Citation: Allalouf v. Wawanesa Mutual Insurance Company, 2023 ONLAT 21-006583/AABS

Licence Appeal Tribunal File Number: 21-006583/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:

Karoline Allalouf

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Bonnie Oakes Charron

APPEARANCES:

For the Applicant: Adam Moftah, Counsel

For the Respondent: Stephen Robinson, Counsel

HEARD: In Writing

OVERVIEW

1Karoline Allalouf, the applicant, was involved in an automobile accident on July 22, 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, Wawanesa, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Is the applicant entitled to physiotherapy services, as follows: i. $4,122.62 proposed by Top Rehab in a treatment plan/OCF-18 (“plan”) dated July 24, 2020? ii. $1,300 proposed by Top Rehab in a treatment plan/OCF-18 (“plan”) dated October 21, 2020? iii. $2,477 proposed by Top Rehab in a treatment plan/OCF-18 (“plan”) dated April 11, 2021?
2. Is the applicant entitled to $2358.25 ($4,802.40 less partial payment of $2,444.15) for psychological services proposed by Top Rehab in a treatment plan/OCF-18 (“plan”) dated March 27, 2021?
3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is not entitled to the treatment plans nor interest.

ANALYSIS

The Treatment Plans for Physiotherapy Services

4I find that the applicant is not entitled to the treatment plans for physiotherapy services.

5To 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.

6The applicant submits that she was denied ongoing physical therapy treatment based on the respondent’s conclusion that her injuries were primarily soft tissue in nature, and despite recommendations from Dr. Parasu, Dr. Chakravertty and Dr. Konforte to attend physiotherapy.

i. Dr. Parasu, radiologist, reviewed an ultrasound of the applicant’s left elbow in May of 2021. The report noted under ‘Clinical History’ that the applicant had left elbow pain and a motor vehicle accident in 2019. Dr. Parasu records that there is a moderate tendinosis with an insertional tear and recommends physiotherapy. ii. Dr. Chakravertty, an orthopaedic surgeon, saw the applicant on July 4, 2022, three years after the accident. In his report to the applicant’s family doctor, he found that the left knee was normal but that an MRI revealed some abnormalities in the applicant’s right knee that were likely related to the accident. He opined that “PT or massage therapy could be helpful”. iii. Dr. Konforte, the applicant’s family doctor, assessed the applicant two years after the accident on September 7, 2021, and recorded that she had complaints of neck, back, and elbow pain. The doctor’s clinical notes and records (CNRs) mention chronic pain, Post-Traumatic Stress Disorder, and the following note - “plan is to proceed to physio of her choice.”

7The respondent submits that the applicant’s injuries as a result of the motor vehicle accident were limited to soft tissue strains and sprains. Neither the initial hospital visit after the accident, nor the results of various tests such as x-rays, ultrasounds or an MRI uncovered any serious injuries. Further, the respondent submits that it approved almost a full year of physiotherapy treatments to treat the applicant’s sprain/strain injuries. The approvals for continued physical therapy ended following the results of a s. 44 assessment at which the applicant reported that her headaches, neck and back pain had not improved, but instead worsened, despite receiving a significant amount of treatment at the clinic.

8The respondent points to the results of a s. 44 assessment by Dr. Silver in a report dated September 16, 2020. Dr. Silver found that the applicant’s injuries from the accident were soft tissue strain and sprain which should be expected to resolve within three months. He opined that the applicant’s musculoskeletal injuries likely had resolved, and any current complaints of pain were simply myofascial in nature. He added that the applicant “has reached maximum medical recovery from the musculoskeletal injuries she sustained in the accident” and would not benefit from any further clinic-based services.

9Dr. Silver also addressed the equipment and accessories identified in the OCF-18, noting that there was no objective evidence of any condition that required a TENS unit, Biofreeze, exercise equipment, orthotic devices, or TheraBand. Specifically, he stated that there was no need for podiatrist/chiropodist sessions as the applicant’s plantar fasciitis was not attributable to the subject accident.

10At a separate s. 44 assessment by neurologist Dr. John, dated July 13, 2021, the assessor found no evidence of radiculopathy, myelopathy, or neuropathy. Like Dr. Silver, he concluded that the applicant’s complaints were related to her musculoskeletal soft tissue injuries. He conducted a follow-up review dated February 25, 2022, and arrived at the same conclusion.

11With regard to the recommendations from Dr. Parasu and Dr. Chakravertty for physiotherapy, the respondent submits that their comments should be disregarded because as a radiologist Dr. Parasu is not qualified to make treatment recommendations, and Dr. Chakravertty’s findings were based on an incomplete medical file with no point of comparison against previous imaging results.

12I am persuaded by the conclusions of Dr. Silver’s report that the applicant will not benefit from any further physiotherapy treatments. The applicant received an extensive amount of therapy at Top Rehab, yet still reported to Dr. Silver that her symptoms were worse after almost a year of treatment. Although the applicant put forth in reply submissions that her reports of feeling worse were due to her psychological state, nevertheless there is no compelling evidence that more of the same treatment is reasonable or necessary, or that the cost would result in any meaningful benefit.

13I also give less weight to the recommendations for physiotherapy from Drs. Parasu, Chakravertty and Konforte for the following reasons:

i. Dr. Parasu’s role in the applicant’s healthcare is limited to reviewing imaging of one body part and he is not a primary or ongoing treatment provider to the applicant. As such, his opinion regarding possible treatment plans is less convincing than a global assessment such as the one conducted by Dr. Silver or from the applicant’s family doctor. ii. With regard to Dr. Chakravertty, his findings are based on an incomplete medical record and are therefore less convincing than that of Dr. Silver. iii. Dr. Konforte, the applicant’s family doctor, records in her clinical notes and records (CNRs) the following about the applicant: chronic pain, Post-Traumatic Stress Disorder, and physiotherapy. However, these notations are simply a list and there is no clear recommendation for ongoing physiotherapy, only a note that the “plan is to proceed to physio of her choice.” It is unclear in the CNRs if the plan is one decided upon by the applicant, or if it is the recommendation of her physician. This makes them less persuasive.

14The applicant has not proven that she is entitled to the physiotherapy treatment plans. She has not addressed the goals of the treatment plans, how they would be achieved, nor why the cost is reasonable given the limited benefit she has experienced from the previous treatment plans.

The Treatment Plan for Psychological Services

15I find that the applicant is not entitled to the remainder of the treatment plan for psychological services, in the amount of $2,358.25. The respondent has already approved $2,444.15 against a total of $4,802.40 submitted.

16The applicant seeks approval of the full cost of the treatment plan for psychological services and submits that she has chronic psychological distress that is pre-existing, poses an obstacle to recovery from her injuries, and is confirmed by Dr. Silver’s s. 44 assessment. Indeed, her psychological issues are well-documented both before and after the accident by her treatment providers as well as the insurer examination (IE) assessors.

17However, the respondent has partially approved the treatment plan on its merit and submits that the remainder of the plan is not reasonable and necessary. The respondent points to correspondence to the applicant dated June 20, 2021. In that letter, the respondent acknowledged the results of the IE on June 16, 2021, where Dr. Spivak confirmed that the applicant met the full criterion for DSM-5 Diagnoses of Somatic Symptom Disorder. However, the letter goes on to say that the OCF-18 was only partially approved to include 12 counselling sessions of one hour each, at a rate of $149.61 per session, and that there would be a limit of $448.83 for documentation and support activities. The OCF-18 on its face had proposed 16 counselling sessions of 90 minutes each. The rationale provided by the respondent is that multiple treatment providers have recorded that the applicant’s prognosis for recovery is poor given the chronicity of her psychological issues. Further, it clearly advised in the correspondence that following the 12 sessions, a progress report could be provided about the potential of the applicant to benefit from any further psychotherapy. In my view, asking for a progress report is reasonable in order to verify if continued therapy would be of any benefit or not, given the applicant’s history.

18The respondent’s approach is one of watchful waiting. While acknowledging the applicant’s need for psychological treatment, it balances that need with a prudent approach given the applicant’s uncertain outlook for recovery. The parameters of the approved treatment plan are clearly communicated in the correspondence of June 20, 2021, and moreover, the letter includes a reminder that if further treatment is required, the applicant’s health practitioner can submit an additional treatment plan after the initial 12 sessions.

19The applicant has not proven that the full treatment plan for psychological services is reasonable and necessary. I am not satisfied that the applicant has established that four sessions in addition to the 12 already approved are necessary to achieve the goals of the treatment plan or that the cost of the additional sessions is reasonable, particularly in light of the applicant’s history of receiving limited benefit from other medical and rehabilitation treatments.

20I find that the applicant is not entitled to the full cost of the treatment plan for psychological services because an initial amount of treatment, an amount that is reasonable and necessary, was approved. The options provided by the respondent are appropriate and have regard for the cost, reasonableness, and necessity of the plan given the applicant’s history of receiving little benefit from other treatment plans and her uncertain outlook for recovery.

Interest

21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

22No interest is owed as no benefits are payable.

ORDER

23The applicant is not entitled to the treatment plans for physiotherapy services.

24The applicant is not entitled to the remainder of the treatment plan for psychological services.

25No interest is owed as no benefit payments are overdue.