Licence Appeal Tribunal File Number: 20-005180/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:
Hak Sung Kim
Applicant
and
Pembridge Insurance Company
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Julia Zhiyuan Hou, Counsel
For the Respondent:
Diana Oliveira, Counsel
HEARD:
By way of written submissions
BACKGROUND
1HSK was injured in an automobile accident on October 21, 2017 and sought the balance of a physiotherapy treatment plan and a plastic surgery assessment from the respondent, Pembridge, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”). Pembridge denied the balance of the physiotherapy treatment plan and the plastic surgery assessment on the basis that the plans were not reasonable and necessary. HSK disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The issues I am asked to decide are as follows:
a. Is the medical benefit in the amount of $1,602.00 ($3,547.66, less $1,945.66 approved) for physiotherapy services, recommended by Focus Physiotherapy in a treatment plan (OCF-18) submitted June 5, 2019, denied October 28, 2019, reasonable and necessary?
b. Is the cost of examination expense in the amount of $2,260.00 for a plastic surgery and reconstructive assessment recommended by Total Patient Care in an OCF-18 submitted July 31, 2019, denied August 15, 2019, reasonable and necessary?
c. Is HSK entitled to interest on any overdue payments?
FINDINGS
3HSK is entitled to the balance of OCF-18 for physiotherapy services. Interest is payable in accordance with s. 51.
4HSK is not entitled to the OCF-18 for a plastic surgery and reconstructive assessment. No interest is payable.
ANALYSIS
Is the balance of the physiotherapy OCF-18 reasonable and necessary?
5In order to be entitled to payment for a treatment and assessment plan under the Schedule, the onus is on an applicant to demonstrate that it is reasonable and necessary as a result of the accident. To be successful, an applicant should establish that the treatment goals are reasonable, that the cost of the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.
6As a result of the accident, HSK attended Halton Healthcare, where he presented with right wrist and left rib pain. HSK sustained a right distal radius fracture. He underwent surgery to repair the wrist fracture. He was seen by his family doctor for continued complaints of right wrist pain. Diagnostic imaging noted osteoarthritis of the distal radial ulnar joint, radiocarpal articulation, triscaphe joint articulation and the first carpometacarpal joint.
7HSK argues that as a result of his ongoing pain complaints, the balance of the disputed OCF-18 is reasonable and necessary. To this end, he relies on a report from Dr. Krajden.
8On examination, Dr. Krajden noted that HSK demonstrated diminished active range of motion in the right wrist and reported pain upon deep palpation of the dorsal aspect of his wrist. HSK also described exacerbation of his pain upon maximal active movement of the right wrist. Dr. Krajden opined that HSK continues to experience right wrist pain and decreased active range of motion as a direct result of the accident. Dr. Krajden made recommendations for treatment and assessments, however, I note that Dr. Krajden did not specifically recommend massage therapy.
9In response, Pembridge submits that it denied the balance of the OCF-18 based on a September 26, 2019 s. 44 report by physiatrist Dr. Ko, who found that additional rehabilitation was reasonable and necessary, but that massage therapy was not. It is important to note that the outstanding balance of the OCF-18 was for massage therapy. Further, Pembridge submits that HSK has not met his burden as he did not provide any medical records to support that he requires additional treatment. In addition, it submits that there is nothing in the medical notes to support the need for any additional treatment.
10On examination, Dr. Ko noted that HSK demonstrated full passive range of motion in his bilateral wrists. Dr. Ko also noted that x-rays revealed degenerative changes in one of the wrist bones, and that the degenerative changes may have been accelerated as a result of his fracture. Dr. Ko went on to opine that the prognosis of the right wrist remains guarded, and that the presenting symptomatology is as a direct result of the accident. Despite this opinion, Dr. Ko concluded that the OCF-18 is only partially reasonable and necessary, with massage therapy not being reasonable and necessary. Similarly, to Dr. Krajden, Dr. Ko opined that HSK has achieved maximum medical recovery, in that, he will likely not experience any clinical improvement in his overall level of symptomatology.
11Although there are similarities in both of the assessors’ findings, I am persuaded by Dr. Krajden’s report for several reasons. First, Dr. Krajden performed active range of motion testing, which I find to be a more thorough examination of HSK’s right wrist. Secondly, HSK reported to Dr. Ko that he found massage therapy to be helpful in providing pain relief to his wrist. Third, Dr. Ko’s opinion that the prognosis of the right wrist remains guarded, supports that further investigation and/or treatment to address the concern surrounding HSK’s wrist injury is reasonable. Lastly, pain reduction has been established to be a reasonable treatment goal. There is no dispute that HSK continues to experience ongoing pain in his right wrist, and he has expressed that massage therapy has been a beneficial treatment modality. As such, I find that further beneficial treatment is necessary for pain relief.
HSK has established that the treatment goals are reasonable for several reasons. First, he has benefitted from massage therapy in the past. Second, there is no dispute that the cost of the goals (economical and time), are reasonable, or that they would be met to a reasonable degree. Lastly, the cost of achieving the goals are reasonable.
12For these reasons, I find that on a balance of probabilities, the OCF-18 is reasonable and necessary.
Is the plastic surgery and reconstruction OCF-18 reasonable and necessary?
13I find that HSK has not met his burden to demonstrate that the OCF-18 is reasonable and necessary.
14HSK submits that the disputed OCF-18 is reasonable and necessary. Specifically, he argues that a comprehensive plastic surgery and reconstructive assessment is reasonable and necessary in order to “evaluate the applicant, determine relevant treatment to reduce his ongoing pain, increase his strength and range of motion, and to assist him in returning to his pre-accident activities of daily living.”
15While Pembridge takes the position that Dr. Krajden’s report was obtained for the purposes of a tort claim, I do not find it necessary to provide an analysis of its position on this basis. HSK appears to rely solely on the OCF-18, which is not medical evidence, and there is no evidence that a referral to a plastic surgeon for an assessment was justifiable based on HSK’s accident-related injuries. There is no compelling evidence that the accident-related injuries, or subsequent surgery and treatment for the injuries, required an assessment by a plastic surgeon.
16While I agree that the goals of an examination, such as those set out above are reasonable and necessary, they do not reflect how this particular OCF-18 is reasonable and necessary for HSK. Consequently, HSK has failed to demonstrate on a balance of probabilities that the OCF-18 is reasonable and necessary.
CONCLUSION
17HSK is entitled to payment for the balance of the OCF-18 for physiotherapy treatment as it is reasonable and necessary. Interest is payable on overdue amounts in accordance with s. 51.
18HSK has not demonstrated that the OCF-18 for plastic surgery and reconstructive assessment is reasonable and necessary or that interest is payable.
Released: November 22, 2021
__________________________
Derek Grant
Adjudicator
Footnotes
- O. Reg. 34/10, as amended.