Release date: 05/26/2021
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:
Klara Kaplanov
Applicant
and
AIG Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Avril A. Farlam
APPEARANCES:
For the Applicant:
Alexander Makaronets, Counsel
For the Respondent:
Jeffery R. Crannie, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Klara Kaplanov (“applicant”) was involved in an automobile accident on September 25, 2018 (“accident”). The applicant sought benefits from AIG Insurance Company (“respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1
2Benefits were denied by the respondent. The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.
ISSUES
3The issues to be decided in this hearing are:
i. Is the applicant entitled to $2,594.00 for physiotherapy, recommended by Active Care Health Services Inc., in a treatment plan (OCF-18) dated November 29, 2019, denied on December 12, 2919? (“physiotherapy”)?
ii. Is the applicant entitled to the assessments recommended by All Health Medical Centre, as follows:
a. $2,258.00 for psychological services, in a treatment plan, dated December 6, 2018, denied on December 19, 2018?2 and
b. $2,260.00 for a neurological assessment, in a plan dated November 27, 2019, denied on December 11, 2019 (“neurological assessment”)? and
c. $2,260 for a chronic pain assessment, in a plan dated December 3, 2019, denied on December 16, 2019 (“chronic pain assessment”)?
iii. Is the applicant entitled to $3,741.91 for a treatment plan (OCF-18) for psychological therapy, submitted by Yana Shcherbina, psychotherapist at All Health Medical Centre, dated June 11, 2020 and denied June 29, 2020 (“psychological therapy”)?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is not entitled to the cost of the physiotherapy treatment, neurological and chronic pain assessments or the $1,845.81 balance claimed for psychological therapy. No interest is payable. The applicant’s application is dismissed including the applicant’s claim for $2,258.00 for psychological services, in a treatment plan, dated December 6, 2018, denied on December 19, 2018.
LAW
5Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.[3]
6Section 44(1) of the Schedule provides that, for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but no more often than is reasonably necessary, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.
7Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied.
8Section 55(2) of the Schedule provides that the Tribunal may permit an insured person to apply despite paragraph 2 or 3 of s. 55(1). Section 55(3) provides that the Tribunal may impose terms and conditions on a permission granted under s. 55(2).
9The onus is on the insured person to put forward a reasonable explanation for non-attendance at an IE.4
ANALYSIS
Positions of the Parties
10The applicant submits that all four disputed treatment plans are reasonable and necessary based on the applicant’s medical records.
11The respondent submits that the applicant’s application for the physiotherapy treatment plan, neurological and chronic pain assessments is barred under s. 55 of the Schedule, or alternatively stayed, because the applicant failed to attend s. 44 insurer’s examinations (“IEs”), and also because they are not reasonable or necessary. With respect to the $1,845.81 claimed by the applicant being the disputed balance of the psychological therapy treatment plan, the respondent submits this cost is not reasonable and necessary.
Is the Applicant Entitled to the Physiotherapy Treatment Plan, Neurological Assessment and Chronic Pain Assessment?
12I find that the applicant is not entitled to the physiotherapy treatment plan, the neurological assessment and the chronic pain assessment because the applicant failed to attend IEs and also because they are not reasonable or necessary.
13Records filed by the respondent establish that the applicant failed to attend IEs scheduled with respect to these three claims.
14The applicant did not file any reply submissions giving any reasonable explanation for her non-attendance. Section 55 of the Schedule places the onus on the applicant to put forward a reasonable explanation for non-attendance at the IEs and here there is none.
15The IEs relate to the applicant’s claims for treatment and assessment from 2019. I accept the respondent’s submission that it is prejudiced by the passage of time and it has now been deprived of the opportunity to have it’s physicians assess the applicant in person whether this treatment and assessment is reasonable and necessary. Although the respondent was able to conduct a general practitioner assessment by telephone, I agree with the respondent’s submission that this is not an adequate substitute for the in-person specialist assessment that would have been conducted but for the applicant’s non-attendance.
16I have considered that the respondent submits that if the applicant’s claims for these three items are not barred for non-attendance, that they be stayed. I have also considered that s. 55(2) of the Schedule permits the Tribunal to allow an insured to apply despite being barred and s. 55(3) provides that the Tribunal may impose terms and conditions on any permission granted. However, I decline to exercise my discretion to stay the applicant’s claims or to allow them to proceed under these sections in this particular case. The applicant has not put forward any reasonable explanation for her non-attendance at the IEs or advanced any reasons why her claims for the physiotherapy treatment plan, neurological assessment and chronic pain assessment in her application should be allowed to go forward despite her non-attendance at the IEs.
17I have also found that the applicant is not entitled to the physiotherapy treatment plan, the neurological assessment and the chronic pain assessment because the applicant has failed to discharge her onus to establish with medical evidence that they are reasonable or necessary.
18Although the Wilderman Medical Clinic recommended physiotherapy as one of the modalities to manage the applicant’s pain, the imaging of her cervical and lumbar spine indicate degenerative disc disease and foraminal stenosis and narrowing. Absent persuasive medical evidence linking this to the accident, these conditions are unlikely to be caused by the accident and as a result the goals, progress likely to be achieved and overall cost of this treatment plan have not been established to be reasonable and necessary.
19Although the applicant submits that Dr. Prigozhikh diagnosed the applicant with closed head injury concussion and post-concussion in the May 20, 2020 report, Dr. Prigozhikh does not make this diagnosis in the May 20, 2020 report but instead refers to history of daily migraine which the applicant developed after the accident where she had a closed head injury. There is no explanation in the report of how the closed head injury occurred in the accident or the extent of the injury. Dr. Tchernov, applicant’s family physician, diagnosed “postconcussion” on September 28, 2018 but no update of this diagnosis is provided in 2019 when the assessment was proposed. The treatment plan itself is insufficient to establish that it’s goals, progress likely to be achieved and overall cost are reasonable and necessary.5
20Although the applicant was referred by Dr. Tchernov to Dr. Shenderey, anesthesiologist, pain consultant at Wilderman Medical Clinic who assessed her in July 2020, Dr. Shenderey described the applicant’s primary concern as “intermittent” neck pain arising from the accident. There are several errors in Dr. Shenderey’s report including the date of the accident and the statement that imaging was not done. Dr. Shenderey diagnoses only “neck pain” with a pain disability index of 35/60. The only recommendation for a chronic pain assessment when it was proposed is the treatment plan itself, which again, is insufficient to establish that it’s goals, progress likely to be achieved and overall cost are reasonable and necessary.
21Based on the totality of the evidence, I find that the applicant is not entitled to the cost of this treatment and the two assessments as she has not established that they are reasonable and necessary for injuries suffered as a result of the accident.
Is the Applicant Entitled to the Psychological Therapy?
22The psychological therapy treatment plan for $3,741.91 was partially approved by the respondent in the amount of $1,896.10 comprised of ten one-hour sessions plus a $400.00 documentation, support activity fee. This leaves in dispute $1,845.81. The difference is because ten one and one-half hour sessions and a further $748.10 for preparation and service fees were originally proposed in the treatment plan. The respondent’s Dr. Talebizadeh opined that these costs are unnecessary and overlap with the documentation and support activity fee and are therefore not reasonable and necessary.
23The applicant submits that by partially approving this treatment plan the respondent has in effect agreed that this treatment is reasonable and necessary. The applicant’s submissions fail to specifically address why one and one-half sessions, multiple preparation sessions and further service fees are reasonable and necessary.
24I decline to award the $1,845.81 claimed by the applicant given the applicant’s failure to address the respondent’s submissions sufficiently and given that the burden is on the applicant to establish that the proposed treatment is reasonable and necessary. The treatment plan itself, again, is insufficient to establish that it’s goals, progress likely to be achieved and overall cost are reasonable and necessary. Here, the respondent has approved ten sessions of treatment and significant service fees. I agree with the respondent’s position that, without further explanation, overlap and unnecessary duplication of preparation are not reasonable and necessary costs to be incurred for the applicant’s treatment.
25After considering all of the evidence and submissions put forward by the applicant, I find that applicant has not met her onus to establish that a further $1,845.81 for psychological therapy is reasonable and necessary as a result of injuries the applicant may have suffered as a result of the accident.
Interest
26As no benefits are payable, no interest is payable.
ORDER
27For the reasons outlined above, the applicant is not entitled to the cost of the physiotherapy treatment, neurological and chronic pain assessments or the $1,845.81 balance claimed for psychological therapy. No interest is payable. The applicant’s application is dismissed including the applicant’s claim for $2,258.00 for psychological services, in a treatment plan, dated December 6, 2018, denied on December 19, 2018.
Released: May 26, 2021
Avril A. Farlam, Vice Chair
s the applicant’s claim for this treatment plan.
Footnotes
- O. Reg. 34/10.
- Neither the applicant or the respondent made any submissions on this treatment plan. As a result, for lack of evidence, I dismiss the applicant’s claim for this treatment plan.
- Horvath v. Allstate Insurance Co. of Canada, 2003 OFSCID No. 29, affirmed in State Farm Mutual Automobile Insurance Company v. S.R., 2013 ONSC 2086 (Div. Ct.).
- 16-001539 v. Wawanesa Mutual Insurance Company, 2017 CanLII 82039 (ON LAT) at para 15.