Citation: Minden v. Optimum Insurance Company, 2024 ONLAT 21-014890/AABS
Licence Appeal Tribunal File Number: 21-014890/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:
Saoirse Minden
Applicant
and
Optimum Insurance Company
Respondent
DECISION
VICE-CHAIR: Julian DiBattista
APPEARANCES:
For the Applicant: Barbara K Opalinski, Counsel
For the Respondent: Amanda Lennox, Counsel
HEARD: By way of written submissions
OVERVIEW
1Saoirse Minden, the applicant, was involved in an automobile accident on July 20, 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, Optimum 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 $5,131.56 for physiotherapy treatment, proposed by Manual Works Rehab & Fitness Inc. in a treatment plan which was denied on April 19, 2021?
ii. Is the applicant entitled to $2,201.00 for physiotherapy treatment, proposed by Tru Physiotherapy in a treatment plan which was denied on May 13, 2021?
iii. Is the applicant entitled to $4,768.24 for physiotherapy treatment, proposed by Manual Works Rehab & Fitness Inc. in a treatment plan which was denied on September 17, 2021?
iv. Is the respondent liable to pay an award under s. 10 of O. Reg. 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
3The applicant has not proven entitlement to the disputed treatment plans.
4There is no interest or award payable.
ANALYSIS
The applicant has not proven entitlement to physiotherapy treatment
5I find that the applicant is not entitled to the disputed treatment plans.
6To 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.
7The applicant submits that the treatment and assessment plans are necessary and supported by the findings of Dr. N. Jha, neurosurgeon, Dr. S. Sharma, physiatrist, and Dr. Mediratta, neurologist.
8The respondent submits that the Tribunal has already found in Minden v. Optimum Insurance Company, 2021 ONLAT 20-004484/AABS (“Minden”), that the applicant sustained short term impairments and injuries which have been resolved.
9The respondent relies on section 44 reports conducted by Dr. C Sandhu, occupational medicine, Dr. C Bradbury, neurologist and Dr. M Hanna, physician.
10I will preface my analysis by stating, that while previous decisions from this Tribunal can be referenced in support of a position, I am not bound by those decisions and will adjudicate the evidence and issues before me.
11The applicant was a pedestrian that was hit by a car on July 20, 2019. She was immediately transported to Toronto Western Hospital, where x-rays were taken of the cervical spine and the right ankle. The cervical spine imaging showed no acute bony injury and no prevertebral soft tissue swelling. The x-ray of the right ankle showed a flake avulsion fracture at the tip of the lateral malleolus.
12On July 25, 2019, she saw Dr. G. Zywiel, orthopaedic surgeon, at the Toronto Western Hospital who noted that the applicant did not lose consciousness and said she didn’t have a concussion. The applicant was advised to wear an aircast an return in five weeks.
13On August 22, 2019, the applicant was seen by Dr. Zywiel for a follow-up where he noted that the applicant is doing well since the injury and is otherwise completely healthy and has no concerns.
14On August 18, 2019, the applicant went to a walk in clinic, where Kr. Kayla Walderman diagnosed the applicant with a concussion. There were no subsequent visits until November 10, 2019 and no evidence of para-medical treatment until the applicant started physiotherapy on October 21, 2019.
15The applicant did not see her family doctor, Dr. R Gupta, regarding the concussion until January 27, 2020.
16In Minden, the Tribunal found that while the applicant did sustain a mild concussion, the overall record does not establish that the concussion significantly interfered with activities of daily living or needed much, if any, treatment.
17In support of the disputed treatment plans, the applicant points to assessment reports from Dr. Jha dated July 5, 2021. Dr. Jha noted that the applicant is clinically presenting with features of post-concussive syndrome. Dr. Jha also makes several recommendations for treatment. However, it must be noted that Dr. Jha did not diagnose any impairment. Nor did he physically examine the applicant or indicate that he had reviewed any of the available medical records. Given those circumstances, I do not find Dr. Jha’s recommendation persuasive.
18The applicant also relies on an assessment from Dr. Sharma. Dr. Sharma had a phone consultation with the applicant on November 12, 2021. Dr. Sharma concluded that the applicant has a combination post-concussion headaches and discogenic headaches. He prescribed Almotriptan and recommended Ibuprofen. Dr. Sharma did not prescribe or recommend physiotherapy for post-concussion headaches or discogenic headaches.
19The applicant also points to Dr. Mehdiratta’s March 26, 2021 neurology report. However, this report was written without a physical exam being conducted, it was based on self-reports and history which appear overstated compared to earlier records. Dr. Mehdiratta notes the applicant reported a loss of consciousness immediately following the accident and was diagnosed with concussion on discharge from the hospital. Both of which are directly contradicted by the clinical notes and records from the visit at the hospital. Dr. Mehdiratta does recommend physiotherapy in the forms of vestibular, ocular-motor and cervicogenic treatments. However, due to the inconsistencies noted above, I do not find Dr. Mehdiratta’s recommendation persuasive.
20The respondent submits a s. 44 Occupational Medicine report by Dr. Sandhu. Dr. Sandhu assessed the applicant on August 26, 2020. Dr. Sandhu’s opinion is that further physical rehabilitation treatment is not reasonable or necessary.
21The respondent also relies on a s.44 neurology report by Dr. Bradbury. Dr. Bradbury assess the applicant on February 10, 2020. Dr. Bradbury notes that there are no identifiable neuropsychological barriers to recovery. Dr. Bradbury recommends that the applicant monitor her condition in consultation with her family physician.
22The respondent also relies on a s.44 physicians report by Dr. Hanna. Dr. Hanna assessed the applicant on May 7, 2021. Dr. Hanna noted that the applicant has had sufficient facility-based rehabilitation and no objective evidence of a neurological impairment that necessitates further facility-based rehabilitation.
23For the reasons mentioned above, I give more weight to the opinions of the respondent’s s.44 assessments. None of which indicate that further physical rehabilitation therapy is reasonable or necessary.
24Therefore, I find that the applicant has not proven on the balance of probabilities that the disputed treatment plans are reasonable or necessary.
The applicant is not entitled to an award
25As I have found in that there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.
There is no interest payable
26As there are no benefits owing, no interest is payable.
ORDER
27For the reasons outlined above, I find that:
i. The applicant is not entitled to the disputed treatment plans;
ii. No award is payable;
iii. No interest is owing; and
iv. This application is dismissed
Released: March 14, 2024
__________________________
Julian DiBattista
Vice-Chair