Licence Appeal Tribunal File Number: 20-011935/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:
Wei Zhang
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR: Amanda Marshall
APPEARANCES:
For the Applicant: Yu Jiang, Paralegal
For the Respondent: Alexandra Wilkins, Counsel
HEARD: By way of written submissions
BACKGROUND
1The applicant was involved in an automobile accident on January 14, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
ISSUES IN DISPUTE
2The following issues are in dispute:
Is the applicant entitled to a medical benefit in the amount of $1,964.04 for physiotherapy services, denied June 18, 2019?
Is the applicant entitled to a medical benefit in the amount of $2,405.05 for physiotherapy services, denied September 11, 2019?
Is the applicant entitled to $45.00 for ambulance services, denied February 7, 2019?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated that the physiotherapy treatments and the cost for the ambulance services are reasonable and necessary. As these benefits are not overdue, interest under s. 51 does not apply.
ANALYSIS
Is the applicant entitled to physiotherapy services in the amounts of $1,964.04 and $2,405.05?
4To 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.
5The applicant submits that the physiotherapy treatment plans are reasonable and necessary as he continues to experience ongoing physical impairments including pain at his face, leg, elbow, neck and back as well as tinnitus which negatively impacts his life. He relies on the clinical notes and records (“CNRs”) from Easy Health Care, Family Physicians, Dr. Glenn Surbey and Dr. George Tiab, Psychologist, Bruce Cook, and CNRs from Otolaryngologist, Dr. Philip Lai.
6The applicant contends that the s. 44 Physiatrist’s insurer examination (“IE”) report of Dr. Andrzej Gwardjan should be provided little weight, as Dr. Gwardjan found the treatment plan was not reasonable and necessary, despite reporting that the applicant did not have full range of motion in his lumbar spine, and tenderness on palpation across the lumber spine and at the posterior aspect of the left elbow. He further submits Dr. Gwardjan should have completed an addendum, or re-assessed the applicant with respect to the applicant’s ongoing tinnitus and vestibular system issues relative to the treatment plans in dispute.
7The respondent contends that the applicant is not entitled to the disputed treatment plans, because he has not provided sufficient evidence to meet his burden of proof that either of the plans are reasonable and necessary. It relies on the s. 44 Physiatrist’s report of Dr. Gwardjan which found the applicant suffered uncomplicated soft tissue injuries and concluded that the injuries met the criteria of a minor injury as described by the MIG.
8I find the applicant is not entitled to the physiotherapy services in the amounts of $1,964.04 and $2,405.05. My reasons are as follows.
9The CNRs of the family doctor, Dr. Surbey, noted that the applicant attended on January 28, 2019, complaining of low back pain, left knee pain, left ear blockage and headaches due to his accident. The doctor recommended the applicant refrain from strenuous physical activity, continue with physiotherapy, stop working, and follow up in one week.1
10The applicant changed family doctors to Dr. Tiab on February 1, 2019. At the initial appointment, Dr. Tiab recorded that the applicant had been in a motor vehicle accident and has concerns with sleep difficulties, ringing in the ears, and a concussion. No other physical concerns were recorded at the visit. On February 12, 2019, Dr. Tiab recorded the applicant’s concerns where for diabetes management (DM) and tinnitus. The applicant attended at Dr. Tiab’s office eight times from February 12, 2019, to October 7, 2020. The appointments were for tinnitus, DM and other medical concerns unrelated to the injuries sustained in the accident.
11The Disability Certificate completed by Easy Health Care lists the applicant’s physical injuries as sprain/sprain of the jaw, lumbar spine and lateral collateral ligament of the knee, as well as injury of the muscle and tendon at neck level and hip and thigh level, whiplash associated disorder (WAD2), tension-type headaches and cervicalgia. The applicant’s injuries are listed similarly in the two disputed treatment plans and are impairments that fall within the Minor Injury Guideline.
12The respondent arranged for the applicant to attend a physiatry assessment. Dr. Gwardjan’s August 29, 2019 IE report found the applicant sustained WAD I, musculoligamentous lumbar sprain/strain, left elbow sprain/strain, right distal leg laceration and left-sided jaw/TMJ area pain. The doctor concluded the applicant sustained soft tissue injuries which fall within the Minor Injury Guideline.
13While the applicant submits the IE assessor should have re-assessed the applicant or provided an addendum because of the applicant’s tinnitus and vestibular system issues, I do not find the applicant’s tinnitus or his vestibular system issues are relevant to the treatment plans in dispute and therefore, it would be unnecessary for Dr. Gwardjan to re-assess or provide an addendum. The treatment plans were developed for the issues listed within the treatment plans denied June 18, 2019 and September 11, 2019. Neither of the disputed treatment plans documented that the applicant had tinnitus or vestibular system issues, nor do their goals speak to addressing these issues.
14The disputed treatment plans’ goals are for pain reduction, increased strength, and increased range of motion. The onus is on the applicant to prove on a balance of probabilities that the claimed treatments are reasonable and necessary. The applicant has only submitted the treatment plans and the disability certificate with no additional CNRs from Easy Health Care to substantiate the need for continued physical treatment. The treatment plans or the disability certificate do not assist with understanding how physiotherapy treatment has helped or will help in achieving the goals set and this is required to determine whether the plans are reasonable and necessary.
15I find the applicant has failed to demonstrate that the physiotherapy treatment plans are reasonable and necessary as his physical injuries sustained fall within the MIG; his family doctor visits following February 12, 2019 do not provide any reference to the applicant’s physical injuries sustained in the accident other than the problems with his right ear; and there is no understanding as to how physiotherapy has assisted the applicant in dealing with his physical injuries.
Is the applicant entitled to $45.00 for ambulance services?
16The applicant submits he is entitled to the ambulance fee as provided in s. 15 (1) of the Schedule.
17The respondent submits the ambulance fee is not payable as the applicant has not submitted the expense to his extended health care provider, pursuant to s. 47 (2).
18I agree with the respondent. Section 47(2) provides the respondent is not liable to pay for an expense which payment is reasonably available under any insurance plan. The respondent wrote to the applicant on February 7, 20192, seeking clarification on whether he had collateral benefits and advised him he would need to submit the expense to his extended care health provider first. The respondent did not receive any correspondence from the applicant clarifying the issue. However, it noted that after sending the letter denying the cost for the ambulance services, the applicant submitted invoices for treatment to his extended health care provider, which were paid by the provider. Thus, the respondent submits that an assumption can be made that the applicant has collateral benefits available to him.
19I note the applicant received a copy of the respondent’s submissions and chose not to reply. As the applicant did not provide documentation showing that the ambulance cost was submitted to his extended health care provider, I find the cost for the ambulance services is not payable.
CONCLUSION
20The applicant has failed to demonstrate that the disputed OCF-18s for physiotherapy services in the amount of $1,964.04 and $2,405.05 or the cost for the ambulance services are reasonable and necessary. No interest is payable.
Released: March 25, 2022
Amanda Marshall
Adjudicator