Licence Appeal Tribunal File Number: 22-013138/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:
Miao Hua He
Applicant
and
Pembridge Insurance Company
Respondent
DECISION
ADJUDICATOR:
Robert Rock
APPEARANCES:
For the Applicant:
Yu Denise Jiang, Paralegal
For the Respondent:
Joshua Edmunds, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Miao Hua He, the applicant, was involved in an automobile accident on April 12, 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, Pembridge 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 the treatments and assistive devices proposed by Total Recovery Rehab Centre, as follows:
a) $3,989.56 for physiotherapy services, in a treatment plan dated August 20, 2021, and denied on August 26, 2021;
b) $710.00 for a manual wheelchair, in a treatment plan dated July 29, 2022, and denied on August 09, 2022; and
c) $4,303.90 for chiropractic services, in a treatment plan dated September 21, 2022, and denied on September 23, 2022?
ii. Is the applicant entitled to $5.085.81 for a catastrophic assessment, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated February 3, 2023?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the treatment plan for physiotherapy and chiropractic services in question as she has not proven on a balance of probabilities that they are reasonable and necessary.
4The applicant is not entitled to the treatment plan for a wheelchair as she has not proven on a balance of probabilities that it is reasonable and necessary.
5The applicant is not entitled to the balance of the treatment plan for a catastrophic assessment as she has not proven on a balance of probabilities that it is reasonable and necessary.
6As no benefits were unreasonably withheld or delayed, the respondent is not liable to pay a section 10 award.
7As there are no overdue benefits no interest payable.
ANALYSIS
8To 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.
a. The applicant is not entitled to the treatment plans for chiropractic and physiotherapy.
9I find that the applicant has not met her burden to demonstrate on a balance of probabilities that the treatment plans for physiotherapy and chiropractic services are reasonable and necessary.
10The chiropractic treatment plan seeks to provide an assessment, sixteen sessions of each multi site manipulation, exercise, acupuncture, travel time and documentation.
11The physiotherapy treatment plan seeks to provide an assessment, three separate sixteen sessions of multiple body site therapy, transportation, and documentation.
12The goals for physiotherapy, pain reduction, increased range of motion, increase in strength, return to activities of normal living, and return to modified work activities. The goals for chiropractic treatment are the same as physiotherapy and include minimizing compensatory strain and promote soft tissue healing.
13The applicant has made no direct argument in her submission as to why the two treatment plans in question are reasonable and necessary. The submissions refer to medical evidence, but do not address how this evidence supports the reasonableness or necessity of the treatment plans or how the goals of the treatment plans will be met.
14Further, upon review of the medical evidence, I find that the clinical notes and records (CNRs) of Dr. Li, the applicant’s family doctor, do not support either treatment plan being reasonable or necessary. The CNRs continually report whiplash and lumbar strain injuries stemming from the accident. The CNRs also show that pre-existing degenerative disk disease as the root cause of the existing pain complaints. In a letter that Dr. Li composed for the applicant’s workplace, Dr. Li makes reference to “her symptoms were worsened after the MVA,”, but in review of the CNRs they do not reflect Dr. Li, indicating that the applicant’s symptoms were worsened after the motor vehicle accident.
15I find that the CNRs of Dr. Lam, chronic pain assessor, also do not support the two treatment plans in question being reasonable or necessary. The CNRs outline the prescribed treatment plan to be stretching, core strengthening, and nerve block injections. Dr. Lam found that the applicant’s complaints were due to pre-accident degenerative disk disease. Dr. Lam does not mention physiotherapy or chiropractic therapy as a prescribed treatment for the client.
16I find that the s.44 Orthopaedic Examination and paper review completed by Dr. Gallimore, orthopaedic surgeon, on September 28, 2021 and October 21, 2022 respectively, do not support the two treatment plans as reasonable or necessary. The findings by Dr. Gallimore corroborate the CNRs of Dr. Li in that they both find that the injuries suffered by the applicant as a result of the accident were whiplash and lumbar strain. It was also Dr. Gallimore’s opinion that the applicant has likely reached maximum medical recovery make any further treatment not reasonable or necessary.
17I find that the applicant has not met her onus to prove on a balance of probabilities that the physiotherapy or chiropractic treatment plans are reasonable and necessary. The submissions do not point me to evidence that speaks to the need for physiotherapy or chiropractic treatment. The CNRs of Dr. Li and the orthopaedic examination or Dr. Gallimore both found that the applicant suffered whiplash and lumbar strain due to the accident and it was the Dr. Gallimore’s opinion that the applicant had reach maximum medical recovery. Dr. Lam did not recommend either physiotherapy or chiropractic treatment for the applicant in his CNRs.
18The applicant is not entitled to the OCF-18s for physiotherapy or chiropractic treatment.
b. The applicant is not entitled to the OCF-18 for a manual wheelchair.
19I find that the applicant has not met her burden to demonstrate on a balance of probabilities that the OCF-18 for a manual wheelchair is reasonable or necessary.
20The treatment plan is to provide the applicant with a manual wheelchair, delivery of the device, and document preparation.
21The goal of the treatment plan was not provided in the OCF-18.
22In her submissions, the applicant made no reference to the manual wheelchair or why the wheelchair would be reasonable or necessary.
23Accordingly, I find that the applicant has not met her onus to prove on a balance of probabilities that the OFC-18 for a manual wheelchair is reasonable or necessary.
24The applicant is not entitled to the OCF-18 for a manual wheelchair.
c. The applicant is not entitled to the balance of the treatment plan for a catastrophic assessment.
25I find that the applicant has not proven on a balance of probabilities that they are entitled to the balance of the treatment plan for a catastrophic assessment.
26The applicant has not provided a breakdown of what is outstanding in association with the catastrophic assessment and what portion has been approved. The applicant has made no submissions as to why the $5,084.81 that has not been approved by the respondent is reasonable and necessary.
27In the absence of understanding what the outstanding fee represents or why that amount is reasonable or necessary, I find that the applicant is not entitled to the outstanding balance for the catastrophic assessment.
28The applicant is not entitled to the balance in dispute for the catastrophic assessment because she has not met her onus to demonstrate on a balance of probabilities that it is reasonable and necessary.
Section 10 Award
29The applicant sought an award under s. 10 of Reg. 664. Under s. 10. As no benefits were unreasonably withheld or delayed, there is no basis for making an award.
Interest
30Interest 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
31I find that:
i. The applicant is not entitled to the disputed physiotherapy and chiropractic services treatment plans.
ii. The applicant is not entitled to treatment plan for a manual wheelchair.
iii. The applicant is not entitled to the balance in dispute related to the catastrophic assessment.
iv. The respondent is not liable to pay an award.
v. As no benefits are overdue, no interest is owing.
vi. The application is dismissed.
Released: December 24, 2024
Robert Rock
Adjudicator