Licence Appeal Tribunal File Number: 23-000087/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:
Tina Napolitano
Applicant
and
Primmum Insurance Company
Respondent
DECISION
ADJUDICATOR: Nadia Mauro
APPEARANCES:
For the Applicant: Bianca Crocetti, Paralegal
For the Respondent: Hodson Harding, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Tina E. Napolitano, the applicant, was involved in an automobile accident on October 19, 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, Primmum 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 $2,321.68 for physiotherapy services proposed by PhysioMed in a treatment plan (“OCF-18”) dated January 6, 2021?
ii. Is the applicant entitled to the assessments proposed by Downsview Healthcare Inc. as follows:
(a) $2,000.00 for a physiatry assessment, in an OCF-18 dated March 18, 2021; and
(b) $2,000.00 for a neurological assessment, in an OCF-18 dated March 25, 2021?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3The applicant is entitled to the physiotherapy services and physiatry assessment, plus interest.
4The applicant is not entitled to the neurological assessment or s. 10 award.
ANALYSIS
5To 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 entitled to the treatment plan for physiotherapy services, dated January 6, 2021
6I find that the applicant has proven, on a balance of probabilities, that the treatment plan for physiotherapy services is reasonable and necessary.
7The OCF-18 completed by physiotherapist, Mr. Nick Diodati, dated January 6, 2021, proposes 16 sessions of physiotherapy services and identifies treatment goals of pain reduction, increased range of motion, and increase in strength. The OCF-18 also seeks to achieve a return to activities of normal living and return to modified work activities.
8The applicant submits that as a result of the accident she sustained headaches, nausea, neck pain, shoulder pain, and back pain. The applicant submits that she has continued to make complaints to her family practitioner, Dr. Daniel Kebede, since the accident and has consistently attended therapy clinics for her rehabilitation needs.
9The respondent submits that the applicant has failed to provide any persuasive medical opinion suggesting that the disputed treatment is reasonable and necessary, relying on s. 44 assessment reports of Dr. Nagib Yahmad, dated March 15, 2021, and Dr. Yuri Marchuck, also dated March 15, 2021. The respondent further argues that despite the applicant being removed from the MIG, her injuries are still considered minor from a neurological and physical perspective.
10I assign little weight to the reports of s. 44 assessors, Dr. Yahmad, and Dr. Marchuk, for a number of reasons. These reports were largely conducted to determine the applicant’s status under the Minor Injury Guideline (“MIG”). As a result of these assessments, the applicant was determined to be within the MIG, and these assessors subsequently opined that the proposed treatment plan was therefore not reasonable and necessary. However, I find that the referral questions that these assessors were asked were posed in a manner that does not separate the determination of the applicant’s MIG status from the disputed treatment plan. The applicant has now been removed from the MIG. I also find that these assessors reviewed a limited number of the applicant’s medical records. In my view, the lack of comprehensive review of the applicant’s medical condition as it would relate to the necessity of the proposed treatment plan makes these reports less persuasive.
11I prefer the evidence of the applicant’s family practitioner, Dr. Kebede, and her therapy clinics. I find that this evidence shows that the applicant has made continuous complaints to Dr. Kebede, with respect to ongoing accident-related physical impairments. The clinical notes and records (“CNRs”) of Dr. Kebede dated October 22, 2020, October 29, 2020, November 30, 2020, December 21, 2020, report the applicant complained of neck pain and back pain. Dr. Kebede recommended physiotherapy at each attendance. The applicant continued to complain of accident-related physical complaints on January 12, 2021, May 13, 2021, June 17, 2021, July 22, 2021, and August 23, 2021, and Dr. Kebede continued to make recommendations for physiotherapy throughout these visits.
12The evidence also supports that the applicant has been continuously attending various therapy clinics since the date of the accident. The applicant attended Physiomed from October 2020 to May 2022, Grossbeak Chiropractic and Massage from April 2022 to June 2022, and The Sports Clinic from September 2022 to August 2023.
13In sum, I find that the evidence supports not only that the applicant sought treatment as a result of her accident-related impairments, but also consistently attended therapy clinics to treat same. As such, I am satisfied that the applicant has met her burden, on a balance of probabilities, and is entitled to the treatment plan.
The applicant is entitled to the treatment plan for physiatry assessment, dated March 18, 2021
14I find that the applicant has proven, on a balance of probabilities, that the treatment plan for a physiatry assessment is reasonable and necessary.
15The OCF-18 for the proposed physiatry assessment, completed by physician Dr. Melody Nguyen, dated March 18, 2021, seeks to evaluate the applicant’s injuries and provide recommendations for recovery.
16The applicant relies on the Tribunal decision in M.S.G v Certas Direct Insurance Company, 2022 CanLII 8660 (ON LAT) (M.S.G v Certas), in which it was found that the applicant was entitled to a physiatry assessment due to the numerous clinical notes and records indicating that the client continued to suffer with physical injuries and pain from the accident.
17The respondent submits that the applicant has not met her onus of establishing that the disputed treatment plan is reasonable and necessary relying on an addendum to the March 15, 2021, report of Dr. Yuri Marchuk.
18I am not bound by Tribunal decisions; however, I find the reasoning in M.S.G v Certas to be helpful in this case. I am satisfied that the applicant has attended her family practitioner, Dr. Kebede, on a number of occasions complaining of accident-related pain and has sought treatment at several therapy clinics for this pain, as discussed above. Moreover, the evidence supports that the applicant has continued to present to Dr. Kebede with ongoing and consistent accident-related complaints contemporaneously with the treatment plan at issue. Further, on September 27, 2023, Dr. Kebede referred the applicant to physiotherapy noting “chronic recurrent BPPV and neck, shoulder, elbow, and back muscle strain post mva.”
19Given the consistency and frequency of the applicant’s attendance to treating practitioners with reports of accident-related physical complaints, I find that the applicant has met her burden in proving that, on a balance of probabilities, the proposed physiatry assessment is reasonable and necessary.
20In reaching this conclusion, I give no weight to the addendum report of Dr. Marchuk, as the respondent has not specified the date of this report, nor has the respondent provided a copy of the report with their submissions. I also give little weight to Dr. Marchuk’s reported dated March 15, 2021, for the same reasons set out above, namely that this report lacks a comprehensive review of the applicant’s medical file.
21Given the above, I find that the applicant has proven, on a balance of probabilities, that the proposed physiatry assessment is reasonable and necessary.
The applicant is not entitled to the treatment plan for neurological assessment, dated March 25, 2021
22I find that the applicant has not proven, on a balance of probabilities, that the treatment plan for a neurological assessment is reasonable and necessary.
23The OCF-18 for the proposed neurological assessment, completed by physician Dr. Vincenzo Basile, dated March 25, 2021, seeks to determine if there is any accident-related neurological impairment and to provide recommendation for recovery.
24The applicant submits that on March 11, 2021, the applicant was assessed by neurologist, Dr. Bryan Temple, who recommended continued physiotherapy and massage. The applicant also relies on the Tribunal decision in Harding v TD Insurance Meloche Monnex, 2023 CanLII 13072 (“Harding”) which found that the applicant was entitled to a neurological assessment as the CNRs had several notations of concussion-based symptoms.
25The respondent submits that the disputed treatment plan is not reasonable and necessary relying on the medical opinion of s. 44 assessor, Dr. Nagib Yahamad, who opined in a report dated March 15, 2021, that there was no evidence to indicate that the applicant sustained any significant traumatic brain injury or post-traumatic amnesia. Dr. Yahmad further reported that the applicant’s complaints were not neurological in nature, and they were not associated with any neurological disability or impairments.
26I find that Dr. Temple, in his report dated March 11, 2021, opined that the applicant’s examination was normal, with no definite evidence of cervical radiculopathy or cervical myelopathy, and no evidence of carpal tunnel syndrome. I also find that the applicant did not make any complaints with respect to headaches. The applicant did report complaints of headaches post-accident to s. 44 neurologist, Dr. Yahmad, and Dr. Yahmad subsequently diagnosed cervicogenic headaches with cervicogenic dizziness. However, Dr. Yahmad opined that these are not neurologic in nature. As both referred neurologist, Dr. Temple, and s. 44 assessor Dr. Yahmad did not opine on any significant neurological impairment, nor recommend further neurological assessment, I find that this evidence does not establish the reasonableness and necessity of the proposed treatment plan. In any event, I find that because the applicant underwent a neurological consultation with Dr. Temple on March 11, 2021, by referral of her family doctor, the proposed neurological assessment, dated March 25, 2021, is duplicative.
27Again, I am not bound by Tribunal decisions, however, I find that Harding is distinguishable from the present case. While I acknowledge that the applicant made an initial accident-related complaint of headaches on October 29, 2020, the applicant did not make headache related complaints during the attendances on November 30, 2020, and December 21, 2020. On January 12, 2021, the applicant reported headaches on and off with nausea when driving to Dr. Kebede, and Dr. Kebede subsequently referred the applicant to neurologist Dr. Temple to rule out cervical radiculopathy. As noted above, Dr. Temple did not opine on any significant neurological impairments. There must be compelling and contemporaneous evidence at or around the date that the proposed treatment was submitted to the respondent for consideration that would substantiate the need for said treatment. In this case, I am not satisfied by the evidence that the applicant has met her burden.
28As such, I find that the applicant has not proven, on a balance of probabilities, that the proposed treatment plan is reasonable and necessary.
Section 38(8) and s. 38(11)
29The respondent’s denial letter, dated March 22, 2023, for the treatment plan dated March 25, 2021, is compliant with s. 38(8) of the Schedule.
30Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.
31If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:
The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).
32The applicant argues that the respondent’s denial letter, dated March 22, 2023, denies the proposed treatment plan for a neurological assessment on the basis that the applicant’s injuries are considered minor, despite being taken out of the MIG on December 7, 2021, on the grounds of psychological impairment. The applicant further submits that the denial letter is boiler-plated and does not provide the applicant with a medical opinion.
33It is unclear from the applicant’s submissions whether the respondent provided an initial denial letter within the 10 business days after the treatment plan was submitted on March 25, 2021, as prescribed by the Schedule. The respondent does not make any submissions with respect to s. 38(8) and the denial of the proposed treatment plan. As the applicant did not raise the argument of delay or provide any evidence with respect to a denial letter for the initial submission of the treatment plan dated March 25, 2021, I will not make a determination with respect to the timeliness of any denial letter.
34In any event, the denial letter, dated March 22, 2023, cites the findings of both Dr. Yahmad and Dr. Temple, and states:
“It was Dr. Nagib Yahmad's opinion that the neurological diagnosis is likely cervicogenic headaches with cervicogenic dizziness; neither of these impairments were neurologic in nature. He opined that these impairments would fall within the definition of a Minor Injury and the disputed Treatment and Assessment Plans, were not reasonable or necessary, from a neurological perspective, and as a direct result of the accident. The physical neurological examination did not identify any hard objective evidence of myelopathy, plexopathy, active ongoing radiculopathy or neuropathy. This is consistent with the medical brief review including the ER physician record and specifically regarding the March 11, 2021, Consultation report by Dr. Bryan Temple, Neurologist indicating: "Tina's neurologic examination reveals reduced range of motion of the cervical spine with cervical and trapezius pain, but no radicular pain or Lhermitte's symptoms. Her examination is otherwise normal. There is no definite evidence of a cervical radiculopathy or a cervical myelopathy. There is no evidence of a carpal tunnel syndrome. She appears to have myofascial cervical pain."
35I find that the denial letter provides the medical reasons why the respondent considered that the treatment plan is not reasonable and necessary. Although it references minor injury, I find that the denial letter clearly states that the applicant’s injuries, from a neurological perspective, are minor. Although the applicant was removed from the MIG due to her psychological impairments, I find that this does not render the denial letter, which references the minor nature of neurological diagnosis, non-complaint.
36Therefore, I find that the respondent’s denial letter, dated March 22, 2023, is compliant with s. 38(8) of the Schedule.
Interest
37The applicant is entitled to interest for any overdue benefits owing for the physiotherapy services and physiatry assessment pursuant to s. 51 of the Schedule.
Award
38The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
39While the applicant makes some submissions with respect to the respondent’s fiduciary obligations, I find that she does not make specific submission as to whether the respondent acted unreasonably in its denials. It is the applicant’s onus, and therefore, I find that as she has not substantiated the request for an award, no award is payable.
40As such, I do not find the applicant is entitled to an award.
ORDER
41I find that:
i. The applicant is entitled the physiotherapy treatment;
ii. The applicant is entitled to the physiatry assessment;
iii. The applicant is not entitled to the neurological assessment;
iv. The applicant is entitled to interest on overdue benefits pursuant to s. 51 of the Schedule; and
v. The respondent is not liable to pay an award.
Released: December 11, 2024
Nadia Mauro
Adjudicator