Licence Appeal Tribunal File Number: 21-015474/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:
Halil Celik
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Tami Cogan
APPEARANCES:
For the Applicant:
Harvey Katz, Counsel
For the Respondent:
Michael Rattray, Counsel
HEARD: In Writing
OVERVIEW
1Halil Celik, the applicant, was involved in an automobile accident on August 8, 2019, 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, Security National Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant was involved in the above noted automobile accident on August 8, 2019 (“Index MVA”) and on May 2, 2020, he was involved in a second automobile accident (“Secondary MVA”).
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $490.00 for physiotherapy services, proposed by Burlington Physiotherapy, in a treatment plan/OCF-18(“plan”) dated December 10, 2019, and denied January 2, 2020?
ii. Is the applicant entitled to $2,200.00 for an in-home attendant care assessment, proposed by Geronimo Occupational Therapy, in a treatment plan dated December 10, 2020, and denied April 7, 2021?
iii. Is the applicant entitled to $2,200.00 for an in-home occupational therapy assessment, proposed by Geronimo Occupational Therapy, in a treatment plan dated May 19, 2021, and denied June 17, 2021?
iv. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The treatment plans are not reasonable and necessary.
5As there are no benefits owing, no interest or award is payable.
6The application is dismissed.
ANALYSIS
7Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident.
8The applicant bears the onus of proving on a balance of probabilities that any proposed treatment plan is reasonable and necessary. To do so, the applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall cost of achieving the goals is reasonable. As for an assessment, the applicant must show that it is reasonable and necessary to investigate a condition. The applicant also must prove that the treatment being recommended is for impairments sustained in the car accident.
Issue 1: OCF-18 in the amount of $490.00 for physiotherapy services
9I find there is insufficient evidence to determine that the treatment plan is reasonable and necessary, or that the applicant’s injuries were a result of the Index MVA.
10The applicant submits that on December 24, 2019, Burlington Physiotherapy submitted a treatment plan for physiotherapy services to the respondent. The goals stated in the treatment plan were “pain reduction, increased range of motion and return to activities of normal living”. The treatment plan was denied on January 2, 2020, and the reason provided for the denial was “there has been no objective of [sic] compelling medical information provided to indicate that the injuries sustained in the accident are not considered to be minor”.
11The applicant submits that a Magnetic Resonance Imaging (MRI) report of January 26, 2020, is proof that the applicant’s injuries were caused by the Index MVA. The applicant was assessed by his family physician, Dr. Dalia Rizk, on February 4, 2020, in relation to numbness in his left arm and left leg. The applicant reported that he had been attending physiotherapy that provided some relief. The applicant further submits an Electromyography (EMG) completed on June 9, 2020, and an Ultrasound Report of October 2, 2020, as evidence of injuries that require treatment.
12The respondent submits:
i. there is a lack of compelling medical information indicating the injuries sustained in the MVA were not minor;
ii. the applicant’s physician did not recommend the treatment, nor do the medical records connect the applicant’s injuries to the index MVA;
iii. the submission of the treatment plan by the same party who will be providing the treatment may be a conflict of interest;
iv. the applicant’s removal from the MIG limit on a psychological basis does not mean the physical treatment plan is automatically reasonable and necessary; and
v. the Insurer’s Examination (“IE”) assessment conducted by Dr. Gwardjan on April 5, 2021, determined the applicant’s physical injuries were minor injuries as per the Schedule, and found no compelling evidence of a pre-existing medical condition that would prevent the applicant from achieving maximal medical recovery if treated within the MIG limits.
13I find the medical reports do not indicate the cause of the injuries being investigated. The only reference to the Index MVA on the January 26, 2020 MRI report is a notation referring to pain and numbness in the applicant’s left upper lung following the accident. The family physician’s clinical note from February 4, 2020, does not mention the MRI results, nor does the physician express an opinion about the physiotherapy treatment. Furthermore, the EMG and ultrasound were conducted after the second accident on May 2, 2020, and no clinical notes that speak to these tests have been provided. The applicant has not directed me to any evidence that identifies the cause of the symptoms, or the reasonableness and necessity of the disputed treatment plan for physiotherapy.
14I find the applicant has not established the physiotherapy treatment plan to be reasonable or necessary as a result of the Index MVA.
Issue 2: OCF-18 in the amount of $2,200.00 for an In-home attendant care assessment
15I find that the applicant has not established that the In-home attendant care assessment was reasonable or necessary as a result of the Index MVA.
16The applicant submits that a treatment plan for In-home assessment for attendant care needs, was submitted on December 10, 2020, by Geronimo Occupational Therapy. The goals of the treatment plan included assessment of attendant care, home safety and accessibility, and to determine rehabilitation needs. The treatment plan was denied by the respondent on December 29, 2020, on the basis that the applicant’s injuries meet the definition of Minor Injury and arranged for an IE. Based on the IE report of the occupational therapist, the treatment plan was denied as not being reasonable or necessary. The applicant does not make submissions as to why the treatment plan should be determined reasonable and necessary.
17The respondent submits that the treatment plan was prepared after the Secondary MVA and reasonableness, necessity and causation have not been established. After initially denying the treatment plan the insurer arranged for several IEs. The applicant met with physiatrist Dr. Andrzej Gwardjan on February 23, 2021, a psychologist, Dr. Shahriar Moshiri on March 11, 2021, and an occupational therapist, Mr. Andrew Phillips on March 24, 2021. Dr. Gwardjan and Mr. Phillips opined that the treatment plan was not reasonable or necessary because the applicant reported being independent in his personal care tasks, and upon examination the applicant demonstrated the range of motion, physical mobility and strength necessary to independently complete all personal care tasks.
18I note the treatment plan was submitted after the Secondary MVA. The IE reports indicate that the applicant told each of the assessors that he had returned to work on a fulltime basis as a financial analyst and that he was able to perform his self-care tasks independently. The assessments did not identify any safety concerns. The applicant has not directed me to any medical records that would support that an assessment for attendant care is reasonable and necessary.
19I find, the applicant is not entitled to this treatment plan.
Issue 3: OCF-18 in the amount of $2,200.00 for an In-home occupational therapy assessment
20I find that the applicant has not met his burden of proving the disputed in-home occupational therapy assessment is reasonable and necessary as a result of Index MVA.
21The applicant submits the treatment plan for an In-home occupational therapy assessment proposed by Geronimo Occupational Therapy, dated May 19, 2021, is reasonable and necessary to assess home safety, accessibility and determine a treatment plan. The applicant submits the respondent’s denial is based on a second IE assessment with Mr. Andrew Phillips, occupational therapist, conducted on April 14, 2022. The applicant relies on the assertions of the treatment provider that her proposed plan is reasonable and necessary. In support of the treatment plan, the applicant submits a psychological progress report dated May 5, 2022, prepared by Dr. Jana Frtusova, neuropsychologist. The doctor states the applicant reported he is struggling with ongoing physical symptoms and chronic pain as a result of the Index MVA.
22The respondent submits that the treatment plan was prepared after the Secondary MVA and reasonableness, necessity and causation have not been established. In its letter of denial, it relied on the IE with Mr. Andrew Phillips, Occupational Therapist conducted on April 14, 2022.
23The applicant does not make submissions nor reply to the issue of causation raised by the respondent, referencing the Secondary MVA on May 2, 2020. The burden of proof lies with the applicant to establish that the Index MVA on August 8, 2019, was the cause of his physical impairments, not on the respondent to disprove it.
24I give little weight to the psychological report dated May 5, 2022, prepared by Dr. Jana Frtusova, neuropsychologist. The report addresses only the need for treatment of the psychological aspect of chronic pain. The report does not address the treatment plan in dispute. The report does not indicate an evaluation of the applicant’s physical abilities or restrictions was conducted, nor does it indicate the applicant is experiencing any safety or accessibility issues in his home that would benefit from an In-home assessment.
25I find the applicant has not led compelling evidence to establish that the treatment plan for an In-home occupational therapy assessment is reasonable or necessary. In order for the assessment to be reasonable and necessary there must be a need for the goals to be met. Neither the applicant, nor Dr. Frtusova, suggested that safety or accessibility were of concern. The applicant has not provided sufficient clinical notes or records to support the applicant’s physical need for rehabilitation, as a result of the Index MVA.
26Given the lack of evidence, and on a balance of probabilities, I find the treatment plan is not reasonable and necessary as a result of the Index MVA.
Interest
27As there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to section 51 of the Schedule.
Award
28The applicant submits an award is owing pursuant to s.10 of Regulation 664 because the respondent’s denial letters were not in compliance with s. 38(8) of the Schedule.
29The respondent submits that it gave reasonable consideration to all the available information when assessing the applicant’s claim, and no award is payable.
30I find the respondent’s denial of the benefits was clear and unambiguous, and the conduct of the respondent does not rise to a level worthy of an award. As no benefits are payable, the respondent cannot be found to have unreasonably withheld or delayed payment of benefits pursuant to s.10 of Regulation 664. Therefore, no award is payable.
ORDER
31I order the following:
i. The applicant is not entitled to the treatment plans in dispute.
ii. The applicant is not entitled to interest.
iii. The respondent is not liable to pay an award.
Released: January 2, 2024
Tami Cogan
Adjudicator