Licence Appeal Tribunal File Number: 22-009055/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:
Rukhsar H Khoja
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Aric Bhargava
APPEARANCES:
For the Applicant:
Alex Nikolaev, Counsel
For the Respondent:
Olga Elmanova, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Rukhsar Khoja, the applicant, was involved in an automobile accident on September 6, 2020, 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, Security National Insurance Company, 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 $3,406.25 for physiotherapy services, proposed by Airport Rehab in a treatment plan dated February 27, 2021?
ii. Is the applicant entitled to $3,368.88 for physiotherapy services, proposed by Airport Rehab in a treatment plan dated September 7, 2021?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant is not entitled to the benefits in dispute and interest is not applicable.
ANALYSIS
4I find the applicant has not demonstrated entitlement to the treatment plans.
Are treatment plans for physiotherapy treatment reasonable and necessary?
5I find the proposed treatment plans are not reasonable and necessary. The applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary. Treatment plans should be supported with objective medical evidence identifying the goals of treatment, how the goals will be achieved and establish that the cost for the proposed treatment is reasonable.
6Dr. Amena Syed, registered Psychologist with Cira Health Solutions, provided a report dated November 1, 2021, in which the applicant was deemed out of the MIG on the basis of psychological impairment.
7In the OCF-18 submitted February 27, 2021, for physiotherapy services, by Bajwa Amna, physiotherapist, of Airport Rehab, the treatment goal provided was for pain reduction, increased range of motion, increase in strength, and a return to activities of normal living. The treatment plan was for $3,368.88. The same OCF-18 states that the applicant’s impairment has improved in the neck and upper back, however, further treatment is advised for the complete resolution of symptoms.
8In the OCF-18 submitted September 7, 2021, for physiotherapy services, by Bajwa Amna, physiotherapist, of Airport Rehab, the treatment goal provided was for pain reduction, increase range of motion, increase in strength, and a return to activities of normal living. The treatment plan was for $3,406.25.
9The applicant attended facility-based treatments for two years. The applicant then discontinued attending the clinic to pursue an in-home exercise program. The applicant stated the reason for discontinuing the clinic appointments was due to the driving distance.
10The applicant relies on the expert report of Dr. Michael A. Zahavi, a chronic pain management doctor, dated June 18, 2023. In his report, Dr. Zahavi diagnosed the applicant with chronic pain in her neck, back, shoulders, lower back and legs/calves and recommended a “comprehensive multimodal chronic pain management program” with an active ongoing supervised graduated exercise program.
11The respondent submits that physiotherapy treatment is not reasonable and necessary because Dr. Zahavi did not recommend it. The respondent submitted reports from Dr. Belfon, Family Physician, dated May 28, 2021 and October 8, 2021. The reports submitted from Dr. Belfon note the applicant’s impairment was in the neck and back areas that could be addressed through a home exercise program. Dr. Belfon noted the applicant returned to work two weeks after the accident and also noted, one year post accident, that it “is unlikely that the proposed formal physical rehabilitation will yield further objective and sustainable therapeutic benefit or restorative gains”. On this point, I place greater weight on Dr. Belfon’s recommendation for a home exercise program and I find that further treatment is not reasonable and necessary to address the applicant’s ongoing pain to resolution.
12The respondent submits the applicant’s impairment is intermittent and not debilitating and cites the applicant has returned to work which requires travel by car. The applicant also confirmed her return to work, while not formally accommodated, she has taken frequent breaks and a change in office locations to reduce her travel by car. The applicant herself discontinued attending the in-person clinic due to the driving distance to the clinic and began in-home exercise at the same time and to meet the proposed goals.
13I note Dr. Zahavi’s assessment and report was completed 13 months after the applicant stopped attending her treatments in July 2022. It is unclear why the applicant underwent an assessment without any ongoing accident-related impairments noted in any of her visits with her family doctor. In review of the medical notes and records from Marlee Medical Centre, where the applicant attended consistently, I note there were no subsequent complaints of accident-related impairments. No further reasons were provided for engaging Dr. Zahavi for an assessment. I question the reasoning for Dr. Zahavi’s assessment especially in the absence of consistent complaints from the applicant.
14While the applicant stated that previous physiotherapy treatment was helpful, Dr. Zahavi’s recommendation does not include a referral for physiotherapy or the requirement of a physiotherapist. To assist the applicant, Dr. Zahavi recommended six pharmacological treatments, X-ray of both knees and ultrasound of the calves, a sleep study, a psychiatric/psychological assessment, a multimodal exercise program, an ergonomic assessment at work, trial of a home transcutaneous electrical nerve stimulation unit, and consideration of nerve blocks. I find the recommendation is not inclusive of physiotherapy and I find it likely, based on the evidence before me, that the applicant achieved maximal medical recovery from facility based therapy which leads to further treatment not being reasonable or necessary.
15The applicant has stated that she remains independent with the majority of her personal tasks and throughout the routines of her daily activities. The applicant has also demonstrated a return to the activities of daily living, including work and a return to her pre-accident routines. Based on the applicant’s return to pre-accident activities, the applicant has not established further facility-based treatment would yield objective benefit beyond what can be accomplished through an in-home exercise program and appropriate pharmacological management, as stated by Dr. Belfon.
16The parties’ submissions also rely on expert reports on whether the applicant sustained a psychological impairment. I do not find these reports persuasive they are not concerned with whether physiotherapy is reasonable and necessary.
17While I am alive to the applicant’s concerns, in light of the time lapsed since the applicant discontinued treatment and began the home exercise program, I am not persuaded the treatment plans will provide maximal or additional objective benefit to the applicant. The applicant has not established that the specific services proposed in the treatment plans are reasonable and necessary.
18Once again, for the reasons above, I find that the applicant has not established, on a balance of probabilities, that the treatment plans are reasonable and necessary. The applicant is not entitled to payment of the treatment plans.
Interest
19As I have found the benefits are not payable, it follows that interest does not apply on any overdue payments of benefits incurred by the applicant, pursuant to s. 51 of the Schedule.
ORDER
20I find the applicant is not entitled to the following medical benefits:
i. $3,406.25 for physiotherapy services in the treatment plan dated February 27, 2021.
ii. $3,368.88 for physiotherapy services in the treatment plan dated September 7, 2021.
21The applicant is not entitled to interest.
Released: November 21, 2024
Aric Bhargava
Adjudicator