Licence Appeal Tribunal File Number: 22-010633/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:
Kamariya Ndikumana
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Neha Kohli, Paralegal
For the Respondent:
Tiziana Serpa, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Kamariya Ndikumana, the applicant, was involved in an automobile accident on March 16, 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, Aviva Insurance Company of Canada, 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 $759.36 for incurred attendant care expenses from Mobile Home Care Inc. submitted on April 11, 2022, and denied on April 13, 2022?
ii. Is the applicant entitled to $2,255.85 ($3,299.97 less $1,044.12 approved) for incurred attendant care benefits from Mobile Home Care Inc. submitted on March 31, 2022, and denied on April 13, 2022?
iii. Is the applicant entitled to $74.81 ($4,089.95 less $4,015.14 approved) for psychological services from Scarborough Medical Centre submitted on October 12, 2021, and partially approved on October 13, 2021?
iv. Is the applicant entitled to $2,463.80 for goods and services from Scarborough Medical Centre (including yoga) submitted on September 30, 2021, and denied on October 4, 2021?
v. Is the applicant entitled to $850.00 for a nutritional assessment from Scarborough Medical Centre submitted on November 5, 2021, and denied on November 12, 2021?
vi. Is the applicant entitled to $2,374.24 for chiropractic services from Scarborough Medical Centre submitted on March 2, 2022, and denied on March 3, 2022?
vii. Is the applicant entitled to $2,034.00 for a social work assessment from Q Medical submitted on October 28, 2021, and denied on November 3, 2021?
viii. Is the applicant entitled to $2,486.00 for a chronic pain assessment submitted on October 28, 2021, and denied on November 3, 2021?
ix. Is the applicant entitled to $615.17 for assistive devices from Q Medical submitted on January 5, 2022, and denied on January 6, 2022?
x. Is the applicant entitled to $2,527.58 for an orthopedic assessment from Q Medical submitted on January 5, 2022, and denied on January 5, 2022?
xi. Is the applicant entitled to $9,513.70 for a neuropsychological assessment from Q Medical submitted on January 7, 2022, and denied on January 14, 2022?
xii. Is the applicant entitled to $6,271.50 for an MRI from Q Medical submitted on April 22, 2022, and denied on May 4, 2022?
xiii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to attendant care expenses or benefits.
4The applicant is entitled to the treatment plans for a chronic pain assessment and an MRI.
5The applicant is not entitled to the remaining treatment plans at issue.
6The applicant is entitled to interest on any overdue payment of benefits.
ANALYSIS
Attendant care benefits
7Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (ACBs) provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form 1”).
The applicant is not entitled to attendant care expenses and services
8I find that the applicant is not entitled to ACBs as she has not established that they are reasonable and necessary.
9John Duong, Registered Occupational Therapist, completed an Independent Attendant Care Needs/Form 1 Assessment Report on November 29, 2021, after his assessment of the applicant on November 18, 2021. In this report, he refers to a Form 1 dated November 18, 2021. This Form 1 was not entered into evidence. In any event, I have considered Mr. Duong’s report in coming to my decision.
10The applicant submits that the ACBs reflect the daily support she required due to her physical and psychological impairments. The provision of attendant care is not merely a convenience but a necessity for her to perform basic activities of daily living, ensuring her safety and contributing to her overall well-being. The applicant further submits that she has incurred these costs and it was noted that she requires these services, therefore she proceeded with incurring the costs to aid in her recovery.
11The subject accident occurred on March 16, 2021. According to the Emergency Report from the hospital, the applicant was struck by a vehicle while crossing the street. The vehicle, while making a left turn, hit her left side at approximately 10-15 km/hr. The applicant fell to her knees and to the ground. She did not hit her head or lose consciousness. The applicant reported ankle and leg pain. She attended at the hospital, was given Tylenol, and discharged.
12The clinical notes and records in relation to the subject accident indicate the following:
i. The applicant first contacted her doctor after the accident on March 19, 2021, where she reported right lower leg and knee pain. She was able to walk. She was assessed with right lower leg trauma and advised to continue with acetaminophen and Voltaren gel.
ii. X-rays on the right tibia/fibula, right ankle, and right knee, and an ultrasound on the right knee were performed on March 22, 2021, which confirmed there were no fractures.
iii. On March 26, 2021, she attended to see her doctor for a letter due to time missed from work. She reported pain to the left ribs and right knee were improving and swelling to the right foot was resolved. The applicant was assessed with medial knee sprain/strain and left rib pain secondary to trauma. The doctor advised her to continue using Voltaren and Tylenol and she was referred to “OHIP physio.”
iv. On April 16, 2021, the applicant contacted her family doctor as both of her feet were swollen, she had strong palpitations and dizziness. She was advised to purchase compression stockings and was referred to a cardiologist. An echogram conducted on April 29, 2021, revealed impaired diastolic relaxation in reference to the palpitations.
v. On June 15, 2021, the applicant contacted her family doctor reporting left posterior thigh pain for the past two weeks and ongoing chronic knee pain. She was assessed with “hamstring muscle strain” and prescribed a low dose of Naproxen for one week. The doctor advised her to ask her physiotherapist to show her stretching exercises for the hamstring.
vi. On September 7, 2021, the applicant reported that she had intermittent lower back pain and left lower rib pain which responds to Tylenol, massage, and physio. The doctor assessed her with multiple soft tissue injuries from the subject accident: bilateral knees and lower legs, non radicular mechanical low back pain and rib pain, all improving but continuing to require analgesics and physio. The doctor recommended regular Tylenol use to try to prevent a chronic pain syndrome.
13Based on the evidence before me, I find that on September 10, 2021, the applicant was involved in a second accident (“second accident”), involving an insurer which was not the respondent. I find there is conflicting evidence before me with respect to whether the applicant was injured in the second accident.
14In the second accident, according to the applicant’s sworn statutory declaration filed by the respondent, she sustained an acute L1 compression fracture which led to the use of a cane to walk. The respondent also filed correspondence to the applicant from the other insurer, advising that they determined that the September 10, 2021, incident met the definition of an accident under the Schedule and her claim had been accepted. Although the applicant’s sworn declaration indicates she had an acute L1 compression fracture, the respondent has filed correspondence from the applicant’s counsel advising the respondent that the applicant had not sustained injuries in the second accident and the claim was withdrawn. Despite the applicant’s correspondence, I find, based on the applicant’s sworn statement, that it is more likely than not that the applicant sustained an acute L1 compression fracture in the second accident.
15The respondent submits that it approved ACBs until March 10, 2022, when they were denied further to the findings of Mr. Nicholas Livadas, section 44 Occupational Therapy assessor. The applicant reported to Mr. Livadas that there was no requirement for such services because of the subject accident. The respondent further submits that in his report, Mr. Duong failed to differentiate between ACBs required because of the subject accident and the second accident. The respondent argues that this differentiation is critical as Mr. Duong proposed ACBs for bathing, exercise, hygiene and feeding, among other services, yet two weeks later, the applicant reported independence with her self- care and attendant care tasks to Dr. Gelman and that she had returned to work as a cleaner following the subject accident.
16I am not persuaded that ACBs are reasonable and necessary for the following reasons. The applicant resides in a women’s shelter. She reported to Mr. Duong that there are shelter assistants who are present in the home “24/7.” Although meals are prepared for everyone in the home, she cooks her meals at her work because she eats Halal. Although there are laundry facilities in the home, the applicant reported she hand washes her clothes. Mr. Duong compared the applicant’s ability to conduct self-care tasks prior to the accident and at the time of the assessment. I find that the assessment was conducted after the second accident, and I agree with the respondent’s submissions that Mr. Duong did not address what assistance was required related to the subject accident, as opposed to the second accident. Further, the applicant reported that she was off for three weeks after the subject accident, then returned to work part-time for five hours per day. She has not returned to work because of the second accident.
17In reaching my conclusion, I have taken into consideration that during Mr. Livadas’ assessment of the applicant on February 10, 2022, she reported that prior to the second accident, she had resumed the performance of all personal care tasks as it related to the injuries from the subject accident. She reported that because of the second accident, she currently requires assistance with traveling to access appointments and to the pharmacy, tidying, bathroom hygiene, sorting clothes, making the bed, and changing linen. Further, the applicant reported that prior to the second accident, she had resumed using public transportation, and she stopped using it after the second accident.
18I find that the applicant’s reporting to Mr. Livadas is consistent with her reporting to Dr. Gelman during his assessment of the applicant on December 2, 2021. Dr. Gelman indicated that, based on her self-report, the applicant is independent with all self-care activities, with no difficulties or outside assistance reported. She enjoys reading and socializing and doing her self-directed exercises.
19Further, I find that the applicant’s family physicians did not recommend the services of an attendant or aide because of the subject accident.
20In sum, I find that Mr. Duong did not establish in his report that ACBs were required because of the subject accident; the applicant’s self reporting to Mr. Livadas and Dr. Gelman does not support the need for such services; and the applicant’s treating physicians did not recommend it.
21For the reasons set out above, I find that the applicant has not established on a balance of probabilities that ACBs are reasonable and necessary.
22To 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.
The applicant is not entitled to the outstanding amount of $74.81 for the treatment plan for psychological services
23The applicant has not established on a balance of probabilities that the outstanding amount of the treatment plan for psychological services is reasonable and necessary.
24The respondent paid for the following portions of the treatment plan: “documentation, support activity for claim form,” “therapy, mental health, and addictions,” and “documentation, support activity.” The amount that was not approved is for “preparation, service.” The respondent submits that “preparation, service” is not payable according to the Financial Services Commission of Ontario’s Professional Services Guideline, Superintendent’s Guideline No. 03/14 (“Guideline”). The Guideline sets out that insurers are not liable for any administration costs, overhead, and related costs, fees, expenses, charges, and surcharges that have the result of increasing the hourly rates or maximum fees payable for completing forms.
25The applicant submits that given her psychological impairments, the additional funds of $74.81 are justified. She does not make submissions with respect to why the cost for “preparation, service” is reasonable and necessary. Further, the applicant does not address whether the claimed fee has the prohibited result of increasing maximum hourly rates.
26I find that “preparation, service” is not payable, and to include this cost in the treatment plan would increase the provider’s hourly rate beyond the maximum allowed in the Guideline. As such, I find that the applicant has not established that the “preparation, service” portion of the treatment plan is reasonable and necessary.
The applicant is not entitled the treatment plan for goods and services (including yoga)
27I find that the applicant has not established on a balance of probabilities that the treatment plan for goods and services (including yoga) is reasonable and necessary.
28The treatment plan was prepared by Dr. Mir-Reza Nabavi, Chiropractor. The goals of the plan are pain reduction, increased range of movement, increase in strength, to stretch and strengthen weak muscles, to improve quality of sleep, to return to activities of normal living, and education and implementation of deep breathing, effective stress management and mind-body techniques to facilitate the applicant’s self-management of pain perception and anxiety symptoms in relation to physical pain. The plan proposes 40 sessions of “therapy, multiple body sites” over a ten-week period.
29The applicant submits that yoga and other recommended services are integral to the applicant’s holistic recovery plan. She submits that yoga offers therapeutic benefits for both mental health and physical flexibility, which are critical given her chronic pain and psychological distress. The “other recommended services” are not defined in the treatment plan, and the applicant did not advise what these are.
30The respondent points out that, despite an order for production of all physical therapy clinical notes and records in the Case Conference Report and Order (“CCRO”), the clinical notes and records of Dr. Nabavi and Scarborough Medical Centre were not produced. I find that these were also not filed with the applicant’s submissions.
31The treatment plan at issue was submitted on September 30, 2021, after the second accident. On a review of the clinical notes and records contemporaneous to this treatment plan, I find that the clinical notes that pre-date the second accident do not recommend yoga. I find that the clinical notes after the second accident on September 10, 2021, address the applicant’s injury from the second accident, and not the subject accident. Therefore, I find that the clinical notes do not support the applicant’s entitlement to the treatment plan at issue.
32In my view, the evidence that is before me is not sufficient to establish, on a balance of probabilities, that the treatment plan is reasonable and necessary.
The applicant is not entitled to a nutritional assessment
33I find that the applicant has not established, on a balance of probabilities, that the treatment plan for a nutritional assessment is reasonable and necessary.
34The treatment plan was proposed by Dr. Svetlana Gabidulina, Psychologist. The goals of the plan are to acquire, validate, and interpret data needed to identify nutrition-related problems, their root causes, and their relevance to overall health status post MVA, and to establish whether a nutritional diagnosis exists and if so, to determine its effect on the applicant’s health, lifestyle, and response to medical recommendations post accident.
35The applicant submits that the nutritional assessment is essential for addressing dietary needs specific to her conditions and recovery requirements. Further, given the applicant’s limited mobility and pain management needs, nutritional guidance can play a significant role in supporting her overall health, including bone health, which is critical given her osteoporosis and the risk of fractures. The applicant also submits that proper nutrition is foundational to supporting the body’s healing processes, especially in the context of chronic conditions.
36The applicant filed clinical notes and records both prior to and after the subject accident. I find that these records show that she consulted with a physician and dietician about eating and food choices, with no mention of the subject accident. I also find that the applicant did not make submissions with respect to how a nutritional assessment would relate to any of her accident-related injuries. Further, I find that on the evidence before me there are no recommendations from the applicant’s physicians for a nutritional assessment.
37For these reasons, I find that the applicant has not demonstrated, on a balance of probabilities, that this treatment plan is reasonable and necessary.
The applicant is not entitled to the treatment plan for chiropractic services
38I find that the applicant has not established, on a balance of probabilities, that the treatment plan for chiropractic services is reasonable and necessary.
39The treatment plan was proposed by Dr. Keon Kirlew, Chiropractor. The goals of the plan are pain reduction, increased range of movement, increase in strength, to develop and keep implementing strategies to maintain focus and concentration as well as diminish anxiety associated with “car,” to return to activities of normal living, to return to pre-accident work activities, to advise, educate, reassure that intensive physical therapy helps to recover to pre-accident levels of function, and to renew hope and energy to participate in daily life. The plan proposes 16 sessions each of “exercise, respiratory system NEC,” “exercise, back NEC,” “exercise, muscles of the chest and abdomen,” “therapy, multiple body sites,” and “therapeutic intervention NEC, musculoskeletal system NEC.”
40The applicant submits that chiropractic services could provide essential relief from her significant pain and functional impairments and assist in her rehabilitation.
41The respondent points to the fact that the clinical notes and records of Dr. Kirlew and Scarborough Medical Centre were not produced by the applicant.
42I find that these clinical notes and records are not in evidence before me. Further, I find based on the clinical notes and records that are before me, none of the applicant’s treating physicians recommended chiropractic treatment. Thus, I find that the applicant’s treatment plan is not supported by any contemporaneous medical evidence.
43For these reasons, I find that the applicant has not established, on a balance of probabilities, that the treatment plan is reasonable and necessary.
The applicant is not entitled to a social work assessment
44I find that the applicant has not demonstrated, on a balance of probabilities, that the treatment plan for a social work assessment is reasonable and necessary.
45The treatment plan was proposed by Dr. Doreen Payan, Chiropractor. The goals of the plan are to assess, identify and establish if there are psycho-social impairments/barriers to recovery, and to assess and identify the impact of the subject accident on the applicant’s psycho-social wellbeing, ability to engage in activities of daily living and function.
46The applicant submits that the complex nature of her case, including physical, psychological, and social challenges, underscores the need for a social work assessment. She submits that the assessment is crucial for developing a comprehensive care plan that addresses her physical and psychological health, and her social wellbeing, including her ability to engage with her community and access necessary support services. The applicant further submits that her consistent attendance to treatment, continuous complaints to the assessors and practitioners, and the diagnoses provided by the assessors is sufficient medical evidence to support the need for a social work assessment.
47The respondent points to the fact that the clinical notes and records of Dr. Payan and Q Medical were not produced by the applicant. I find that these records were not filed with the applicant’s submissions.
48The respondent denied the treatment plan following the insurer’s examination that was conducted by Dr. Rod Day, Psychologist, on November 30, 2021. Dr. Day opined that the applicant had not reached maximum medical improvement, however, her symptoms were already being treated through approved psychotherapy, and a social work assessment would be a duplication of services. He concluded that if such an assessment was warranted, it could be considered following completion of the applicant’s approved psychotherapy.
49I place weight on Dr. Day’s opinion because I agree that a social work assessment would be a duplication of services since the applicant’s symptoms were being treated with psychotherapy. In addition, on a review of the clinical notes and records that are before me, I find that the applicant did not report any psycho-social issues because of the accident. Further, none of her treating physicians recommended a social work assessment.
50For these reasons, I find that the applicant has not demonstrated, on a balance of probabilities, that this treatment plan is reasonable and necessary.
The applicant is entitled to the treatment plan for a chronic pain assessment
51I find that the applicant has established, on a balance of probabilities, that the treatment plan for a chronic pain assessment is reasonable and necessary.
52The purpose of an assessment is to determine whether a condition exists. The applicant bears the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment. In this case, I find that there are such grounds.
53The treatment plan was proposed by Dr. Payan. The goals of the plan are to determine the mechanism of pain through documentation of pain onset, location, quality, progression, character, variability, frequency, duration, migration pattern, precipitating and aggravating factors, to evaluate barriers to recovery, impairments/limitations in activities of daily living and recommendations to facilitate/improve functioning, and to restore pre-accident levels of function.
54The applicant submits that the complex nature of her case, including physical, psychological, and social challenges, underscores the need for a chronic pain assessment. She submits that the assessment is crucial for developing a comprehensive care plan that addresses her physical and psychological health, and her social wellbeing, including her ability to engage with her community and access necessary support services. The applicant further submits that her consistent attendance to treatment, continuous complaints to the assessors and practitioners, and the diagnoses provided by the assessors is sufficient medical evidence to support the need for a chronic pain assessment.
55The applicant submits that considerable weight should be given to the Chronic Pain Assessment Report dated April 11, 2022, that was completed by Dr. Atiemo Kessie, Physician, after his assessment of the applicant on December 21, 2021. The applicant reported pain in her lower back, left hip right, and right knee. After a physical examination and a review of the applicant’s clinical notes and records, Dr. Kessie diagnosed the applicant with lumbosacral sprain/strain, bilateral hip strain/sprain, bilateral knee sprain/strain and Chronic Pain Syndrome.
56The respondent submits that the assessment was proposed by Dr. Payan, a Chiropractor at Q Medical, whose clinical notes and records have not been disclosed. The respondent also argues that Dr. Kessie’s report does not mention the second accident. Further, the respondent relies on the opinions of Dr. Day and Dr. Greg Gelman, Physician. Dr. Day points out that the applicant’s psychological assessment did not indicate the presence of a Somatic symptoms disorder. After his assessment of the applicant on December 2, 2021, Dr. Gelman opined that the treatment plan is not reasonable or necessary as he did not see any indication that the applicant suffers from a chronic pain disorder. The respondent also points out that the applicant’s family physicians did not make a referral to a chronic pain specialist, which would have been available through OHIP, and therefore it is not payable pursuant to section 47(2) of the Schedule. The respondent submits that the applicant had OHIP coverage through to January 2023.
57I find that, although Dr. Kessie’s report does not address the second accident, his assessment and diagnoses were based on a review of the medical records in relation to the subject accident and an assessment of the applicant. Further, I find that the applicant’s pain complaints to Dr. Kessie on December 21, 2021, were consistent with her complaints of pain to her treating physicians after the subject accident. I have also considered that on September 7, 2021, the applicant’s physician recommended regular Tylenol use to try to prevent a chronic pain syndrome.
58I have also considered that, as a result of the subject accident, the applicant was diagnosed with Adjustment Disorder (with mixed anxiety and depressed mood) after a psychological assessment on August 31, 2021 by Farzaneh Pariman, Psychological Associate (supervised practice), under the supervision of Dr. Harinder Mrahar, Psychologist. Further, after his assessment of the applicant on November 30, 2021, Dr. Day diagnosed the applicant with Adjustment Disorder, Unspecified, because of the subject accident.
59I find, based on the applicant’s complaints of pain to her physicians after the subject accident and before the second accident, with consistent pain complaints to Dr. Kessie nine months after the subject accident, there are grounds on which to believe that the applicant suffers from pain and physical impairments that would warrant further investigation by way of a chronic pain assessment.
60With respect to the respondent’s argument that the assessment was available through OHIP, it is the respondent’s onus to demonstrate that the chronic pain assessment was reasonably available through OHIP. It did not present evidence in that regard. On a review of the applicant’s clinical notes and records, I find that at some point, she no longer had coverage through OHIP. Although the respondent indicates the applicant had OHIP coverage through to January 2023, it does not refer to evidence to support this. It also does not point to evidence that a chronic pain assessment would be covered by OHIP.
61As such, I find that the applicant has demonstrated, on a balance of probabilities, that the treatment plan for a chronic pain assessment is reasonable and necessary.
The applicant is not entitled to the treatment plan for assistive devices
62I find that the applicant has not established, on a balance of probabilities, that the treatment plan for assistive devices is reasonable and necessary.
63The treatment plan was proposed by Dan Shlepakov, Chiropractor. The goals of the plan are to maintain and improve the applicant’s functioning and independence, to facilitate participation, to enhance overall wellbeing, to prevent exacerbation of impairments and prevent secondary health concerns, and to increase, maintain, or improve the functional capabilities of the applicant. The plan includes documentation, delivery, a long-handled bath scrubber, a long-handled reacher, an ergonomic mat, a heat pad, and a cervical pillow.
64The applicant submits that the assistive devices are justified by her mobility challenges, which require tools to ensure her safety and independence. She further submits this claim directly supports her functional needs and is justified by her physical impairments and the goal of maximizing her mobility. The devices were recommended by Mr. Duong, after his assessment of the applicant on November 18, 2021.
65The respondent submits that the proposed plan was recommended by Mr. Duong and prepared by Dr. Shlepakov, both employed by Q Medical, whose clinical notes and records have not been disclosed. The respondent points out that the proposed assistive devices were never recommended by any of the applicant’s treating physicians. Further, the respondent argues that the devices do not appear to apply to the right lower extremity soft tissue injury sustained because of the subject accident. The respondent also submits that Mr. Duong conducted his assessment on November 18, 2021, and, while he noted the applicant’s involvement in the second accident, he failed to differentiate between the injuries sustained in the subject accident and those sustained in the more serious second accident. The respondent submits that Mr. Duong noted the applicant had full range of motion to her lower extremities, the only body part demonstrated to have been injured because of the subject accident. Further, the respondent submits that based on his assessment of the applicant on December 2, 2021, Dr. Gelman did not believe the proposed devices would be reasonable and necessary because of the subject accident.
66I agree with the respondent’s submissions that the applicant has not adequately addressed how and why the assistive devices would be required as a result of the subject accident because the applicant relies solely on Mr. Duong’s assessment, which was conducted after the second accident. I find that Mr. Duong recommended the assistive devices without addressing which injuries were sustained as a result of the subject accident as opposed to the second accident. Further, I find that Mr. Duong, who recommended the devices, is employed by Q Medical, the same treatment provider who proposed the treatment plan in dispute, and there are no recommendations by the applicant’s treating physicians for such devices. As such, I find there is no compelling contemporaneous independent evidence in support of the treatment plan.
67For these reasons, I am not satisfied, on a balance of probabilities, that the applicant has met her onus to demonstrate that the assistive devices are reasonable and necessary.
The applicant is not entitled to the treatment plan for an orthopedic assessment
68I find that the treatment plan is reasonable and necessary.
69The treatment plan is not in evidence before me.
70The applicant refers to Mr. Duong’s recommendation and submits that “referral to specialized medical services for her physical injuries are recommended to support her recovery and improve her quality-of-life post-accident.” The applicant further submits that the orthopedic assessment is critical for evaluating her musculoskeletal system’s status, guiding further treatment, and potentially preventing further deterioration. She argues that this claim directly supports her functional needs and is justified by her physical impairments and the goal of maximizing her mobility. The applicant does not point to any evidence to corroborate Mr. Duong’s recommendation.
71The respondent submits that this treatment plan was proposed by Dr. Shlepakov, who is employed by Q Medical. Mr. Duong, who is also employed by Q Medical, recommended that the applicant be referred to an orthopaedic surgeon.
72I find that the applicant’s treating physicians did not recommend an orthopedic assessment. I find that the clinical notes and records of the applicant’s family physician do not provide any corroborating evidence in support of the recommendations made by the treatment providers who are employed by Q Medical. Even if the treatment plan was before me, I find that the applicant has not met her onus because there is a lack of corroborating evidence in support of the need for an orthopaedic assessment.
73Therefore, I am not persuaded, on a balance of probabilities, that the treatment plan for an orthopedic assessment is reasonable and necessary.
The applicant is not entitled to the treatment plan for a neuropsychological assessment
74I find that the applicant has not established, on a balance of probabilities, that the treatment plan is reasonable and necessary.
75The plan was proposed by Dr. Shlepakov, Chiropractor. The goals of the plan are to assess neurocognitive and emotional functions, to examine cognitive/ emotional function and to provide recommendations for treatment response.
76The applicant submits that the neuropsychological assessment is essential for a comprehensive understanding of her cognitive and physical health post-accident. The applicant argues that given the complex interplay of her injuries and their impact on her cognitive and psychological functions, this assessment will provide critical data to inform her ongoing treatment and rehabilitation efforts, justifying the cost associated with it. The neuropsychological assessment was recommended by Mr. Duong, after his Independent Cognitive Assessment Report based on his assessment of the applicant on November 18, 2021. In his report, Mr. Duong indicated that neuropsychology is recommended at this time to address her psycho-emotional and psycho-cognitive symptoms.
77The respondent submits that the assessment was not proposed by the applicant’s treating physician, but rather by Mr. Duong and Dr. Shlepakov of Q Medical, whose records have not been disclosed. The respondent relies on the opinion of Dr. David Kurzman, Psychologist with a practice in Clinical Neuropsychology, who conducted a two-day neurocognitive assessment of the applicant and prepared a report dated September 23, 2022. Dr. Kurzman reviewed the applicant’s clinical notes and records and reports and interviewed the applicant. Twelve neurocognitive tests and eight clinical measures were administered by a trained psychometrist. Dr. Kurzman concluded that from a neuropsychological perspective, the applicant has not sustained an impairment as a direct result of the subject accident. He is of the opinion that, based on the history of the accident, given there was no injury to the head, there is no indication that she sustained any trauma to her brain for which a neuropsychological assessment would be required.
78The respondent further submits that the cost of the proposed assessment exceeds the $2,000.00 plus HST cap pursuant to section 25(5) of the Schedule. The applicant did not provide a reply explaining why the $9,513.70 cost is justified.
79The applicant submits that despite the results of Dr. Kurzman’s neurocognitive tests suggesting no significant neuropsychological impairment directly resulting from the accidents, she reports ongoing pain, balance issues, dizziness, disrupted sleep, mood disturbances, and cognitive challenges.
80For the following reasons, I am not persuaded that the treatment plan for a neuropsychological assessment is reasonable and necessary. I find that the applicant’s submissions as well as the clinical notes and records indicate that the applicant did not strike her head in the subject accident. Further, upon a review of the applicant’s clinical notes and records, a neuropsychological assessment was not recommended by the applicant’s treating physicians. The applicant relies on recommendations made by the treatment providers who are employed by Q Medical, the provider who proposed the plan in issue. Further, I place significant weight on Dr. Kurzman’s findings because he practices in Neuropsychology, and I find that he conducted a thorough assessment of the applicant.
81As such, I find that the applicant has not demonstrated, on a balance of probabilities, that the treatment plan for a neuropsychological assessment is reasonable and necessary.
The applicant is entitled to the treatment plan for an MRI
82I find that the applicant has demonstrated, on a balance of probabilities, that the treatment plan for an MRI is reasonable and necessary.
83The plan was proposed by Dr. Shlepakov. The goal of the plan is listed as “Magnetic resonance imaging (MRI).”
84The applicant submits that an MRI will provide critical data to inform her ongoing treatment and rehabilitation efforts, justifying the cost associated with it.
85The applicant relies on the opinion of Dr. Kessie after his assessment of the applicant on December 21, 2021. According to his listed qualifications, Dr. Kessie has over 20 years of expertise in Emergency Medicine, Orthopedics, Occupational Medicine, Pain Management, Neurology, Critical Care, and Trauma Care. Based upon a review of the medical records in relation to the subject accident and a physical assessment of the applicant, Dr. Kessie recommended an MRI of the left hip as FABER’s Test was positive on the left, suggestive of left SI joint dysfunction. Further, he recommended an MRI of the bilateral knees as McMurray’s Test was equivocal bilaterally, equivocal for meniscal injury.
86The respondent relies on the medical opinion of Dr. Gelman, based on his in-person assessment of the applicant on December 2, 2021, as well as a review of the applicant’s medical documentation. According to his listed qualifications, Dr. Gelman practices Family Medicine and performs independent medical evaluations. The respondent relies on Dr. Gelman’s opinion that there were no signs of objective accident-related musculoskeletal impairment.
87I am not persuaded by the respondent’s further argument that an MRI would be available through OHIP and therefore the plan is not payable pursuant to section 47(2) of the Schedule. As noted above, I find that it is unclear whether the applicant was covered by OHIP at the time. There is evidence before me that there were periods when she did not have OHIP coverage. As such, I find the respondent has not met their onus to demonstrate that this service was reasonably available to her through OHIP.
88I put more weight on the opinion of Dr. Kessie for the following reasons. I find that he has expertise in Orthopedics, Occupational Medicine, Pain Management, and Neurology, whereas Dr. Gelman practices family medicine. Further, although Dr. Gelman conducted a physical examination and range of motion testing, Dr. Kessie conducted a neurological examination, a musculoskeletal examination including range of motion testing and special tests, such as FABER’s Test and McMurray’s Test, in forming his opinions. Finally, I find that Dr. Gelman conducted his examination and prepared his two reports to assess other treatment plans in issue and was not asked to consider whether an MRI was reasonable and necessary. Dr. Kessie provided his opinion when asked whether the applicant required medical services to assist with achieving maximal recovery from her accident-related impairments.
89I also find Dr. Kessie’s recommendation for an MRI of the left hip and the knees is in line with applicant’s reported knee and left thigh pain to her family physicians because of the subject accident.
90Based on Dr. Kessie’s recommendation, which I find is reasonable considering the injuries sustained by the applicant in the subject accident, I find that the applicant has demonstrated, on a balance of probabilities, that the treatment plan for an MRI is reasonable and necessary.
Interest
91Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on any overdue benefits in relation to the treatment plans for a chronic pain assessment and an MRI.
ORDER
92The applicant is not entitled to attendant care expenses or benefits.
93The applicant is entitled to the treatment plans for a chronic pain assessment and an MRI.
94The applicant is not entitled to the remaining treatment plans at issue.
95The applicant is entitled to interest on any overdue payment of benefits.
Released: December 12, 2024
Laura Goulet
Adjudicator