Licence Appeal Tribunal File Number: 20-012804/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:
Paul Moogk
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR: Kevin Lundy
APPEARANCES:
For the Applicant: Ryan St. Aubin, Counsel
For the Respondent: Maia Abbas, Counsel
HEARD: By way of written submissions
OVERVIEW
1Paul Moogk (the ‘applicant’) was involved in an automobile accident on October 29, 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 Economical 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:
Is the applicant entitled to attendant care benefits in the amount of $1,103.55 per month from October 29, 2018 to September 21, 2019?
Is the applicant entitled to attendant care benefits in the amount of $1,020.37 per month from September 22, 2019 to date and ongoing?
Is the applicant entitled to $4,022.42 for physiotherapy treatment, recommended by Focus Physiotherapy (Brampton) Inc. in a treatment plan/OCF-18 (‘plan’) submitted on December 3, 2018 and denied on March 18, 2019?
Is the applicant entitled to $15.00 ($2,150.60 less $2,135.60 approved) for physiotherapy treatment, recommended by Verity Medical Assessments Inc. in a plan submitted on August 12, 2019 and denied on September 5, 2019?
Is the applicant entitled to $250.00 ($4,472.42 less $4,272.42 approved) for physiotherapy and massage therapy treatment, recommended by Focus Physiotherapy (Brampton) Inc. in a plan submitted on March 28, 2019 and denied on April 23, 2019?
Is the applicant entitled to $3,560.04 for physiotherapy treatment, recommended by Focus Physiotherapy (Brampton) Inc. in a plan submitted on November 29, 2019 and denied on December 11, 2019?
Is the applicant entitled to $15.00 ($2,150.60 less $2,135.60 approved) for physiotherapy treatment, recommended by Verity Medical Assessments Inc. in a plan submitted on April 26, 2019 and denied on June 10, 2019?
Is the applicant entitled to $2,200.00 for an activities of daily living assessment, recommended by Verity Medical Assessments Inc. in a plan submitted on August 12, 2019 and denied on September 5, 2019?
Is the applicant entitled to $2,025.95 for a functional abilities evaluation, recommended by Verity Medical Assessments Inc. in a plan submitted on August 27, 2019 and denied on September 5, 2019?
Is the applicant entitled to $2,200.00 for an in-home attendant care assessment, recommended by Verity Medical Assessments Inc. in a plan submitted on August 11, 2020 and denied on September 9, 2020?
Is the applicant entitled to $2,840.35 for physical rehabilitation treatment, recommended by Focus Physiotherapy (Brampton) Inc. in a plan submitted on September 22, 2020 and denied on September 30, 2020?
Is the applicant entitled to interest on any overdue payment of benefits?
3In his submissions, the applicant withdrew an additional claim in the amount of $100.00 per week for housekeeping and home maintenance services from October 29, 2018 to the present and ongoing, submitted on March 22, 2019 and denied on March 29, 2019.
RESULT
4The applicant is not entitled to attendant care benefits in the amount of $1,103.55 per month from October 29, 2018 to September 21, 2019. However, the respondent has already approved this benefit at this rate for the period from November 1, 2018 to November 30, 2019.
5The applicant is entitled to $4,022.42 for physiotherapy treatment, recommended by Focus Physiotherapy (Brampton) Inc. in a plan submitted on December 3, 2018 and denied on March 18, 2019, plus any applicable interest in accordance with section 51 of the Schedule.
6The applicant is not entitled to any of the remaining benefits in dispute.
PROCEDURAL ISSUES
7On October 13, 2022, the Tribunal granted the applicant’s motion to convert the videoconference hearing to a written hearing.
ANALYSIS
Background
8At the time of the subject accident, the applicant was sixty-five years old. He has a long history of chronic pain since he was twenty-five years old as well as a history of bilateral carpel tunnel syndrome and a number of fractures, including to his right wrist.
9The applicant was also involved in two previous motor vehicle accidents. On December 27, 2017, his vehicle was totalled and his resulting injuries appeared to have worsened or contributed to his pre-existing conditions. On April 22, 2018, he was rear-ended on Highway 401. As a result of the latter accident, he suffered from lower back pain that had not completely resolved by the time of the October 29, 2018 accident. He was able to perform his activities of daily living, albeit at a reduced pace.
10With respect to the subject accident, at approximately 9:30 pm on October 29, 2018, the applicant was driving westbound on Highway 7. He had had just passed the intersection with Trafalgar Road in Halton when a deer suddenly appeared in his path resulting in a collision that caused limited damage to the front of his vehicle. The vehicle’s airbags did not deploy and he was able to ambulate at the scene. Following the collision, he drove his car to a friend’s house. He later reported the accident to the police once he determined the appropriate station for reporting.
11The applicant did not seek immediate medical attention and only attended at the Orangeville Hospital the day following the accident and at a walk-in clinic a few days after the accident. No diagnostic tests were conducted and the applicant did not submit any clinical notes or records from either the hospital or the clinic.
12An x-ray of his cervical spine dated November 9, 2018 revealed multilevel degenerative disc disease. An x-ray of his thoracic spine indicated no compression fractures. An x-ray of his lumbar spine revealed moderate degenerative disc disease. However, degenerative disc disease is not unusual for someone of the applicant’s age and none of the examiners stated that this condition caused by the subject accident.
13A month after the accident, the applicant visited his family doctor Dr. Elnora lnandan and complained of low back pain as a result of both the April 22 and October 29, 2018 accidents and sporadically every few months or so thereafter.
14A right shoulder ultrasound dated August 28, 2019 revealed mild acromioclavicular joint osteoarthritis; supraspinatus diffuse tendinosis and intrasubstance partial thickness tear with decreased range of motion; shoulder joint effusion; and positive impingement test.
15On January 27, 2020, the applicant reported to Dr. Inandan that he had lost motivation to do anything recently and felt weak. However, there is no indication in Dr. Inandan’s notes that the applicant referenced the subject accident during the course of that interview. It is worth noting that the applicant had a history of such symptoms predating all three accidents, as described in a report from Dr. Basem Boktor at PCC Pain Care Clinics dated July 26, 2016 in which the applicant detailed his long-term difficulties with depression and attention deficit disorder, chronic mechanical lower back pain, bilateral carpal tunnel syndrome, a history of prescription abuse, and osteoarthritis of both hands in the metacarpophalangeal joints.
16Further x-rays were conducted on March 24, 2021. The cervical spine x-ray revealed relatively stable moderate to severe multilevel degenerative disc disease, most evident at C6 to C7. The lumbar spine x-ray revealed no significant interval change and multilevel moderate degenerative disc disease. The x-ray of the applicant’s left knee revealed mild early osteoarthritis. The right shoulder x-ray and ultrasound revealed mild osteoarthritis in the AC joint; mild fluid in the proximal biceps tendon sheath; supraspinatus tendinosis; but no evidence of a rotator cuff tear.
17On September 23, 2021, the applicant attended at Headwaters Health Care Centre with complaints of numbness in his left hand and wrist pain after helping his friend lift heavy stones. He had previously injured his left wrist when he was drilling during the prior year. On April 7, 2022, the applicant went to Headwaters Health Care Centre for pain and swelling of his left knee. There was no trauma, but he had been on his left knee painting. On August 3, 2022, the applicant was seen at the Orangeville Pain Institute, where he complained of lower back pain radiating to both legs. He performed his daily activities albeit with difficulty. Dr. Dr. Nemer El-Batnigi, MD, declined to make any referrals but offered the applicant some suggestions for medications and discussed at-home exercises and sleep hygiene to help manage his symptoms.
Entitlement to Attendant Care Benefits
18Despite his previous injuries, the applicant reported an active and fulfilling life prior to the subject collision. He enjoyed spending time with family and friends and attended church on a regular basis. He performed many household chores, such as preparing and cooking meals, cleaning, vacuuming, washing dishes, cleaning the bathroom and doing the laundry. He also performed home maintenance activities including small home repairs and seasonal work such as lawn care and snow removal. He enjoyed walking, running, skiing and bicycling, often with his young son.
19The applicant stated that following the accident, he struggled to perform substantially all of his housekeeping tasks, including making and changing bed linens, sweeping, vacuuming, dusting, cleaning bathroom, garbage removal, laundry, grocery shopping, cooking and cleaning. He is limited with his bending ability and experiences sharp pain in his lower back when he attempts to bend down to pick up an item. He reported a reduced range of motion to his spine to reach his feet when sitting down and, as a result, he is unable to perform many personal care tasks, including cutting and filing his toenails. Moreover, lifting, carrying and standing exacerbates his pain and as a result, he is unable to perform routine the above household tasks. The applicant takes the position that he requires assistance with his personal and household tasks and as a result, he hired Connie Oranza for attendant care support to perform these tasks, including assistance getting dressed and undressed. The respondent accepted Ms. Oranza’s qualifications as a service provider and paid for attendant care benefits until they were terminated effective December 27, 2019.
20Subsection 19(1) of the Schedule sets out the criteria with respect to eligibility for attendant care benefits:
19 (1) Attendant care benefits shall pay for all reasonable and necessary expenses,
i. that are incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant or by a long-term care facility, including a long-term care home under the Fixing Long-Term Care Act, 2021 or a chronic care hospital; and
ii. that, to the extent any of the expenses referred to in clause (a) are for transportation, are authorized transportation expenses for which no medical benefit described in clause 15 (1) (g) is payable, no rehabilitation benefit described in clause 16 (3) (k) is payable and no amount is payable under subsection 25 (4).
Issue 1: Attendant Care Benefits from October 29, 2018 to September 21, 2019
21The applicant seeks attendant care benefits for two periods, the first at a rate of $1,103.55 monthly from October 29, 2018 to September 21, 2019. Pursuant to subsection 42(5) of the Schedule, the respondent is not required to pay an expense incurred before an assessment of attendant care needs (Form 1) is submitted. As a result, the applicant is not entitled to attendant care benefits prior to May 15, 2019, when the respondent received the required Form 1. Nonetheless, on May 29, 2019, the respondent approved and funded the incurred attendant care in the amount of $1,103.55 monthly from November 1, 2018 through November 30, 2019. As a result, I agree with the respondent that there is no actual dispute with respect to the first period indicated by the applicant for this benefit.
Issue 2: Attendant Care Benefits from September 22, 2019 to Date and Ongoing
22According to a neurology report by Dr. Viachislav Prigozhikh, neurologist, dated July 31, 2019, the applicant stated that he feels irritable, frustrated, sad, down, helpless, hopeless and depressed due to his constant pain, limitations and loss of independence and reported a negative affect on his relationships. He finds it hard to focus and becomes easily distracted. His memory is poor and he has become forgetful. He has many flashbacks of the collision and continues to be nervous while driving or travelling as a passenger.
23On July 19, 2019, Dr. Franco Tavazzani, orthopedic surgeon, assessed the applicant and diagnosed him with:
a. Chronic myofascial strain to the cervical spine;
b. Chronic myofascial strain to both shoulder girdles;
c. Chronic myofascial strain to the lumbar spine;
d. Painful rotator cuff dysfunction of the right shoulder;
e. Right elbow/forearm pain not yet diagnosed; and
f. Patellofemoral contusion of the right knee with posttraumatic chondromalacia.
24Dr. Tavazzani opined that the applicant is at risk of developing worsening post-traumatic osteoarthritis in his knee with subsequent deterioration in knee function. This may require further invasive treatments in the form of corticosteroid injections, viscosupplementation injections, or surgery. He also noted a severe spasm in the lumbar paraspinal muscles and tenderness in the cervical spine, shoulders and lumbar spine. Dr. Tavazzani noted that that the applicant had a “significant exacerbation of the tearing and scarring in the soft tissues in his lumbar spine that were caused by his previous motor vehicle accident…the existing scar tissue is permanent and is less resilient to mechanical strain, and would have undergone further tearing during the trauma sustained in the subject accident in October of 2018.”
25Dr. Tavazzani further noted that the applicant reported persistent pain in his right forearm which “suggests that he had sustained a fracture somewhere in the proximal forearm.” Dr. Tavazzani recommended further x-rays and concluded as follows:
Mr. Moogk suffers from a significant inability to perform the limited housekeeping, home maintenance, social and recreational activities that he performed prior to the subject motor vehicle collision. His ongoing impairment in these regards is consistent with the injuries sustained in the subject motor vehicle collision. It is my opinion that he would benefit from ongoing assistance in these areas.
26Dr. Tavazzani recommended that the applicant continue indefinitely with a multidisciplinary rehabilitation program in order to prevent deconditioning and deterioration of his injuries. He suggested a particular focus on active conditioning with a physical therapist or personal trainer and on manual treatments with a chiropractor or massage therapist.
27On October 4, 2019, Ms. Helen Ilios, psychotherapist, and Dr. Andrew Shaul, psychologist, prepared a psychological report. Ms. Ilios noted that from a psychological and emotional perspective, the applicant is significantly depressed and anxious, characterized by his difficulty with sleep, low energy level, cognitive difficulties and inability to socialize. Ms. Ilios diagnosed him with adjustment disorder with anxiety, major depressive disorder and a specific phobia regarding travelling in and around a vehicle.
28Ms. Ilios opined that the psychological and emotional difficulties from which the applicant suffers from are in large part a direct consequence of his physical condition noting, “[a]s long as his physical condition, along with it pain and restrictions remain present, it is likely that Mr. Moogk will experience significant emotional distress.” It was Ms. Ilios’ opinion that the applicant, without any doubt, suffered a complete inability to carry on a normal life as a result of the subject accident. Given the severity of his condition, it was clear to her that the applicant was unable to perform his basic housekeeping and self-care tasks and engage in family, social and recreational activities.
29On December 2, 2019, the respondent received an updated Form 1, which proposed attendant care benefits in the monthly amount of $1,020.37. On December 27, 2019, the respondent denied this claim on the basis that the applicant was no longer medically eligible for attendant care benefits. On the OCF-3 Disability Certificate, dated March 19, 2019, Dr. Inandan had noted that the applicant has difficulty walking, sitting, standing, lying down, using stairs, bending, twisting, personal care, housekeeping duties, and everyday normal activities. In its letter dated December 27, 2019, the respondent explained its denial of benefits on the basis that the injuries listed in the OCF-3 generally did not result in a prolonged inability to complete self-care tasks. Over a year had passed since the accident and the respondent requested assessments pursuant to section 44 of the Schedule.
30On January 9, 2020, Dr. Verity John, neurologist, assessed the applicant at the respondent’s request. Dr. John noted that the applicant was experiencing pain in his lower back, neck, shoulder pain and both legs. Dr. John further noted that the applicant was impaired from pain walking and bending and was unable to lift because of low back and arm pain. He opined that the applicant is suffering from cervical strain and lumbar radiculopathy. Dr. John recommended an EMG and a nerve conduction study to evaluate the left leg numbness and offered a guarded prognosis in his neurology report dated April 7, 2020 primarily as no MRI was available due to metal in the applicant’s body. However, in the same report, Dr. John found that the applicant was able to complete all of his own personal self-care activities but relied upon his landlord for housekeeping tasks.
31Deepali Dhawan, occupational therapist, also provided a report dated April 7, 2020 in which she recommended $0.00 in monthly attendant care as the applicant demonstrated a functional range of motion, strength, endurance and functional tolerance to complete his daily living activities independently.
32On January 17, 2020, Dr. Jonathan Siegel, psychologist, assessed the applicant at the insurer’s request. Dr. Siegel observed that the applicant walks with a cane and with a limp. He opined that the applicant’s current psychological adjustment difficulties are significantly related to persistent pain and physical limitations.
33Dr. Siegel diagnosed the applicant with major depressive disorder and somatic symptom disorder and that the accident of October 29, 2018 was materially significant to the diagnosis. His prognosis was however guarded. Dr. Siegel agreed that the applicant was psychologically disabled in a way that would prevent him from engaging in substantially all of the activities in which he engaged in at the time of the accident and recommended sixteen sessions of psychological counselling. The applicant advised Dr. Siegel that prior to the subject accident, he was cooking and cleaning independently and now Ms. Oranza is doing all of the cooking and cleaning. When Dr. SiegeI asked the applicant if he is bathing and dressing independently, the applicant stated that sometimes he will not change his clothes or bathe for a week, explaining, “No I don’t care.” He stated that about half the time he is currently splitting his residence between a motel with Ms. Oranza and her family. Dr. Siegel further noted that although the applicant was not substantially psychologically disabled from carrying out his pre-accident caregiving duties, he did not have the motivation to do so, secondary to symptoms of depression. Although Dr. Siegel recommended psychological counselling and predicted that the applicant’s recovery may be protracted, he did not recommend any other assistance.
34Similarly, Dr. Malgorzata Dziedzic, physiatrist, also provided a report dated April 7, 2020. Dr. Dziedzic assessed the sprains and strains to the applicant’s right shoulder, cervical spine, lumbar spine and forearm pain but found no absolute contraindication of any activities except for self-imposed restrictions secondary to pain perceptions. Dr. Dziedzic also found that the applicant is limited in several activities secondary to his pulmonary fibrosis from a physical standpoint. However, Dr. Dziedzic described the applicant to be mostly independent in basic activities of daily living and encouraged him to increase his activity.
35In light of the reports from Dr. John, Dr. Siegel, Dr. Dziedzic and Mr. Dawan, on April 15, 2020, the respondent determined that the applicant was no longer entitled to attendant care benefits.
36It is also worth noting that following the subject accident, the applicant engaged in a number of seemingly strenuous activities, such as a lengthy flight to the Philippines in 2019, lifting heavy stones in 2021 and painting in 2022. Voluntary engagement in these activities would tend to undermine the applicant’s position that he is significantly impaired in his ability to perform even basic personal care tasks.
37Moreover, the applicant provided no evidence to confirm that attendant care was incurred for the period from December 2019 to August 2020 as required by paragraph (e) of subsection 3(7) of the Schedule. Paragraph (e) of subsection 3(7) of the Schedule restricts payment for incurred expenses as follows:
For the purposes of this Regulation
(e) …an expense in respect of goods or services referred to in this Regulation is not incurred by an insured person unless,
(i) the insured person has received the goods or services to which the expense relates,
(ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and
(iii) the person who provided the goods or services,
(A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or
(B) sustained an economic loss as a result of providing the goods or services to the insured person…
38The applicant also made no submissions that the Tribunal should deem the expenses incurred under subsection 3(8) of the Schedule on the premise that the insurer unreasonably delayed or withheld payment. As a result, I decline to deem that any expenses for December 2019 to August 2020 were incurred.
39The applicant submitted eighteen monthly receipts from Ms. Oranza for attendant care services covering the period from September 1, 2020 to February 28, 2022.
40In light of the conflicting evidence with respect to the level of the applicant’s actual functionality from December, 2019 to date, I find that the applicant has failed to meet his evidentiary onus to demonstrate on the balance of probabilities that he is entitled to attendant care benefits for the period from September 22, 2019 to date and ongoing.
Entitlement to Medical Benefits
41Pursuant to section 15(1) of the Schedule, the respondent is liable to pay for medical treatment that is reasonable and necessary as a result of the accident.
42The burden of proof rests with the applicant to demonstrate on a balance of probabilities that the goods and services proposed in each OCF-18 are reasonable and necessary. As a result, the applicant must provide evidence and submissions to establish that specific treatment or assessment proposed will have a therapeutic and/or restorative impact. Treatment plans by themselves do not prove that proposed treatments are reasonable and necessary, but there must be supportive objective medical evidence to substantiate the reasonableness and necessary of the proposed treatment.
Physiotherapy and Treatment
43The applicant began physiotherapy at Focus Physiotherapy (Brampton) Inc. (‘Focus’) in November 2018 at least two to three times per week. He has electrotherapy, massage, chiropractic manipulation, exercise and stretches. The treatments help to alleviate the pain. He stated that when he was unable to participate in physiotherapy due to restrictions related to the COVID-19 pandemic, his pain increased.
44The applicant proposed four treatment plans for physiotherapy treatment by Focus, specifically:
a. $4,022.42 submitted in OCF-18 on December 3, 2018;
b. $3,560.04 submitted in OCF-18 on November 29, 2019;
c. $2,840.35 submitted in OCF-18 on September 22, 2020; and
d. $2,735.00 submitted in OCF-18 on March 23, 2022.
Issue 3: $4,022.42 for Physiotherapy Treatment
45I find that the applicant has established that this treatment plan is reasonable and necessary. Although the respondent took the position that the property damage file indicated that the injuries sustained fall within the Minor Injury Guideline (the ‘MIG’), the applicant submitted medical evidence that demonstrated the plan involves substantive goals aimed at pain reduction.
46On January 31, 2019, the respondent requested an examination pursuant to section 44 of the Schedule. Dr. R. Moolla completed a report dated February 22, 2019 based on an assessment on February 13, 2019. The applicant reported independence with self-care but complained of back pain. Dr. Moolla noted that there was no substantive evidence of a musculoskeletal impairment related to the accident. Further treatment outside of the MIG was not considered reasonable and necessary as Dr. Moolla opined that the applicant could return to his baseline pre-injury status.
47On March 18, 2019, the respondent denied this treatment plan based on Dr. Moolla’s conclusions that there was no evidence of significant musculoskeletal or neurological impairment. However, Dr. Moola also determined that the applicant had left lower limb numbness and depressed reflexes is related to an L4-L5 (lumbar spine) radiculopathy and that he suffered a lumbar sprain. Moreover, Dr. Dziedzic noted in the later assessment of January 9, 2020 that the applicant had a possible rotator tear, possible fracture of the right forearm and required help from friends for tasks that required bending forward.
48Although the applicant was subsequently removed from the MIG, this does not automatically entitle him to this treatment if the medical opinion relied upon by the respondent establishes that the treatment is not reasonable and necessary.
49To that end, the applicant relies on Dr. Tavazzani’s orthopedic report in which Dr. Tavazzani diagnosed the applicant with chronic myofascial strain to the cervical spine, shoulder girdles, lumbar spine and patellofemoral contusion of the right knee with post traumatic chondromalacia. Dr. Tavazzani recommended that the applicant continue indefinitely with a multidisciplinary rehabilitation program in order to prevent deconditioning and deterioration of his injuries. He further opined that the applicant is at risk of developing worsening post-traumatic osteoarthritis in his knee with subsequent deterioration in knee function which may require further invasive treatments in the form of corticosteroid injections, viscosupplementation injections or surgery.
50Dr. Tavazzani noted that the applicant’s pre-existing conditions had been exacerbated by the subject accident and as a result, have been made more severe in terms of their impact and magnitude. He opined that the subject accident was a direct causal factor in worsening his pre-existing conditions and has now interfered with his overall functioning. The neurology report of Dr. Prigozhikh further recommended continuing physical therapy, aquatic exercises, multidisciplinary chronic pain program and cognitive behavioral therapy.
51In light of all of the evidence, I find that the medical evidence indicates that the treatment plan is both reasonable and necessary. As the Superior Court of Justice held in Cubello v. Guidolin, [2000] O.J. No. 1468 at paragraph 6, pain relief and partial restoration of function are reasonable and legitimate goals of treatment. This is consistent with the treatment goals set out in the OCF-18.
Issue 6: $3,560.04 for Physiotherapy Treatment
52I find that the applicant has not demonstrated on the balance of probabilities that this treatment plan is reasonable and necessary.
53On December 11, 2019, the respondent denied this treatment plan as not reasonable and necessary on the grounds that one year had passed since the accident and over $25,000.00 in treatment had already been funded and delivered without substantive recovery. The respondent requested insurer examinations to determine the reasonableness of further treatment. Unlike issue 3 above, the respondent submitted reports that directly addressed the reasonableness and necessity of this treatment plan.
54For instance, Dr. Dziedzic stated in his report dated April 7, 2020 that as a direct result of the accident, the applicant suffered aggravation of his pre-existing low back pain, a cervical sprain, and possible fracture of his forearm and right shoulder pain. Dr. Dziedzic noted that according to the applicant, his pain symptoms worsened following the subject accident. As he had three accidents in a relatively short span of time in December 2017, April 2018, and October 2019, he had not recovered from the accident in April 2018 when he was involved in a motor vehicle accident in October 2018. As a result, Dr. Dziedzic concluded that the plan dated November 29, 2019 is not reasonable or necessary as the applicant had been receiving the same type of treatment for over a year without improvement. On the contrary, the applicant reported a worsening of his condition.
55Similarly, in his neurological assessment dated April 7, 2020, Dr. John deferred recommending the OCF 18 until after he viewed the EMG/NCS of the applicant’s left leg. However, Dr. John also noted that the applicant has not shown significant improvement since undertaking physiotherapy.
Issue 11: $2,840.35 for Physical Rehabilitation Treatment
56As with the above issue, I find that the applicant has not demonstrated on the balance of probabilities that this treatment plan is reasonable and necessary. As Dr. Dziedzic noted, despite the substantial passage of time since the accident and the applicant’s attendance at similar treatment, he advised that his pain had not improved and may have worsened. In addition, Deepali Dhawan, OT, noted in his report also dated April 7, 2020 that the applicant demonstrated the functional abilities, tolerances and strength to perform all his pre-accident personal care tasks.
Issue 5: $250.00 (Balance) for Physiotherapy and Massage Therapy Treatment
57The applicant also claims $250.00 ($4,472.42 less the approved $4,272.42) for the balance of treatment by Focus Physiotherapy, submitted on March 28, 2019. On April 23, 2019, the respondent approved the majority of this treatment, but denied the fee for the TENS unit as it was not believed to be reasonable. The total amount requested for the TENS unit was $450.00. The respondent agreed to fund $200.00 out of the $450.00 requested.
58The respondent submits that since a search on Physic Supplies Canada reveals most personal at-home TENS machines range between $54.99 and $250.30, the applicant bears the onus to demonstrate why this amount is insufficient. The OCF-18 does not provide any additional information as to what kind of TENS unit was requested or why a more expensive model was required. As the applicant submitted no competing valuation or other evidence to justify the higher amount requested, I find that he has failed to demonstrate that the balance for this item is reasonable and necessary.
Items J and K in the Applicant’s Submissions
59As the applicant has offered no evidence of submissions in relation to these claims, I find that he has failed to demonstrate that the disputed treatment plans and goods are reasonable and necessary.
60Specifically, the applicant's submissions include claims for $2,735.00 submitted in OCF-18 on March 23, 2022 and $9,000.00 for submitted in an OCF-18 on March 22, 2021. These items were not included as issues in dispute in his application let alone the case conference order and report issued on May 12, 2021. The respondent advises in its own submissions that no specific documentation or submissions were provided in relation to these claims. The applicant made no other reference to these issues beyond listing them on page 2 of his submissions. In the absence of some explanation to the contrary, the inclusion of these items may be simply a clerical error.
Issues 4 and 7: Mileage
61I find that the applicant is not entitled to the disputed balances as these expenses relate to treatment provider mileage.
62The applicant claims mileage from two treatment plans: $15.00 ($2,150.60 less the approved amount of $2,135.60) for physical treatment in OCF-18 submitted on August 12, 2019 and $15.00 ($2,150.60 less the approved amount of $2,135.60) for physical treatment in OCF-18 submitted on April 26, 2019.
63Pursuant to section 3(1) of the Schedule, an “authorized transportation expense” only covers transportation expenses incurred after the first fifty kilometers of a trip, unless the insured suffered a catastrophic impairment as a result of an accident. This does not include treatment provider mileage.
64The Tribunal has repeatedly found that there is no provision in the Schedule, FSCO Guidelines, or FSCO Bulletins that require an insurer to pay mileage expenses to service providers. Rather, Guideline 03/14 indicates that professional service expenses includes all administration costs, overhead, and related costs, fees, expenses, charges and surcharges. Following the persuasive analysis in Z.R. v Gore Mutual Insurance Company, 2022 CanLII 93712 (ON LAT) at paragraphs 37-38, the respondent is therefore not liable to pay anything above which results in an increase to the maximum hourly rate for providing services.
Assessments
65The applicant claims three different assessments proposed by Verity Medical Assessments:
a. $2,200 for activities of daily living assessment submitted on August 12, 2019;
b. $2,025.95 for chronic pain assessment submitted on August 27, 2019; and
c. $2,200 for in-home attendant care assessment submitted on August 11, 2020.
Issue 8: $2,200.00 for an Activities of Daily Living Assessment and
Issue 9: $2,025.95 for a Functional Abilities Evaluation
66With respect to the activities of daily living assessment for $2,200 and the chronic pain assessment for $2,025.95, on September 5, 2019, the respondent denied this assessment as it was not reasonable and necessary where assessments had been recently approved and therefore this would have been a duplication of services.
67At that time, three assessments had recently been completed including a neurology assessment dated July 31, 2019, orthopaedic assessment dated August 20, 2019 and, shortly thereafter, a psychological assessment dated October 25, 2019.
68As a result, as I agree with the respondent that these assessments are duplicative, I do not find that they are reasonable and necessary.
Issue 10: $2,025.95 for an In-home Attendant Care Assessment
69With respect to the in-home assessment for $2,200.00, on September 9, 2020, the respondent denied this proposed assessment as not reasonable and necessary as the OT report of Deepali Dhawan dated February 27, 2020 found that no attendant care assistance was recommended. The applicant had submitted a second Form 1 less than a year earlier on December 2, 2019 with no significant change in his functioning demonstrated in his treating records. Moreover, where the Professional Services Guideline limits payment to occupational therapists to $99.75 an hour and where this second assessment was being sought within 6 months of the first, it is unclear how it could take a fraction of the more than twenty hours to generate the $2,200.00 charge for this service.
70I agree with the respondent that the disputed assessment is duplicative and therefore not reasonable and necessary.
Interest
71Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. The applicant is entitled to interest for the physiotherapy treatment in issue 3.
ORDER
72The applicant is not entitled to attendant care benefits in the amount of $1,103.55 per month from October 29, 2018 to September 21, 2019. The respondent has already approved this benefit at this rate for the period from November 1, 2018 to November 30, 2019.
73The applicant is entitled to $4,022.42 for physiotherapy treatment, recommended by Focus Physiotherapy (Brampton) Inc. in a plan submitted on December 3, 2018 and denied on March 18, 2019, plus any applicable interest in accordance with section 51 of the Schedule.
74The applicant is not entitled to any of the remaining benefits in dispute.
Released: October 26, 2023
Kevin Lundy
Adjudicator