Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-000092/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:
Jorge Rodriguez
Applicant
and
Economical Insurance Company
Respondent
DECISION
VICE-CHAIR: Tyler Moore
APPEARANCES:
For the Applicant: Dayana Soto Santana, Paralegal
For the Respondent: Yann Grand - Clement, Counsel
HEARD: In Writing
OVERVIEW
1Jorge Rodriguez, the applicant, was involved in an automobile accident on March 17, 2022, 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, Economical 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 attendant care benefits ("ACBs") in the amount of $5,206.04 per month?
ii. Is the applicant entitled to $1,817.25 for assistive devices, proposed by 101 Assessments in a treatment plan/OCF-18 ("plan") submitted November 23, 2022 and denied December 6, 2022?
iii. Is the applicant entitled to $3,664.15 for chiropractic services, proposed by Art Rehabilitation Center ("ARC") in a plan submitted September 19, 2022 and denied September 29, 2022?
iv. Is the applicant entitled to $2,460.00 for a neurological or "total body" assessment, proposed by 101 Assessments in a plan submitted July 11, 2022 and denied July 25, 2022?
v. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments in a plan submitted May 9, 2022 and denied July 12, 2022?
vi. Is the applicant entitled to $3,955.10 for chiropractic services, proposed by ARC in a plan submitted June 28, 2022 and denied July 12, 2022?
vii. Is the applicant entitled to $2,460.00 for an orthopaedic assessment, proposed by 101 Assessments in a plan submitted June 6, 2022 and denied June 17, 2022?
viii. Is the applicant entitled to $2,560.00 for psychological treatment, proposed by 101 Assessments in a plan submitted June 6, 2022 and denied June 17, 2022?
ix. Is the applicant entitled to $1,817.25 for assistive devices, proposed by 101 Assessments in a plan submitted September 4, 2022 and denied June 19, 2023?
x. Is the applicant entitled to $2,128.51 for an attendant care assessment, proposed by 101 Assessments in a plan submitted April 18, 2023 and denied April 19, 2023?
xi. Is the applicant entitled to $2,460.00 for SIE/functional abilities examination ("FAE") assessment, proposed by 101 Assessments in a plan submitted February 3, 2023 and denied February 21, 2023?
xii. Is the applicant entitled to $1,412.10 for assistive devices, proposed by 101 Assessments in a plan submitted May 26, 2023 and denied June 5, 2023?
xiii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to $5,206.04 of ACBs per month.
4The applicant is entitled to $717.54 for assistive devices.
5The applicant is entitled to $3,664.15 and $3,955.10 for chiropractic services.
6The applicant is not entitled to $2,460.00 for a neurological/"total body" assessment, $2,460.00 for an orthopaedic assessment, $2,128.51 for an attendant care assessment, or $2,460.00 for a SIE/FAE assessment.
7The respondent has previously approved a psychological assessment in the amount of $2,460.00 on October 11, 2022, and the proposed psychological treatment in the amount of $2,560.00 on October 7, 2022. These issues are therefore no longer in dispute.
8The applicant is entitled to interest on the overdue payment for incurred assistive devices and chiropractic services.
PROCEDURAL ISSUES
9The respondent submitted that the applicant has been removed from the Minor Injury Guideline and that it is no longer an issue in dispute. In addition, according to paragraph 27 of the applicant's submissions, Issue 2 for transportation in the amount of $282.50 as listed in the Case Conference Report and Order dated August 10, 2023, has been withdrawn.
ANALYSIS
ACBs
10I find that the applicant has not established, on a balance of probabilities, that he is entitled to ACBs in the amount of $5,206.04 per month based on a Form-1 dated April 20, 2023.
11Section 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").
12Section 3(7)(e) of the Schedule provides that the expenses are not incurred by an insured person unless: (i) they have received the goods or services to which the expense relates; (ii) they have paid the expense, have promised to pay the expense, or are otherwise legally obligated to pay the expense; and (iii) the person who provided the goods and services (a) did so in the course of the employment, occupation, or profession in which he or she ordinarily have been engaged, but for the accident, or (b) sustained an economic loss as a result of providing the goods or services to the insured person.
13The onus is on the applicant to demonstrate that he required the care of an aide or attendant and that he incurred the expense of hiring one.
14The applicant submits that due to his severe pain symptoms, range of motion restrictions, and tiredness, he requires assistance from family and friends since the accident. He does not provide a specific period for which he is claiming entitlement for ACBs. The applicant also submits that his pain and movement restrictions have interfered with his ability to clean, cook, do the laundry, and grocery shop.
15The applicant relies on the attendant care assessment reports of registered nurse, Natalya Khramtsova, dated November 3, 2022 and April 20, 2023. Ms. Khramtsova initially recommended $947.45 per month in attendant care for toenail trimming, preparing meals/feeding, laundry, and bathroom/bedroom cleaning. Then, on April 20, 2023, she recommended $5,206.04 for attendant care per month based on the applicant's various functional limitations, including 2100 minutes per week of attendant care to be self-sufficient in an emergency situation because the applicant lacked the ability to independently get in and out of a wheelchair.
16The respondent relies on the functional abilities assessment report of Dawn Rodie, physiotherapist, dated August 31, 2022 who found that the applicant did not demonstrate any restrictions during functional testing.
17The respondent also relies on the discharge summary report from West Park Rehabilitation Hospital dated April 19, 2023, which notes that the applicant suffered a stroke on February 10, 2023 that necessitated a two-month long hospitalization. The respondent submits that according to a hospital progress note dated February 18, 2023, the applicant reported that he had fully recovered from the subject accident, and on February 15, 2023 he reported that he was fully independent in his activities of daily life and personal care before the stroke.
18The respondent further submits that on May 23, 2023, Dr. Charanjit Sandhu, internal medicine, assessed the applicant and found that he had residual symptoms from myofascial sprains to his cervical spine, right shoulder, and lumbar spine, as well as ongoing post-traumatic headaches. However, Dr. Sandhu found that impairments related to the applicant's right arm and right leg that affected his ability to perform personal care were related to his stroke. The respondent argues that Dr. Sandhu corroborated the occupational therapy assessment findings of Harish Sharma dated May 11, 2023, in that apart from the applicant's headaches, most of his impairments were tied to his stroke.
19The applicant has provided no expense claim form or invoice demonstrating that he incurred the expense of an aide or attendant. Apart from submissions that the applicant's family and friends provided him with assistance since the time of the accident, the applicant has not submitted any evidence of an economic loss that his family or friends sustained as a result of providing attendant care. Accordingly, I find that the applicant has not met his onus.
20I also find that Ms. Khramtsova did not account for the applicant's stroke-related impairments when assessing and making attendant care recommendations in her April 20, 2023 report. Ms. Khramtsova did not specify what limitations she observed that would necessitate accident-related attendant care, and relied on boilerplate language that did not distinguish between pre-accident and post-stroke function in arriving at a recommended $5,206.04 per month of attendant care. I also agree that the applicant's submissions do not mention or account for any limitations related to his stroke.
21I prefer the consistent and corroborating reports of Dr. Sandhu, Ms. Rodie, and the applicant's self-report while in-hospital that he did not suffer from accident-related functional restrictions and was independent in his activities of daily living and personal care before his stroke in February 2023.
22While I accept that the applicant sustained injuries as a result of the accident, I am not convinced on a balance of probabilities that the evidence presented supports that his accident-related injuries warrant the services of an aide or attendant as proposed. The applicant has also not demonstrated any incurred expenses or economic loss.
23The applicant suffered an unfortunate ischemic stroke in February 2023 that resulted in a reliance on personal support care, but I find that his stroke-related limitations that now necessitate supportive care are not accident-related.
24I find, on a balance of probabilities, that the applicant is partially entitled to the treatment plan for assistive devices submitted November 23, 2022. I find that the applicant is not entitled to treatment plans for assistive devices that were reportedly submitted on September 4, 2022 and May 26, 2023.
25To 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.
26The applicant submits he is entitled to the assistive devices proposed by 101 Assessments, but the only treatment plan for assistive devices that has been included as part of the parties' submissions is the treatment plan submitted November 4, 2022. The respondent submits that the other two treatment plans proposing assistive devices were not submitted to the insurer at all, and the applicant did not provide any reply submissions to refute the respondent's position. Without evidence to the contrary from the applicant, or the treatment plans to review, I find that the treatment plans purportedly submitted on September 4, 2022 and May 26, 2023 are not reasonable and necessary, and that the applicant has not met his onus for entitlement.
27The treatment plan submitted November 23, 2022 proposes $40.00 for Biofreeze, $500.00 for a TENS Unit, $199.99 for a steam mop, $85.99 for a heating pad, $180.00 for an ergonomic mat, $180.00 for a back support with rigid shell, $169.99 for an Obus Forme back support, $85.00 for delivery, and $200.00 for completion of the treatment plan, for a total with taxes included of $1,817.26. The proposed assistive devices were based on Ms. Khramtsova's November 3, 2022 attendant care assessment report recommendations, and the goals of the treatment plan were listed as: alleviating the applicant's discomfort and pain, increasing strength, and returning to activities of normal living.
28The applicant submits that the proposed assistive devices are reasonable and necessary because he requires support for his back and neck.
29The respondent argues that the applicant has not explained what Biofreeze is or why it is appropriate, or why the applicant requires a steam mop or an ergonomic mat. The applicant has also failed to explain why he requires both a back support with rigid shell and an Obus Forme Back Support. The respondent submits that the back supports are duplicative and have not been recommended by any other healthcare providers.
30I agree with the respondent that the applicant has not provided evidence as to how some of the proposed assistive devices are reasonable and necessary to achieve the listed goals of the treatment plan. The applicant has not provided evidence related to what "Biofreeze" is or why it is reasonable and necessary, why the applicant requires two back supports, what a TENS Unit does and why it is reasonable and necessary for the applicant's accident-related injuries, and why the applicant requires a steam mop.
31I find, however, that based on the applicant's accident-related neck and back injuries and consistent report of pain with prolonged sitting and standing to his family physician, Dr. Gurpreet Singh, that on a balance of probabilities the applicant is entitled to the assistive devices, in part.
32I find that the applicant is entitled to $169.99 for an Obus Forme back support, $180.00 for an ergonomic mat, $85.00 for delivery, and $200.00 for completion of the treatment plan itself, for a total of $717.54 including taxes.
33I find, on a balance of probabilities, that the applicant is entitled to the treatment plans for chiropractic services submitted June 28, 2022 and September 19, 2022.
34The treatment plan for chiropractic services submitted on June 28, 2022 by ARC proposes 20 sessions of massage therapy, 15 sessions of manipulation, 15 sessions of physiotherapy, and 4 sessions of chiropractor led exercise, and $200.00 for the completion of the treatment plan, for a total of $3,955.10. The treatment plan submitted by ARC on September 19, 2022 proposes 15 sessions of massage therapy, 15 sessions of manipulation, 15 sessions of physiotherapy, 4 sessions of chiropractor led exercise, and $200.00 for completion of the treatment plan, for a total of $3,664.15. The goals of both treatment plans are pain reduction, increased ranges of motion, return to activities of normal living, and return to pre-accident work activities. According to the treatment plan submitted September 19, 2022, the frequency of the applicant's pain had subsided and there was improvement in functional outcomes related to his knee.
35The applicant submits that pain reduction is a legitimate medical and rehabilitative goal, and therefore the proposed chiropractic services should be approved. The applicant relies on medical records and the chronic pain assessment report of Dr. Grigory Karmy dated January 23, 2023 which recommend an active exercise program, physiotherapy sessions, chiropractic adjustments, and spinal decompression to optimize the applicant's day-to-day function and improve his quality of life.
36The respondent submits that the applicant has failed to show that the proposed chiropractic treatment is reasonable and necessary, and that Dr. Karmy's report, as provided by the applicant in his submissions, only starts at page 4. There is no indication that Dr. Karmy reviewed any of the applicant's medical records before making his diagnosis and recommendations, and Dr. Karmy's credentials are that of a family physician only.
37I agree that Dr. Karmy's report is incomplete and that the first three page of the report have not been submitted. I am also mindful that Dr. Karmy noted that the applicant has suffered impairments that have continued without significant improvement for a long time, despite treatment, and that he does not discuss the applicant's pre-accident health. For those reasons I have given limited weight to Dr. Karmy's report.
38I prefer the clinical notes and records of the applicant's family physician, Dr. Singh, dated May 3, 2022, which recommends ongoing physiotherapy and exercise for the applicant's accident-related neck, back, and knee pain. Dr. Singh also reported on July 15, 2022 that there was subjective improvement in the applicant's right knee pain with physiotherapy. Again, Dr. Singh recommended ongoing physiotherapy, and on September 23, 2022, Dr. Singh made the same recommendation for the applicant's ongoing pain and stiffness in his neck and back, which had gradually increased after the accident. I find that this corroborates the ongoing need for chiropractic, physiotherapy, and massage therapy services as proposed by ARC, which has provided the applicant with at least some pain relief.
39For these reasons, I am satisfied on a balance of probabilities that the proposed treatment plans for chiropractic services in the amounts of $3,955.10 and $2,664.15 are reasonable and necessary.
40I find, on a balance of probabilities, that the applicant is not entitled to $2,460.00 for a neurological or "total body" assessment.
41The goals of the proposed assessment are listed as pain reduction and determining the extent to which the applicant's current condition includes a neurological component, as well as to discover what recommendations may assist in the applicant's recovery.
42The applicant submits that a "total body assessment" is necessary given the extent of his pre-existing health conditions and pain before the accident.
43The respondent submits that the applicant has not brought forward any evidence demonstrating that he suffers from a neurological impairment as a result of the accident, and that Dr. Singh's clinical notes and records make no mention of same.
44The respondent argues that the applicant's submission that this "total body assessment" is necessary due to the applicant's pre-existing health is without merit because he did not point to any pre-accident neurological issues that would have been affected by the accident. According to the respondent, if a neurological assessment was reasonable and necessary as a result of the accident, Dr. Singh should have made a referral or recommendation.
45I am not persuaded by the applicant's submissions. The applicant submits that the assessment is reasonable and necessary based on his pre-existing condition and pain but provides no explanation as to how a neurological assessment will assist in managing the applicant's post-accident injuries in that regard. I also concur that there is no mention of any accident-related neurological symptoms or neurological condition that would warrant a neurological or "total body" assessment. As a result, I find on a balance of probabilities that the proposed neurological assessment is not reasonable and necessary.
46The applicant submits that a psychological assessment was completed on May 26, 2022 by 101 Assessments and that Dr. Konstantinos Papazoglou diagnosed him with an adjustment disorder (with mixed anxiety and depressed mood).
47The respondent submits that the treatment plan for a psychological assessment in the amount of $2,460.00 proposed by 101 Assessments was previously approved on October 11, 2022, and is therefore no longer in dispute.
48In the absence of any reply submissions to suggest otherwise, I accept the respondent's submission that the proposed psychological assessment has already been approved and it is no longer an issue in dispute.
49The applicant once again submits that he has been diagnosed with anxiety disorder and an adjustment disorder (with mixed anxiety and depressed mood) by both Dr. Singh and psychologist, Dr. Papazoglou.
50The respondent submits that it previously approved the treatment plan for psychological services in the amount of $2,560.00 on October 7, 2022, rendering the treatment plan no longer in dispute.
51In the absence of any reply submissions to suggest otherwise, I accept the respondent's submission that the proposed psychological services have already been approved, and it is no longer an issue in dispute.
52I find, on a balance of probabilities, that the applicant is not entitled to $2,400.00 for an orthopaedic assessment.
53The applicant submits the proposed orthopaedic assessment was long overdue, based on the medical records confirming objective issues with his back, neck, and right knee. The applicant also submits that the applicant's ongoing pain has developed into a chronic pain issue.
54The respondent argues that the orthopaedic assessment was proposed nearly three months after the accident, and by that time the applicant's accident-related injuries were improving according to Dr. Singh. The respondent also argues that if such an assessment was reasonable and necessary as a result of the accident, then surely Dr. Singh would have made an orthopaedic referral. The respondent further submits that the applicant fails to point to any medical evidence recommending an orthopaedic assessment.
55I am not persuaded by the applicant's submissions. He has not pointed me to any specific medical evidence that supports a recommendation or need for an orthopaedic assessment. There is also no indication that Dr. Singh recommended or supported an orthopaedic referral at the time the treatment plan was proposed.
56For these reasons, I find that the applicant has not met his onus, on a balance of probabilities, that an orthopaedic assessment is reasonable and necessary.
57I find, on a balance of probabilities, that the applicant is not entitled to $2,460.00 for an attendant care assessment submitted April 18, 2023.
58The applicant submits that his impairments are serious enough to warrant an attendant care assessment, because prior to the accident he was independent in all basic tasks of daily living and self-care. The applicant submits that his accident-related injuries have interfered with his ability to perform his usual daily activities such as cooking, cleaning, housekeeping, and shopping due to severe pain, limited ranges of motion, and fatigue.
59The respondent submits that the assessment was proposed in April 2023, which, according to a hospital discharge report dated April 19, 2023, was after the applicant suffered a stroke on February 10, 2023. The respondent submits that the hospital discharge report notes that the applicant's stroke led to a two-month hospital stay and resulted in significant right-sided weakness.
60The respondent relies on the s.44 occupational therapy assessment of Harish Sharma, dated June 13, 2023, which attributes the applicant's impairments with personal care and other day-to-day activities to his stroke, and not the subject accident. The respondent also relies on the s. 44 physician assessment of internal medicine specialist, Dr. Charanjit Sandhu, also dated June 13, 2022, which found that attendant care benefits were not required as a result of the accident, but rather because of the applicant's stroke-related right arm paralysis and right leg weakness. According to the respondent, the applicant's submissions fail to mention the stroke.
61I find that the applicant has not demonstrated that an attendant care assessment is warranted for his accident-related injuries. I find that the treatment plan for this assessment is dated over a year after the accident, and two months after he suffered a significant stroke that resulted in significant right-sided impairment. I accept that the applicant has required significant personal support after his stroke, but the evidence presented does not support that an attendant care assessment was reasonable and necessary for his accident-related impairments, as proposed, just a few days after his stroke-related discharge from hospital in April 2023.
62The applicant made no submissions and provided no evidence related to the proposed SIE/FAE assessment in the amount of $2,460.00 that was submitted by 101 Assessments on February 3, 2023. As a result, I find that the applicant has not met his onus of establishing on a balance of probabilities that the proposed assessment is reasonable and necessary.
Interest
63Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that interest applies on the incurred assistive devices and chiropractic services.
ORDER
64The applicant is not entitled to $5,206.04 of ACBs per month.
65The applicant is entitled to $717.54 for assistive devices.
66The applicant is entitled to $3,664.15 and $3,955.10 for chiropractic services.
67The applicant is not entitled to $2,460.00 for a neurological/"total body" assessment, $2,460.00 for an orthopaedic assessment, $2,128.51 for an attendant care assessment, or $2,460.00 for a SIE/FAE assessment.
68The respondent has previously approved a psychological assessment in the amount of $2,460.00 on October 11, 2022, and the proposed psychological treatment in the amount of $2,560.00 on October 7, 2022. These issues are therefore no longer in dispute.
69The applicant is entitled to interest on the overdue payment for incurred assistive devices and chiropractic services.
Released: December 20, 2024
Tyler Moore
Vice-Chair