Licence Appeal Tribunal File Number: 22-010743/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:
Wan Ling Huang
Applicant
and
Certas Home and Auto
Respondent
DECISION
ADJUDICATOR:
Nadia Mauro
APPEARANCES:
For the Applicant:
Anil Hampole, Counsel
For the Respondent:
Masiya Ahmadzai, Counsel
HEARD:
By Way of Written Hearing
OVERVIEW
1Wan Ling Huang, the Applicant, was involved in an automobile accident on May 26, 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 the Respondent, Certas Home and Auto 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 as follows:
i. Is the Applicant entitled to $4,115.12 for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“treatment plan”) submitted February 2, 2021, and denied February 13, 2021?
ii. Is the Respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the Applicant?
iii. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
3The Applicant is not entitled to a treatment plan in the amount of $4,115.12 for physiotherapy services.
4As no benefits are overdue, the Applicant is not entitled to interest.
5The Respondent is not liable to pay an award.
ANALYSIS
The Treatment Plan for Physiotherapy Services is not Reasonable and Necessary
6I find that the Applicant has not established, on a balance of probabilities, that the treatment plan is reasonable and necessary.
7To 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.
8The treatment plan in question, dated February 2, 2021, submitted by physiotherapist, Mr. Ahmed Afifi, notes the goals as pain reduction, increased range of motion, and increase in strength. The treatment plan also seeks to achieve a return to activities of normal living and pre-accident work activities.
9The Applicant relies on clinical notes and records (“CNRs”) of family practitioner, Dr. C.P. Chang, physiatrist, Dr. Joseph Wong, and chiropractor, Dr. Georgia Palantzas. In her submissions, the Applicant states that she is suffering from pain in the neck, back, bilateral shoulder, bilateral hip, bilateral knee, and lower leg, as a result of the subject accident.
10The Respondent argues that the Applicant has failed to meet her onus proving that the treatment plan is reasonable and necessary and relies on the medical evidence of s.44 assessor, Dr. Raymond Zabieliauskas. The Respondent further submits that little to no weight should be given to the reports of Dr. Palantzas and Dr. Wong, as they are unreliable and contain no evidence of any testing to support or verify the self-reporting of the Applicant on which they rely for their conclusions.
11I find that there is a lack of contemporaneous or compelling evidence that would support the need for physical therapy, as indicated in the subject treatment plan.
12With respect to the CNRs of Dr. Chang, on May 29, 2018, the Applicant reported accident-related physical injuries such as right knee pain, right lower leg pain, chest tightness pain, and back pain. On June 5, 2018, and June 18, 2018, the Applicant followed up with Dr. Chang for accident-related complaints. Dr. Chang recommended therapy and prescribed pharmaceuticals. On June 24, 2019, Dr. Chang noted a ‘hx of mva’ when the Applicant presented with complaints of back pain after she carried a lunch box and backpack. The Applicant thereafter returned to Dr. Chang for various reasons, which do not appear to be related to the subject accident. The second to last entry, dated October 27, 2020, Dr. Chang reported “L hip pain x 3 days tripped and twisted her back, but not fell.” X-ray of the lumbar spine and pelvis, dated October 27, 2020, revealed L5-S1 DDD, which is stable. On follow up, dated November 4, 2020, Dr. Chang opined back pain and advised ‘therapy prn’. Dr. Chang does not reference the subject accident on either attendance, dated October 27, 2020, and November 4, 2020, and I am not pointed to any compelling evidence that the Applicant’s complaints to Dr. Chang are in relation to the subject accident. I am also not pointed to compelling evidence that supports a recommendation or referral by Dr. Chang for accident-related physical therapy, at or near the date of the submitted treatment plan.
13Furthermore, while I do not agree with the Respondent’s argument that the reports of Dr. Palantzas and Dr. Wong are unreliable, I do agree that Dr. Zabieliauskas’ assessment, dated November 29, 2019, is more comprehensive than that of Dr. Wong’s, dated December 4, 2019. Dr. Zabieliauskas’ report is not only longer in length but encompasses a detailed review of the Applicant’s pain and current reported symptoms, past medical history, social and work history, and summary of daily activities. Dr. Zabieliauskas subsequently reports that the Applicant has remained independent in her personal care tasks, resumed her work as an ECE assistant, and engages in housekeeping tasks and caregiving activities. After examination, Dr. Zabieliauskas opined, “from a physical medicine and musculoskeletal point of view, [the Applicant] does not require any further formal rehabilitation treatment and is currently on no medications, either by prescription or over-the-counter.”
14In contrast, Dr. Wong’s report, dated December 4, 2019, is limited in explanation, but ultimately concludes the Applicant has chronic pain with insomnia and some anxiety problems. However, despite this diagnosis and some prescribed medications, Dr. Wong did not make a recommendation for physical therapy. In any event, neither assessor appears to have made a recommendation for physical therapy.
15Moreover, I place little weight on the various reports of Dr. Palantzas. While Dr. Palantzas does recommend physical therapy in her reports dated, August 24, 2018, November 2, 2018, February 15, 2019, and August 2, 2019, I find that these do not support the reasonableness or necessity for the subject treatment plan because the treatment plan, dated February 2, 2021, was submitted well over a year after Dr. Palantzas’ last report, dated August 2, 2019.
16Lastly, I find that the Applicant’s submissions are sparse, citing CNRs from well over a year prior to the disputed treatment plan and I am not pointed to any further compelling accident-related evidence that would corroborate the need for the subject treatment plan. The Applicant does not explain how the treatment plan is supported by the evidence. The Applicant simply restates Mr. Afifi’s comments within the treatment plan and submits, in a conclusory manner, that it is reasonable and necessary for the Applicant’s recovery.
17For the reasons above, I find that the Applicant has not met her onus to demonstrate on a balance of probabilities that the treatment plan for physiotherapy is reasonable and necessary.
Interest and Award
18The Applicant is not entitled to interest in accordance with s. 51 of the Schedule, as there are no overdue amounts owing.
19There is no award payable as there were no benefits unreasonably withheld.
ORDER
20For the reasons outlines above, I find that:
i. The Applicant is not entitled to the February 2, 2021, treatment plan for physiotherapy services.
ii. As no benefits are overdue, the Applicant is not entitled to interest.
iii. The Respondent is not liable to pay an award.
Released: November 15, 2024
__________________________
Nadia Mauro
Adjudicator```