Citation: Rhooms v. Wawanesa Mutual Insurance Company, 2022 ONLAT 20-004395/AABS

Licence Appeal Tribunal File Number: 20-004395/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:

Pheona Rhooms

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Deborah Neilson

APPEARANCES:

For the Applicant:

Pheona Rhooms, Applicant

George Bougadis, Counsel

For the Respondent:

Serena Gohal, Counsel

HEARD:

By way of Written Submissions

REASONS FOR DECISION

BACKGROUND

1The applicant, Pheona Rhooms, was injured in an automobile accident (“the accident”) on January 8, 2018 and sought accident benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”) when her claims for benefits were denied by the respondent, Wawanesa Mutual Insurance Company.

2The applicant is seeking entitlement to medical and rehabilitation benefits including chiropractic, physiotherapy and massage services and entitlement to the cost of examinations for an orthopaedic assessment, a psychological assessment, and an occupational therapy assessment.

RESULT

3The applicant is entitled to the cost of an orthopaedic assessment, the medical and rehabilitation services and goods claimed but at a maximum of $112.81 per hour for chiropractic treatments and a maximum of $650.00 less $265.53 approved for a bed topper, and any interest owed under the Schedule. The remainder of the applicant’s claim is dismissed.

ISSUES

4The issues I must decide are as follows: ²

1. Is the applicant entitled to $384.47($650.00 less $265.53 approved³) for a top cover foam mattress, recommended by Dr. Ravin Sodhi, chiropractor, of Active Life Wellness Centre⁴ in a treatment plan (OCF-18) dated April 11, 2018?

2. Is the applicant entitled to $3,346.25 for chiropractic, physiotherapy and massage services recommended by Dr. Ravin Sodhi of Active Life Wellness Centre in a treatment plan (OCF-18) dated June 21, 2018⁵?

3. Is the applicant entitled $5,308.58 for chiropractic and massage treatment recommended by Dr. Hien Vo, chiropractor at Collaborative Healthcare Network, in a treatment plan (OCF-18), dated June 11, 2019?

4. Is the applicant entitled to $1,998.00 for an orthopaedic assessment, recommended by Dr. Tajedin Getahun, orthopaedic surgeon from Alliance Diagnostics and Treatment Inc., in a treatment plan dated October 12, 2018?⁶

5. Is the applicant entitled to $1,950.00 for a psychological assessment recommended by Dr. Joanna Mitsopulos, psychologist, in a treatment plan (OCF-18), dated November 7, 2019?

6. Is the applicant entitled to $1,945.63 for an occupational therapy assessment recommended by Lauren Schwalm, occupational therapist from Rehab First, in a treatment plan dated August 6, 2020?

7. Is the applicant entitled to interest on any overdue payment of benefits?

ANALYSIS

5In order to determine the applicant’s entitlement to the treatment plans in issue, I must first address a number of issues raised by the respondent as follows:

a. Whether the applicant’s present complaints were caused by the accident or were pre-existing conditions;

b. Whether the applicant must first incur the expenses recommended in the treatment plan for me to determine whether she is entitled to the recommended services; and

c. Whether the treatment plans are required to be signed by the applicant and a regulated health professional.

A. Accident Injuries

6The applicant alleges that she sustained the following injuries:

a. Head injury / concussion and a mild traumatic brain injury; persistent post-concussion disorder and tension headaches concurrent with probable post-traumatic migraine headaches;

b. Mild neurocognitive disorder due to multiple factors;

c. Left shoulder injuries, including mild widening of the AC joint possibly representing Grade 1 AC separation / a non-displaced fracture; ⁷

d. Neck injuries, including cervical radiculopathy, borderline mild changes in the left C7 myotome, and diffuse bulging disc at C4-5 and chronic mechanical neck pain and associated disorders Grade II, including hypertonicity and tenderness of the semispinalis capitis muscle;

e. Chronic middle thoracic and lumbar sprain / strain and left acromioclavicular sprain;

f. Probable left shoulder rotator cuff strain, resulting in chronic tendinopathy and impingement;

g. Aggravation of pre-existing supraspinatus tendon pathology;

h. Somatic Symptom Disorder, With Predominant Pain, Severe, Persistent; and

i. Adjustment Disorder with Mixed Anxiety and Depressed Mood.⁸

7The respondent submitted that the applicant sustained soft tissue injuries and minor psychological sequelae with an aggravation of a left shoulder injury. It admitted that the applicant was diagnosed with a delayed concussion /mild traumatic brain injury as a result of the accident. However, it submitted that the applicant’s accident injuries were not of a severity that the treatment and the assessments sought were reasonably necessary. The respondent relied on the investigating officer’s notes and submitted that the applicant only took an ambulance to the hospital as a precaution. However, the officer’s notes state that the applicant had complaints of back pain.⁹

8The respondent also implied that the accident was not severe because she did not see her family physician, Dr. Tajinder Singh, until three weeks after the accident. However, based on Dr. Singh’s note of January 27, 2018, the applicant was already being followed by an orthopaedic surgeon for her shoulder separation from the accident and she was looking for Dr. Singh to become her family physician.¹⁰ For these reasons, I do not find the respondent’s submissions persuasive.

9I find that the applicant had some pre-existing medical issues. In 2016, the applicant suffered a partial thickness tear of the articular side of the supraspinatus tendon in her left shoulder.¹¹ She had issues with headaches to the extent she had to attend at the emergency department with complaints of , nausea, blurry vision and photophobia.¹² However, the causation test for determining whether the accident caused the applicant’s impairments is the but for test. ¹³

10I am satisfied from the medical evidence that the applicant sustained the injuries as alleged or that the accident exacerbated her pre-existing left shoulder and headache issues. In other words, but for the accident, the applicant’s pre-existing health issues would not be as severe. When the respondent’s was first seen for an insurance examination under s.44 of the Schedule (“IE”) by Dr. Karen Spivak, psychologist, the applicant displayed moderate symptoms of depression and adjustment difficulties.¹⁴ She was diagnosed with Somatic Symptom Disorder, Adjustment Disorder and Specific Phobia by Dr. Mehdi Lotfalizadeh, psychologist, on April 8, 2019.¹⁵ Dr. R. Zarnett, orthopaedic surgeon, diagnosed her with myofascial strain to the cervical, thoracic and lumbar spine.¹⁶ Dr. Gordon Ko, physiatrist, diagnosed the applicant with chronic mechanical neck pain, chronic middle thoracic and lumbar sprain / strain, left acromioclavicular sprain and probable left shoulder rotator cuff strain resulting in chronic tendinopathy and impingement and aggravation of pre-existing supraspinatus tendon pathology.¹⁷ I have been provided with no reason to doubt that, but for the accident, the applicant would not have been diagnosed with these impairments.

B. Signed Treatment Plans

11Section 38(3) of the Schedule requires that a treatment plan must be signed by the insured person and a health professional unless the insurer waives the requirement. Section 38(2) further states that an insurer is not liable to pay for medical or rehabilitation expenses of a treatment plan that does not satisfy the requirements of s.38(3) of the Schedule.

12The respondent relied on a FSCO decision of Chaparina v. State Farm, in support of its submission that the applicant’s treatment plans were not signed by either the applicant or a health professional.¹⁸ I am not bound by the decisions from FSCO, which was the predecessor to the Tribunal. I note also that the Chaparina v. State Farm decision did not discuss the process in place for submitting treatment plans. The process under s.64(7) of the Schedule requires registered treatment providers to submit treatment plans electronically to a central processor (“HCAI”) in accordance with the Health Claims for Auto Insurance Guideline, Superintendent's Guideline No. 01/15, May 2015 (“HCAI Guideline”).

13The applicant submitted that electronic submissions of OCF-18s through HCAI became mandatory on February 11, 2011. The treatment plans submitted through HCAI require the provider to indicate that the treatment provider’s electronic signature is on file, and that the OCF-18 was reviewed by the provider. Once completed, the OCF-18 is to be printed and physically signed by the provider, and a copy saved in the applicant’s file at the facility. The applicant submitted, and I agree, that under the HCAI Guideline, signed treatment plans are unable to be submitted to insurers at first instance. I find that, based on s.64 of the Schedule and the HCAI Guideline, if an insurer has any concern that a treatment plan was not prepared or approved by the regulated health practitioner or the health professional whose name is beside the signature line on the treatment plan or by the insured person, the insurer should ask the facility for a signed copy of the treatment plan in a timely manner. It should not wait until providing responding submissions in a hearing to raise it as an issue as that is procedurally unfair to an insured person.

14In this case, the applicant provided the signed treatment plans in her reply submissions. Accordingly, I find that the respondent’s submission that the treatment plans do not comply with s.38(3) of the Schedule because they were not signed is without merit.

C. Incurred Expenses

15The respondent submitted that for the applicant to claim entitlement to medical and rehabilitation benefits recommended in a treatment plan, the applicant must provide proof she incurred the expense, and she has not provided that proof. In support of its submission, the respondent relied on NP v Wawanesa Mutual Insurance Company, a reconsideration decision that dealt with the requirement to pay for benefits incurred under s.38(11) of the Schedule pending receipt of a requisite denial when the insurer failed to provide a proper denial within 10 days of receipt of a treatment plan.¹⁹ This decision does not assist the respondent because it dealt with s.38(11) of the Schedule.²⁰ There is no assertion from the applicant that s.38(11) applies because of an improper or late denial of the treatment plans in dispute.

16I reject the respondent’s submission that the applicant must prove the treatment was incurred for the following reasons. The respondent is essentially asking me to ignore my authority to determine entitlement under s. 280 of the Insurance Act, RSO 1990, c I.8. Section 280 of the Insurance Act deals with the resolution of disputes over entitlement to accident benefits or the amount of statutory benefits to which an insured person is entitled. This means the Tribunal has broad remedial powers for resolving disputes. Further, the issue of whether a benefit was “incurred” is not a threshold issue within the meaning of s.55 of the Schedule.²¹

17If the respondent’s position were accepted, claimants would be required to fund disputed treatment plans in advance of an application to the Tribunal and would be limited to pursuing payment of only that treatment which they can afford to self-fund. Claimants with limited or no access to funds would be at the mercy of their insurers’ goodwill. This is the very power imbalance that the legislation is intended to circumvent.²² Therefore, I reject the respondent’s submission. I find that under s.280 of the Insurance Act, I have the authority to make a finding that treatment is reasonable and necessary and order that a benefit be payable, provided that the order complies with the Schedule in that treatment and interest are payable once incurred and overdue.

D. Medical and Rehabilitation Benefits

18Under s.15 of the Schedule, the respondent is required to pay for all reasonable and necessary expenses incurred by the applicant as a result of the accident for medical benefits including chiropractic and psychological services. Under s.16 of the Schedule, it is required to pay for all reasonable and necessary counselling expenses incurred by the applicant undertaken for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the applicant’s reintegration into her family, the rest of society and the labour market. The applicant bears the onus of proving on a balance of probabilities that any claimed medical and rehabilitation expenses are reasonable and necessary.

19The applicant submitted that reasonable and necessary means the treatment will restore the applicant’s function and that the goals are reasonable and can be met. Other criteria to be considered are whether the overall cost, including the frequency and number of sessions, of achieving the treatment plan goals is reasonable.²³

20The respondent relied on the decision in 17-002689 and Aviva Insurance Canada²⁴ by Adjudicator Grant which held that the presence of objective supporting evidence to justify further chiropractic treatment is key in determining whether the medical benefit in dispute is reasonable and necessary. Adjudicator Grant held that a treatment plan for a medical benefit, without more, is not enough to establish entitlement. The respondent submitted that the applicant has provided no corroborating evidence to establish that the treatment plans are reasonable or necessary. I disagree that the applicant provided no corroborating evidence. The applicant provided a number of medical reports and records. I will address whether those records and reports, together with the treatment plans, satisfy the applicant’s onus to prove on a balance of probabilities that the treatment plans are reasonable and necessary by addressing each service individually because a generalized approach does not account for any changes in the applicant’s injuries over time.

Mattress

21The applicant is seeking entitlement to $384.47 for a top cover foam mattress (“mattress”) at a cost of $650.00, of which $265.53 was approved. The mattress was recommended by Dr. Ravin Sodhi, chiropractor, in a treatment plan dated March 26, 2018. The treatment was for a total of $5,939.89 and included massage, chiropractic and physiotherapy, which were approved by the respondent. The goals of the treatment plan were pain reduction, increase strength and range of motion and prevent chronic pain with strengthening and stretching and avoid passive dependency issues from developing. It is not clear to me how a new mattress would attain those goals.

22The applicant submitted that the mattress was recommended to address the applicant’s ongoing pain and difficulties sleeping and her difficulties finding a good position for sleep on a regular mattress. However, there was nothing stated in the treatment plan that could in any way be classified as evidence in support of a new mattress except that an aggravating factor in the applicant’s back pain is sleeping on her back. Despite that, the respondent partially approved the mattress at a cost of $265.53. Given that the respondent partially approved the item, I find that the respondent has accepted that it was necessary for the applicant’s rehabilitation.

23The respondent denied the remainder of the cost submitted for the mattress of $384.47 because the maximum payable by an insurer is the retail price under the Cost of Goods Guideline²⁵ or the actual price paid by the insured person, whichever is lower. The respondent relied on the Cost of Goods Guideline, but submitted that the applicant failed to provide any evidence to dispute the partial approval of the mattress. However, the Cost of Good Guideline states that in the event of a dispute over the retail price for an item, the onus is on the insurer to provide reasonable evidence of the retail price of the item. Reasonable evidence includes, but is not limited to an advertisement; written confirmation from a vendor; or any other reliable form of proof of the retail price.

24The respondent provided no evidence of the retail price in its denial letter or in its submissions. Instead, it submitted that because the applicant has not incurred the cost of the mattress, that it is not reasonable or necessary. I do not agree with the respondent’s logic. Just because a person cannot afford an assistive device or treatment does not mean that it is not necessary.

25Since the onus is on the respondent to produce evidence of the retail price and it has failed to do so, I find that the applicant is entitled to the mattress at the actual cost or up to $650.00, whichever is lower, in accordance with the Schedule and the Cost of Goods Guideline.

Chiropractic, Massage Therapy and Physiotherapy Services

Dr. Sodhi’s June 21, 2018 Treatment Plan

26The applicant is seeking entitlement to $3,346.25 for chiropractic, physiotherapy and massage services from Active Life Wellness Centre recommended by Dr. Sodhi in a treatment plan (OCF-18) dated June 21, 2018. The goals of the treatment plan were pain reduction, increase strength and range of motion, to prevent chronic pain with strengthening and stretching and avoid passive dependency issues from developing. The applicant reported improvement and a reduction in pain with treatment. Dr. Sodhi reported that the applicant’s ranges of motion had increased. However, he identified a number of barriers to recovery including limited functional and postural tolerances due to pain, multiple injury sites, psychological issues, AC joint dislocation and emergence of radicular irritation.

27Dr. Sodhi recommended 12 hour long physiotherapy sessions, 10 one-hour chiropractic sessions, and 8 half-hour massage therapy sessions. He also recommended 4 half-hour planning sessions for him and exercise equipment that was not identified.

28A factor to consider in determining the reasonableness and necessity of treatment is whether it results in the temporary relief of pain that allows more function or a reduction in pain medication.²⁶ I find this to be a particularly important factor in this case because the applicant has returned to work as a nurse. Working as a nurse requires concentration and attention skills. It is reasonable to expect that pain medication would affect concentration and attention, especially in someone who is experiencing difficulty sleeping due to pain issues like the applicant.

29The respondent relied on a Financial Service Commission (“FSCO”) decision, Amoa-Williams v Allstate Insurance Co of Canada, and submitted that although pain relief is a factor, pain relief measures should not encourage an inappropriate or indefinite dependency, or interfere with other aspects of rehabilitation.²⁷ I am not bound by FSCO decisions, but the reasoning behind Arbitrator Sapin’s (as she was then) determination is sound. In fact, one of the goals of the treatment plan was to avoid passive dependency issues from developing.

30The respondent relied on the applicant’s report to Dr. Hien Vo, her chiropractor, that she was told by one of her specialists to stop physiotherapy and chiropractic treatment for a while and to take various pain medications. ²⁸ There is no indication of when the applicant was supposed to stop and the applicant disclosed this to Dr. Vo on March 29, 2020, almost two years after the date of the disputed treatment plan.

31The respondent submitted that Dr. Dimitrios Dimitrakoudis, the applicant’s treating neurologist, recommended that the applicant attempt to manage her pain with supplements. The respondent failed to provide a pinpoint reference for this evidence. ²⁹ However, Dr. Dimitrakoudis’ recommendation for managing pain with supplements was for her headaches, not her musculoskeletal pain.³⁰ Again, this was a year and a half after the treatment plan in issue was recommended and, therefore, does not address the applicant’s musculoskeletal complaints in 2018.

32The respondent submitted that the applicant had undergone extensive physical therapy at Active Life Wellness Centre, and the Collaborative Healthcare Network. It submitted that the clinical notes from Active Life Wellness Centre indicate that physical therapy initially relieved pain, but in and around May 2018, the applicant stopped reporting improvement. The respondent did not provide the clinical notes and records from Active Life Wellness Centre to substantiate either of its submissions. However, the applicant reported to Dr. Vo that she had gone to a physio/chiropractic clinic for many months with minimal relief.³¹ I have drawn an inference that the clinic was Active Life Wellness Centre based on the dates on the treatment plans and Dr. Vo’s clinical note.

33The respondent also relied on the report of Dr. R. Zarnett, orthopaedic surgeon, dated August 15, 2018. Dr. Zarnett conducted an insurer’s examination of the applicant under s.44 of the Schedule (“IE”) on August 1, 2018. At that time the applicant had complaints of numbness in her left hand, a stiff neck and low back, and pain in her left shoulder and upper and mid-back. She reported a 45% to 50% improvement. Dr. Zarnett noted that the applicant had pre-existing left shoulder issues, but his opinion was that it was unrelated to her post-accident shoulder symptoms. I take Dr. Zarnett to mean that the pre-accident rotator cuff issue that was identified in 2016 had resolved and that any post-accident shoulder complaints or issues were caused by the accident and were not from an exacerbation of her pre-accident shoulder issues. Nor were they a continuation of her pre-accident shoulder issues.

34Dr. Zarnett found that the applicant’s examination was completely normal except for a positive Tinel sign of the left wrist, some tenderness in the left paracervical and trapezial area, end range pain of the left shoulder, and lateral flexion and rotation of her neck to the right. However, a phalen test on the left wrist was negative. Dr. Zarnett’s opinion was that the applicant’s soft tissue injuries from the accident had resolved.

35The applicant submitted that Dr. Zarnett ignored his own clinical findings by ignoring the applicant’s pain complaints and the positive Tinel sign. I disagree to some extent. Dr. Zarnett also found a negative phalen’s sign, which essentially cancels out the Tinel sign. Further, it was his opinion that the applicant’s pain complaints were subjective and would resolve on their own with a home exercise program. In fact, Dr. Zarnett’s diagnosis was supported by Dr. Dimitrakoudis’ opinion. Dr. Dimitrakoudis reported on December 11, 2019 that the applicant’s neurological examination was normal. It was not until January 30, 2020 that an EMG study by Dr. David Fam, neurologist, determined that there appeared to be electrophysiological evidence of a chronic left C7 radiculopathy. However, an MRI was recommended.³² The MRI taken on February 20, 2020 showed minimal disc bulging at C4-5, but no spinal stenosis. There was no indication that there was any impingement on the spinal cord.³³

36The lack of any objective finding with the applicant’s shoulder is supported by Dr. Elmaraghy, the applicant’s treating orthopaedic surgeon,³⁴ and the normal ranges of motion on assessment that he found. Having said that, I find that it was reasonable for the applicant to continue with physiotherapy, massage therapy and chiropractic treatment to address her musculoskeletal pain complaints in order to avoid taking more pain medication and while receiving instruction on how to do home exercises as recommended by Dr. Zarnett. Although her soft tissue injuries resolved, the applicant clearly had residual pain complaints despite already taking pain medication for her headaches. Dr. Zarnett’s recommendation of home exercise to address the pain did not address how she was going to be educated to do those exercises on her own. I find that one of the applicant’s chiropractors did provide those exercises at some point as Dr. Vo referred to the applicant not doing her home exercises in his March 28, 2020 clinical note.

37I also find that, although the applicant eventually found that the treatment from Dr. Sodhi did not really assist her, I find that was a retrospective assessment and that at the time of Dr. Sodhi’s recommendation, the treatment was reasonable and necessary.

Dr. Vo’s June 11, 2019 Treatment Plan

38The applicant is also seeking $5,308.58 for chiropractic and massage treatment recommended by Dr. Hien Vo, chiropractor, in a treatment plan (OCF-18), dated June 11, 2019. The goals of the treatment plan were to reduce pain, increase strength, improve sleep and post concussive issues and return the applicant to her activities of normal living.

39Dr. Vo reported in the treatment plan that the applicant did not have any pre-existing conditions that could affect her response to treatment. This is contrary to Dr. Sodhi’s opinion. Dr. Vo also reported that the applicant had returned to full regular duties at her workplace. However, Dr. Ko, physiatrist, reported in 2021 that the applicant was working less hours than she did pre-accident. ³⁵

40The respondent submitted that the applicant’s neurologist, Dr. David Fam, determined that the applicant’s injury had plateaued and recommended only conservative management. ³⁶ Conservative management means physiotherapy and exercise instead of surgery. Given Dr. Fam’s recommendation, I find that the physiotherapy recommended by Dr. Vo was reasonable for conservative management of the applicant’s cervical injury.

41The applicant submitted that the respondent wrongfully denied the treatment plan by relying on a report from Dr. Zarnett that was prepared without reassessing the applicant. The respondent relied on Dr. Zarnett’s November 2, 2018 report, which was a paper review based on his August 1, 2018 assessment of the applicant. I find that Dr. Zarnett’s report does not assist the respondent as it was from the previous year. Despite Dr. Zarnett’s opinion, the applicant continued to complain of pain and other issues as a result of her accident injuries.

42The massage therapy clinical notes and records from Collaborative Health Network dated January 5 of an undisclosed year state that the applicant reported a reduction of pain from the massage therapy. Accordingly, I find that massage therapy was reasonably necessary to fulfil the goal of pain reduction.

43Dr. Vo’s fees for the massage therapy services of $1,047.42 are within the maximum payable under the Professional Services Guideline.³⁷ However, his fees for his chiropractic treatment are double the amount allowed under the Professional Services Guideline. Dr. Vo recommended half hour sessions at $112.81 per hour for 18 therapy sessions over 9 weeks, which should amount to $1,015.29.³⁸ However, Dr. Vo charged $2,030.58. He did the same for his exercise sessions charging $112.81 per hour for 18 half hour sessions over 9 weeks, which should amount to $1,015.29. I find the fees excessive and, therefore unreasonable. I find the maximum that the insurer is required to pay for the treatment from Dr. Vo is $2,030.58 and not the $4,061.16 recommended. For this reason, I find the treatment plan is reasonably necessary but at a maximum amount of $3,278.00.

E. Cost of Examinations

44Section 25(1) of the Schedule requires an insurer to pay the reasonable fees charged by a health practitioner for reviewing and approving a treatment and assessment plan under section 38, including any assessment or examination necessary for that purpose, if I determine that the assessment is payable. An insurer is also required to pay the reasonable fees for an assessment that is necessary for the preparation of an OCF-3 disability certificate.

45Under s.25(3) of the Schedule, the respondent is not liable for paying the cost of an assessment that exceeds the maximum rate of $2,000.00³⁹ or exceeds the maximum rate under the Professional Services Guideline.

Orthopaedic Assessment

46The applicant submitted she is entitled to an orthopaedic assessment, at the cost of $1,998.00 in a treatment plan dated October 12, 2018 recommended by Dr. Tajedin Getahun, orthopaedic surgeon.⁴⁰ The goal of the assessment was to properly evaluate the current status of the applicant’s injuries and impairments, return her to her activities of normal living, and determine the appropriate course of management for her injuries and impairments.

47The applicant did not make any submissions about why the assessment was necessary. Her only submission was that the respondent wrongfully denied it.

48The respondent submitted that the assessment was not reasonable or necessary because Dr. Zarnett had just conducted an orthopaedic IE of the applicant. I do not accept the respondent’s submission. I find that the purpose of an IE is not the same as an orthopaedic assessment. It is settled law that an insured person has the choice of who her treatment provider is. Since one of the purposes of an assessment under s.25 of the Schedule is to review and approve a treatment and assessment plan, it logically follows that the assessor under s.25 is one who the applicant has chosen. An insured person such as the applicant has no choice in who conducts an IE as that choice is the insurer’s. Accordingly, I am unable to find that just because the insurer sought an IE by an orthopaedic specialist that it is not required to pay for the cost of a s.25 orthopaedic assessment.

49Despite my rejection of the respondent’s submission, the onus is still on the applicant to show that Dr. Getahun’s assessment was necessary for either the preparation of a treatment plan or a disability certificate. I find that it was for the following reasons. The respondent clearly felt that the type of specialist for determining the treatment for the applicant was an orthopaedic specialist because it referred the applicant to Dr. Zarnett, orthopaedic specialist, in July 2018 to determine whether a chiropractic treatment plan was reasonable and necessary. Because of the nature of her injuries, the applicant was eventually referred to an orthopaedic specialist by her family physician. However, the applicant was unable to see her specialist until December 11, 2019. I find that, if the applicant had been able to see an orthopaedic specialist a year earlier, the specialist may have recommended treatment that would have staved off the chronicity of the applicant’s initial soft tissue injuries. For these reasons, and given that the goals of the treatment plan are in line with the s.25(1)3 of the Schedule, I find that the orthopaedic assessment recommended by Dr. Getahun was necessary under s.25(1) of the Schedule.

50Turning to the issue of whether the fees for the assessment are reasonable, physicians are regulated health professionals whose fees are not listed in the Professional Services Guideline. According to the Professional Services Guideline, where there regulated Health Professional’s fees are not listed, the parties are to agree to an amount. The treatment plan does not provide an hourly fee for Dr. Getahun to conduct the assessment or for the chiropractor, Dr. Rhual Maano, for preparing the treatment plan. I have no indication on how long either of them would take to do their respective activity.

51The average net part-time employment hourly rate for physicians is calculated to be $350.00 ⁴¹ It is not unusual for an orthopaedic surgeon to charge more than $400.00 per hour. The cost claimed for Dr. Getahun’s assessment is within the $2,200.00 limit allowed under s. 25 of the Schedule. Accordingly, subject to the hourly rates and the hours required for Dr. Getahun to assess the applicant, review her medical records and prepare his report not exceeding the $2,000.00 limit. I find that the orthopaedic assessment for $1,998.00 is reasonable and necessary.

52Dr. Maano is limited to charging $112.81 per hour to a maximum of $200.00 for the preparation of the treatment plan.⁴² Since I have found that the applicant was entitled to an orthopaedic assessment, I find that the applicant is also entitled to the cost of preparing Dr. Getahun’s treatment plan. However, the respondent is not required to pay any more than $112.81 per hour to a maximum of $200.00 for Dr. Maano’s preparation of the treatment plan.

Psychological Assessment

53The applicant is seeking entitlement to $1,950.00 for a psychological assessment recommended by Dr. Joanna Mitsopulos, psychologist, in a treatment plan (OCF-18), dated November 7, 2019. The only goal of the treatment plan was approval to conduct the assessment. However, Dr. Mitsopulos stated in the comment section of the treatment plan that an assessment was required to determine the full extent of the applicant’s psychological difficulties and, if necessary, to outline the type and length of psychological treatment.

54Under s.25(1)3 of the Schedule, Dr. Mitsopulos’ fees for conducting her assessment and preparing her report must be reasonable. However, the treatment plan provides no means for me to determine whether the $1,750.00 fee charged for conducting the assessment or the $200.00 fee for document support are reasonable as there was no hourly rate or time for doing the assessment or documentation set out in the treatment plan. Under s.25(3), the respondent is not required to pay more than the hourly rate for psychologists set out in the Professional Services Guideline which is $149.92 per hour for non-catastrophic impairments

55The treatment plan was denied because the respondent had already approved a previous treatment plan that recommended a psychological assessment with a different assessor. In fact, the applicant underwent that assessment with Dr. Lotfalizadeh. Dr. Lotfalizadeh issued a report dated April 8, 2019 and diagnosed the applicant with Somatic Symptom Disorder, With Predominant Pain, Severe, Persistent; Adjustment Disorder with Mixed Anxiety and Depressed Mood; and, Specific Phobia, Situational Type (Motor Vehicles).

56The applicant submitted that another assessment was required just seven months later because the applicant clearly needed to be reassessed to determine the appropriate course of treatment. I disagree. There was no indication in Dr. Mitsopulos’ treatment plan that she had reviewed Dr. Lotfalizadeh’s report. I find that another assessment was unnecessary unless Dr. Mitsopulos reviewed the report and was still unable to determine what treatment the applicant required. However, there is no evidence that is the case. In fact, the evidence is the opposite. Dr. Mitsopulos reviewed Dr. Dr. Lotfalizadeh’s report and was able to formulate a treatment plan recommending 12 one-hour sessions plus a brief assessment to update her on the applicant’s symptoms.⁴³

57The applicant submitted that, because the respondent approved another treatment plan from Dr. Mitsopulos recommending a psychological assessment and treatment in December 2020, that the respondent admitted that the recommended psychological treatment was reasonable and necessary. The applicant’s submission ignores that the second treatment plan by Dr. Mitsopulos recommended an abbreviated or brief assessment after she reviewed Lotfalizadeh’s report. Accordingly, this does not assist the applicant.

58I find that the full psychological assessment proposed by Dr. Mitsopulos in her November 7, 2019 treatment plan was not reasonable or necessary. I further find that any delay in the applicant receiving psychotherapy was the length of time it took for Dr. Mitsopulos to review Dr. Lotfalizadeh’s report. Accordingly, this claim is dismissed.

Occupational Therapy Assessment

59The applicant is seeking entitlement to $1,945.63 for an occupational therapy assessment recommended by Lauren Schwalm, occupational therapist of Rehab First, in a treatment plan dated August 6, 2020. The goals of the recommended assessment were to assess the applicant’s level of functioning, safety, and independence within her home and community environment and to assess and facilitate safe functional participation in her pre-accident activities of normal living. The cost listed on the treatment plan for the assessment part is $1,645.88 per hour. I find this hourly fee was listed in error because the total cost is also listed as $1,645.88 and the hourly fee on the line below is listed at $99.75 per hour.

60The applicant submitted that the occupational therapy assessment recommended by Lauren Schwalm was necessary because Dr. Kurzman, neuropsychologist, had determined the applicant had a mild neurocognitive disorder. He recommended cognitive retraining in relation to working memory and attentional skills in addition to ongoing psychological treatment. Six occupational therapy sessions were recommended in a treatment plan prepared by Neha Hasan Gill, also an occupational therapist with Rehab First, dated October 19, 2020. The occupational therapy recommended by Ms. Gill addressed Dr. Kurzman’s recommendations. The respondent subsequently approved Ms. Gill’s treatment plan following a paper IE by an occupational therapist.

61I find that Ms. Gill was able to prepare a treatment plan setting out the treatment that addressed Dr. Kurzman’s recommendations. From this I draw an inference that Ms. Gill did not need to assess the applicant to do so. If she did, I would have expected to see a letter or some evidence from Ms. Gill or one of the other occupational therapists from Rehab First indicating that was the case. However, I was not provided with any evidence from the applicant to show that any other assessments were necessary for the preparation of a treatment plan by any of the occupational therapists from Rehab First. Accordingly, without some evidence to show that an occupational therapy assessment was necessary for the review or preparation of a treatment plan, I am unable to find that the applicant has satisfied her onus of proof. This claim is therefore dismissed.

CONCLUSION and ORDER

62The applicant is entitled to the lesser of $384.47($650.00 less $265.53 approved) or the actual cost (less $265.53 approved) for a top cover foam mattress, recommended by Dr. Sodhi in a treatment plan dated April 11, 2018.

63The applicant is entitled to $3,346.25 for chiropractic, physiotherapy and massage services recommended by Dr. Sodhi in a treatment plan dated June 21, 2018.

64The applicant is entitled to a maximum of $3,278.00 and not the $5,308.58 recommended for chiropractic and massage treatment by Dr. Vo in a treatment plan dated June 11, 2019.

65The applicant is entitled to $1,998.00 for an orthopaedic assessment, recommended by Dr. Getahun in a treatment plan dated October 12, 2018.

66The applicant entitled to interest on any overdue payment of benefits in accordance with the Schedule.

67The remainder of the applicant’s application is dismissed.

Released: October 25, 2022

__________________________

Deborah Neilson

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2The case conference Order dated September 16, 2020 listed entitlement to non-earner benefits as an issue in dispute. The applicant advised in a notice of motion filed in May 2021 that the applicant was abandoning her claim for non-earner benefits. Accordingly, I made no decision on the issue.
3. 3The applicant clarified in her submissions that this treatment plan was partially approved and the remainder in dispute was for a top cover foam mattress. [3] The case conference Order states the issue was entitlement to a treatment plan dated April 11, 2018 in the amount of $650.00. No such treatment plan was included in either party’s submissions. The applicant’s submissions included a treatment plan dated March 26, 2018 recommending $5,939.89 for various therapies and devices all of which was approved except for a mattress at the cost of $650.00, of which only $265.53 was approved. Accordingly, I conclude that the case conference Order listed the date and amount of the treatment plan for this issue in error.
4. 4The case conference Order states that Active Life Wellness Centre or some other clinic recommended the various goods and services in dispute. Clinics cannot make recommendations or prepare treatment plans. Accordingly, I have listed the name of the clinic where the regulated health professional who made the recommendations is from in addition the name of the regulated health professional who prepared the treatment plan.
5. 5The case conference Order states that the issue in dispute is only for chiropractic treatment recommended in a treatment plan dated July 5, 2018. The applicant’s submissions refer to a treatment plan in the same amount but for physiotherapy, massage and chiropractic services recommended in a treatment plan dated June 21, 2018. No treatment plan dated July 5, 2018 was included in either party’s submissions. Accordingly, I conclude that the case conference Order listed the date of the treatment plan for this issue in error.
6. 6The case conference Order states the issue was entitlement to a treatment plan dated October 25, 2018. However, no such treatment plan was included in either parties’ submissions. The applicant referred to an issue in dispute for the same amount and services, but recommended in a treatment plan dated October 12, 2018. A treatment plan dated October 12, 2018 prepared by Dr. Tajedin Getahun, orthopaedic surgeon, for the same amount was included as evidence. Accordingly, I conclude that the case conference Order listed the date of the treatment plan for this issue in error.
7. 7Applicant’s submissions tab 9, CT scan of the left shoulder, dated March 9, 2018, revealed a region of lucency traversing the proximal scapular body, consistent with a nutrient vessel or a non-displaced fracture.
8. 8Applicant’s submissions tab 3, report of Dr. Gordon Ko, physiatrist, dated April 11, 2021 ; tab 4, report of Dr. Kurzman, neuropsychologist, dated August 20, 2020; tab 5, report of Dr. Lotfalizadeh, psychologist, dated April 8, 2019.
9. 9Respondent’s submissions, tab 1, p.23.
10. 10Applicant’s submissions, p.144.
11. 11Respondent's submissions, tab 10, p.232, St. Joseph Health Centre record dated , for January 19, 2016 to January 30, 2020.
12. 12Respondent’s submissions, tab 10, pp.224 to 227, St. Joseph Health Centre record dated January 19, 2017.
13. 13The only case law submitted by the respondent that dealt with causation was a decision from the Financial Services Commission of Ontario (“FSCO”) , Alves v. Commercial Union Assurance Co. 1999 CarswellOnt 5487, [1999] 0.F.S.C.I.D. No. 88, which determined that the test was whether there was a significant exacerbation of pre-accident impairments at paragraph 57, and that the accident made a material or significant contribution to the disability. The Tribunal is not bound by the FSCO decisions.
14. 14Respondent’s submissions, tab 17, IE report of Dr. Karen Spivak p.287.
15. 15Applicant’s submissions, tab 5, report of Dr. Lotfalizadeh dated April 8, 2019.
16. 16Respondent’s submissions, tab 15, IE report of Dr. Zarnett dated August 15, 2018.
17. 17Applicant’s submissions tab 3, report of Dr. Ko dated April 11, 2021.
18. 18Chaparina v. State Farm Mutual Automobile Insurance Co., 2016 Carswell Ont 3156.
19. 192021 CarswellOnt 83 (LAT), 2021 CanLii 309 (ON LAT), reconsideration request denied in N.P. v Wawanesa Mutual Insurance Company, 2021 CanLII 309 (ON LAT)
20. 20I note that the applicant provided case law to indicate that is unsettled law whether the expenses have to be incurred to be payable under s.38(11). She relied on Mattina v Federated Insurance Company of Canada, 2020 CanLII 101808 (ON LAT) and Budhram v Aviva General Insurance, 2021 CanLII 13209 (ON LAT).
21. 21Section 55 of the Schedule bars insured persons from applying to the Tribunal in certain circumstances.
22. 22Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200 (Div. Ct.), para.32.
23. 23Rabino v Aviva Insurance Company, 2021 CanLII 73546 (ON LAT) para. 8 quoting 17-001007/AABS v. Aviva Insurance Canada 2018 CanLII 2309 (ON LAT) at para 12.
24. 2417-002689/AABS v Aviva Insurance Canada, 2018 CanLII 2311 (ON LAT) at para 15.
25. 25Cost of Goods Guideline Superintendent’s Guideline No.2/16 (“Cost of Goods Guideline”).
26. 26Rabino v Aviva Insurance Company, 2021 CanLII 73546 (ON LAT).
27. 27Amoa-Williams v Allstate Insurance Co of Canada, 2000 CarswellOnt 5293, para 24.
28. 28Respondent’s submissions, tab 36 p.498, clinical note of Dr. Vo dated March 28, 2020.
29. 29The page numbers provided in the respondent’s pinpoint references did not lead to the evidence cited. Nor were any dates provided that would assist in locating the evidence. The reference provided is for Tab 9, Dr. Singh’s records for a hospital record dating from 2008 for an ingrown toenail.
30. 30Respondent’s submissions, p.2013, Dr. Dimitrakoudis’ report dated December 11, 2019.
31. 31Respondent’s submissions, tab 36 p.498, clinical note of Dr. Vo dated March 28, 2020.
32. 32Applicant’s submissions, tab 23 p.262 and tab 24, p.265, reports of Dr. Fam dated January 30, 2020
33. 33Applicant’s submissions, tab 25, MRI report dated February 20, 2020
34. 34Applicant’s submissions, p.254, report of Dr. Elmaraghy dated December 12, 2019
35. 35Applicant’s submissions, tab 3, report of Dr. Ko dated April 11, 2021.
36. 36Respondent’s submissions, tab 10 p.254 , Dr. Fam’s report dated January 30, 2020 and not at the respondent’s reference.
37. 37Professional Services Guideline, Superintendent’s Guideline No. 03/14, September 2014 (“Professional Services Guideline”).
38. 38$112.81 x .5 x 18 = $1,015,29.
39. 39Section 25(5)(a) of the Schedule.
40. 40The case conference Order states that the treatment was recommended Alliance Diagnostics and Treatment Inc. However, a clinic cannot prepare a treatment plan. Under s.38(3)(b) of the Schedule, the insurer is required to respond to a treatment plan only if it is completed and signed by a regulated health professional.
41. 41Ontario Medical Association’s Physician’s Guide to Uninsured Services, January 2016 edition, p.14. No average hourly fee is provided in the update Guide to Uninsured Services.
42. 42Professional Services Guideline.
43. 43Applicant’s submissions, tab 18, pp.242 and 243, treatment plan of Dr. Mitsopulos dated November 26, 2020.