Licence Appeal Tribunal File Number: 20-009764/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:
Asrin Mamresuli
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR: Michael Beauchesne
APPEARANCES:
For the Applicant: Michael Yermus, Counsel
For the Respondent: Nisaa Khan, Counsel
HEARD: By way of written submissions
OVERVIEW
1Ms. Asrin Mamresuli, the applicant, was involved in an automobile accident on August 8, 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 the respondent, Aviva 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 chiropractic treatment in the amount of $3,733.86, proposed by Newmarket Health & Wellness in a treatment plan (the “OCF-18”) denied July 21, 2021?
ii. Is the applicant entitled to as driving assessment in the amount of $2,359.81, proposed by Dr. Rockman in an OCF-18 denied November 3, 2020?
iii. Is the applicant entitled to a quantitative electroencephalography (the “qEEG”) assessment in the amount of $2,033.00, proposed by iScope Concussion & Pain Clinic in an OCF-18 denied January 15, 2021?
iv. Is the applicant entitled to a neurological assessment in the amount of $2,460.00, proposed by iScope Concussion and Pain Clinic in an OCF-18 denied January 15, 2021?
v. Is the applicant entitled to a worksite assessment in the amount of $858.25, proposed by Scarborough Physio in an OCF-18 denied January 15, 2021?
vi. Is the applicant entitled to a vocational assessment in the amount of $2,200.00, proposed by Scarborough Physio in an OCF-18 denied January 15, 2021?
vii. Is the applicant entitled to a hyperbaric oxygen assessment in the amount of $2,486.00, proposed by Imperial Medical Assessment in an OCF-18 denied July 21, 2021?
viii. Is the applicant entitled to physiotherapy treatment proposed by Premiere Spine & Sports Rehab & Wellness as follows:
i. $2,644.00 in an OCF-18 denied January 31, 2020; and
ii. $2,744.00 in an OCF-18 denied January 31, 2020?
ix. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
x. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to any of the disputed OCF-18s, and there is no interest or award payable.
ANALYSIS
Are the disputed OCF-18s reasonable and necessary?
4I find the applicant has failed to show the OCF-18s in dispute are reasonable and necessary.
5To receive payment for a treatment and assessment plan under sections 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.
OCF-18 for chiropractic services in the amount of $3,733.86
6I am not convinced the applicant has met her onus to prove this OCF-18 is reasonable and necessary.
7The applicant did not make a submission specific to this OCF-18. The physical injuries referenced in the applicant’s submissions that would likely be relevant to this OCF-18 affect her lower back, feet, legs, and neck. The applicant also noted sciatica, loss of sleep, and tingling in the context of her physical injuries. The applicant says she was referred to treatment for her accident-related injuries by multiple medical professionals. The applicant relies on the clinical notes and records of the Newmarket Health & Wellness Centre, Premier Spine and Sports Rehabilitation & Wellness, Dr. Anoja Anton (family physician), Dr. Yan Fei Chen (family physician), Dr. Kevin Spence (chiropractor), Dr. Neilank Kumar Jha (neurologist), and Dr. Sree Malempati (orthopaedic surgeon).
8The respondent submits this OCF-18 for chiropractic services also includes massage therapy, physiotherapy, and exercise equipment. The respondent’s submissions argue the applicant has not produced objective contemporaneous evidence that shows this OCF-18 is reasonable and necessary. The respondent relies on the section 44 insurer’s examination (“IE”) conducted by Dr. Shariff Dessouki (physiatrist) on August 24, 2021, which found no objective residual impairment and concluded the applicant had achieved maximal medical improvement with no need for further physical therapies other than a self-directed home stretching and strengthening exercise program.
9The applicant’s submissions did not specifically reference where to find the pertinent evidence in the 47 pages of notes from the Newmarket Health & Wellness Centre to support her claim. The applicant’s reply submissions did, however, specify dated entries in the clinical notes and records of Premiere Spine & Sports Rehab & Wellness to show objective evidence of improvements she was making by incurring treatment denied by the respondent. But I find these examples are largely subjective reports made by the applicant, and not objective observations made by professionals at the clinic. I reviewed the entry made on November 4, 2019, which assesses improved range of motion in the applicant’s neck. However, the applicant’s neck does not figure prominently in the applicant’s submissions, which focuses near exclusively on exacerbation of pre-existing low back and right leg pain. Further, I found no mention of limited range of motion, test findings, or impairments in Premiere’s entry of September 25, 2019, as claimed by the applicant.
10As well, I considered that the applicant’s submissions do not direct me to this OCF-18, and my review of the index provided with her submissions did not locate it in evidence. I therefore cannot ascertain, as fact, the goals of the OCF-18 or the services proposed to reasonably meet those goals. I also cannot confirm the costs associated with this OCF-18. It follows then, that I am unable to find this OCF-18 is reasonable and necessary because I have no means of analyzing the plan’s goals or outcomes against the medical evidence provided by the parties, and no way to validate the reasonableness of the proposed costs.
OCF-18 for driving assessment in the amount of $2,359.81
11I find the applicant has failed to demonstrate the reasonableness and necessity of this OCF-18.
12The applicant’s submissions say she has not been able to completely return to driving because she still avoids driving at night, on highways, long distances, and in unfamiliar places. The applicant points to the disability certificate (the “OCF-3”) completed by Mr. Farhankhan Pathan (physiotherapist) on August 14, 2019, that notes a need for driver rehabilitation therapy, as well as her documented fears of being involved in another accident and highway driving in the records of Dr. Hannah Rockman (psychologist). The applicant also directs me to a notation of driving anxiety in an IE relating to a functional abilities assessment that was conducted by Dr. Dimitrios Leontidis (chiropractor) on October 26, 2021.
13The respondent submits that $1,296.40 was approved for this OCF-18, and that the dispute on the balance (which I calculate to be $1,063.41), is about the reasonableness of the proposed hourly rates for the psychotherapist and driving instructor. The respondent says it approved an hourly rate of $99.75 for psychotherapy, and $35.00 for driving instruction. The respondent says it is up to the parties to determine these rates because the Professional Services Guidelines established by the Financial Services Commission of Ontario do not specify hourly rates for psychotherapists or driving instructors. The respondent adds that the applicant did not produce evidence to show that different hourly rates were proposed as an alternative to the rates included in the explanation of benefits form (the “EOB”). The respondent argues that $35.00 per hour is consistent with the average hourly rate for driving instructors, and that $99.75 is consistent with the hourly rate found reasonable and necessary for psychotherapists by the Tribunal.
14I am not convinced that the applicant’s submissions meet her onus. The applicant did not reference the OCF-18 in her submissions on driving anxiety, and I could not locate the OCF-18 in the evidence indexes provided by the parties. So, the applicant has not pointed me to evidence that substantiates the goals, proposed services, or costs associated with this OCF-18. In my view, the reasonableness and necessity of this OCF-18 comes down to the fees charged for the assessment because the respondent is not arguing whether the OCF-18’s goals are reasonable, or whether they can reasonably be met by the proposed services. Rather, the respondent is saying the costs are excessive, and to prove the balance of this OCF-18 is reasonable and necessary, the applicant needs to address costs in her submissions, but fails to do so. I therefore do not find this OCF-18 to be reasonable and necessary.
OCF-18 for a qEEG assessment in the amount of $2,033.00
15The applicant has failed to show this OCF-18 is reasonable and necessary.
16The applicant’s submissions on this OCF-18 were difficult to follow because they were blended with her arguments on the neurological assessment OCF-18, and the OCF-18 for a hyperbaric oxygen assessment, as part of a broader submission on her cognitive injuries and the need for investigations and treatment. As I understand, it appears the applicant is arguing that the qEEG OCF-18 is reasonable and necessary because she suffers cognitive impairment owing to the accident. The applicant relies on the clinical notes and records of Drs. Rockman and Chen to show evidence of cognitive dysfunction since the accident, as well as Dr. Lorne Tugg (psychiatrist), who performed an IE on September 9, 2021, and determined the applicant sustained accident-related impairments in her attention and concentration. The applicant explains that a qEEG measures brain waves to address cognitive and emotional function.
17The respondent says the applicant’s submissions concerning medical literature are unsubstantiated, and that the applicant provided no objective medical evidence of cognitive issues that require a qEEG assessment. The respondent also submits a flat rate is not reasonable for this assessment, and that the applicant failed to provide an hourly breakdown of the fees.
18I am not convinced a qEEG assessment is reasonable and necessary to treat the applicant’s cognitive impairment (i.e., difficulties with memory, concentration and finding words) for several reasons. Firstly, the applicant’s submissions did not pinpoint where I can find evidence of cognitive impairment or treatment recommendations in the 333 pages of Dr. Rockman’s records as referenced by the applicant. Similarly, the applicant did not direct me to specific entries in Dr. Chen’s records that show cognitive impairment or treatment recommendations. As such, I did not place much weight on the evidence of Drs. Rockman and Chen as it pertains to this OCF-18.
19Secondly, Dr. Tugg’s report indicates that he reviewed this OCF-18 as part of his assessment. But the applicant’s submissions do not point to a recommendation for a qEEG assessment by Dr. Tugg. In fact, Dr. Tugg’s psychiatry report includes a recommendation for cognitive behavioural therapy and medication to treat the applicant’s cognitive difficulties. Thirdly, I find the goals of the OCF-18 (i.e., further specification and analysis of presenting symptoms to determine appropriate treatment) are vague and do not specify whether the symptoms contemplated here relate to the applicant’s cognitive impairment.
20In conclusion, I find the applicant’s submissions do not point to sufficient medical evidence that shows a qEEG assessment is reasonable and necessary, or offer an argument on the reasonableness of the costs. I find it compelling that Dr. Tugg, a mental health specialist who examined the applicant and determined she sustained accident-related cognitive impairments, did not include a qEEG assessment as part of his recommendations although he knew it had been proposed. Taken together on balance, I find the evidence put forward by the applicant does not establish this OCF-18 as reasonable and necessary.
OCF-18 for a neurological assessment in the amount of $2,460.00
21The applicant did not persuade me that this OCF-18 is reasonable and necessary.
22The applicant’s submissions on this OCF-18 were difficult to follow because they were blended with her arguments on the qEEG assessment OCF-18, and the OCF-18 for hyperbaric oxygen assessment, as part of a broader submission on her cognitive injuries and the need for investigations and treatment. As I understand, it appears the applicant is arguing that the neurological OCF-18 is reasonable and necessary because Dr. Emily Crookshank (neurologist) determined the applicant’s symptoms are compatible with diagnoses of sensory radiculopathy, mild traumatic brain injury, post-concussion syndrome, post-traumatic vision syndrome, and mild-post-traumatic vestibulopathy.
23The respondent submits the applicant already had two post-accident consultations with different neurosurgeons, and that there is no objective evidence of cognitive injury after the accident that requires further neurological investigation.
24I find the applicant’s submissions are inconsistent with the evidence. My review of Dr. Crookshank’s report, as specifically referenced by the applicant in her submissions, failed to find the diagnoses claimed by the applicant. There are only impressions offered by Dr. Crookshank, which include local myofascial pain in addition to radicular pain in her lower spine. Dr. Crookshank indicated the neurological examination was “essentially normal” and recommended non-surgical treatment focused on physiotherapy, pain control and rehabilitation. There is no indication that Dr. Crookshank recommended further neurological assessment as proposed in the OCF-18.
25This evidence does not convince me the OCF-18 for a neurological assessment is reasonable and necessary. The applicant’s submissions do not address the goals of this OCF-18, which are to clarify if subjective health complaints and injuries are of a neurological nature, and to devise further treatment and examination. I do not agree this is a reasonable goal because Dr. Crookshank’s neurological examination produced normal results and provided treatment recommendations. Further, Dr. Crookshank did not recommend a neurological assessment. I therefore do not agree this OCF-18 is reasonable and necessary.
OCF-18 for a worksite assessment in the amount of $858.25
26I find the applicant has failed to show this OCF-18 is reasonable and necessary.
27The applicant’s submissions point to the clinical records of Dr. Chen, which recommends an ergonomic set-up at work, including a standing desk.
28The respondent submits it approved $868.00 of the $1,726.25 proposed for this OCF-18. The respondent says the approved portion funded a three-hour assessment, and that the balance in dispute pertains to an additional eight hours it deems to be unreasonable, as well as mileage costs of service providers that are not payable under the Schedule. The respondent argues that the applicant has not shown why 11 hours is reasonable to complete a worksite assessment.
29My review of Dr. Chen’s note, dated October 3, 2020, confirms he recommended an ergonomic set-up at work, which includes a standing desk. However, the applicant did not reference the OCF-18 in her submissions, and I could not locate it in the evidence provided by either party. So, the applicant has not substantiated the goals, proposed services, or costs associated with the OCF-18. In my view, the reasonableness and necessity of this OCF-18 comes down to the fees charged for the assessment because the respondent is not arguing whether the OCF-18’s goals are reasonable, or whether they can reasonably be met by the proposed services. Rather, the respondent is saying some of the costs are excessive and others fall outside the Schedule. To prove the balance of this OCF-18 is reasonable and necessary, the applicant needs to address costs in her submissions, but fails to do so. I therefore do not find this OCF-18 to be reasonable and necessary.
OCF-18 for a vocational assessment in the amount of $2,200.00
30I am not convinced the applicant has shown this OCF-18 to be reasonable and necessary.
31The applicant’s submissions direct me to the report of Dr. Tugg, which says the applicant cannot engage in any employment. The applicant says a vocational assessment will help determine what jobs she might reasonably be able to pursue, and what type of rehabilitation or retraining might be necessary.
32The respondent submits this OCF-18 is redundant because the applicant was working as a full-time legal assistant at the time the OCF-18 was submitted. The respondent relies on the multidisciplinary IE conducted by Dr. Dessouki and Dr. Kelly McCutcheon on February 23, 2021, which determined the OCF-18 was not reasonable and necessary owing to the applicant’s return to pre-accident employment duties, and subsequent employment as a legal assistant.
33I am not persuaded the applicant has met her onus. I accept that Dr. Tugg concludes the applicant cannot engage in any employment for which she is reasonably suited by education, training, or experience. But Dr. Tugg does not recommend a vocational assessment. In fact, he says that from a psychiatric perspective, the applicant cannot engage in any occupations at this time, even if additional training or education is provided, and that rehabilitative strategies to facilitate a return to some form of employment would consist of pharmacotherapy and behavioural therapy to manage her underlying mental health conditions. I was not presented with evidence that shows this opinion has since changed, and find it relevant that this is the most recent evidence presented to me that speaks to the applicant’s vocational performance. Therefore, owing to the findings of Dr. Tugg—and specifically that the applicant’s mental health difficulties preclude her from engaging in any occupations—I cannot see how a vocational assessment would be reasonable and necessary in this context.
34As well, the applicant did not reference the OCF-18 in her submissions, and I could not locate it in the evidence provided by either party. So, the applicant has not substantiated the goals, proposed services, or costs associated with the OCF-18. I therefore cannot ascertain as fact, the goals of the OCF-18 or the services proposed to reasonably meet those goals. I also cannot confirm the costs associated with this OCF-18. It follows that I am unable to find this OCF-18 is reasonable and necessary because I have no means of analyzing the plan’s goals or outcomes against the medical evidence provided by the parties, and no way to validate the reasonableness of the proposed costs.
OCF-18 for a hyperbaric oxygen assessment in the amount of $2,486.00
35I am not convinced the applicant has shown this OCF-18 to be reasonable and necessary.
36The applicant’s submissions on this OCF-18 were difficult to follow because they were blended with her arguments on the neurological assessment OCF-18, and the OCF-18 for a qEEG assessment, as part of a broader submission on her cognitive injuries and the need for investigations and treatment. As I understand, it appears the applicant is arguing that the OCF-18 for hyperbaric oxygen assessment is reasonable and necessary because she experiences symptoms of a mild traumatic brain injury. The applicant says Dr. Yan Fei Chen’s records provide evidence of an accident-related concussion. The applicant also says she reported to Dr. Dessouki that she may have struck her head , but that it is otherwise well-established that neither direct trauma to the head, nor loss of consciousness, is necessary for a person to sustain a head injury. The applicant submits that hyperbaric oxygen treatment was recommended by Dr. Michael Gofeld (family physician) to “significantly accelerate the applicant’s recovery from her brain injury.”
37The respondent submits the applicant has not produced evidence that the use of hyperbaric oxygen therapy is effective in the treatment of brain injuries, and argues that the assessment is experimental in nature. The respondent says that neither OHIP or Health Canada recognizes hyperbaric oxygen therapy as a treatment for brain injuries, and adds that the applicant has provided no objective evidence to support her claim.
38I disagree that Dr. Chen’s records provide sufficient medical evidence of a brain injury. Dr. Chen indicates, on a referral form, that the applicant sustained a concussion during the accident. But Dr. Chen appears to rely only on the applicant’s self-reports of forgetfulness, slow processing, and word-finding difficulties to form his opinion. I was not directed to the diagnostic criteria used by Dr. Chen to determine the applicant was dazed and confused after the accident. The applicant did not point me to the results of cognitive function tests that substantiate her impairments. While I acknowledge the applicant’s position that brain injury does not require direct head trauma or a loss of consciousness, I find it more relevant that the applicant did not point me to a medical opinion that, on balance, explains what caused her brain injury, or show how it occurred. In my view, the applicant’s self-reports on their own are insufficient to meet her onus of proving the reasonableness and necessity of this OCF-18.
39As well, the applicant fails to present convincing arguments on the reasonableness of the OCF-18’s goals. She says Dr. Gofeld suggested the use of a hyperbaric chamber to hasten brain injury recovery, but part 9 of the OCF-18 speaks only to goals of pain reduction and increased range of motion—there is no mention of treating a brain injury or the cognitive impairments claimed by the applicant. The applicant’s submissions do not address if or how the part 9 goals can reasonably be met by a hyperbaric oxygen assessment. So, I find this OCF-18 is not reasonable and necessary because I do not see that its goals align with the intended purpose of the treatment, and because there is insufficient medical evidence of cognitive impairment or brain injury as a result of the accident.
OCF-18 for physiotherapy treatment in the amount of $2,644.00
40I find the applicant has not demonstrated this OCF-18 is reasonable and necessary.
41The applicant submits she suffered physical injuries to her lower back, feet, legs, and neck as a result of the accident. The applicant also noted sciatica, loss of sleep, and tingling in the context of her physical injuries. The applicant says she was referred to treatment (i.e., physiotherapy, massage, swimming, and aqua fitness) for her accident-related injuries by multiple medical professionals, all of whom agree the accident exacerbated pain from pre-existing injuries.
42The applicant also says a letter from Mr. Allen Eshmoili (physiotherapist) addresses inaccuracies in Dr. Patrick Tansey’s report (which is further addressed as part of the respondent’s submissions on this OCF-18), and that the IEs performed by Drs. Dessouki and Gilbert Yee (orthopaedic surgeon) contradict Dr. Tansey’s opinion that the applicant’s injuries and pain are the results of a pre-existing condition owing to a workplace accident. The applicant argues that the treatment she incurred despite the respondent’s denial has been helpful in relieving her pain and stiffness, as well as improving her range of motion and overall functionality, and points to the records of Dr. Rockman and Newmarket Health & Wellness to support this.
43The applicant’s reply submissions add that examinations indicating tenderness, stiffness, and limited range of motion would constitute objective evidence that supports her need for treatment. The applicant relies on the clinical notes and records of Newmarket Health & Wellness, Premiere Spine & Sports Rehabilitation & Wellness, Dr. Anton, Dr. Chen, Dr. Spence, Dr. Jha, Dr. Malempati, Dr. Rockland, and Dr. Mark Katz (psychiatrist).
44The respondent says $1,297.25 of this OCF-18 was approved, which I calculate as leaving a balance of $1,346.75 in dispute. The respondent’s submissions argue that Dr. Anton does not attribute her treatment recommendations to accident-related injuries, and fails to specify what treatment is recommended.
45The respondent also argues that the applicant’s consultations with Drs. Chen, Jha, and Malempati were about her pre-existing injuries and do not relate to accident injuries. Similarly, the respondent says the applicant’s treatment at Chiropractic Plus was a continuation of therapy for her pre-existing injuries, and that the records of Premiere Spine & Sport Rehabilitation & Wellness do not show objective evidence that the applicant has benefitted from, or that she requires, the treatment proposed in the OCF-18. The respondent relies on the IE and addendum conducted by Dr. Tansey on November 7, 2019, and January 30, 2020, respectively, which determined the applicant sustained an uncomplicated myofascial strain-type injury, and that her symptoms were related to a previous work-related back injury that caused her pre-existing condition.
46I find the applicant’s submissions on this OCF-18 focus on showing that the accident exacerbated pain from her pre-existing injuries, and that the physicians who saw her post-accident recommended treatment for her aggravated pain. But the weight of these arguments do not establish this OCF-18 as reasonable and necessary. In fact, the applicant does not tie the goals of the OCF-18 into her arguments, or address why they are reasonable.
47Part 9 of the OCF-18—completed by Mr. Eshmoili on September 25, 2019—lists goals of pain reduction, increase in strength, and increased range of motion. But the applicant did not point me to any reports of pain, strength deficiencies, or range of motion impairments in her submissions on the clinical notes and records of Newmarket Health & Wellness Centre. Same for Premier Spine & Sports Rehabilitation & Wellness pertaining specifically to her low back and right leg pain. Although Dr. Anton’s report of August 19, 2019, assesses musculoskeletal pain resulting from the accident, my review of this evidence shows Dr. Anton does not recommend physical rehabilitation and offers little insight into strength or range of motion issues.
48Similarly, I was not pointed to evidence in Dr. Jha’s report of August 30, 2019, that refers to testing of the applicant’s strength or range of motion. The evidence in Dr. Spence’s September 12, 2019, initial exam report, as referenced in the applicant’s submissions, was not helpful because it provided no treatment recommendations or objective observations of functional impairment in strength or range of motion. Dr. Anton’s entry dated September 24, 2019, is not persuasive because it does not indicate what recommended treatment the applicant should continue to pursue (i.e., the medication Dr. Anton earlier prescribed, the therapies proposed by Dr. Jha, or otherwise).
49As well, the applicant did not point to range of motion or strength findings made by Dr. Malempati in his report dated October 15, 2019. And I find the conclusions of IE assessors Dr. Leontidis and Dr. Yee that were raised in the applicant’s reply submissions do not establish she suffers strength or range of motion issues owing to her pre-existing injuries. In fact, the pages of Dr. Leontidis’ report that the applicant refers to show her lower back motion ranged from 103 to 116 per cent of the norm despite a discomfort rating of 4 out of 10. The pages referenced in Dr. Yee’s report document an examination of the applicant’s feet and ankles that revealed functional painless range of motion and normal gait.
50As such, I am not convinced the goals of this OCF-18 are reasonable because the applicant did not provide sufficient medical evidence to establish, on balance, that her strength and range of motion is impaired by her injuries.
51In terms of whether the OCF-18’s goals can reasonably be met, part 9 indicates that progress will be measured through subjective and objective measures, including visual analog scale and functional outcomes, respectively. But the applicant’s submissions rely only on her own reports to establish that treatment is helping her to feel better and does not point to objective measures of strength or range of motion to demonstrate the physical therapy treatment she has completed to date has resulted in improvements. As such, I find there is an insufficient evidentiary basis for me to conclude the OCF-18s goals can be met by the proposed services.
52While I accept the applicant is experiencing pain from her injuries, this OCF-18 aims to address much more than the applicant’s pain complaints. To find this OCF-18 is reasonable and necessary, I must be convinced that all the goals are reasonable and can reasonably be met at a reasonable cost. I find the applicant did not show me that all the goals of this OCF-18 are reasonable because she failed to produce sufficient medical evidence pertaining to strength and range of motion impairments that need to be addressed, and did not provide sufficient medical evidence to demonstrate the goals can reasonably be met. As such, I am not convinced this OCF-18 is reasonable and necessary.
OCF-18 for physiotherapy treatment in the amount of $2,744.00
53I find the applicant has not shown this OCF-18 to be reasonable and necessary.
54The applicant’s submissions on this OCF-18 were the same as those put forward for the physiotherapy OCF-18 in the amount of $2,644.00.
55The respondent’s submissions mention that this OCF-18 includes a back roll and sleep roll in addition to physiotherapy services, but otherwise articulated the same arguments put forward for the physiotherapy OCF-18 in the amount of $2,644.00.
56This OCF-18 was completed by Mr. Eshmoili on November 4, 2019, which is roughly six weeks after the previous OCF-18 for physiotherapy. When I compare the plans, I see in part 9 that goals had been added, including improved motor control, decreased anxiety and fear avoidance behaviours, and increased confidence with functional lifting. The applicant does not address these added goals in her submissions, or point me to medical evidence that establishes she has difficulties with motor control, anxiety-related behaviours, and functional lifting impairments. The OCF-18 also shows different measures of progress, none of which were identified or addressed in the applicant’s submissions.
57In conclusion, I find this OCF-18 is not reasonable and necessary. This is because the applicant did not point me to sufficient medical evidence pertaining to the strength and range of motion impairments that aim to be addressed through physiotherapy. As well, the applicant did not point me to sufficient medical evidence of difficulties with motor control, anxiety-related behaviours, and functional lifting impairments that can be addressed by physiotherapy. I therefore am not convinced this OCF-18 has reasonable goals, and find the OCF-18 is not reasonable and necessary.
Interest
58Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. There are no benefits payable, therefore no interest is owing.
Award
59Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled. To be liable for an award, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. In this case, there are no benefits payable, therefore the respondent cannot be liable to pay an award.
ORDER
60The application is dismissed.
Released: December 20, 2023
Michael Beauchesne
Adjudicator