatment and expenses. As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3A case conference was held on November 9, 2020 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Is the applicant entitled to $1,800.00 ($3,749.75 less $1,949.75 approved) for a driving instructor’s travel time and brokerage service fees submitted by Drive Again on an OCF-18 dated April 26, 2018?

(ii) Is the applicant entitled to $2,500.34 for physiotherapy services, a posture brace, and Biofreeze analgesic cream recommended by MultiCare Rehab and Wellness Centre in a treatment plan (OCF-18) dated June 4, 2018?

(iii) Is the applicant entitled to $2,104.00 for physiotherapy services and Biofreeze analgesic cream recommended by MultiCare Rehab and Wellness Centre in an OCF-18 dated November 27, 2018?

(iv) Is the applicant entitled to $2,543.20 for psychological treatment recommended by Dr. Li in an OCF-18 dated December 19, 2019?

(v) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5I find that the applicant is not entitled to the unapproved portions of the April 26, 2018 OCF or to the June 4, 2018 and November 27, 2018 OCF-18s. However, I find that the the applicant is entitled to the December 19, 2019 OCF-18 plus interest in accordance with s. 51 of the Schedule.

ANALYSIS

6Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

7I find that the applicant has not met her onus of proving on a balance of probabilities that the unapproved portions of the April 26, 2018 OCF-18 are reasonable and necessary as well was the June 4, 2018 OCF-18 and the November 27, 2018 OCF-18. The applicant has met her onus, however, regarding the December 19, 2019 OCF-18 and, as a result, she is entitled to that treatment plan.

April 26, 2018 OCF-18

8The April 26, 2018 OCF-18 was completed by Kathleen Barnes, occupational therapist, and sought funding for driver training, travel time for the driving instructor to attend treatment sessions, brokerage service, planning, an environment assessment, and completion of the OCF-18.

9On May 18, 2018, the respondent partially approved the April 26, 2018 treatment plan. The respondent did not approve the portion of the treatment plan for the driving instructor travel time to treatment sessions and the brokerage service fees as it was the respondent’s position that these fees were not payable expenses under the Schedule.

10I find that the applicant has failed to prove the reasonableness and necessity of unapproved portions of the April 26, 2018 treatment plan for the following reasons:

(i) The applicant made no submissions regarding the reasonableness and necessity of the brokerage fees. There is also no evidence before me of what the proposed brokerage fees were for; and

(ii) I agree with the respondent that the driving instructor travel time to treatment is not payable under the Schedule as it is not an “authorized transportation expense.” Section 3(1) is clear that authorized transportation expenses only apply to an insured person or an insured persons’ aide or attendant.² Therefore, the driving instructor’s travel time is not a payable benefit under the Schedule.

11Therefore, the applicant is not entitled to payment of the unapproved portions of the April 26, 2018 treatment plan.

The June 4, 2018 and November 27, 2018 OCF-18s

12The June 4, 2018 OCF-18 was completed by Kanica Berry, physiotherapist, and sought funding for:

(i) A total body assessment ($200.00);

(ii) Fourteen 1.39-hour sessions of physiotherapy ($2,195.34);

(iii) Biofreeze analgesic cream ($20.00); and

(iv) A posture brace ($85.00).

13The treatment plan noted that the applicant had pain and difficulty during certain activities such as carrying, pushing, pulling, overhead activities, and prolonged sitting. According to the OCF-18, the applicant felt that her pain increased after working on a computer for long hours, and that the applicant had sleep disturbances. The goals of the treatment plan were pain reduction, increase in strength, increased range of motion, and a return to activities or normal living. The OCF-18 noted that the applicant’s pain had improved by approximately 20%, but that she still had pain over her neck, back, shoulder, elbow, wrist, hip, and knees which affected her activities of daily life. The estimated duration of the treatment plan was seven weeks.

14The November 27, 2018 OCF-18 was completed by Reza Babaloui, chiropractor, and sought funding for:

(i) A total body assessment ($200.00);

(ii) Thirty-six 1-hour sessions of chiropractic treatment including mobilization, therapy, and exercise ($1,884.40); and

(iii) Biofreeze analgesic cream ($20.00).

15The goals of the treatment plan were pain reduction, increased range of motion, increase in strength, a return to activities of normal living, a return to pre-accident work activities, and a return to modified work activities. Under improvement from the last treatment plan, the OCF-18 noted that the applicant was having constant headaches and vomiting, and that she has not reached her pre-accident health status and requires further treatment. The treatment plan also noted that the applicant had physical impairments over her low back, right hip, right wrist, and neck as well as sleep disturbances, headaches, dizziness, and anxiety. The OCF-18 reported that the applicant had difficulties with activities that involved prolonged sitting, standing, walking, lifting, carrying, stooping, bending and head rotation, and decreased functional capacity in terms of housekeeping and caregiving tasks. The estimated length of the treatment plan was six weeks.

16The applicant did not direct me to any evidence in support of either the June 4, 2018 or the November 27, 2018 treatment plans. In fact, the only submissions made by the applicant regarding these two OCF-18s was that it would be unfair to take away these treatments from the applicant because they would help her to recover from the injuries she sustained in the accident.³

17It is well settled that the presence of objective supporting evidence to justify treatment is key to determining whether the proposed medical benefits are reasonable and necessary. A treatment plan, without more, is not enough to establish entitlement to treatment.

18In this case, I find that there is no compelling contemporaneous evidence in support of the June 4, 2018 and the November 27, 2018 treatment plans. There is no evidence before me that provides a reason why the applicant required Biofreeze or a posture brace. Dr. Lawrence Kwan, the applicant’s family physician, made no recommendations for physical treatment beyond a February 21, 2018 clinical note and record (CNR) entry, some three-and-a-half months prior to the date of the June 4, 2018 OCF-18, in which he recommended the applicant continue physiotherapy. There is also no evidence before me as to the reasonableness and necessity of the proposed frequency of the physiotherapy sessions of 1.39 hours at a rate of six sessions per week in the November 27, 2018 OCF-18, which is dated almost one year and eight months post-accident. Finally, in the January 5, 2021 Headache and Pain Management report by Dr. Jan Carstoniu, physician,⁴ the applicant reported that active therapy had no effect on her pain.⁵

19On the evidence, I find that the applicant has not met her burden of proving on a balance of probabilities that the June 4, 2018 and the November 27, 2018 treatment plans are reasonable and necessary.

December 19, 2019 OCF-18

20I find that the applicant has proven that the December 19, 2019 OCF-18 is reasonable and necessary on a balance of probabilities.

21The December 19, 2019 OCF-18 was completed by Dr. Zhuhui Li, psychologist, and sought funding for twelve psychological treatment sessions with Dr. Li. In the additional comments portion of the treatment plan, Dr. Li provided a progress report to summarize the applicant’s progress from her last psychotherapy session period, which was from December 13, 2018 to May 24, 2019, and consisted of twelve therapeutic sessions. In her progress report, Dr. Li stated that the applicant’s weekly treatment sessions assisted the applicant with overcoming her psychological distress, elevated her mood, decreased her anxiety and stress, and increased her self-confidence. Dr. Li further reported that the applicant’s mood was stable during her treatment, but that she continued to struggle with chronic pain, depressed mood, posttraumatic stress disorder symptoms, and sleep impairment. Dr. Li was also assisting the applicant in overcoming her vehicle and driving phobia.

22Dr. Li stated that the termination of the applicant’s psychological treatment in May 2019 provided the applicant with a chance to try and deal with her difficulties by using the skills that she had learned in the treatment sessions. However, after six months of practice, Dr. Li reported that the applicant needed further treatment and support for her chronic pain, residual posttraumatic stress symptoms, and her other psychological distress. Dr. Li opinioned that twelve to sixteen more psychological treatment sessions would be beneficial to the applicant.

23The respondent provided no evidence to refute Dr. Li’s opinion. In fact, the respondent provided no submissions as to why it believed that the December 19, 2019 treatment plan was not reasonable and necessary. Instead, the respondent focused its submissions on previous psychological treatment that the applicant incurred between February 20, 2018 and November 16, 2018 which is not before me as an issue in dispute.

24Additionally, while not in existence at the time that the December 19, 2019 treatment plan was submitted to the respondent for consideration, the January 15, 2021 Neuropsychological Legal Assessment Report by Dr. Melissa Parlar, psychologist (supervised practice), and Dr. Ronald D. Kaplan, psychologist,⁶ shows that the applicant continued to struggle psychologically well past the date of the proposed treatment plan. For example, Dr. Parlar and Dr. Kaplan diagnosed the applicant with, among other conditions:

(i) Somatic symptom disorder with pain, symptoms consistent with post-concussion syndrome, persistent;

(ii) Psychological factors affecting pain;

(iii) Posttraumatic stress disorder;

(iv) Major depressive disorder, chronic, moderate to severe; and

(v) Generalized anxiety disorder.⁷

25Dr. Parlar and Dr. Kaplan’s diagnoses are consistent with the diagnoses made by Dr. Li in her original assessment of the applicant dated June 15, 2017.⁸ At that time, Dr. Li diagnosed the application with a somatic symptom disorder with predominant pain, moderate, posttraumatic stress disorder, depressed mood, anxiety, and pain-focused behaviour.⁹ Therefore, Dr. Parlar and Dr. Kaplan’s report demonstrates that the applicant’s psychological conditions as a result of the accident continued to persist well beyond December 19, 2019 which further supports my finding that the proposed psychological treatment was reasonable and necessary.

26On the evidence before me, I find that the applicant is entitled to the December 19, 2019 OCF-18.

Interest

27The applicant is entitled to interest in accordance with s. 51 of the Schedule for the December 19, 2019 OCF-18.

CONCLUSION

28For the reasons outlined above, I find that the applicant is:

(i) Not entitled to the unapproved portions of the April 26, 2018 OCF or to the June 4, 2018 and November 27, 2018 OCF-18s; and

(ii) Is entitled to the December 19, 2019 OCF-18 plus interest in accordance with s. 51 of the Schedule.

Footnotes

1. 1O. Reg. 34/10.
2. 2Section 3(1), Schedule.
3. 3Applicant’s Submissions, para. 3.0.
4. 4Applicant’s Submissions, tab 6.
5. 5Ibid. at page 3.
6. 6Applicant’s Submissions, tab 5.
7. 7Ibid. at pages 46-47.
8. 8Document Brief of the Respondent, tab N.
9. 9Ibid.