Citation: Omidvar v. Pembridge Insurance, 2024 ONLAT 22-010981/AABS

Licence Appeal Tribunal File Number: 22-010981/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:

Helia Omidvar

Applicant

and

Pembridge Insurance

Respondent

DECISION

ADJUDICATOR:

Nadia Mauro

APPEARANCES:

For the Applicant:

Alexander Makaronets, Counsel

For the Respondent:

Aleah Thomas, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Helia Omidvar, the applicant, was involved in an automobile accident on January 9, 2021, 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, Pembridge 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 $1,447.81 for occupational therapy services, proposed by All Health Medical Centre in a treatment plan (OCF-18) dated August 25, 2022?

ii. Is the applicant entitled to $1,646.41 for occupational therapy services, proposed by All Health Medical Centre in an OCF-18 dated August 25, 2022?

iii. Is the applicant entitled to $2,695.92 for chiropractic services, proposed by Active Care Health Services in an OCF-18 dated March 13, 2023?

iv. Is the applicant entitled to $4,946.00 for a psychological assessment, proposed by All Health Medical Centre in an OCf-18 dated September 28, 2022?

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

RESULT

3The applicant is not entitled to the occupational therapy services, chiropractic services, psychological assessment, or interest.

ANALYSIS

The OCF-18s for occupational therapy services and chiropractic services are not reasonable and necessary

4The applicant has not proven, on a balance of probabilities, that the treatment plans for occupational therapy services and chiropractic services are reasonable and necessary.

5To receive payment for a treatment and assessment plan under sections 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.

6The applicant did not provide the treatment plans for the proposed occupational therapy services dated August 25, 2022, or chiropractic services, dated March 13, 2023, in her submissions. Therefore, this treatment plan was not before me to consider its goals, whether they would be met to a reasonable degree, and the overall costs of the OCF-18.

7In any event, the applicant addressed her claim for these treatment plans altogether in her submissions, and relied upon the same evidence and arguments to establish that these two treatment plans are reasonable and necessary.

8I agree with the respondent and find that the applicant has not provided compelling or contemporaneous evidence that support the reasonableness and necessity of the proposed treatment plans.

9The applicant relies on clinical notes and records (“CNRs”) of her family physician, Dr. Alireza Shakib, to support that the proposed treatment plans are reasonable and necessary. On January 26, 2021, the applicant reported the accident to her family physician, Dr. Alireza Shakib and complained of neck pain with radiation to the left shoulder, lower back and left leg pain, and difficulty walking, lifting, sleeping, and concentrating. Dr. Shakib subsequently referred the applicant for physiotherapy. The applicant periodically followed up with Dr. Shakib with physical complaints until May 2021. I am not pointed to any further compelling evidence from Dr. Shakib that supports that the applicant’s accident-related physical complaints continued beyond 2021, or a recommendation from Dr. Shakib for the disputed treatment plans.

10The applicant further relies on CNRs of Dr. Viachislav Prigozhikh, neurologist. On March 1, 2021, the applicant was assessed by Dr. Prigozhikh, and reported neck pain that radiates down to the lower back and the left leg down to the ankle. She also reported pain over the occipital area, headaches, and insomnia. Dr. Prigozhikh noted the applicant did not hit her head during the accident, and the applicant denied a loss of consciousness. Dr. Prigozhikh subsequently diagnosed the applicant with cervicogenic likely tension – type headache, myofascial pain in the left paracervical, and left paravertebral area of the lumbar spine due to the accident. Dr. Prigozhikh recommended pharmaceuticals to the applicant but did not recommend physical therapy treatment or occupational therapy services. The applicant followed up with Dr. Prigozhikh on May 3, 2021, and June 30, 2021. On these occasions, Dr. Prigozhikh recommended consulting with a physiatrist and/or chronic pain specialist for future treatment. However, Dr. Prigozhikh did not opine on the need for occupational therapy or physical therapy at those visits. Finally, I am not pointed to any further medical evidence of Dr. Prigozhikh beyond June 30, 2021.

11I give significant weight to the report of s. 44 physiatry assessment report of Dr. Rajka Soric, physiatrist, dated May 11, 2023, given its proximity to the disputed treatment plans.

12In his report, Dr. Soric was asked to opine on a February 28, 2023 treatment plan for chiropractic services. It is unclear from the parties’ submissions if this report is in relation to the treatment plan for the chiropractic services in dispute. In any event, the report indicates the applicant presented with improved physical symptoms. Dr. Soric subsequently opined that the applicant had reached maximum medical recovery and that the February 28, 2023 treatment pain for chiropractic services, was not reasonable and necessary.

13Despite the lack of clarity with respect to whether Dr. Soric’s report is in relation to the disputed chiropractic services, dated March 13, 2023, I find that Dr. Soric’s report evidences the applicant’s general physical status and need, or lack of thereof, for physical treatment. As such, I find that Dr. Soric’s report does not support a finding that the disputed treatment plans are reasonable and necessary, given Dr. Soric’s opinion that the applicant had reached maximum medical recovery in February 2023.

14Lastly, I give little weight to the CNRs of Mackenzie Health Hospital and North York General as to whether the disputed treatment plans for physical treatment are reasonable and necessary because the applicant’s attendance to these hospitals are psychiatric in nature. While her accident-related physical symptoms are discussed periodically within these CNRs, the CNRs do not show that the respective assessors opined on or recommended the need for physical therapy or occupational therapy services.

15While I appreciate that the applicant has seen a number of doctors and has undergone various treatment modalities since the subject accident, there must be compelling evidence from in or around the date that the disputed treatment plan was completed and submitted for consideration by the respondent, that would endorse its reasonableness and necessity. In this matter, the applicant has not provided compelling contemporaneous evidence that would substantiate the need for the proposed services.

16The respondent also argued that the applicant was statute-bared from proceeding with the treatment plans for occupational services, pursuant to s. 55 of the Schedule, for failing to attend several insurer examinations. Having found that these plans are not reasonable and necessary, I need not consider this argument.

17I find that the applicant has not proven, on a balance of probabilities, that the treatment plans for occupational therapy services, and chiropractic services, are reasonable and necessary.

The OCF-18 for psychological assessment is not reasonable and necessary

18I find that the applicant has not proven, on a balance of probabilities, that the proposed treatment plan for psychological assessment is reasonable and necessary.

19The applicant did not provide the treatment plan for the proposed psychological assessment dated September 28, 2022, in her submissions, thereby not providing me with the opportunity to consider its goals, whether they would be met to a reasonable degree, and the overall costs of the OCF-18.

20In any event, the applicant submitted that she has pre-existing conditions of depression, post-traumatic stress disorder (PTSD), and adjustment disorder with depressed mood, and these conditions have impeded her ability to reach maximal medical recovery such that the treatment plan is reasonable and necessary.

21While the evidence supports that the applicant has a history of pre-accident psychological impairment, such as PTSD, depression, and adjustment disorder with depressed mood, I find that there is a lack of compelling evidence that her psychological sequelae is in relation to the accident, that would support the reasonableness and necessity of the proposed treatment plan. For example, on February 6, 2019, the applicant underwent a psychiatric assessment with Dr. Mojgan Mottaghian. Dr. Mottaghian subsequently diagnosed adjustment disorder with depressed mood and PTSD symptoms. Dr. Mottaghian further suspected cluster B traits. The applicant had also attended her family physician, Dr. Alireza Shakib, on a number of occasions with pre-accident psychological complaints. Most significantly, on January 5, 2021, four days before the accident, the applicant reported anxiety, stress, and depressed mood to Dr. Shakib. The applicant requested a referral to “psych.” After the accident, on January 25, 2021, the applicant complained to Dr. Shakib of stress and anxiety, and wanting to see a psychiatrist “related to life stress.” Dr. Shakib’s CNR dated January 25, 2021, however, does not mention the accident.

22I give little weight to the consults/reports of Dr. Zhila Fazeli, dated April 7, 2021, and Dr. Mostafa Showraki, dated January 30, 2021, based on their proximity to the proposed treatment plan. Both reports are largely based on the applicant’s self-reported psychological history and are not consistent with the applicant’s pre-accident history. More importantly, I find that these reports do not support the reasonableness or necessity of the September 28, 2022 treatment plan, as both reports were completed more than a year prior to the proposed plan, and as such, I do not find that it speaks to the applicant’s psychological status, or need for treatment, in the later part of 2022.

23I am also not persuaded by the applicant’s arguments with respect to the CNRs of The Walk-in Clinic on Bayview (the Walk-in), North York General Hospital (NYGH), or Mackenzie Health Hospital (MHH) for a number of reasons. Firstly, despite the applicant’s attendances to these respective hospitals, I am not directed to compelling evidence that supports the visits were accident related. For example, the applicant argues that the medicine she received post-accident caused hallucinations leading to her emergency visit to NYGH on June 15, 2021. The applicant references a CNR of the Walk-In, dated June 19, 2021, which states that the applicant advised she was moody and started hearing voices in her head after taking Cymbalta, to support this allegation. However, the CNRs of NYGH do not support this claim as Dr. Elisha Targonsky of NYGH indicates that the applicant attended the emergency department due to “a verbal altercation with her family.” Further, Dr. Targonsky does not reference the accident during her consult with the applicant on June 16, 2021, nor hallucinations. Additionally, the CNRs of MHH dated March 6, 9, and 19, 2022, indicate that the applicant attended for stressors related to school, and the applicant is having a hard time balancing personal, work, and school life. I find that none of these CNRs, which pre-date the proposed treatment plan, substantiate that the plan is reasonable and necessary.

24Secondly, I am not persuaded by the applicant’s reliance on the CNRs of psychiatrist, Dr. Ian Weinroth of NYGH. While it is true that a June 23, 2021 CNR of Dr. Weinroth queried post-concussion syndrome, depressive symptoms secondary to pain issues, and noted a “recent breakup exacerbated her mood, which may have been subtly lower, predating the MVA”, Dr. Weinroth does not comment on the applicant’s pre-accident psychological diagnoses. Additionally, Dr. Weinroth’s findings appear largely based on the applicant’s self-reports, which at times, have been reportedly inconsistent. For example, the applicant reported to Dr. Weinroth that she “struck the back of her head on the seat” as a result of the accident. I am not pointed to any corroborating evidence that would confirm same. The applicant did not report hitting her head to Dr. Shakib, and the applicant reported to neurologist, Dr. Viachislav Prigozhikh, on March 1, 2021, that she did not hit her head during the accident. In any event, the diagnoses made by Dr. Weinroth, are noted to be initially exacerbated by interpersonal issues starting in October 2020, rather than the accident.

25Lastly, I am unpersuaded by the applicant’s submission that her attendance at MHH in January 2023 was accident related. While it is true that the CNRs of psychiatrist, Dr. Domenic Dimanno of MHH, references the accident at times, this assessor subsequently opined in a discharge summary dated January 13, 2023, that the applicant’s “current presentation was consistent with a manic episode.” Dr. Dimanno does not opine on whether the accident is related to this manic episode.

26Moreover, while I acknowledge that the applicant has been assessed and treated by several psychological practitioners pre-and post-accident, and the frequency of the applicant’s visits have increased post-accident, I agree with the respondent that the proposed treatment plan would be duplicative. It is clear from the CNRs of MHH, that the applicant was to follow up with her outpatient psychiatrist, Dr. Weinroth. As the applicant has not put the OCF-18 for psychological assessment into evidence, I am unable to determine how the proposed treatment would differ from the treatment she would receive from Dr. Weinroth or had received from any of the above practitioners. In any event, I do not find that a sprinkling of accident-related complaints is sufficient to establish that the proposed treatment plan is reasonable and necessary when considering the totality of the applicant’s psychological sequalae.

27Given the foregoing, I find that the applicant has not met her onus in demonstrating that, on a balance of probabilities, the proposed psychological assessment is reasonable and necessary. Therefore, she is not entitled to this treatment plan.

Interest

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits owing, the applicant is not entitled to interest.

ORDER

29Given the above, I find that:

i. The applicant is not entitled to the occupational therapy services, chiropractic services, and psychological assessment;

ii. The applicant is not entitled to interest; and

iii. The application is dismissed.