Licence Appeal Tribunal File Number: 22-013048/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:
Vito Piacente
Applicant
and
CAA Insurance
Respondent
DECISION
ADJUDICATOR:
Robert Rock
APPEARANCES:
For the Applicant:
Adam Little, Counsel
For the Respondent:
Peter Kazdan, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Vito Piacente, the applicant, was involved in an automobile accident on November 29, 2015, 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, CAA 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 $4,011.50 for medication, proposed by Apollo Applied Research in a treatment plan dated May 11, 2022?
ii. Is the applicant entitled to $3,498.35 for a nutritionist’s services, proposed by Laura Finocchi in a treatment plan dated January 27, 2022?
RESULT
3The applicant is not entitled to the two treatment plans in dispute as he has not proven on a balance of probabilities that they are reasonable and necessary.
ANALYSIS
The applicant is not entitled to the OCF-18 for medical cannabis.
4I find that the applicant has not met his burden to demonstrate on a balance of probabilities that the OCF-18 for medical cannabis is 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 goals of the treatment plan are to continue to manage pain and anxiety symptoms to increase functionality. Additionally, by managing pain and anxiety symptoms, increase the applicant’s quantity and quality of sleep.
7The applicant relies on an April 3, 2023, letter by Dr. Sokol, the applicant’s family doctor, to provide support for the applicant’s ongoing use of medical cannabis. In this letter, Dr. Sokol states that each patient must be reviewed individually and many patients suffering with the applicant’s diagnosis use medical marijuana. Dr. Sokol focuses on the applicant’s reporting that he sees significant improvements in his depressive and anxious symptoms with medical marijuana, and a large drop in functioning with increased symptoms when the prescription was terminated. I placed little weight on this letter as it does not discuss how this treatment is meeting its goals to a reasonable degree. The doctor does not provide insight into any clinical observations or diagnosis of the applicant’s requirement for medical marijuana in conjunction with all the other medication focused on treating the same symptoms of headaches and anxiety.
8The applicant also relies on letter by Ms. Moylan, occupational therapist, dated May 3, 2023, to provide support for the ongoing use of medical cannabis. Ms. Moylan states the applicant has improved sleep with the use of medical cannabis, and that the applicant’s headaches have significantly increased to the point of being non-functional since he stopped using medical marijuana. I placed little weight on this report, however, as Ms. Moylan states in the report that it is not within her scope of practice to comment on the need and prescription of medicinal marijuana.
9Additionally, the applicant relies on an independent psychiatric assessment report by Dr. Gnam, MD, completed on June 9, 2022. Based on Dr. Gnam’s psychometric testing and document review, the doctor opined that the applicant would require indefinite and probably lifelong maintenance treatment with his medications, including CBD oil. Dr. Gnam’s opinion on CBD oil was for continued management and control of psychological aspects of pain. I place less weight on this assessment report because Dr. Gnam does not provide insight as to how CBD oil specifically addresses its use in managing the applicant’s psychological condition, as the doctor also endorses the use of Pregabalin for the same reasons. Dr. Gnam provides no opinion on why both CBD oil and Pregabalin are necessary for management of the applicant’s psychological condition.
10The respondent relies on a s.44 examination by Dr. Gelman, MD, completed on June 22, 2022, which finds that the treatment plan for medical marijuana is not reasonable or necessary. Dr. Gelman bases his opinion on the College of Family Physicians of Canada guideline, specifically the 2021 Guidance in Authorizing Cannabis Products in Primary Care. The guideline indicates that there is little research evidence to support the use of cannabis for common pain conditions. Additionally, the doctor opines that the use of cannabis by the applicant is focused on reducing headaches and treating insomnia, as such Dr. Gelman indicates the applicant should be assessed by a neurologist or psychiatrist for their opinion on the use of medical marijuana. Dr. Gelman does not speak directly to the applicant’s report that the medical marijuana was helping him reduce the frequency of his headaches, or that it helped improve his sleep.
11The respondent also relies on a s.44 addendum by Dr. Gelman, MD completed on June 16, 2023, in which the doctor reviewed the following additional documents: NCCO Rehabilitation services CNRs; treatment plans; family medicine treatment notes from Dr. Sokol; and clinical investigation results. After his review, Dr. Gelman did not change his opinion that medical marijuana was not reasonable or necessary.
12The respondent relies on a s.44 examination by Dr. Peterkin, MD, completed on October 5, 2022, which finds that the treatment plan for medical marijuana is not reasonable or necessary. Dr. Peterkin states that marijuana is generally contraindicated when a diagnosis of depression, anxiety, or cognitive complaints is present. The doctor opines that the applicant’s sleep disorder remains severe and likely related to depressive syndrome which is not adequately managed. In place of the medical marijuana, Dr. Peterkin suggested other medication that would more specifically treat the applicant’s symptoms to provide relief. Additionally, Dr. Peterkin recommended ongoing psychiatric care. In his examination, Dr. Peterkin does not directly address the applicant’s reporting on the effectiveness of the current medical marijuana in addressing his reported symptoms.
13Additionally, the respondent also relies on a s.44 addendum by Dr. Peterkin, MD, completed on June 20, 2023, in which the doctor reviewed additional documents, occupational therapy assessment, treatment plans and review, pain clinic and family medicine treatment notes from Dr. Sokol, and clinical investigation results. Dr. Peterkin’s diagnosis and treatment suggestions were unchanged by the additional documents, that medical marijuana was not reasonable or necessary.
14I find that the applicant has not met his onus to prove on a balance of probabilities that the treatment plan for medical marijuana is reasonable or necessary. I placed little weight on the evidence provided by the applicant as it was not compelling evidence by these health practitioners answering the question as to how medical marijuana was meeting the goals of the treatment plan. This is contrasted by the evidence provided by the respondent as both Dr. Gelman and Dr. Peterkin grounded their clinical opinions on medical marijuana not reasonably meeting the stated goals of the treatment plan. Both doctors opined that other treatment modalities and specific medication would be more appropriate for the applicant to address the goals of the treatment plan.
15The applicant is not entitled to the OCF-18 for medical marijuana.
(a) The applicant is not entitled to the OCF-18 for nutritionist services.
16I find that the applicant has not proven on a balance of probabilities that the OCF-18 for nutritionist services is reasonable and necessary.
17The goal of the treatment plan is to provide nutritional support to maintain good health and to keep the applicant engaged in his own rehab and recovery through on-going learning about nutrition.
18The applicant relies on a letter by Dr. Sokol, the applicant’s family doctor, on April 3, 2023. The letter provides support for the ongoing use of nutritionist services. The doctor states that the applicant believes that the nutritionist services have greatly improved his overall GI functioning and lowered the side effects from the medication he is taking. The doctor also notes that the applicant reports an increase in problems since the nutritionist services were discontinued. I placed little weight on this letter because Dr. Sokol does not address how this treatment is meeting its goals to a reasonable degree. The doctor does not provide insight into any clinical observations or diagnosis of the applicant’s GI functioning beyond providing the applicant’s self-reports.
19The applicant also relies on a letter by Ms. Moylan, occupational therapist, dated May 3, 2023, to provide support for the ongoing use of nutritional services. Ms. Moylan states the applicant reported improvement to his weight and diet with the services, and that since they stopped, he has had an increase in intestinal irregularities. I placed little weight on this letter, as Ms. Moylan does not explain why the goal of ongoing learning and support is reasonable or necessary for the applicant, nor does she address how these nutritionist services have met their goal after the many years of receiving this learning.
20The respondent relies on a s.44 examination by Dr. Gelman completed on May 4, 2020, to assess the nutritionist services treatment plan. Dr. Gelman’s opinion was that based on the stability of the applicant’s weight, the length of time he had received nutritional services, and that the applicant’s wife does most of the meal preparation, that the treatment plan for nutritionist services was not reasonable or necessary.
21The respondent also relies on a s.44 addendum by Dr. Gelman, MD completed on June 16, 2023, in which the doctor reviewed additional documents, NCCO Rehabilitation services CNRs, treatment plans and review and family medicine treatment notes from Dr. Sokol, and clinical investigation results. After his review Dr. Gelman did not change his opinion that nutritionist services are not reasonable or necessary.
22I find that the applicant has not met his onus to prove on a balance of probabilities that the treatment plan for nutritionist services is reasonable or necessary. I placed little weight on the evidence provided by the applicant as it was not compelling evidence by these health practitioners answering the question as to how continued nutritionist services were necessary to meet the goals of the treatment plan after many years of receiving this ongoing learning and support. I contrast this with Dr. Gelman’s s.44 examination which found that applicant to have stable weight, and no responsibility for food preparation.
23For all these reasons, the applicant is not entitled to the OCF-18 for nutritionist services.
Interest
24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, no interest is owing.
ORDER
25I find that the applicant is not entitled to the two disputed treatment plans, and the application is dismissed.
Released: December 12, 2024
__________________________
Robert Rock
Adjudicator