Citation: Agbassi v. Aviva Insurance Company, 2023 ONLAT 21-011941/AABS

Licence Appeal Tribunal File Number: 21-011941/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:

Chika Agbassi

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Stephanie Kepman

APPEARANCES:

For the Applicant:

Alex Nikolaev, Counsel

For the Respondent:

Marcin Panasewicz, Counsel

HEARD:

In writing

OVERVIEW

1Chika Agbassi (the “applicant”) was involved in an automobile accident on May 2, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Aviva Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2In her written submissions, the applicant withdrew the issue of an award under s. 10 of O. Reg. 664.

ISSUES

3The remaining issues in dispute are:

i. Is the applicant entitled to $3,591.50 for physiotherapy services, proposed by Physio Art Rehab in a treatment plan (“OCF-18”) dated May 20, 2021, and denied June 2, 2021?

ii. Is the applicant entitled to $2,041.13 for physiotherapy services, proposed by Physio Art Rehab in an OCF-18 dated July 9, 2021, and denied August 12, 2021?

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

RESULT

4The applicant is not entitled to any of the disputed OCF-18s, as she has not shown that the treatments are reasonable and necessary.

5The applicant is not entitled to interest.

ANALYSIS

The applicant is not entitled to the two OCF-18s for physiotherapy and massage therapy services

6The applicant submits that the two disputed OCF-18s for physiotherapy services are reasonable and necessary. The respondent disagrees.

7The respondent sought to clarify the issues in dispute. It argues that the OCF-18 in the amount of $2,041.13 is for massage therapy and not physiotherapy services. The respondent relies on the disputed OCF-18, which states in part 4 that the recommendation was made by Mohammed Bakri, physiotherapy, where he recommends that the applicant receive services from Laura Bristol, massage therapist.

8The applicant agreed with the respondent. Upon my review of the disputed OCF-18, it appears that the service proposed is for massage therapy services. Therefore, I accepted that the issues in dispute relate to physiotherapy and massage therapy services.

9Since both disputed OCF-18s were authored by the same treatment provider, with similar modalities of treatment and goals, I will address both issues at once.

10To receive payment for a treatment and assessment plan under s.14, 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.

11The applicant submits that based on her medical evidence, the disputed OCF-18s are reasonable and necessary. The applicant submits that the purposes of the disputed OCF-18s are to reduce her pain, increase her strength and range of motion and be able to return to activities of daily living (“ADL”s). The applicant submits she lives with chronic pain syndrome, a concussion and post-concussion symptoms. The applicant also submits that all her treatment providers have recommended she continue with active rehabilitation to achieve her goals.

12The applicant relies on the disputed OCF-18s; and the clinical notes and records (“CNR”s) from the emergency room at Hamilton Health Sciences, the Juravinski Hospital, Dr. Darwin Chan, physician, Dr. Danielle O’Toole, physician, Dr. Mengchen Xi, physician, Dr. Greg McGill, physician, and of her physiotherapy clinic. She further relies on the Psychiatric Consultation Reports of Dr. William Parkinson, psychologist dated September 6, 2019 and February 5, 2020; the Neuropsychological Assessment Report of Dr. Parkinson; the Pain Management Consultation Report prepared by Dr. Suneel Upadhye, emergency medicine specialist; the Insurer’s Examination (“IE”) Assessment Report of Dr. Mark Watson, psychologist; the Neurological Consultation Reports of Dr. Michael Rathbone, neurologist, dated January 17, 2020 and June 14, 2021; a magnetic resonance imaging (“MRI”) dated February 3, 2020; and the Independent Neuropsychological Assessment Report of Dr. David Kurzman, psychologist.

13The respondent submits that the applicant’s request for physiotherapy and massage services is not reasonable and necessary as a result of her accident-related injuries. The respondent also submits that the applicant carries the burden of proving that the disputed OCF-18s are reasonable and necessary, based on the matter of D.S. v RSA Insurance, 2020 CanLII 45494 (ON LAT).

14The respondent acknowledges that the applicant suffered accident-related injuries, however, it argues that most of her impairments are psychological and do not necessitate further, clinic-based physical therapy to address her soft-tissue injuries.

15The respondent relies on the IE of Dr. Allan Kopyto, physician; the CNRs of the emergency room at Hamilton Health Sciences, the Juravinski Hospital, Dr. Chan, Dr. Xi, and the applicant’s physiotherapy clinic; and the Pain Management Consultation Report of Dr. Upadhye.

16I find that the applicant is not entitled to the two disputed OCF-18s. Though I agree that the goals of the OCF-18s are reasonable, in that the applicant’s doctors have stated that the treatments should help reduce the applicant’s pain, increase her function, and assist her in her return to full-time work, I do not agree that the passive modalities proposed is reasonable, and therefore, the applicant has not met her evidentiary burden. I also do not agree that these OCF-18s are necessary.

17I agree with the respondent in that the applicant is required to prove, based on a balance of probabilities, that the requested treatment is reasonable and necessary and has not done so. This has been shown in countless Tribunal matters, including D.S. v RSA Insurance.

18After reviewing the entirety of the evidence, I find that the applicant has adduced evidence of suffering from strains, soft-tissue injuries, whiplash associated disorder (“WAD-II”) and post-concussive symptoms as a result of her accident; this is supported by the records from Hamilton Health Science and Juravinski Hospital, which diagnose the applicant with neck strain and soft tissue injures.

19This position is further supported with evidence from 2019 where Dr. Chan who diagnosed the applicant with a concussion and whiplash after her accident, and Dr. Upadhye further diagnosed the applicant with a WAD-II. However, neither doctor specifically commented on the reasonableness and necessity of the disputed treatment plans.

20Dr. Upadhye noted the applicant’s difficulties in moving to “active” therapy versus passive therapy. Moreover, the doctor specifically states that:

“I recommend a physical therapy program aimed at active therapy. She would benefit from psychological treatment and chronic pain education in addition to a physical therapy program to help with coping and provide her with strategies to help improve her mood and sleep as well as with her depression and anxiety.”

21When looking at this recommendation, one must remember that in 2019, the doctor was already suggesting that the applicant should be focusing on treatments that are active, rather than passive.

22After reviewing the two OCF-18s in dispute, it appears both plans relate to passive therapy, as they fail to mention education and/or exercise programs, and instead focus on therapy and assessments. I also note that OCF-18s are from 2021, two years after Dr. Upadhye’s recommendation. I also was not presented with evidence that the 2019 recommendation for active therapy was retracted.

23I agree with the respondent’s argument that the applicant’s healthcare providers recommended that the applicant attend physiotherapy in 2019, which she received. However, I also agree with the respondent’s argument that the applicant has provided limited, contemporaneous medical evidence that supports her need for subsequent, passive physical therapy when the OCF-18s were authored in 2021 or 2022.

24I also note that the applicant provided a plethora of evidence that spoke to her neurocognitive and psychological difficulties including the evidence of Dr. Parkinson, Dr. Rathbone, and Dr. Xi. However, the doctors did not specifically address the disputed OCF-18s.

25I reviewed the applicant’s CNRs of 2020 from the applicant’s physiotherapy clinic and noted that the applicant was regularly encouraged to continue her home-exercise program. The clinic also noted the applicant’s lack of engagement in her home-exercise. Based on this evidence, I find that that the physiotherapy clinic strongly urged the applicant to continue the home-exercise program because of its importance to the applicant’s recovery.

26Moreover, the records from the applicant’s physiotherapy clinic show that when she did engage with her home exercise program, as seen on March 25, 2023: “She reports progressive improvement ... she tries to be regular on her HEP [Home Exercise Program] and feels that its helping with her neck pain and muscle strength ... she is paying attention to her posture”, which further support that the applicant would benefit from active rather than passive treatment.

27This is also supported by a CNR from Dr. Xi dated February 24, 2022, that the applicant had some pain when she started her home based exercise program but was “a lot better than when first started. Rt sided headache improved after starting the exercises.” Dr. Xi also proposed that the applicant continue her exercises to improve her symptoms.

28I also found Dr. Kopyto’s findings persuasive, as the doctor was able to review the applicant’s detailed CNRs, medical records, including imaging, as well as the applicant’s approved and denied OCF-18s. Moreover, the doctor examined and assessed the applicant in relation to the disputed OCF-18s and found that the applicant’s complaints of headaches with nausea and dizziness, neck, back and right upper back and shoulder pain were caused by cervical strain and post-traumatic headaches and post-concussion symptoms. Dr. Kopyto also commented that the applicant had been provided with extensive rehabilitation, and that she had reached maximum medical recovery. As such, the disputed OCF-18s were not found to be reasonable and necessary.

29I also found that the evidence from Dr. Kurzman’ and Dr. Parkinson’s was not supportive of the applicant receiving further physical therapy. I also note that the doctor’s evidence regarding physical therapy was of little, persuasive value, as their expertise lies in psychology and not physical therapy and is beyond their respective scopes of practice. Therefore, their evidence was not persuasive.

30For these reasons, the applicant is not entitled to the disputed OCF-18s.

Interest

31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits have been found to be owing, no interest is payable.

ORDER

32The applicant is not entitled to the OCF-18s for physiotherapy services, as she has not shown that the treatments are reasonable and necessary.

33The applicant is not entitled to interest.