Mantha v. The Personal Insurance Company, 2024 CanLII 126305

Citation: Mantha v. The Personal Insurance Company, 2024 ONLAT 22-011683/AABS

Licence Appeal Tribunal File Number: 22-011683/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:

Sarah-Beth Mantha

Applicant

and

The Personal Insurance Company

Respondent

DECISION

ADJUDICATOR: Kevin Kovalchuk

APPEARANCES:

For the Applicant: Najma M Rashid, Counsel

For the Respondent: Rosalind Eastmond, Counsel

HEARD: By way of written submissions

OVERVIEW

1Sarah-Beth Mantha, the applicant, was involved in an automobile accident on September 1, 2017, 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 certain benefits by the respondent, The Personal Insurance Company, on the basis that they were not reasonable and necessary and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issue(s) in dispute are:

i. Is the applicant entitled to $3,010.25 for physiotherapy, chiropractic, and massage therapy services, proposed by Dynamic Physiotherapy and Chiropractic Inc. in a treatment plan/OCF-18 (“plan”) dated April 1, 2022 and denied July 22, 2022?

ii. Is the applicant entitled to $2,219.00 for physiotherapy services proposed by Neurologic in a plan dated April 26, 2023 and denied May 18, 2023?

iii. Is the applicant entitled to $2,593.30 for exercise therapy proposed by Fleming Fitness in a plan dated October 20, 2022, and denied October 22, 2022?

iv. Is the applicant entitled to $2,973.28 for prescription eyewear, submitted by way of a plan dated August 18, 2022, and denied August 20, 2022?

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

3Although the CCRO indicates that the claim for prescription eyewear was submitted on a claim form (OCF-6) dated August 18, 2022, and denied August 20, 2022, the parties have agreed that it was submitted in a plan dated August 18, 2022, and denied on August 20, 2022, and I have adjusted issue iv above, accordingly.

RESULT

4The applicant is entitled to $2,219.00 for physiotherapy services proposed by Neurologic Physiotherapy in a treatment and assessment plan dated April 26, 2023, plus interest pursuant to s. 51 of the Schedule.

5The applicant is not entitled to the remaining amounts in dispute.

PROCEDURAL ISSUES

6The respondent requests that the Tribunal exclude the documents at Tab 45 (Dr. Rochon’s Clinical Notes, Oct. 30, 2023, to Dec. 8, 2023) and Tab 46 (attending physician statement to CHEO, Nov. 14, 2023) of the applicant’s submissions. The respondent submits that these documents were provided beyond the deadline date in the Case Conference Report and Order (“CCRO”) dated July 17, 2023. The CCRO ordered that “by no later than 75 calendar days from the case conference, both parties shall exchange all other documents not previously disclosed upon which they intend to rely at the hearing”. That date would have been September 19, 2023. The respondent submits that admitting the documents would be prejudicial as the respondent has not been provided with an opportunity to obtain an independent medical opinion. The respondent further submits that the evidence is irrelevant to the time period of the disputed issues and gives the applicant an unfair advantage.

7The applicant submits in reply, that the documents at Tabs 45 and 46 of the applicant’s brief could not have been produced within 75 days of the date of the case conference (July 6, 2023) because the documents pertain to medical appointments that took place after the production deadline.

8I decline to exclude the documents at Tabs 45 and 46 of the Applicant’s submissions. I base my decision on Rule 9.4 of the Common Rules of Practice and Procedure, (the “Rules”) which gives the Tribunal discretion to allow a party to rely on a document, even if, that party has failed to comply with the Rules. The fact that the documents were produced late will go to the weight I assign to them.

ANALYSIS

9To 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.

10The applicant bears the onus of proving entitlement to the proposed treatment by demonstrating that the plans are reasonable and necessary for the injuries she sustained in the accident, on a balance of probabilities.

The applicant is not entitled to the physiotherapy, chiropractic and massage therapy services proposed by Dynamic Physiotherapy and Chiropractic in a treatment plan dated April 1, 2022, and denied July 22, 2022

11I find that the applicant has not established on a balance of probabilities that this treatment plan is reasonable and necessary.

12The treatment plan proposed by Dynamic Physiotherapy and Chiropractic dated April 1, 2022, sought 15 sessions of chiropractic treatment, 15 sessions of physiotherapy and 7 sessions of massage therapy.

13The treatment plan was proposed by Dr. Erica Gifford, a Chiropractor. Dr. Gifford listed the applicant’s injuries as whiplash associated disorder (WAD2) with complaints of neck pains with musculoskeletal signs as well as post concussion syndrome. The goal of the treatment plan was pain reduction, increase in strength and increase in range of motion.

14The applicant submits that the treatment plan should have been approved because previous treatment plans for physiotherapy, massage and chiropractic services submitted on September 10, 2018, were found to be reasonable and necessary after a s. 44 assessment done on December 14, 2018, by Dr. Williams, a physiatrist.

15The treatment plan was denied by the respondent because of a s. 44 assessment done by Dr. Khan, a Physiatrist, on June 2, 2022. The applicant submits that the respondent should have had the applicant assessed by Dr. Williams (as it did previously) and asks the Tribunal to draw an adverse inference from this.

16The respondent submits that it made all reasonable efforts to schedule the s. 44 assessment of June 2, 2022, at a date and time convenient to the applicant. The respondent has filed portions of its log notes showing that the applicant wanted the earliest date possible for the assessment as she may have been going on vacation to England. I find that the evidence shows that the applicant agreed to travel from Ottawa to Toronto to attend the assessment with Dr. Khan.

17I decline to draw an adverse inference as requested by the applicant because the applicant participated in the scheduling of the appointment with Dr. Khan and was willing to travel from Ottawa to Toronto to attend the appointment. In addition, given the length of time between the two appointments, the first being December 14, 2018, with Dr. Williams and the second being June 2, 2022, with Dr. Khan, I find it reasonable that Dr. Khan came to different findings.

18I find that the applicant has not met her onus. The applicant has not pointed me to any contemporaneous medical evidence as to why the treatment plan of April 1, 2022, is reasonable and necessary. An OCF-18 is not in itself sufficient substantiation that a treatment plan is reasonable and necessary.

19Further, I find that the insurer’s examination and report of Dr. Kahn dated July 20, 2022, concluded that the treatment plan was not reasonable or necessary. Dr. Kahn found that the applicant had already undergone a course of facility-based therapy including dry needling, manual therapy, spinal manipulation, and exercise. He found no significant objective accident-related physical impairments or objective ongoing musculoskeletal pathology identified that would necessitate facility-based therapy.

20Given the lack of contemporaneous evidence in support of the plan being reasonable and necessary and given Dr. Kahn’s IE report, I find that the applicant has not established on a balance of probabilities that the plan is reasonable and necessary.

The applicant is entitled to the treatment plan proposed by Neurologic dated April 26, 2023, for physiotherapy services.

21I find that the applicant has established on a balance of probabilities that the treatment plan is reasonable and necessary.

22The treatment plan proposed by Neurologic dated April 23, 2023, sought an assessment, planning service, documentation and 12 therapy sessions with a neuro-physiotherapist with the goal of reducing headaches and dizziness and the improvement of symptom management. The treatment plan noted that the treatment provider Amaal Mirani was a neuro-physiotherapist with experience in concussion rehabilitation.

23The applicant submits that she sustained a concussion as a result of the automobile accident.

24The applicant was seen by Dr. Nikneshan on August 27, 2019, at the request of the applicant’s family doctor Dr. Rochon, for an evaluation of post concussion syndrome. Dr. Nikneshan produced a report dated August 27, 2019. His report notes that he spent an hour and fifteen minutes with the applicant. Dr. Nikneshan made a diagnosis of post concussion syndrome, chronic migraines, medication overuse headaches, post traumatic vestibulopathy, post traumatic vision syndrome and impaired sleep.

25The applicant was seen for a Neuropsychological Assessment by Dr. Moustgaard a Clinical Psychologist, on August 18, 2020. Dr. Moustgaard authored a report dated August 18, 2020, as well as an addendum report dated November 11, 2020.

26The report dated August 18, 2020, notes that the applicant completed the clinical interview and neuropsychological testing over an entire day. Fifteen different tests were administered to the applicant. Dr. Moustgaard noted that the neuropsychological test results were an accurate reflection of the applicant’s overall neurocognitive and psychological functioning.

27Under the heading “Diagnosis,” Dr. Moustgaard found that it was entirely possible that the applicant sustained a mild concussion in the motor vehicle collision. One of the treatment recommendations made by Dr. Moustgaard was for any recognized physical therapy that could help reduce or mitigate the applicant’s headache pain.

28The respondent relies upon a section 44 report of Dr. Angell, Neurologist, dated July 20, 2022, in support of its position that the applicant did not sustain a concussion as a result of the accident and as such, did not require the services proposed by Neurologic in a treatment plan dated April 26, 2023.

29Dr. Angell saw the applicant virtually on June 24, 2022, and spent one hour with the applicant. He opined that “according to the nature of the accident and injury she did not suffer a concussion.”

30I prefer the opinions of Dr. Nikneshan and Dr. Moustgaard over that of Dr. Angell for the following reasons:

i. Dr. Moustgaard conducted an interview and administered fifteen different clinical tests over an entire day.

ii. Dr. Nikneshan saw the applicant in person, for an hour and fifteen minutes at the request of her family doctor.

iii. Dr. Angel only saw the applicant for one hour virtually.

31The applicant refers to the documents contained at Tabs 45 (Dr. Rochon’s Clinical Notes, Oct. 30, 2023, to Dec. 8, 2023) and 46 (attending physician statement to CHEO, Nov. 14, 2023) of the applicants’ submissions, in support of the treatment plan proposed by Neurologic. As noted earlier in these reasons, I declined to exclude these documents and indicated that the fact that they were late produced, would go to weigh.

32Having reviewed the aforementioned documents, I find they do not add to the reports of Drs. Nikneshan and Moustgaard, nor do they speak to any treatment to reduce headaches and dizziness. For these reasons as well as the fact they were late produced, I assign them little weight.

33The clinical notes and records of Dynamic Physiotherapy and Chiropractic note that the applicant was complaining of headaches monthly from April of 2021 to December of 2023. In addition, the applicant often complained of dizziness over this period.

34I find the clinical notes and records of Dynamic Physiotherapy and Chiropractic showing consistent complaints of headaches and dizziness in the two years prior to the treatment plan of April 26, 2023, to be persuasive as to the necessity of the proposed treatment.

35Because of the clinical notes and records of Dynamic Physiotherapy and because of the diagnosis made by both Drs. Moustgaard and Nikneshan that the applicant sustained a concussion in the motor vehicle accident I find the treatment plan of Neurologic for physiotherapy services dated April 26, 2023, in the amount of $2,219.00, to be both reasonable and necessary. Specifically, I find that the goal of reducing headaches and dizziness and the improvement of symptom management by a neuro-physiotherapist with experience in concussion rehabilitation to be necessary in light of this diagnosis and the 12 sessions to be reasonable to achieve these goals.

The applicant is not entitled to the treatment plan from Flemming Fitness dated October 20, 2022.

36I find that the applicant has not established on a balance of probabilities that the treatment plan is reasonable and necessary.

37The treatment plan proposed by Flemming Fitness sought funding for documentation, exercise and planning services that were to be provided by a Kinesiologist. The goal of the plan was to use exercise to improve full body muscular strength and endurance and to improve overall mental health.

38The applicant submits that exercise therapy is a “good adjunct” to other forms of active therapy she is currently undergoing. The applicant further submits that “given her work and parenting schedule alongside her cognitive difficulties including organizational challenges, it is unreasonable to expect the applicant to independently carve out time for herself to do self-directed exercises”.

39The applicant has not directed me to any compelling evidence in support of the treatment plan. A treatment plan on its own is not compelling evidence in support of treatment.

40The respondent relies on the insurer’s examination and report of Dr. Kahn dated July 20th, 2022, in support of its position that the treatment plan is not reasonable and necessary. As noted earlier, Dr. Kahn found that the applicant had already undergone a course of facility-based therapy including dry needling, manual therapy, spinal manipulation, and exercise. He found no significant objective accident-related physical impairments or objective ongoing musculoskeletal pathology identified that would necessitate facility-based therapy.

41Based upon Dr. Khan’s IE report and because the applicant has not provided any compelling medical evidence in support of the treatment plan, I find that the applicant has not met her burden to prove on a balance of probabilities that the treatment plan is reasonable and necessary.

The applicant is not entitled to the claim for prescription eyewear in the amount of $2,973.28.

42I find that the applicant has not established on a balance of probabilities that the claim for prescription eyewear is reasonable and necessary.

43The applicant and respondent both agree that the claim was submitted by way of an OCF-18 Treatment and Assessment Plan dated August 18, 2022, and denied on August 20, 2022.

44The treatment plan proposed by Anthony Irani, Optometrist, is for one pair of “lenses” and two pairs of “prescription spectacle lenses for optimization of post- traumatic visual comfort and function.”

45The applicant submits that “given the documented visual disturbances and the applicant’s heroic attempts to keep working despite the fact that computer screens cause her concussion symptoms to flare up considerably, the expenditures for prescription lenses are reasonable and necessary”. Aside from this submission, the applicant has not provided any evidence that the treatment and assessment plan dated August 18, 2022, is reasonable and necessary.

46The respondent submits that further expenses for prescription eyewear are not reasonable and necessary. The respondent submits that it approved expenses under treatment plans dated September 24, 2020, October 6, 2020, and November 30, 2021, for prescription eyewear. The respondent further submits that the treatment plan in dispute, dated August 18, 2022, is for a fourth pair of glasses.

47The respondent has submitted an OCF-18 summary. I find that it shows that a treatment plan dated September 24, 2020, from Dr. Wareham (Optometrist) for (“new glasses with light ADD and BO compensating prism) in the amount of $2,200 was approved by letter dated September 26, 2020. A treatment plan dated October 6, 2020, from Kristel Jeffries (Optometrist) for “Prescription Glasses (x3)” in the amount of $2,517.70 was approved by letter dated October 9, 2020. It further shows a treatment plan dated November 30, 2021, from Kristel Jeffries (Optometrist) for “Prescription Glasses” in the amount of $836.82 was approved by letter dated December 18, 2021.

48Based on this evidence, I find that the respondent has previously approved payment for three pairs of prescription glasses.

49Because the applicant has not provided any evidence that the treatment and assessment plan dated August 18, 2022 is reasonable and necessary and because the respondent has previously approved payment for three pairs of prescription glasses, I find that a further claim for prescription eyewear is not reasonable and necessary.

Interest

50The applicant is entitled to interest related to the treatment plan proposed by Neurologic in a plan dated April 26, 2023, pursuant to s. 51 of the Schedule.

ORDER

51For the reasons set out above I find the following:

i. The applicant is entitled to a medical benefit in the amount of $2,219.00 for physiotherapy services proposed by Neurologic Physiotherapy in a treatment plan dated April 26, 2023, plus interest pursuant to s. 51 of the Schedule.

ii. The applicant is not entitled to payment of the remaining amounts in dispute.