Licence Appeal Tribunal File Number: 21-013025/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:
Tran Long
Applicant
and
TD General Insurance Company
Respondent
DECISION
VICE-CHAIR: Julian DiBattista
APPEARANCES:
For the Applicant: Jessie Tran, Paralegal
For the Respondent: Symone Marlowe, Counsel
HEARD: By way of written submissions
OVERVIEW
1Tran Long, the applicant, was involved in an automobile accident on March 1, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to $2,600.64 for physical rehabilitation services, proposed by Pain Rehabilitation Clinic in a treatment plan/OCF- 18 (‘plan’) dated May 8, 2020?
ii. Is the applicant entitled to $2,600.64 for physical rehabilitation services, proposed by Pain Rehabilitation Clinic in a plan dated October 8, 2020?
iii. Is the applicant entitled to $2,600.64 for physical rehabilitation services, proposed by Pain Rehabilitation Clinic in a plan dated March 4, 2021?
iv. Is the applicant entitled to $2,600.64 for physical rehabilitation services, proposed by Pain Rehabilitation Clinic in a plan dated September 23, 2021?
v. Is the applicant entitled to the assessments proposed by Pain Rehabilitation Clinic, as follows:
a) $2,200.00 for a general practitioner assessment, in a plan dated January 14, 2021;
b) $2,200.00 for a psychiatric assessment, in a plan dated March 4, 2021;
vi. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has failed to demonstrate the reasonableness and necessity of the proposed plans. As there are no benefits owed by the respondent, the applicant is not entitled to interest or an award.
PROCEDURAL ISSUES
4Both the applicant and respondent have noted that this is the second case to come before the Tribunal from this applicant for the accident referenced above. In Tran v TD General Insurance Company, 2021 CanLII 96939 (ON LAT), the Tribunal found that the applicant:
i. Suffered from injuries that warranted removal from the Minor Injury Guideline;
ii. Was entitled to benefits for physical rehabilitation; and
iii. Was entitled to both a social work assessment and a functional abilities assessment.
5The applicant has submitted that the finding in this case should hold weight in the present appeal. The respondent objects to this line of reasoning, as the reasonableness and necessity of the current issues in dispute are distinct from those argued before the Tribunal in the previous appeal. I agree with the respondent. I will not be allocating weight to the previous decision for the following reasons:
i. I am not bound by previous decisions issued by this Tribunal;
ii. Finding that the applicant’s injuries fall outside the MIG simply means that the applicant has access to an enhanced benefits pool. The applicant is still required to prove that any proposed treatments are reasonable and necessary; and
iii. The last treatment plan approved in the previous decision was dated September 18, 2018, over one and a half years before the first disputed treatment plan in this case before me. The fact that a treatment plan was reasonable and necessary one and a half years in the past, is not evidence that a new treatment plan is reasonable and necessary today.
ANALYSIS
6To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
The applicant is not entitled to the treatment plan dated May 8, 2020
7I find that the applicant is not entitled to the plan dated May 8, 2020, with respect to physiotherapy and chiropractic treatment for back and shoulder pain.
8The applicant has referenced the clinical notes and records (CNRs) of Dr. H Nguyen, the applicant’s family physician. The CNRs from Dr. Nguyen have been provided from May of 2015 which highlight a history of chronic back pain that pre-dates the accident. Dr. Nguyen links the pain experienced by the applicant to the subject accident in notes on March 4, 2016 and April 7, 2016 immediately following the accident.
9However, since that time there has been no mention of the accident in Dr. Nguyen’s notes. For example, on June 26, 2017, the back pain was caused by heavy lifting at work with no reference to the accident. Without a documented link, it cannot be assumed that pain experienced almost four years post accident, is accident related.
10The respondent’s position that the applicant’s symptoms are not accident related is supported by the CNRs from Dr. Nguyen on May 4, 2020. This note documents ‘recurrent low back pain’. It is the first reported complaints of back pain in Dr. Nguyen’s records since June 26, 2017, almost three years earlier, and does not link the pain experienced to the accident. As mentioned above, the note from June 26, 2017 directly linked the pain to heavy lifting at work.
11The applicant highlights a series of ‘pain diagrams’ completed by the applicant over the years. I give these diagrams limited weight as they simply document the applicant’s subjective reports of pain, and do not provide a linkage to the accident. These diagrams also have notations from what I assume to be a healthcare practitioner, however, that practitioner is not identified, which is another contributing reason to giving these diagrams limited weight in my decision.
12The evidence presented by the applicant is insufficient to satisfy me that his symptoms and complaints are the result of the subject accident.
The applicant is not entitled to the treatment plan dated October 2, 2020
13I find that the applicant is not entitled to the plan dated October 2, 2020, with respect to physiotherapy and chiropractic treatment for back and shoulder pain.
14On October 10, 2020 the applicant visited Dr. H. Nguyen who noted, “Low back pain 1 week after lifting heavy box.”
15The applicant has the onus of proving that the proposed treatment plan is reasonable and necessary and that the proposed treatment is for injuries sustained in the accident. This note states that applicant has back pain that is the result of him lifting a heavy box.
16I accept that the applicant suffers from chronic back pain, however, I find that the pain experienced when this treatment plan was proposed was caused by lifting a heavy box and not by the accident.
17I find that the applicant has failed to prove that this treatment plan is related to the injuries sustained in the accident.
The applicant is not entitled to the treatment plan dated March 4, 2021
18I find that the applicant is not entitled to the plan dated March 4, 2021, with respect to chiropractic treatment for back and shoulder pain.
19The applicant submits a section 25 assessment completed by Dr. R Castro, a general practitioner in support of this claim. The date of the assessment was January 20, 2021. I have read this report and give it limited weight in the decision for the following reasons:
i. Dr. Castro has only reviewed Dr. Nguyen’s CNRs for the period from May 11, 2018 to April 13, 2020. The CNRs prior to and in the two years following the accident were not reviewed.
ii. Dr. Castro notes that the applicant’s past medical history is only significant for hypertension. This is not consistent with the notes of Dr. Nguyen who, since July of 2015 has frequently documented that the applicant has a history of chronic back pain.
20These points are both significant as Dr. Castro has noted a causal relationship between the applicant’s current pain and injuries sustained in the accident. If Dr. Castro was not aware of the points above, his finding of a causal relationship cannot be relied upon.
21There have also been no new CNRs by Dr. Nguyen presented for the period between the October 10, 2020 notes referenced above and the date of this treatment plan. In my view that fact supports the respondent’s position that the applicant’s complaints are not the result of the accident.
22In light of the above, the applicant has failed to prove that the proposed treatment plan is reasonable or necessary as the result of the subject accident.
The applicant is not entitled to the treatment plan dated September 23, 2021
23I find that the applicant is not entitled to the plan dated September 23, 2021, with respect to chiropractic treatment for back and shoulder pain.
24The only new piece of evidence which could be used to support this treatment plan is a CNR from Dr. Nguyen dated July 13, 2021 where Dr. Nguyen notes, “Chronic back pain”. As mentioned in analysis of the treatment plans above, simply stating that the applicant suffers from chronic back pain is not sufficient to link that chronic back pain to an accident that occurred over five years prior.
25As this is the only piece of new evidence presented in the timeframe between the last issue in dispute and this one, my finding remains the same. The applicant has failed to prove that the proposed treatment plan is reasonable or necessary as the result of the accident.
The applicant is not entitled to any of the proposed assessments
26I find that the applicant is not entitled to the plan for the insurer to fund two assessments: a general practitioner’s assessment and a psychiatric assessment.
The applicant is not entitled to a general practitioner assessment requested January 14, 2021
27I find that this proposed assessment was completed without authorization from the respondent, and I have designated it as having limited weight due to noted deficiencies.
28In the applicant’s submissions, there is not a coherent reason articulated for the necessity of this assessment nor is there any supporting documentation beyond the OCF-18. An OCF-18 cannot be used to justify the reasonableness and necessity by itself. Further evidence is required. The only other medical evidence which could be used to justify this assessment are the CNRs of Dr. Nguyen, also a general practitioner, who has a relationship with the applicant. Dr. Nguyen has diagnosed the applicant with chronic back pain. Given this, I am not convinced it is necessary for another general practitioner to evaluate and diagnose the applicant. This is especially true as the assessor was not provided a complete picture of the applicant’s condition and health history.
29I find that applicant has failed to prove that this general practitioner assessment is reasonable or necessary.
The applicant is not entitled to a psychiatric assessment requested March 4, 2021
30The applicant has submitted a treatment plan requesting a psychiatric assessment conducted by Dr. M. Bismonte, psychiatrist.
31In response to this, the respondent conducted a section 44 psychiatric evaluation. This evaluation was conducted by Dr. S. Hasan, psychiatrist.
32In this assessment, Dr. Hasan notes that “Mr. Tran reported some symptoms of anxiety, but the symptoms are not significant enough to warrant a DSM-5 diagnosis as a result of the subject motor vehicle accident.”
33This is the only piece of evidence which has been submitted that references psychiatric issues. There have been no references to such issues in Dr. Nguyen’s CNRs or anywhere else in the submitted evidence. As such, I find that the applicant has failed to prove a psychiatric evaluation is reasonable or necessary.
Award
34As I have found in that there are no payment of benefits owing, there is no basis upon which to consider an award in this matter.
Interest
35As there are no benefits owing, no interest is payable.
ORDER
36For the reasons outlined above, I find that:
i. The applicant is not entitled to the treatment plans for rehabilitation benefits;
ii. The applicant is not entitled to any of proposed assessments;
iii. The applicant is not entitled to an award under Regulation 664;
iv. No interest is payable; and
v. This application is dismissed.
Released: December 12, 2023
__________________________
Julian DiBattista
Vice-Chair