Licence Appeal Tribunal File Number: 23-006061/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:
Samaneh Ahmadi
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATORS:
Ludmilla Jarda
Bernard Trottier
APPEARANCES:
For the Applicant:
Adam Asgarali, Counsel
For the Respondent:
Murleen McLean, Counsel
Kristen Ogden, Counsel
Interpreter:
Bita Gahsempour, Farsi language
Court Reporter:
Bruce Porter
Heard by videoconference:
September 9, 2024
OVERVIEW
1Samaneh Ahmadi (the "applicant") was involved in an automobile accident on August 5, 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 Intact Insurance Company (the "respondent") and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
2At the start of the hearing, the applicant withdrew issue 3, as identified in the Case Conference Report and Order ("CCRO") released on January 31, 2024. The balance of the issues listed in the CCRO remain in dispute.
ISSUES
3The issues in dispute are:
Has the applicant sustained a catastrophic impairment as defined by the Schedule?
Is the applicant entitled to $1,723.41 for a functional abilities evaluation ("FAE"), proposed by Alliance Diagnostics in a treatment plan/OCF-18 dated June 9, 2021?
Is the respondent liable to pay an award under s. 10 of Regulation. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4For the reasons that follow, we find that:
The applicant is not catastrophically impaired under Criterion 7.
The applicant is not entitled to the disputed treatment plan.
The applicant is not entitled to interest.
The respondent is not liable to pay an award.
ANALYSIS
Catastrophic Impairment Determination
5The applicant bears the onus of proving, on a balance of probabilities that, as a result of the accident, she is catastrophically impaired under the Schedule. We find that she has not done so.
6The test to determine whether the applicant is catastrophically impaired is a legal test and not a medical one. The criteria to establish a catastrophic impairment are found under s. 3.1(1) of the Schedule. In this case, the applicant claims that she is catastrophically impaired under Criterion 7.
The applicant does not suffer from a catastrophic impairment under Criterion 7
7We find that the applicant has not demonstrated, on a balance of probabilities, that she has a combination of physical and psychological impairments as a result of the injuries sustained in the accident that results in a whole person impairment ("WPI") of 55% or more.
8To qualify under Criterion 7, the applicant must prove that she has a combination of physical and psychological impairment ratings from medical professionals that meet the 55% WPI threshold. The physical impairment rating is derived from the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993 ("Guides, 4th Edition"), and the psychological impairment rating is determined in accordance with the methodology in Chapter 14, Section 14.6 of the American Medical Association's Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008 ("Guides, 6th Edition"). The physical and psychological impairment ratings are combined using the Combined Values Table in the Guides, 4th Edition. An impairment percentage derived by means of the Guides, 4th Edition is intended to represent an informed estimate of the degree to which an individual's capacity to carry out daily activities has been diminished.
9The applicant relies on the reports of her assessors including:
A psychiatric catastrophic determination assessment report by Dr. Felix Yaroshevsky, psychiatrist, dated March 30, 2021; and
A catastrophic impairment rating report by Dr. Z. Marc Marciniak, general practitioner, dated March 31, 2021.
10The applicant submits that the report of Dr. Marciniak demonstrates that she sustained a total combined WPI of 63%. This rating is comprised of a WPI of 60% for physical impairments combined with a WPI of 30% for mental and behavioural impairments. The applicant submits that the physical impairment assessments are consistent with letter reports provided by her family physician, Dr. Majid Fanipour, as well as with magnetic resonance imaging ("MRI") conducted on October 2, 2019 and December 28, 2020.
11The respondent denies that the applicant is catastrophically impaired under Criterion 7. It relies primarily on the multi-disciplinary reports of its insurer's examination ("IE") assessors including:
A psychiatry assessment report and an addendum report, both completed by Dr. Joel Eisen, psychiatrist;
A physiatry assessment report completed by Dr. Mohammed Khan, physiatrist;
An in-home occupational therapy assessment and an occupational therapy situational assessment report, both completed by Ms. Montana Mullane, occupational therapist;
A neurology assessment report completed by Dr. Nagib Yahmad, neurologist; and
An executive summary completed by Dr. Howard Seiden, physician.
12The above IE reports and the executive summary were released on March 29, 2022. Based on the opinion of the IE assessors, the applicant sustained a total combined WPI of 26%. This rating is comprised of a WPI of 18% for physical impairments combined with a WPI of 10% for mental and behavioural impairments. Therefore, the respondent opines that the applicant does not meet the threshold under Criterion 7.
13The chart below provides a summary of both parties' assessors' ratings and the Tribunal's findings regarding Criterion 7. Our analysis will focus primarily on the impairment ratings that were in dispute between the parties.
Impairments
Applicant WPI%
Respondent WPI%
Tribunal Finding
Physical
Post-Traumatic Headaches
5%
0%
0%
Cervical Spine
9%
5%
5%
Thoracic Spine
0%
5%
5%
Lumbar Spine
10%
5%
5%
Left Shoulder
11%
0%
0%
Grip Strength
18%
0%
0%
Left Ankle
0%
0%
0%
Neurological
0%
0%
0%
Medication
5%
3%
3%
Chronic Pain
2%
0%
0%
Total Physical WPI%
60%
18%
18%
Mental and Behavioural
Total Mental & Behavioural WPI%
30%
10%
10%
Total Combined Ratings
Total WPI%
63%
26%
26%
Post-Traumatic Headaches
14Post-traumatic headaches are evaluated using the Guides, 4th Edition Impairments of Spine Nerves in the Head and Neck Region, found at Chapter 4, Table 23. A rating of 5% WPI is permitted for an impairment of the greater occipital nerve due to sensory deficit, pain, or discomfort. If there is bilateral involvement, the WPI estimates for the nerves on the two sides should be combined. The final WPI estimate depends on the severity of the abnormality, and the classification and procedure of Table 20 or 21 should be used to determine the estimate.
15The applicant relies on Dr. Marciniak's report wherein he assigns a WPI of 5% for post-traumatic headaches. Citing Table 23, Dr. Marciniak assigns the following values:
i. Greater occipital nerve, sensory deficit or pain or discomfort: 5% WPI
ii. Lesser occipital nerves: 3% WPI
iii. Great auricular nerve: 3% WPI
16Using the Combined Values Charts on p. 322, Dr. Marciniak assigns a 5% WPI.
17The respondent relies on the neurological report of Dr. Yahmad in rating the applicant's impairment for post-traumatic headaches. In his report, Dr. Yahmad opines that the reported headaches are likely cervicogenic and muscular in nature and not associated with any neurological disability or impairment. Dr Yahmad assigns a 0% WPI for post-traumatic headaches.
18The respondent submits that there are no clinical notes and records ("CNRs") from a treating physician that indicate complaints of recurring post-traumatic headaches. The respondent argues that the applicant mentioned these CNRs in her closing submissions, but these CNRs have not been entered into the evidentiary record. Therefore, the respondent argues that Dr. Marciniak's post-traumatic headaches rating of should be given less weight.
19We find that assigning a rating of 0% WPI for post-traumatic headaches is appropriate. We note that the applicant self-reported headaches to Dr. Marciniak, but that these reports are not corroborated with CNRs from her treating physician. We assign more weight to the assessment of Dr. Yahmad who opined that her complaints are not based on a neurological injury or impairment. We agree with the opinion of Dr. Yahmad that, on a balance of probabilities, the applicant's headache complaints are not likely related to the accident.
Spine
20Cervical spine WPI ratings can be derived according to the Diagnosis Related Estimate ("DRE") Cervicothoracic Spine Impairment table (Chapter 3, pages 103-105) as well as the Range of Motion model of Chapter 3, found at p.112 in Tables 76, 77 and 78 in the Guides, 4th Edition.
21Thoracolumbar spine WPI ratings can be derived from the DRE Thoracolumbar Spine Impairment table (Chapter 3, pages 106-107, Table 74) of the Guides, 4th Edition. A maximum rating of 5% is permitted for a minor impairment. A minor impairment means clinical signs of a thoracolumbar injury are present without radiculopathy or loss of motion segment integrity.
22The applicant relies on Dr. Marciniak's assessment that derived a WPI rating of 9% for the cervical spine and did not derive a separate rating for the thoracolumbar spine.
23Using the DRE impairment value, Dr. Marciniak opines that the applicant's cervical spine injuries fall into Category II, based on radicular symptoms/signs, muscle guarding and loss of range of motion. Using this model, Dr. Marciniak assign a WPI rating of 5% to the applicant's cervical spine.
24In addition, Dr. Marciniak uses the Range of Motion model to calculate the following impairment ratings for the cervical spine:
i. Flexion: 3%
ii. Extension: 5%
iii. Side flexion (right): 2%
iv. Side flexion (left): 1%
v. Rotation (right): 1%
vi. Rotation (left): 1%
vii. Total: 13%
25Dr. Marciniak indicates that, according to the Guides, 4th Edition an assessor can choose either method. He opines that it is reasonable and conservative to use the mid-range value between the two methods and therefore assigns a WPI of 9% (the mid-range value of 5% and 13% derived above.)
26The respondent relies on the physiatrist report of Dr. Khan in determining an impairment rating for the applicant's spinal injuries. Dr. Khan relies on the same DRE tables cited by the applicant above to derive the same 5% WPI rating for the applicant's cervical spine using the DRE method, and a further 5% WPI for the applicant's thoracolumbar spine.
27We accept the respondent's opinion of 5% WPI for the cervical spine and 5% WPI for the thoracolumbar spine. While the applicant did not derive a separate WPI rating for the thoracolumbar spine, we accept the respondent's combined WPI rating for the cervical and thoracolumbar spine segments as it is consistent with the methodology set out in the Guides, 4th Edition. Further, we do not agree with Dr. Marciniak's methodology as he preferred the rating under the Range of Motion Model over the DRE approach under the Injury Model. The Guides, 4th Edition are clear that in the circumstances the Injury Model should be preferred over the Range of Motion Model.
28Lumbar spine WPI ratings can be derived according to the DRE Lumbosacral impairment table, found in Chapter 3, pages 107-109, of the Guides, 4th Edition.
29The applicant relies on Dr. Marciniak's assessment that opines that her lumbar spine injuries are well documented in the applicant's medical records, including complaints of back pain with right sciatica, range of motion and functional limitations, mobility problems and positive orthopedic tests for nerve root irritation. The applicant also relies on the MRI reports of the applicant's lumbar spine.
30Dr. Marciniak opines that the applicant's lumbar spine injuries should be classified as Category III according to the Guides, based on significant signs of radiculopathy (such as loss of the relevant reflex) and measured unilateral atrophy of greater than 2 cm above or below the knee. The Guides, 4th Edition rating for Category III for the lumbar spine is 10% WPI.
31The respondent again relies on the physiatry IE of Dr. Khan. In Dr. Khan's opinion, the applicant's injuries correspond to a DRE Lumbosacral Category II impairment according to the same tables as those used by Dr. Marciniak. The Guides, 4th Edition rating for Category II for the lumbar spine is 5%.
32The respondent submits that the Dr. Marciniak's report ignores the x-rays of August 14, 2018 (9 days post-accident) that indicated the applicant's lumber spine injuries were "unremarkable". The respondent also submits that the applicant failed to enter into the evidentiary records the CNRs that the applicant alleges documents lumbar spine injuries.
33Given the applicant's failure to adduce as evidence the x-rays and CNRs to support Dr. Marciniak's statement that the applicant's lumbar spine injuries are "well documented", we give less weight to Dr. Marciniak's opinion. Further, we prefer the opinion of Dr. Khan that finds the applicant's lumbar spine injuries are Category II. We accept Dr. Khan's rating of 5% WPI for the applicant's lumbar spine.
Left Shoulder
34Per Chapter 3, Section 3.1 of the Guides, 4th Edition under Shoulder, a WPI% rating is permitted for impairments due to abnormal shoulder motions (flexion and extension, abduction and adduction, internal and external rotation).
35The applicant submits that her left shoulder was injured in the accident, resulting in a rotator cuff impingement. She relies on the opinion of Dr. Marciniak who assessed the applicant's left shoulder range of motion restrictions as follows:
i. Flexion 80 deg: 7%
ii. Extension 22 deg: 2%
iii. Abduction 74 deg: 5%
iv. Internal rotation 22 deg: 4%
36Dr. Marciniak utilizes Figures 36 to 44 and Table 3/20 to calculate an upper extremity impairment of 18%, which translates into a rating of 11% WPI.
37The respondent submits, based on the physiatry assessment of Dr. Khan, that there were no findings of instability, subluxation, crepitus, weakness, arthroplasty, peripheral nerve injury, reflex sympathetic dystrophy, causalgia, or vascular injury. Dr. Khan adds that the Guides, 4th Edition state that "Pain, fear of injury, or neuromuscular inhibition may limit mobility by diminishing the patient's effort, leading to inaccurately low and inconsistent measurements and inflated impairment estimates." As a result, Dr. Khan did not identify a pathology that is ratable and has accordingly rated the applicant's left shoulder range of motion at 0% WPI.
38Dr. Khan's bilateral range of motion testing of the applicant's shoulder resulted in flexion to 100 degrees and abduction to 90 degrees, both higher than the testing of Dr. Marciniak.
39The respondent submits that the applicant made no complaints regarding her left shoulder immediately following the accident. The respondent points to the applicant's sworn statement of August 15, 2018 (10 days post-accident), where she noted complaints of pain in her lower back, right shoulder and neck, but made no pain complaints regarding her left shoulder.
40We assign more weight to the left shoulder assessment of Dr. Khan than to that of Dr. Marciniak, since Dr. Khan assesses the underlying pathologies that might result in the reduced shoulder range of motion. We find there is a lack of corroborating CNRs or medical imaging to support Dr. Marciniak's rating for the applicant's left shoulder. In addition, we find the applicant's post-accident sworn statement does not support the claimed injuries to the left shoulder. We accept Dr. Khan's rating of 0% WPI to the applicant's left shoulder.
Grip Strength
41Per Chapter 3, Section 3.1m of the Guides, 4th Edition under Impairment Due to Other Disorders of the Upper Extremity, in rare cases, a WPI rating is permitted for loss of grip strength. Further, per Chapter 3, p. 64 of the Guides, 4th Edition under Strength Evaluation, because strength measurements are functional tests influenced by subjective factors that are difficult to control, and the rating for the most part is based on anatomic impairment, the Guides, 4th Edition state that they do not assign a large role to such measurement.
42The upper extremity ratings for the shoulder and grip strength are combined in accordance with Chapter 3, Table 3 of the Guides, 4th Edition under Relationship of Impairment of the Upper Extremity to Impairment of the Whole Person, to calculate the WPI rating.
43The applicant relies on Dr. Marciniak's report in assessing the applicant's grip strength deficit. Dr. Marciniak acknowledges that shoulder impairment rating may overlap with the wrist strength rating, but he opines that the range of motion of the shoulder joints and the loss of grip strength are responsible for different functions and should be rated separately.
44Using Table 3 (p. 20), Table 31 and Table 34 (p. 65) of the Guides, 4th Edition Dr. Marciniak assessed the applicant's grip strength loss as follows:
(24.6 kg – 5 kg) / 24.6 kg = 79% Strength Loss Index.
45According to Dr. Marciniak, the calculation above translates into a 30% upper extremity impairment and a rating of 18% WPI.
46The respondent submits that outside of Dr. Marciniak's assessment, there are no documented reports of wrist pain or grip strength issues. The respondent submits that in the occupational therapy assessments of Ms. Mulane, the applicant did not report any wrist pain. The respondent argues further that Dr. Marciniak left out the Guides, 4th Edition use of the qualifier "in rare cases" in his report and that the applicant's case is not one of those rare cases.
47We note the Guides, 4th Edition caution in not assigning a large role to subjective grip strength measurements in determining an impairment. We find there is a lack of documented wrist issues in the applicant's initial post-accident medical reports, medical imaging, family physician CNRs or occupational therapy IEs to support the impairment rating assigned by Dr. Marciniak. We agree with the respondent that this is not a "rare case" where grip strength should be assigned a large weight in determining an impairment, because of the lack of corroborating medical evidence indicated above. For these reasons, we accept Dr. Khan's rating of 0% to the applicant's grip strength deficit.
Medication
48Per Chapter 2, p. 9 of the Guides, 4th Edition under Adjustments for Effects of Treatment or Lack of Treatment, a rating between 1% and 3% WPI is permitted for medication use and any reduced symptoms as a result of medication use.
49The applicant submits that she is utilizing a long list of medications to control her accident-related symptoms and pain. Dr. Marciniak assigns a rating of 5% WPI for use of medication.
50The applicant relies on the physiatry assessment report of Dr. Khan, who submits that the Guides, 4th Edition provide for a maximum rating of 3% WPI for an individual's medication use when medications result in lasting side-effects, or when medications are used to manage a condition that is considered unratable. Accordingly, Dr. Khan assigns a 3% WPI for use of medication.
51We accept the respondent's rating of 3% WPI for use of medication as it is consistent with the maximum rating in the Guides, 4th Edition.
Chronic pain
52Per Section 15.1 of Chapter 15 of the Guides, 4th Edition, under Basic Assumptions, pain is assumed in impairment ratings. As such, there is no need to rate pain separately.
53The applicant relies on Dr. Marciniak's report in deriving a WPI rating for chronic pain. Dr. Marciniak acknowledges that pain is an impairment when it impairs function but that pain, by itself, is not an impairment according to the Guides, 4th Edition. Dr. Marciniak submits that post-traumatic degenerative changes and chronic pain may develop as a result of injuries, which increase an injured person's impairment, and are therefore ratable.
54Dr. Marciniak notes that the applicant's medical records indicate numerous problems and limitations in functional tolerances post-accident. Without pointing to a specific rating section of the Guides, 4th Edition Dr. Marciniak submits that the applicant's rating for chronic pain would come up to at least 5% WPI, but he assigns a rating of 2% WPI as reasonable.
55The respondent submits that the Guides, 4th Edition do not allow for an additional WPI rating for chronic pain, since pain and the associated functional limitations are already incorporated in the other tests. The respondent argues the rating for chronic pain should be 0% WPI.
56We agree with the respondent that chronic pain and the associated functional limitations are not ratable per the Guides, 4th Edition since those impairments are already considered in the other tests. We accept the respondent's rating of 0% WPI for chronic pain.
Left Ankle
57Both Dr. Marciniak and Dr. Khan rated the applicant's left ankle injuries at 0% WPI. No further analysis is required.
Neurological
58Dr. Yahmad rated the applicant's neurological injuries at 0% WPI. The applicant did not submit a neurological WPI rating. No further analysis is required.
Mental and Behavioural
59The Schedule requires that the Tribunal utilize Chapter 14, s. 14.6 of the Guides, 6th Edition to provide direction on whether an applicant is catastrophically impaired under Criterion 7, based on the median impairment score from:
The Brief Psychiatric Rating Scale (BPRS);
The Global Assessment of Functioning Scale (GAF); and
The Psychiatric Impairment Rating Scale (PIRS).
60The applicant relies on Dr. Yaroshevsky's report in deriving a WPI rating for mental and behavioural impairments. Dr. Yaroshevsky assigns the following scores and WPI ratings:
Scale
Score
WPI %
BPRS
54
30%
GAF
51-60
10%
PIRS
7
30%
61According to Dr. Yaroshevsky, since there are two ratings at 30% WPI, the median rating is 30% WPI.
62The applicant submits that the accident has led to considerable injuries such that she no longer has an outlet as part of her lifestyle to relieve her general anxiety and that she is upset over her inability to function. She further submits that since the accident, her roles and life patterns are more restricted.
63Dr. Yaroshevsky notes in his report that the applicant considers the accident as an event that changed her life and identity significantly. The applicant submits that the accident affected her ability to care for her mother and her sister, and it has had a negative impact on other relationships.
64The applicant submits that Dr. Yaroshevsky's report indicates that there was no evident effort to exaggerate or to belabor themes of impairment or disability.
65The respondent relies on Dr. Eisen's report in deriving its mental and behavioural WPI ratings. Dr. Eisen assigns the following scores and ratings:
Scale
Score
WPI %
BPRS
41
15%
GAF
65
5%
PIRS
4
10%
56Accordingly, Dr. Eisen assigns the median rating of 10% WPI for the applicant's mental and behavioural impairments.
57Dr. Eisen's report indicates that he attempted to isolate any pre-existing psychological impairment from the scoring so that the ratings reflect accident-related impairments only.
58In the hearing, the applicant testified that she had significant sources of stress in her life, apart from the injuries sustained in the accident. These included complications related to her immigration process since it took so long to have her Canadian immigration application approved. Also, the applicant testified that she divorced her husband about 10 months before the accident, and that the accident was not the cause of the divorce.
59The applicant also testified that her brother died of drowning in the months before the accident and that this was an additional source of stress.
60In his report, Dr. Eisen notes that there was compelling evidence that prior to the accident the applicant was psychologically impaired in much the same way as after the accident. Dr. Eisen noted that the CNRs of Dr. Fanipour indicated strong evidence of depression in the months prior to the accident, including the use of antidepressant medication and consultation or treatment with three separate psychiatrists, Dr. Mehr-Afarin Kohan, Dr. Robin Cardan and Dr. Mostafa Showraki. In reviewing Dr. Fanipour's CNRs, which included a consultation report dated November 29, 2017 completed by Dr. Showraki and a consultation note dated June 27, 2018 completed by Dr. Cardan, Dr. Eisen noted diagnoses of major depressive disorder, adjustment disorder and anxiety. Further, Dr. Cardan's notes indicated that the applicant was prescribed a variety of psychotropic medication, including Citalopram, Fluoxetine and Clonazapam in the year prior to the accident.
61Dr. Eisen further indicated that the applicant denied problems with her mood and neurovegetative functioning prior to the subject accident. He noted that she magnified or embellished some of her symptoms, and the inconsistencies made it difficult to identify accident-related psychiatric diagnoses or impairments. Conversely, Dr. Yaroshevsky mentions the applicant's pre-accident stressors in passing, but there is no evidence that Dr. Yaroshevsky derived his impairment rating solely based on accident-related impairments.
62We prefer Dr. Eisen's finding that the applicant's psychological impairment is only partly due to the accident as this finding is corroborated by the applicant's oral testimony. We also assign more weight to Dr. Eisen's WPI ratings because the applicant's pre-accident psychological stressors significantly impact her post-accident mental and behavioural presentation. As such, we accept Dr. Eisen's median rating of 10% WPI for the applicant's mental and behavioural impairments.
63When the Tribunal combines the total physical rating of 18% WPI with the total mental and behavioural rating of 10% WPI using the Combined Value Chart in the Guides, 4th Edition, it results in a WPI of 26%. This value of 26% WPI does not meet the 55% WPI threshold for a catastrophic impairment under Criterion 7.
64Accordingly, we find that the applicant has failed to establish on a balance of probabilities that she sustained a catastrophic impairment.
65To 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.
The applicant is not entitled to a FAE in the amount of $1,723.41
66We find that the applicant has failed to demonstrate, on a balance of probabilities, that the treatment plan dated June 9, 2021 for an FAE in the amount of $1,723.41 is reasonable and necessary.
67It is well established that applicants to the Tribunal are obligated to make their own case, and as part of this obligation, applicants must adduce all evidence which they need or intend to rely on.
68In the present case, although the respondent included a copy of the disputed treatment plan in their hearing brief, neither party included a copy of the treatment plan in the evidentiary record. However, in order to fully and properly assess the reasonableness and necessity of the disputed treatment plan, we must review it as it forms the basis of the parties' dispute (see: J.R. v. Certas Home Insurance Company, 2018 CanLII 13161).
69The treatment plan proposes an FAE, planning services, report preparation, travel time for the treatment provider, and completion of the treatment plan form. The goal of the treatment plan is to properly evaluate the current state of the applicant's injuries and impairment. The functional goals are to return to activities of normal living and to determine the appropriate course of management for the applicant's injuries and impairments.
70The applicant submits that the respondent's grounds for denying the FAE were unreasonable. The FAE was proposed about 34 months post-accident.
71Prior to submitting the disputed treatment plan, the applicant submitted a treatment plan dated June 9, 2020 for a motor and living skills ("MLS") assessment. In response to the proposed MLS assessment, the respondent requested an IE by Dr. Marc Goldstein, physician.
72In his IE musculoskeletal addendum report dated April 23, 2021, Dr. Goldstein opined that the applicant's prognosis for her musculoskeletal injuries was "guarded" and that her range of motion impairments were "likely permanent" as considerable time had elapsed without resolution of the applicant's symptoms. As a result, Dr. Goldstein concluded that the MLS assessment was reasonable and necessary.
73Despite Dr. Goldstein's findings, in response to the proposed FAE, the respondent requested another IE, this time with Dr. Khan. In his physiatry examination report dated December 24, 2021, Dr. Khan opined that the applicant's functional limitations were due to subjective reports of pain as opposed to functional limitations, and that the FAE was not reasonable and necessary.
74The applicant submits that Dr. Khan's report indicates that the applicant suffered from reduced range of motion. She argues that Dr. Khan's report is not internally consistent since reduced range of motion is a functional limitation. The applicant further argues that the respondent's selective reliance on the conclusions of Dr. Khan's IE report (regarding the FAE) while ignoring Dr. Goldstein's IE report (regarding the MLS assessment) was unreasonable, and that the proposed FAE should have been approved.
75In contrast, the respondent relies on Dr. Khan's report which indicates that the completion of an FAE is not expected to change the applicant's management of her daily activities or determine any medical restrictions that would need to be imposed. Dr. Khan further opined that there was no ongoing objective musculoskeletal pathology that would restrict or limit the applicant from engaging in or pursuing pre-accident vocational or avocational activities.
76We find that the applicant's submissions and evidence fail to establish her entitlement to the disputed treatment plan. The applicant did not identify how the goals of the treatment plan would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
77We further find that there is no compelling evidence to support that the FAE is reasonable and necessary. The applicant has not directed us to any medical opinion that supports that the FAE is reasonable and necessary. While the applicant relies on the apparent inconsistency between two IE reports, we assign more weight on Dr. Khan's report as he specifically addressed the reasonableness and necessity of the FAE and relied on more recent medical information than did Dr. Goldstein.
78For these reasons, we find that the applicant has not demonstrated entitlement to the FAE.
Interest
66Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are overdue, no interest is payable.
Award
67Pursuant to s. 10 of Regulation 664, the respondent may be liable to pay an award if the Tribunal finds that it unreasonably withheld or delayed the payment of a benefit. As we have concluded that the applicant is not entitled to the disputed treatment plan, it follows that no benefits were unreasonably withheld or delayed. Accordingly, the respondent is not liable to pay an award.
ORDER
79For the reasons above, we find that:
The applicant is not catastrophically impaired under Criterion 7.
The applicant is not entitled to the disputed treatment plan.
The applicant is not entitled to interest.
The respondent is not liable to pay an award.
80The application is dismissed.
Released: October 30, 2024
__________________________
Ludmilla Jarda
Adjudicator
__________________________
Bernard Trottier
Adjudicator
