Licence Appeal Tribunal File Number: 21-001370/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:
Bibigol Safi
Applicant
and
Aviva Insurance Canada
Respondent
DECISION AND ORDER
VICE-CHAIR: Monica Ciriello
APPEARANCES:
For the Applicant: Kateryna Vlada, Paralegal
For the Respondent: Nabila Majidzadeh, Counsel
HEARD By Way of Written Hearing
OVERVIEW
1The applicant was involved in an automobile accident on July 17, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016), (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).
ISSUES
2The issues to be decided in the hearing are:
a. Is the applicant entitled to $3,192.25 for psychological services recommended by Imperial Medical Assessments in a treatment plan (“OCF-18”) denied February 29, 2019?
b. Is the applicant entitled to $2,200.26 for a driving evaluation recommended by Imperial Medical Assessments in OCF-18 denied on January 28, 2019?
c. Is the applicant entitled to $3,447.63 for physiotherapy recommended by Scarborough Health and Wellness Centre in OCF-18 denied August 25, 2020?
d. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant is not entitled to:
a. $3,192.25 for psychological services;
b. $2,200.26 for a driving evaluation;
c. $3,447.63 for physiotherapy;
d. Interest.
ANALYSIS
Are the Treatment Plans Reasonable or Necessary?
4Section 14, 15 and 16 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person who sustains an impairment as a result of an accident.
5The applicant bears the burden of proving on a balance of probabilities that any treatment plan is reasonable and necessary. The applicant must also identify the goals of the plans, how the goals are being met to a reasonable degree, and whether the time and cost expended to achieve these goals is proportional to the benefits
Psychological Services, $3,192.25, February 29, 2019
6I find that the applicant has not met her burden and is not entitled to the OCF-18 for psychological services. The totality of the evidence demonstrates that the applicant would not benefit from the additional psychological services recommended in the OCF-18. As a result, I find that this treatment plan is not reasonable and necessary.
7The evidence supports that the respondent approved and the applicant attended several psychological sessions in the past. The applicant submits that the psychological sessions were helpful and seeks further services. The respondent relies on the evidence of Dr. Susan Mackenzie, psychiatrist who opined that the OCF-18 was not reasonable and necessary.
8The Insurer’s Examination (“IE”) dated February 26, 2019, conducted by Dr. Mackenzie the applicant was asked if she had found the previous psychotherapy sessions helpful, the applicant indicated that she did not recall the previous sessions. I find the OCF-18 is not reasonably necessary, as I am not persuaded those further psychological sessions would assist the applicant.
Driving Evaluation, $2,200.26, January 28, 2019
9I find that the applicant has not met her burden and is not entitled to the OCF-18 for a driving evaluation. I find that there is a lack of medical records to support the need for a driving evaluation, further supported by the applicant’s omission that she has never driven a vehicle and does not own a vehicle. As a result, I find that this treatment plan is not reasonable and necessary.
10The applicant relies on a psychological assessment that recommended a driving anxiety de-conditioning program. However, I am persuaded by the applicant’s own admissions during the IE completed by Dr. Shahriar Moshiri, psychologist dated June 5, 2018, during the examination the applicant denied driving.
Physiotherapy, $3,447.63, August 25, 2020
11I find that the applicant has not met her burden for the physiotherapy OCF-18. The totality of the medical evidence and evidence provided demonstrates that the physiotherapy is not reasonable and necessary.
12The medical evidence paints a picture of a woman who has long been struggling with health issues. Submissions from both parties accept that the applicant has persistent and worsening low back pain that started pre-accident. The pain resulted in the applicant having surgery on July 25, 2017, one month after the accident.
13The applicant submits that her back pain became more pronounced following the accident, and the physiotherapy treatment plan contemplated pain reduction, increase range of motion, increase strength, and a return to activities of normal living. I am not persuaded. In reviewing the clinical notes and records (“CNRs”) of Dr. Kevin Grant, orthopaedic surgeon, the surgery was as a result of the applicant’s long history of problems with her low back pain, which had progressively worsened over the last two to three years.
14Pre-accident medical evidence submitted in CNRs of Dr. Kevin Grant, Dr. Naaznin Jaffer, Dr. Ghaffar Sedeh reveal that the applicant had a significant pre-accident history of degenerative changes that affected the applicant’s left shoulder as well as lumbosacral spine. The medical evidence indicates that the applicant has radiating pain in her extremities which resulted in falls, and she had been diagnosed with osteoporosis and degenerative changes in her lumbar and cervical spine pre-accident. The IE completed by Dr. Dessouki, noted the pre-accident history of degenerative changes affecting the applicant and opined that the applicant had reached maximum medical improvement from any accident injuries sustained.
15While pain relief alone can be a reason to approve treatment plans, the medical evidence, make it questionable that any sort of pain relief could be achieved in this sort of treatment. I find that the OCF-18 is not reasonable and necessary as a result of the impairments related to the accident.
Interest
16Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments. There being no overdue benefits payments, no interest is payable.
ORDER
17The application is dismissed, the OCF-18s are dismissed and the applicant is not entitled to any overdue payment of benefits.
Released: March 15, 2023
Monica Ciriello
Vice-Chair