RECONSIDERATION DECISION
Before: Jesse A. Boyce, Vice-Chair
Tribunal File Number: 20-000606/AABS
Case Name: Nadia Abdelhay v. The Co-Operators Insurance Company
Written Submissions by:
For the Applicant: Daniel Badre, Counsel Rebecca Duplantie, Counsel
For the Respondent: Jonathan Heeney, Counsel
OVERVIEW
1This request for reconsideration was filed by the applicant. It arises out of a decision dated April 29, 2021, in which I determined that the applicant had not demonstrated that the sole treatment plan in dispute was reasonable and necessary. In the request, the applicant asserts that I committed an error of law and fact that was attributable to the revised submissions that the applicant filed on January 29, 2021 not being before me. The respondent, Co-Operators, did not file any reconsideration submissions.
2On review of my decision, I agree that it is clear that I relied on the original, incorrect submissions that were inadvertently sent to the Tribunal rather than the revised submissions that were provided to the respondent and the Tribunal in advance of the hearing but not provided to me. Notably, the original, incorrect submissions addressed an OCF-18 for psychological treatment whereas an OCF-18 for physiotherapy services was the only issue in dispute.
ANALYSIS
3The grounds for a request for reconsideration are contained in Rule 18 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended ("Common Rules"). A request for reconsideration will not be granted unless one or more of the criteria are met. For the purposes of this request, the applicant relies on criteria 18.2(b), submitting that I committed errors of fact and law such that the Tribunal would likely have reached a different decision had they not been made. Where it is obvious from my decision that the correct submissions were not before me, the result was that my decision addressed a treatment plan that was not in dispute. This is a clear error. Accordingly, a reconsideration on the merits of the case—with the correct submissions, this time—is required.
4The request for reconsideration is therefore granted.
Is the treatment plan reasonable and necessary?
5The applicant seeks payment of a treatment plan in the amount of $2,486.45 for physiotherapy services as recommended by Apollo Physical Therapy in an OCF-18 dated August 24, 2018. To receive payment for a medical or rehabilitation benefit under the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the treatment is reasonable and necessary. The analysis should identify the reasonableness of the treatment goals, how the goals are being met to a reasonable degree and that the overall cost of achieving the goals is reasonable.
6After suffering physical and psychological injuries in the accident that occurred on January 12, 2016, the applicant submits that the OCF-18 is reasonable and necessary to address her ongoing symptoms and chronic pain. She relies primarily on the opinion of physiatrist Dr. McKee from September 2019, who recommended multidisciplinary pain treatment, physiotherapy, and the intervention of an occupational therapist. She further relies on a January 22, 2016 x-ray and an April 2017 MRI of her spine, a July 2019 report from her social worker, Ms. McCloskey, who found ongoing therapy to be essential to prevent relapse and to manage her pain and her diagnosis of major depression and somatic symptom disorder that formed the basis of her removal from the Minor Injury Guideline ("MIG").
7In response, Co-Operators asserts that the treatment plan is not reasonable and necessary because the applicant sustained soft tissue injuries, she did not produce sufficient objective medical evidence to support treatment and she has not incurred the treatment. It relies on the 2018 s. 44 report and addendum of Dr. Perera, physiatrist, who concluded that there was no objective musculoskeletal injury to suggest that the applicant had sustained an accident-related impairment and, further, that there was no clinical indication for further facility-based treatment. Co-Operators points to the fact that the applicant has undergone 25 sessions of physiotherapy in Ontario and 30 sessions in Dubai without marked improvement.
8I find the applicant has demonstrated on a balance of probabilities that the treatment plan is reasonable and necessary. On the evidence, I find she has consistently reported low back pain, at times rising to 8/10 and 10/10 on the pain scale, resulting in both Dr. McKee and Ms. McCloskey recommending ongoing treatment. While the physiotherapy that the applicant has undergone resulted in temporary relief, I accept that her condition has deteriorated in the years post-accident—as of 2019, she still had reduced range of motion in her neck and back, pain and tenderness over multiple areas and was using a single point cane—to the point that it would be reasonable and necessary to fund a slate of consistent physical treatment in order to determine if facility-based rehabilitation is truly beneficial or if she has simply achieved maximal medical recovery. Where it is well-settled that pain relief is a legitimate goal for treatment, and where reports confirm that she continues to experience functional difficulties at home, I find 10 weeks of physical treatment at the cost of $2,486.45 to be a reasonable expense to achieve the stated goals of addressing her symptoms and activity limitations and implementing a home exercise program.
9Further, I agree with the applicant that Dr. Perera's physical examination was limited where it was based on visual observation and an assessment of her hands and feet and that he found nothing to suggest that the applicant had a pre-existing medical condition that was exacerbated by the accident. While it appears that Dr. Perera reviewed all of the applicant's medical documentation, I agree that his report does not contemplate a chronic pain diagnosis, focusing solely on objective physical injuries instead.
10I prefer the opinions of Dr. McKee and Ms. McCloskey. For example, Dr. McKee determined that the applicant had developed a severe chronic pain condition that warranted treatment at a multi-disciplinary pain clinic. Ms. McCloskey's progress report outlined how physical therapy would not only be beneficial to her physical recovery by increasing her function and potentially preventing further deterioration, but that it would be assistive in complementing her psychological and emotional recovery. On balance, I find Dr. McKee and Ms. McCloskey's opinions to be more in line with the applicant's self-reporting than Dr. Perera's reports and, where both practitioners stressed the need for more physical treatment, supportive of my finding that the OCF-18 in dispute is reasonable and necessary. Accordingly, I find the applicant is entitled to payment for the treatment plan in the amount of $2,486.45 once incurred as it is reasonable and necessary.
ORDER
11For the reasons above, the request for reconsideration is granted.
12My decision dated April 29, 2021 is cancelled.
13The applicant is entitled to payment for the treatment plan in the amount of $2,486.45 once incurred as she has demonstrated that it is reasonable and necessary.
Jesse A. Boyce Vice Chair Tribunals Ontario - Licence Appeal Tribunal
Date of Issue: August 20, 2021