Release date: 04/26/2021
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:
Shauna Charley
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Robert Watt
APPEARANCES:
For the Applicant: Safiyyah Ferouz, Counsel
For the Respondent: Nabila Majidzadeh, Counsel
HEARD: By way of written submissions
OVERVIEW
1The applicant was involved in an automobile accident on November 8, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The issues to be decided in the written hearing are:
- Is the applicant entitled to $2,699.10 for an OT assessment for the need of attendant care, recommended by Miz Reza Nabavi of Toronto Medical Centre in a treatment plan (OCF-18) submitted August 10, 2019 and denied on August 23, 2019?
- Is the applicant entitled to $1,672.16 for a Functional Abilities Evaluation, recommended by Miz Reza Nabavi of Toronto Medical Centre in a treatment plan submitted on August 10, 2019 and denied on August 23, 2019?
- Is the applicant entitled to $1,800.00 for a concussion assessment, recommended by Dr. Farah Ashhadi-Somehsaraei, chiropractor of Toronto Medical Centre in a treatment plan submitted on August 20, 2019 and denied on August 23, 2019?
- Is the applicant entitled to $2,190.33 for physical therapy recommended by Dr. Farah Ashhadi-Somehsaraei, chiropractor of Toronto Medical Centre in a treatment plan submitted on August 20, 2019 and denied on August 23, 2019?
- Is the applicant entitled to $1,970.00 for a neurological assessment recommended by Toronto Medical Centre submitted in a treatment plan (OCF-18) on September 3, 2019 and denied on September 12, 2019?
- Is the applicant entitled to $898.67 for physical therapies recommended by Physiomotiv, submitted in a treatment plan (OCF-21) on October 9, 2019 and denied on October 9, 2019?
- Is the applicant entitled to $1,991.90 for physical therapies recommended by Physiomotiv, submitted in a treatment plan dated August 22, 2019, but submitted on October 9, 2019 and denied on October 9, 2019?
- Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
- Is the applicant entitled to interest on any overdue payment of benefits?
RESULTS
3The applicant is not entitled to $2,699.10 for an OT assessment for the need of attendant care.
4The applicant is not entitled to $1,672.16 for a Functional Abilities Evaluation.
5The applicant is not entitled to $1,800.00 for a concussion assessment.
6The applicant is not entitled to $2,190.33 for physical therapy, $898.67 for physical therapies $1,991.90 for physical therapies.
7The applicant is not entitled to $1,970.00 for a neurological assessment.
8The respondent is not liable to pay an award.
9The applicant is not entitled to interest.
BACKGROUND
10The applicant was involved in an accident on November 8, 2018. No hospitalization was required. The applicant saw her family doctor, Dr. Goldberg on November 12, 2018. He noted soft-tissue spasms and recommended Naproxen and physiotherapy.1 The applicant took physiotherapy following the accident and took two weeks off work.
11There is no issue as to whether the applicant is within the Minor Injury Guideline (“MIG”) as she has been taken out of the MIG on the basis of a psychological impairment. The respondent has funded and continues to fund psychological treatment.
12The applicant has a notable pre-accident medical history which includes: depression; DVT involving her right leg in 2006 creating swelling; she suffered a stroke in 2013 which led to her continuing to suffer from memory problems and reduced fine motor skills in her left hand and arm; a car accident in 2016 which created pain in her back and shoulders; trouble sleeping at night; and headaches.2
13The applicant complained to Dr. Ralph Lubbers, psychologist, in an Insurer’s Examination, that she was still experiencing pain from the accident, typically moderate level pain in her neck, both shoulders, lower back and lower leg and feet; increased headaches that dissipate after two hours without intervention; foot pain and left arm and hand problems.3
14Dr. Jacqueline Auguste, orthopaedic surgeon, in a s. 44 Insurer’s Examination report dated May 16, 2019, noted the following:
a. That the applicant demonstrated full range of motion of both shoulders […] full strength in all upper extremity muscle group;
b. The applicant continues to drive and independently attend appointments, shops for groceries, cooks, is independent in self care, and walks independently without any aids.
c. No substantive musculoligamentous, osseous or neurologic impairments;
d. That the applicant reported no concussion symptoms;
e. That the applicant did not require any further formal facility- based treatment for accident related injuries;
f. That there were no residual exacerbations of any pre-existing impairments.4
ANALYSIS
15Sections 15 and 16 of the Schedule require all medical/rehabilitation benefits to be reasonable and necessary and incurred by an insured person as a result of the accident. Rehabilitation benefits under section 16(1) must reduce or eliminate the effects of any disability resulting from the impairment.
Is the applicant entitled to $2,699.10 for an OT assessment for the need of attendant care, recommended by Miz Reza Nabavi of Toronto Medical Centre in a treatment plan (OCF-18) submitted August 10, 2019 and denied on August 23, 2019?
16I find that the OT assessment for the need of attendant care is not reasonable and necessary for the following reasons.
17Dr. Auguste found that the applicant had full range of motion of both shoulders and full strength in all upper extremity muscle group. The applicant admitted to Dr. Auguste that she continues to drive and independently attend appointments, shops for groceries, cooks, is independent in self care and walks independently without any aids. The respondent relied on this report for its denial. The applicant provided no medical evidence to show that the applicant could not function, even though she had ongoing pain.
18Since the applicant appears to be functional in all aspects of her daily living, there is no need for an OT assessment for the need of attendant care.
Is the applicant entitled to $1,672.16 for a Functional Abilities Evaluation, recommended by Miz Reza Nabavi of Toronto Medical Centre in a treatment plan submitted on August 10, 2019 and denied on August 23, 2019?
19I find that a functional Abilities Evaluation is not reasonable and necessary for the same reasons set out in paragraphs [17] and [18] above.
Is the applicant entitled to $1,800.00 for a concussion assessment, recommended by Dr. Farah Ashhadi-Somehsaraei, chiropractor of Toronto Medical Centre in a treatment plan submitted on August 20, 2019 and denied on August 23, 2019?
20I find that a concussion assessment is not reasonable and necessary for the reasons set out below.
21There are no medical reports before me to show that that applicant suffered a concussion from the accident. There is no medical evidence before me to show that the applicant’s pre-accident headaches were increased because of the accident.
22The applicant did not report to Dr. Auguste any concussion symptoms. Dr. Auguste made no findings of any substantive neurological impairments on clinical testing.
Is the applicant entitled to $2,190.33 for physical therapy recommended by Dr. Farah Ashhadi-Somehsaraei, chiropractor of Toronto Medical Centre in a treatment plan submitted on August 20, 2019 and denied on August 23, 2019?
Is the applicant entitled to $898.67 for physical therapies recommended by Physiomotiv, submitted in a treatment plan (OCF-21) on October 9, 2019 and denied on October 9, 2019?
Is the applicant entitled to $1,991.90 for physical therapies recommended by Physiomotiv, submitted in a treatment plan dated August 22, 2019, but submitted on October 9, 2019 and denied on October 9, 2019?
23I find that further physical therapy is not reasonable and necessary for the reasons set out below.
24OCF-18’s are not objective medical evidence in themselves. The applicant provided no objective medical evidence to support her position that the plans are reasonable and necessary.
25There is no medical evidence before me that further physical therapy is required, or that it would meet the requirements of section 16, to reduce or eliminate the effects of any disability resulting from the impairment.
26Dr. Auguste concluded that the applicant does not require any further formal facility-based treatment for her accident related injuries.
Is the applicant entitled to $1,970.00 for a neurological assessment recommended by Toronto Medical Centre submitted in a treatment plan (OCF-18) on September 3, 2019 and denied on September 12, 2019?
27I find that a neurological assessment is not reasonable and necessary for the reasons set out below.
28There is no medical evidence before me of the applicant having any neurological impairments or any exacerbations of pre-accident neurological impairments as a result of the accident.
29Dr. Auguste made no findings of any substantive neurological impairments on clinical testing resulting from the accident. The applicant’s family doctor, Dr. Goldberg, also made no referral to any specialists or recommended a neurological assessment. There has been no medical evidence put before me, to suggest a neurological issue.
Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
30Under section 10 of O. Reg. 66, the Tribunal can make an award against an insurer of up to 50 percent of the total benefits payable, if it finds that an insurer has unreasonably withheld or delayed payment of any benefits.
31I find that there are no benefits owing and that therefore section 10 does not apply.
Is the applicant entitled to interest on any overdue payment of benefits?
32Since there are no benefits owing, I find that the applicant is not entitled to any interest pursuant to s. 51.
CONCLUSION
33I find that since no benefits, interest, or an award are owing to the applicant as set out above, the application is therefore dismissed.
Released: April 26, 2021
______________________
Robert Watt, Adjudicator