Citation: Mukhtar v. Pembridge Insurance, 2024 ONLAT 22-011637/AABS

Licence Appeal Tribunal File Number: 22-011637/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:

Rehana Mukhtar

Applicant

and

Pembridge Insurance

Respondent

DECISION

ADJUDICATOR:

Christopher Yan

APPEARANCES:

For the Applicant:

Kateryna Vlada, Counsel

For the Respondent:

Greg Specht, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Rehana Mukhtar, the applicant, was involved in an automobile accident on September 22, 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, Pembridge Insurance, 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 $2,132.04 for medical assessment, proposed by A & B Medical Assessments in a treatment plan/OCF-18 ("plan") submitted on October 29, 2020 and denied on November 10, 2020?

ii. Is the applicant entitled to $2,132.04 for an attendant care assessment proposed by A & B Medical Assessments in a plan submitted on October 19, 2020 and denied on November 20, 2020?

Note: Issues i and ii above refer to the same attendant care assessment in dispute, which the applicant and respondent have treated as a single dispute in their submissions. Moreover, the parties have made reference to the attendant care assessment using the dates as listed in issue i above in their submissions.

iii. Is the applicant entitled to $2,799.50 for physiotherapy, proposed by Physiomed Erin Mills Inc. In a plan submitted on September 28, 2020 and denied on December 4, 2020?

iv. Is the applicant entitled to $2,312.00 for chiropractic services, proposed by Physiomed Erin Mills Inc. in a plan submitted on December 30, 2020 and denied on January 15, 2020?

Note: Although not outlined in the case conference report and order, the treatment plan was partially approved in the amount of $1,397.00, but the applicant sought a determination on the full amount of the treatment plan.

v. Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by A & B Medical Assessments in a plan submitted on February 7, 2022 and denied on February 16, 2022?

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

RESULT

3The applicant is not entitled to $2,132.04 for the attendant care assessment proposed by A & B Medical Assessments in the treatment plan submitted on October 29, 2020, and denied on November 10, 2020.

4The applicant is entitled to $1,197.50 for physiotherapy services proposed by Physiomed Erin Mills Inc. in the treatment plan submitted on September 28, 2020, and denied on December 4, 2020. The applicant is not entitled to the balance of the treatment plan.

5The applicant has not established entitlement to the remaining balance of the treatment plan, which amounts to $915.00, for chiropractic services proposed by Physiomed Erin Mills Inc. in the plan submitted on December 30, 2020, and denied on January 15, 2020.

6The applicant is entitled to $2,486.00 for the chronic pain assessment proposed by A & B Medical Assessments in the treatment plan submitted on February 7, 2022, and denied on February 16, 2022.

7Interest is payable on any overdue amounts in accordance with section 51 of the Schedule.

ANALYSIS

8Sections 14, 15, and 16 of the Schedule provide that an insurer is liable to pay for medical and rehabilitation benefits for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of an accident.

9The onus is on the applicant to prove, on a balance of probabilities, that the medical benefits sought are reasonable and necessary as a result of the injuries sustained in the accident.

Applicant is not entitled to an Attendant Care Assessment in the amount of $2,132.00

10The applicant seeks entitlement to payment for the attendant care assessment conducted on October 22, 2020. The respondent argues that the expense is not payable because it was incurred before the treatment plan was submitted on October 29, 2020, relying on section 38(2) of the Schedule. The applicant has not made any submissions contesting the applicability of section 38(2), explaining why the plan was submitted after the assessment, or directed me to a treatment plan that was submitted prior to the assessment date of October 22, 2020.

11Section 38(2) of the Schedule provides that an insurer is not liable to pay for assessments or expenses incurred before a treatment plan is submitted unless certain exceptions apply, such as emergency services, low-cost goods, or insurer approval. None of these exceptions are applicable in this case.

12One complication stems from the fact that the issues in dispute, as outlined above, list two attendant care issues that have been treated as a single issue by the parties, with one treatment plan reportedly submitted on October 19, 2020 and the other treatment plan submitted on October 29, 2020. However, the parties have only submitted one treatment plan before me, which references a submission date of October 29, 2020, after the attendant care assessment was conducted on October 22, 2020. Therefore, I do not have evidence of a treatment plan that was submitted prior to the attendant care assessment being incurred.

13In this case, based on the evidence before me, the attendant care assessment was conducted on October 22, 2020, and the treatment plan before me was submitted to the respondent on October 29, 2020. None of the exceptions in section 38(2) apply to this situation, as the expense was not incurred on an emergency basis, nor does it involve drugs or low-cost goods or services.

14The respondent has directed me to B. H. X. v. Aviva, 2020 CanLII 61462 (ON LAT), where the Tribunal found that section 38(2) relieved the insurer from liability for a plastic surgery consultation conducted two days before the treatment plan was submitted. In that case, the expense was incurred before the treatment plan was submitted, and the Tribunal found the insurer was not liable for payment, as the assessment did not fall under any of the exceptions listed in section 38(2).

15Similarly, in this case, the attendant care assessment was conducted on October 22, 2020, before the treatment plan was submitted on October 29, 2020. The applicant has not provided any submissions challenging the application of section 38(2), offered an explanation for the delayed submission of the plan, or pointed to any treatment plan submitted before the October 22, 2020, assessment date.

16Given these facts, I find that the respondent is not liable to pay for the assessment, which was incurred prior to its submission on October 29, 2020, even if it is found to be reasonable and necessary. Based on this, I did not find the need to conduct an analysis of the parties' submissions on whether the attendant care assessment was reasonable and necessary.

Applicant is entitled to $1,197.50 for Physiotherapy Services, but not the balance of the Treatment Plan

17This OCF-18 treatment plan proposes several services and assessments, with a total cost of $2,799.50. This includes an assessment at $150.00 and documentation support activity at $70.00, both charged on a per procedure basis. The plan also includes muscle stimulation of the back for $712.00, therapy for multiple body sites at $997.50 (charged on an hourly basis), manipulation for multiple body sites at $450.00, protective and therapeutic gloves for $70.00, and mobilization of multiple body sites for $350.00. The stated treatment goals aim to improve pain management, range of motion, strength, and the applicant's ability to return to activities of normal living and pre-accident work activities.

18The applicant submits that she sustained injuries to her head, neck, shoulders, arms, and lower back from the accident. She further points to objective findings from an MRI conducted on May 14, 2022, which revealed mild right facet arthropathy in L3-L4, mild spinal canal stenosis, and a disc bulge in L5-S1, suggesting deterioration when compared to a pre-accident MRI of her spine taken on October 31, 2018. Although the respondent disputes the extent to which the subject accident is responsible for the applicant's lower back issues, the applicant argues that these findings, along with her removal from the Minor Injury Guideline (MIG), support her entitlement to physiotherapy services proposed in the treatment plan submitted on September 28, 2020. The applicant was removed from the MIG under section 18(2) of the Schedule, as the respondent accepted that the applicant had a pre-existing medical condition that would prevent maximal recovery if subject to the $3,500.00 limit.

19The applicant also submits that the treatment she received provided short-term pain relief and improved her ability to participate in activities of daily living. She relies on Caselle v. Aviva, 2023 CanLII 119834 (ON LAT), where the Tribunal found that physiotherapy was reasonable and necessary for an applicant diagnosed with chronic pain syndrome. Similarly, the applicant in the present case has been diagnosed with chronic pain with sensitization, chronic post-traumatic headache, and chronic low back pain.

20The respondent contends that the treatment plan was denied based on concerns about compliance with the Professional Services Guideline – Superintendent's Guideline No. 03/14 (the "Guideline"). The plan proposes both per procedure ("PR") and per hour ("HR") elements, as noted in the OCF-18 form itself. The respondent argues that it is unclear whether the hourly rates being charged comply with the Guideline. The respondent notes that insurers are not liable for any costs beyond what is permitted under the Guideline.

21After the applicant was removed from the MIG, the respondent reconsidered the plan and invited the applicant to resubmit the plan with clarification on the treatment durations. However, no updated plan was submitted, and without this clarification, the respondent submits that the treatment cannot be found to be reasonable and necessary.

22In reply, the applicant asserts that she should not be penalized for the non-compliance of third-party service providers, as the treatment was incurred prior to her removal from the MIG.

23The treatment plan contains a mix of per procedure ("PR") and per hour ("HR") elements. Specifically, the plan proposes several HR items that comply with the Professional Services Guideline: 10 hours of therapy at $99.75/hour for a total of $997.50, and $200.00 for the completion of the OCF-18 form, which includes $150.00 for the assessment and $70.00 for documentation support. These HR elements total $1,197.50.

24The remaining balance consists of PR items, including muscle stimulation for the back ($712.00), manipulation for multiple body sites ($450.00), mobilization of multiple body sites ($350.00), and protective and therapeutic gloves ($70.00). The respondent raised concerns that these PR items do not specify the duration of each procedure and thus cannot be assessed for compliance with the Guideline's maximum hourly rates. Despite being invited to resubmit the treatment plan with clarifications on duration, the applicant's healthcare provider did not provide the required information. I agree with the respondent that in the absence of evidence to establish the reasonableness of the PR items and their compliance with the Guideline, they cannot be found payable.

25In terms of whether physiotherapy services proposed by Physiomed are reasonable and necessary, the applicant's treatment records from Physiomed show ongoing pain management and relief over the course of several months. On October 10, 2020, the applicant reported improvements in her upper back, though lower back pain persisted. By November 13, 2020, her lower back pain had subsided, but she began experiencing new neck pain and stiffness. In December 2020, the applicant noted better mobility and decreased lower extremity pain, feeling generally improved. Throughout early 2021, the applicant continued to report intermittent pain in her neck and upper trapezius, with some improvements noted by March 6, 2021, when she expressed feeling significantly better regarding her neck pain. While she experienced some relief during physiotherapy, her symptoms fluctuated, but the treatment reportedly helped with pain relief and daily functioning. Pain relief and improved functionality are legitimate treatment goals.

26Additionally, the applicant was diagnosed with chronic pain in a report dated May 26, 2022, albeit almost two years after the treatment plan was proposed. In that chronic pain report, Dr. Gofeld also recommended a chronic pain management program that includes physical rehabilitation, therapeutic exercise, and other active modalities to address the applicant's ongoing symptoms.

27Although the respondent does not explicitly dispute that physiotherapy was beneficial, the respondent focuses its arguments on the treatment plan's noncompliance with the Guideline, which remains an issue for the applicant.

28Given the evidence, I am satisfied that the HR-based physiotherapy services proposed in the treatment plan are reasonable and necessary to address the applicant's symptoms, particularly given her reports of improved mobility and decreased pain, and the diagnosis of chronic pain syndrome. However, the balance of the treatment plan, consisting of PR items, is not payable because the applicant has not established that these items comply with the Professional Services Guideline. The lack of clarity regarding the duration of each procedure means that the PR items cannot be found to meet the requirements of the Guideline. Moreover, the applicant's submissions did not address the respondent's concerns about compliance, nor did the healthcare facility resubmit the plan to address these issues. Therefore, only the HR-based portions of the treatment plan are payable, totaling $1,197.50.

Applicant Is not entitled to the unapproved portion of the Chiropractic Treatment Plan

29This treatment plan at issue proposes services totaling $2,312.00, including an assessment for $150.00 and documentation for $70.00, both charged on a per procedure ("PR") basis. The plan also includes muscle stimulation for the back ($445.00), manipulation for multiple body sites ($450.00), and therapy for multiple body sites ($1,197.00), which is charged on an hourly ("HR") basis. The respondent partially approved $1,197.00 for 12 hours of therapy, billed at $99.75 per hour, as well as $200.00 for completing the OCF-18 form, which consists of the assessment and documentation support activities. This left $915.00 unapproved, comprising the PR items. The respondent explained that the PR portions could not be approved because the provider did not clarify the duration of these procedures, making it impossible to determine compliance with the Professional Services Guideline's hourly rate limits.

30The arguments put forth by both parties mirror those made in the physiotherapy issue above. The applicant submits that the unapproved portions of the plan are reasonable and necessary to alleviate pain and improve functionality, similar to the services that were approved. She further argues that since these services were incurred prior to her removal from the MIG, she should not be penalized for any non-compliance by the third-party provider. However, unlike the physiotherapy treatment plan, the respondent had already approved the HR-based components of the chiropractic treatment plan and $200.00 for the assessment and documentation, leaving only the PR-based items in dispute. The respondent maintains that the PR items are not supported by sufficient evidence of their compliance with the Guideline, as the provider did not resubmit or correct the treatment plan to clarify the duration of the procedures.

31Given that the respondent has already approved the portions of the treatment plan that comply with the Professional Services Guideline, I agree with the respondent's position and find that the unapproved portions of the treatment plan are not payable. The remaining $915.00 relates to PR items, including muscle stimulation for the back, manipulation of multiple body sites, and protective and therapeutic gloves. These items lack sufficient evidence to establish compliance with the Guideline. Specifically, the duration of these procedures is unclear, and no corrections or clarifications were submitted by the healthcare provider in response to the respondent's request. Without this evidence, the unapproved portions cannot be found to be reasonable under the Schedule.

Applicant is entitled to $2,486.00 for a Chronic Pain Assessment

32The applicant seeks entitlement to $2,486.00 for a chronic pain assessment proposed by A & B Medical Assessments in a plan submitted on February 7, 2022, and denied on February 16, 2022. The applicant submits that the chronic pain assessment is necessary, particularly in light of the significant deterioration in her lumbar spine revealed by an MRI on May 14, 2022. Additionally, the applicant relies on the diagnosis by Dr. Gofeld, who identified chronic pain with central sensitization, chronic post-traumatic headache, chronic low back pain (L5/S1 disc herniation with sensory radiculopathy), and other related conditions.

33The applicant further argues that chronic pain is characterized by recurrent pain lasting more than 3 to 6 months, adversely affecting well-being. Relying on T.S. v. Aviva, 2020 CanLII 51295 (ON LAT) the applicant asserts that she meets more than three of the six criteria used to diagnose chronic pain, including prolonged use of painkillers (Tramadol), dependence on family for self-care, emotional instability, physical decline, and the abandonment of pre-accident recreational activities. The applicant also references Nguyen v. Travelers 2023 CanLII 107277 (ON LAT), where the Tribunal emphasized that assessments are speculative by nature, and entitlement should be granted if persuasive evidence shows the mere need to assess the existence of a condition.

34The respondent opposes the assessment on two grounds. First, it argues that the chronic pain assessment is payable by OHIP, relying on section 47(2) of the Schedule, which exempts insurers from paying for services covered under another insurance plan. The respondent cites G.T. v. Unifund, 2017 CanLII 81567 (ON LAT), where OHIP was deemed an insurance plan under section 47(2). The respondent further argues that the applicant should be assessed at the chronic pain clinic she attended prior to the accident, as this clinic would be OHIP-funded, thereby falling under the exemption in section 47(2), as per Luluquisin v. Aviva, 2020 CanLII 14950 (ON LAT).

35Second, the respondent submits that the chronic pain assessment is neither reasonable nor necessary, relying on the findings of Dr. Soric, a physiatrist who assessed the applicant on March 16, 2022. Dr. Soric opined that the applicant did not present with symptoms suggestive of a chronic pain disorder and had no true physical impairments. He noted that the applicant had stopped taking painkillers and reported only intermittent pain lasting a few hours every few days.

36In reply, the applicant disputes that OHIP would cover the specific chronic pain assessment requested, also citing G.T. v. Unifund, where the Tribunal found that "there is no evidence that OHIP will pay for any portion of the specific orthopedic assessment requested by the applicant". The applicant also points out that the respondent's Explanation of Benefits did not reference the availability of OHIP coverage for the assessment.

37Both parties agree that once an insurer demonstrates the availability of coverage under another insurance plan, the burden shifts to the applicant to prove that such coverage is not reasonably accessible. In this case, I find that the respondent has not met its burden. The insurer has not established that the assessment sought would be reasonably available through OHIP. The respondent points to an OHIP-funded chronic pain clinic that the applicant could have obtained the assessment from. However, the applicant had not attended this pain clinic since months before the accident.

38There is no compelling evidence that OHIP would have covered the cost of a detailed chronic pain report that comprehensively assesses the applicant's condition and recommends treatments, including a multidisciplinary chronic pain management program and psychological counseling. Therefore, the respondent has not satisfied me that OHIP coverage would reasonably have been available to the applicant for the chronic pain assessment in question.

39Regarding the reasonableness and necessity of the chronic pain assessment, I find the applicant's history of persistent pain, despite previous treatments, supports the need for further evaluation. I prefer the opinion of Dr. Gofeld over that of Dr. Soric. Dr. Gofeld's diagnosis of chronic pain, along with the applicant's persistent symptoms and functional limitations, supports the need for a comprehensive chronic pain assessment. Both the applicant's and respondent's psychological assessors also confirmed psychological conditions, further supporting the chronic pain diagnosis or, at a minimum, the need for further investigation.

40While Dr. Soric acknowledged the applicant's ongoing symptoms, including neck and lower back pain, he concluded that no further assessments or examinations were required. His report noted the applicant's frustration with her functional limitations and her continued need for assistance from her family. However, in concluding that a chronic pain assessment was unnecessary, Dr. Soric focused primarily on the absence of sensory symptoms or radiating pain, as well as his view that the applicant had no true physical impairments. This narrow focus on physical symptoms, without fully addressing or considering the broader impact of the applicant's functional impairments and ongoing limitations, undermines the persuasiveness of his conclusion. I find that his report does not adequately account for the applicant's reported challenges in daily functioning or her reliance on family support.

41The applicant's continued pain, functional limitations, and reliance on family support demonstrate that the assessment is both reasonable and necessary. Based on this evidence, I find that the chronic pain assessment is both reasonable and necessary. Therefore, the applicant is entitled to $2,486.00 for the assessment.

Interest

42Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As I have found that the applicant is entitled to payment for certain benefits, interest will apply to those amounts that remain overdue, starting from the date they became payable until the date of payment.

ORDER

43The applicant is not entitled to $2,132.04 for the attendant care assessment proposed by A & B Medical Assessments in the treatment plan submitted on October 29, 2020.

44The applicant is entitled to $1,197.50 for physiotherapy services, which is part of the $2,799.50 treatment plan proposed by Physiomed Erin Mills Inc. in the treatment plan submitted on September 28, 2020, plus interest in accordance with section 51 of the Schedule. The applicant is not entitled to the remaining balance of the treatment plan.

45The applicant is not entitled to the remaining $915.00 balance of the $2,312.00 treatment plan for chiropractic services proposed by Physiomed Erin Mills Inc. in the treatment plan submitted on December 30, 2020. Of the total treatment plan amount, $1,397.00 was already approved by the respondent, leaving only the balance in dispute.

46The applicant is entitled to the amount of $2,486.00 for the chronic pain assessment proposed by A & B Medical Assessments in the treatment plan submitted on February 7, 2022, plus interest in accordance with section 51 of the Schedule.