Wang v. Safety Insurance Company, 2023 CanLII 96367

Citation: Wang v. Safety Insurance Company 2023 ONLAT 20-012151/AABS

Licence Appeal Tribunal File Number: 20-012151/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:

Guohua Wang

Applicant

and

Safety Insurance Company

Respondent

DECISION

ADJUDICATOR:

Stephanie Kepman

APPEARANCES:

For the Applicant:

Miryam Gorelashvili, Counsel

For the Respondent:

Crystal A. Schulz, Counsel

HEARD:

By written submissions

OVERVIEW

1Guohua Wang (the “applicant”) was involved in an automobile accident on June 4, 2018, 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 Safety Insurance Company (the “respondent”) 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 $726.04 for occupational therapy services recommended by Galit Liffshiz in a treatment plan submitted on August 29, 2018?

ii. Is the applicant entitled to $8,750.00 for physiotherapy services recommended by Galit Liffshiz in a treatment plan submitted on May 24, 2019?

iii. Is the applicant entitled to $2,240.00 for massage therapy services recommended by Galit Liffshiz in a treatment plan submitted on August 29, 2018?

iv. Is the applicant entitled to $499.75 for a pool membership recommended by Galit Liffshiz in a treatment plan submitted on May 24, 2019?

v. Is the applicant entitled to $4,200.00 for occupational therapy services recommended by Galit Liffshiz in a treatment plan submitted on May 24, 2019?

vi. Is the applicant entitled to $3,603.69 for psychological services recommended by Dr. Hannah Rockman in a treatment plan submitted on February 11, 2020?

vii. Is the applicant entitled to $4,487.29 for occupational therapy services recommended by Fathima Tuan Kichill in a treatment plan submitted on November 11, 2020?

viii. Is the applicant entitled to $5,857.57 for home modifications and home devices recommended by Galit Liffshiz in a treatment plan submitted on May 24, 2019?

ix. Is the applicant entitled to $4,040.00 for social rehabilitation counselling recommended by Galit Liffshiz in a treatment plan submitted on May 24, 2019?

x. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant is not entitled to any of the disputed benefits

4The applicant is not entitled to interest or an award.

ANALYSIS

5The legal test for the disputed treatment and assessment plans (“OCF-18”s)is found 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.

The applicant is not entitled to $726.04 for occupational therapy services

6The applicant submits that the OCF-18 for $726.04 for training, motor and living skills with a rehabilitation support worker, is reasonable and necessary. The respondent disagrees.

7The applicant relies on the occupational therapy functional assessment and attendant care assessment of Galit Liffshiz, occupational therapist, dated January 7, 2019, the disputed OCF-18, the occupational initial assessment report of Fathima Tuan Kichil, occupational therapist, dated October 17, 2020, which the applicant submits support the recommended disputed OCF-18’s services.

8The respondent submits that the disputed OCF-18 is not reasonable and necessary. It relies on the Paper Review Insurer’s Examination (“IE”) of Dr. Mohamed Khaled, physician, dated October 17, 2018, and the Occupational Therapy Paper Review IE of Himadri Kaul, occupational therapist, dated October 17, 2018, who both found that the OCF-18 for a rehabilitation support worker was not reasonable and necessary.

9The respondent also formally challenged Ms. Liffshiz’s report, pursuant to the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Common Rules”) Rule 10.4. The respondent submits that the report is not credible and should not be accepted because of errors of fact contained within the report.

10I find that the applicant is not entitled to the OCF-18 for a rehabilitation support worker, as it is not reasonable and necessary. I agree with the respondent’s argument that the applicant has not provided sufficient medical information to support the need for a rehabilitation support worker.

11In terms of Ms. Liffshiz’s report, I find it concerning that her reports contained typographical errors that were not amended via an updated report. I cannot ignore that the report contained incorrect injuries and named the incorrect treatment provider. Though the applicant’s representative was able to explain why these errors occurred, I agree with the respondent and find that this does raise credibility concerns. Therefore, I afford this report less weight.

12I did not find the applicant’s argument that less weight should be assigned to the IEs, as they were paper reviews and not in-person assessments, persuasive. After reviewing the paper IEs, I was able to understand the reasoning and findings of the assessors, and the supporting facts and documentation for their findings.

13Though I did review and consider Ms. Liffshiz’s findings, report and OCF-18, I did not find it was a fulsome exploration to explain why the applicant requires the requested services. I also reviewed Ms. Kichil’s report and noted she recommend a personal support worker and not a rehabilitation support worker. I was also not provided with contemporaneous medical evidence supporting that this service was both reasonable and necessary.

14I did consider the applicant’s submissions that his pre-existing injuries were worsened by his accident based on the virtual IE of Dr. Mark D’Souza, physician, dated February 19, 2021. However, this evidence did not comment on the disputed OCF-18. Therefore, I considered this evidence but did not find it spoke to the issue in dispute.

15Instead, I preferred the evidence of Dr. Khaled, and Mr. Kaul, who were able to explain their findings concerning the applicant’s injuries, commented directly on the issue in dispute and stated why the disputed OCF-18 was not reasonable and necessary. I was able to understand the medical basis of Dr. Khaled and Mr. Kaul’s findings, and therefore, found them more convincing than the applicant’s medical evidence. Accordingly, I find that the OCF-18 for a rehabilitation support worker is not reasonable and necessary.

The applicant is not entitled to $8,750.00 for physiotherapy services

16The applicant submits that the OCF-18 for physiotherapy services is reasonable and necessary to address his accident-related pain. The respondent disagrees.

17The applicant relies on the occupational therapy functional assessment and attendant care assessment of Ms. Liffshiz, dated January 7, 2019, the disputed OCF-18 requesting 15 sessions of physiotherapy, each lasting two hours, and the occupational initial assessment report of Ms. Kichil, dated October 17, 2020, all which recommended the applicant receive physiotherapy services.

18The respondent relies on the IE of Dr. Shafik Dharamshi, general practitioner, dated July 24, 2019, where the doctor found that the disputed OCF-18 was not reasonable and necessary. The doctor also found that the applicant’s injuries were soft-tissue in nature, and that some of the applicant’s pain issues were not accident-related.

19I find that the applicant is not entitled to the OCF-18 for physiotherapy services. I did not find Ms. Liffshiz’s evidence persuasive, as she failed to fully explore why the applicant required the recommended treatment of physiotherapy. Given my comments regarding her credibility, I did not find her evidence convincing.

20In terms of Ms. Kichil’s recommendation, though she did recommend that the applicant receive physiotherapy, she did not comment on the specifics of the disputed OCF-18. Ms. Kichil provided no comment on why the applicant required 15 sessions of physiotherapy, each lasting two hours, the cost of this OCF-18 or its goals. Therefore, I did not find her evidence compelling.

21Instead, I preferred the evidence of Dr. Dharamshi, as not only did the doctor comment on the applicant’s injuries, and the disputed OCF-18, but also provided reasoning and explanations as to why said treatment was not reasonable and necessary. I found this persuasive, as the doctor’s findings were based on the doctor’s review of the applicant’s medical records, including IE data. I also found Dr. Dharamshi’s finding that the applicant suffered predominantly soft tissue injuries as a result of the accident convincing, because they relied on the applicant’s objective, medical data. Therefore, I find that the applicant is not entitled to the OCF-18 for physiotherapy, as it is not reasonable and necessary.

The applicant is not entitled to $2,240.00 for massage therapy services

22The applicant submits that the OCF-18 for massage therapy services is reasonable and necessary. The applicant relies on the occupational therapy functional assessment and attendant care assessment of Ms. Liffshiz, dated January 7, 2019, the disputed OCF-18 for 15 sessions of massage therapy, and the occupational initial assessment report of Ms. Kichil, dated October 17, 2020.

23The respondent submits that the OCF-18 is not reasonable and necessary. The respondent relies on the IE of Dr. Dharamshi dated July 24, 2019, where the doctor found that the disputed OCF-18 was not reasonable and necessary to address the applicant’s predominantly soft-tissue, accident-related injuries.

24I find that the applicant is not entitled to the OCF-18 for massage therapy services. Again, I did not find Ms. Liffshiz’s and Ms. Kichil’s evidence persuasive because it did not demonstrate how the disputed OCF-18 was reasonable and necessary. Instead, I was provided general information that massage may be beneficial to the applicant. I also would have expected this recommendation to have been supported with contemporaneous medical evidence from the applicant’s doctor.

25I found Dr. Dharamshi’s findings convincing, as they addressed the applicant’s accident and non-accident-related injuries, spoke to the specific OCF-18 in dispute and provided a detailed explanation as to why the massage therapy services were not reasonable and necessary. For these reasons, the applicant is not entitled to the massage therapy services.

The applicant is not entitled to $499.75 for a pool membership

26The applicant submits that the OCF-18 for a pool membership is reasonable and necessary. The applicant relies on the occupational therapy functional assessment and attendant care assessment of Ms. Liffshiz, dated January 7, 2019, the disputed OCF-18, and the occupational initial assessment report of Ms. Kichil, dated October 17, 2020.

27The respondent submits that the OCF-18 is not reasonable and necessary. The respondent relies on the IE of Dr. Dharamshi, dated July 24, 2019, where the doctor found that the disputed OCF-18 was not reasonable and necessary because the applicant suffered soft-tissue injuries and did not require the disputed membership.

28I find that the applicant is not entitled to the OCF-18 for a pool membership. As described above, I did not find Ms. Liffshiz’s evidence persuasive because she did not fully explore how she concluded that the applicant required a pool membership for his accident-related injuries, issues with her credibility and the fact that her findings were not supported by contemporaneous medical evidence.

29I also did not find Ms. Kichil’s evidence persuasive, as she also did not fully explore how she concluded that the applicant required a pool membership.

30Instead, I preferred the evidence of Dr. Dharamshi, which again, addressed the OCF-18 in dispute, explained how he came to this conclusion and fully explored the applicant’s injuries and the issue of causation. Dr. Dharamshi provided me with objective data to support his findings, which I found persuasive.

The applicant is not entitled to $4,200.00 for occupational therapy services

31The applicant submits that the OCF-18 for occupational therapy services is reasonable and necessary. The applicant relies on the occupational therapy functional assessment and attendant care assessment of Ms. Liffshiz, dated January 7, 2019, the disputed OCF-18, the occupational initial assessment report of Ms. Kichil, dated October 17, 2020, and the occupational therapy treatment sessions progress report of Stephanie McHugh, occupational therapist, dated March 2, 2021, which the applicant submits all recommend that the applicant attend occupational therapy.

32The respondent submits that the OCF-18 is not reasonable and necessary. The respondent relies on the IE of Dr. Dharamshi dated July 24, 2019, where the doctor found that the disputed OCF-18 was not reasonable and necessary, given that he suffered soft-tissue injuries as a result of the accident.

33I find that the applicant is not entitled to the OCF-18 for occupational therapy services. As already discussed, I did not find Ms. Liffshiz’s evidence persuasive because she did not fully explain how and why she recommended the disputed OCF-18, the issues with her credibility and that her findings were not supported by medical evidence.

34Though I considered Ms. Kichil and Ms. McHugh’s evidence, again, I would have expected this evidence to be supported by contemporaneous medical evidence, which it was not. This evidence also did not comment on the specifics of the disputed OCF-18, meaning the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable. Finally, I preferred Dr. Dharamshi’s findings, as the doctor provided the basis and explanation for his findings and addressed the disputed OCF-18 in dispute.

The applicant is not entitled to $3,603.69 for psychological services

35The applicant submits that the OCF-18 for psychological services is reasonable and necessary. The respondent disagrees.

36The applicant relies on the screening report of Dr. Hannah Rockman, psychologist dated August 12, 2018, the Psychological Video Conference IE of Dr. Peter Bernstein, psychologist, dated March 22, 2019, the Psychological Assessment Report of Dr. Rockman dated February 7, 2020, and Dr. Bernstein’s Paper Review IE of February 26, 2020. The applicant submits this evidence shows that he suffers from a psychological injury as a result of the accident and requires treatment.

37The respondent sought to clarify the issue in dispute and submitted that the issue is not whether the applicant is entitled to the twelve sessions of psychological treatment, which were approved in a previous OCF-18. Rather, the respondent submits the disputed OCF-18 is also for twelve sessions, instead lasting one and a half hours, whereas the approved treatment was for one hour sessions. The respondent relies on Dr. Bernstein’s Paper Review IE of February 26, 2020, which supports the applicant receiving 12, one-hour psychological sessions.

38I find that the applicant is not entitled to the disputed OCF-18 and agree that the issue in dispute relates to how long each of these sessions ought to last.

39After reviewing the findings of Dr. Bernstein and Dr. Rockman, I was more persuaded by the opinions of Dr. Bernstein, who provided a fulsome rationale for recommending the applicant’s sessions last for one hour. Dr. Bernstein’s findings address the Ontario Psychological Association Guidelines, which Dr. Rockman’s do not. I was not provided the reason the applicant required sessions lasting more than one hour, as noted by Dr. Bernstein. Since the applicant carries the burden of showing why he requires longer treatment sessions and has failed to do so, I find that he is not entitled to the disputed OCF-18, as it is not reasonable and necessary.

The applicant is not entitled to $4,487.29 for occupational therapy services

40The applicant submits that the OCF-18 for occupational therapy services related to assistive devices is reasonable and necessary. The applicant relies on the occupational therapy functional assessment and attendant care assessment of Ms. Liffshiz, dated January 7, 2019, the disputed OCF-18, and the occupational initial assessment report of Ms. Kichil, dated October 17, 2020, which he submits supports his need for assistive devices.

41The respondent submits that the OCF-18 is not reasonable and necessary. The respondent relies on the IE of Dr. Dharamshi dated July 24, 2019, where the doctor found that the disputed OCF-18 was not reasonable and necessary.

42I find that the applicant is not entitled to the OCF-18 for assistive devices. As discussed above, I did not find Ms. Liffshiz’s and Ms. Kichil’s evidence persuasive, due to issues concerning the basis of their findings, the lack of supportive contemporaneous medical evidence and issues with Ms. Liffshiz’s credibility.

43Instead, I preferred the findings of Dr. Dharamshi because the doctor addressed the specific OCF-18 in dispute, and provided a basis and explanation for his findings. For these reasons, the OCF-18 is not reasonable and necessary, and the applicant is not entitled to the OCF-18 in dispute.

The applicant is not entitled to $5,857.57 for home modifications and home devices

44The applicant submits that the OCF-18 for occupational therapy services consisting of ankle foot orthotics, a power lift assist recliner chair, an ultramatic bed with an orthopedic mattress, and documentation is reasonable and necessary. The applicant relies on the occupational therapy functional assessment and attendant care assessment of Ms. Liffshiz, dated January 7, 2019, and the disputed OCF-18.

45The respondent submits that the OCF-18 in dispute is not reasonable and necessary. The respondent relies on the IE of Dr. Dharamshi dated July 24, 2019, where the doctor found that the disputed OCF-18 was not reasonable and necessary.

46I find that the applicant is not entitled to the disputed OCF-18. Though I considered Ms. Liffshiz’s findings and recommendation, as previously discussed, I did not find her evidence persuasive due to the issues of her credibility, the lack of a thorough explanation for the basis of her recommendations and the fact that her findings were not supported by contemporaneous medical evidence.

47Again, I preferred the findings of Dr. Dharamshi because the doctor addressed the disputed OCF-18, explained the basis of his findings and spoke to said findings about the applicant’s pre-existing and accident-related injuries. Therefore, I find that the applicant is not entitled to the OCF-18, as it is not reasonable and necessary.

The applicant is not entitled to $4,040.00 for social rehabilitation counselling

48The applicant submits that the OCF-18 for occupational therapy services consisting of 15 sessions of therapy motor and living skills, 10 sessions of planning, and documentation is reasonable and necessary. The applicant relies on the occupational therapy functional assessment and attendant care assessment of Ms. Liffshiz, dated January 7, 2019, and the disputed OCF-18.

49The respondent submits the disputed OCF-18 is not reasonable and necessary. The respondent relies on the IE of Dr. Dharamshi dated July 24, 2019, where the doctor found that the disputed OCF-18 was not reasonable and necessary.

50I find that the applicant is not entitled to the disputed OCF-18. As noted above, I did not find Ms. Liffshiz's evidence persuasive, given the issues with her methodology, credibility and lack of contemporaneous, supporting medical evidence. Instead, I preferred Dr. Dharamshi’s evidence, which explained which of the applicant’s injuries the doctor believed were accident-related and why, addressed the OCF-18 in dispute and explored why this OCF-18 was not reasonable and necessary in light of these findings. Therefore, I find that the OCF-18 in dispute is not reasonable and necessary.

Interest

51Interest applies on the payment of any overdue benefits under s. 51 of the Schedule. Since no benefits are found to be owing, no interest is payable.

Award

52Section 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 percent of the amount to which the person was entitled. As I have found that there is no payment of benefits unreasonably withheld or delayed, there is no basis upon which to consider an award in this matter.

ORDER

53The applicant is not entitled to the disputed benefits, as he has not shown that they are reasonable and necessary.

54The applicant is not entitled to interest or an award, as no payments for benefits are outstanding or unreasonably withheld or delayed.