Licence Appeal Tribunal File Number: 21-013958/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:
Anna Ambrosini
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Joshua Gautreau, Counsel
For the Respondent:
Yann Grand-Clement, Counsel
HEARD:
By written submissions
OVERVIEW
1Anna Ambrosini, the applicant, was involved in an automobile accident on March 18, 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, Aviva Insurance Canada, 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 $2,293.35 for a neurological assessment, proposed by MediAssess Evaluations in a treatment plan/OCF-18 (“plan”) submitted on October 17, 2019, and denied on October 25, 2019?
ii. Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by MediAssess Evaluations in a treatment plan submitted on December 2, 2019, and denied on December 6, 2019?
iii. Is the applicant entitled to $5,981.00 for physiotherapy treatment, proposed by Dynamic Rehabilitation Group in a treatment plan submitted on June 24, 2019, and denied on October 25, 2021?
iv. Is the applicant entitled to $11,188.00 for physiotherapy treatment, proposed by Dynamic Rehabilitation Group in a treatment plan submitted on January 13, 2021, and denied on August 23, 2021?
v. Is the applicant entitled to $10,965.00 for assistive devices, proposed by Dynamic Rehabilitation Group in a treatment plan submitted on June 3, 2021, and denied on August 23, 2021?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to a neurological assessment, a chronic pain assessment, physiotherapy and assistive devices in the treatment plan listed in issue 3, nor the assistive devices in the treatment plan listed in issue 5.
4The applicant is entitled to physiotherapy in the treatment plan listed in issue 4 and interest.
ANALYSIS
5To 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.
Neurological assessment
6The applicant is not entitled to a neurological assessment.
7For an assessment, the applicant must show that it is reasonable and necessary to investigate a condition.
8The applicant submits that this neurological assessment is reasonable and necessary to determine if there was a neurological impairment affecting her activities of daily living and treatment recommendations. The applicant also submits that she was diagnosed with a traumatic brain injury and this further supports her entitlement to this assessment. Additionally, the applicant asserts that this assessment is needed to confirm her diagnosis for accident benefit (AB) purposes and to provide recommendations for AB treatment which is beyond the scope of an OHIP neurological report.
9The respondent submits that the applicant has undergone numerous OHIP funded neurological assessments since the accident. She was assessed by Dr. Neilank Jha, neurosurgeon, in June 2019 and underwent two other neurological assessments. According to the respondent, the Applicant has not explained why another neurological assessment is required.
10Part 9 of the Treatment and Assessment Plan (OCF-18) lists the following goals of the assessment:
pain reduction;
return to the activities of normal living;
determination of any accident-related neurological impairment;
obtain guidance on multidisciplinary care.
11The OHIP funded assessment of Dr. Neilank Jha, neurologist, dated June 19, 2019, states that the applicant sustained a traumatic brain injury with progression to post-concussive symptoms. He lists numerous limitations related to her vision, cognitive function, emotions, sleep, and others. He also makes extensive treatment recommendations that include, but are not limited to occupational therapy, physiotherapy, diet, supplements, and home care.
12Dr. Jha’s assessment fulfills the goals of the OCF-18. His assessment is quite detailed and provides numerous treatment and lifestyle recommendations that the applicant can pursue for her rehabilitation. The applicant has not explained why Dr. Jha’s diagnosis and treatment recommendations are not suitable for the purpose of obtaining accident benefits. In light of this, I find that the applicant has not established that this treatment plan is reasonable and necessary.
Chronic pain assessment
13The applicant is not entitled to a chronic pain assessment.
14The applicant submits that the purpose of the chronic pain assessment is to investigate if her pre-existing chronic pain was impacted by the accident and to provide treatment recommendations. According to the applicant, these two goals make this treatment plan reasonable and necessary.
15The respondent submits that the applicant’s pain has been thoroughly assessed by OHIP funded doctors and that the applicant has not established that this chronic pain assessment is reasonable and necessary.
16The OCF-18 identifies these goals:
pain reduction;
The goal of the Chronic pain Assessment is to evaluate the extent of the patient's injuries;
return to activities of normal living;
To get guidance on multidisciplinary care.
17The comments section of the OCF-18 also states that the “purpose of a Chronic Pain assessment is to establish the current diagnosis(es), extent of the injuries, prognoses and recommendations for recovery.”
18The respondent cites three reports which it asserts fulfill the goals of the disputed treatment plan. These reports are summarized as follows:
Dr. Jha conducted a follow-up assessment on March 29, 2021 and issued a report that same day. He reviewed two MRI reports and the Assessment and Plan of neurologist Dr. Hussain with the applicant. He then proceeds to make treatment recommendations.
The report of Dr. Vincenzo Basile, neurologist, dated 10 December 2019. This report reviews her pre-accident medical history which includes fibromyalgia “at baseline with dizziness,” anxiety, and sleep apnea. He notes that she currently suffers from neck pain with radicular symptoms down the left arm and lower back pain with radiation into the left leg and has memory and concentration issues as a result of the accident. He also notes that her cognitive impairments are “features of postconcussive syndrome.” He conducted a physical examination, and an electrodiagnostic study of her nerve conduction. The results of the electrodiagnostic study were in keeping with radiculopathy on the left side of her neck. He also reviewed three MRI scans, including a scan from 2016 which indicates that he had mild to moderate central canal stenosis prior to the accident. He subsequently provides his impression of the applicant’s pain symptoms, including the pain caused by the accident, and makes extensive treatment recommendations.
A report from the Pain Clinic, dated January 28, 2020, by Dr. Dima Rozen. The applicant’s pain symptoms, background, and medical history are described. He provides details of a brief physical examination and advises that he can provide epidural steroid injections.
19I agree that these three reports by OHIP funded doctors have already fulfilled the goals of the treatment plan. In particular, the report of Dr. Basile identified and extensively assessed the applicant’s accident related injuries and made detailed treatment recommendations. For these reasons, I find that the chronic pain assessment is duplicative, and therefore, not reasonable and necessary.
Physiotherapy
20The applicant is entitled to physiotherapy in the treatment plan listed as issue 4. She is not entitled to physiotherapy and the assistive devices in the treatment plan listed as issue 3.
21Issue 4 is a treatment plan for physiotherapy in the amount $11,188.00. The applicant notes medical reports that document the accident exacerbated her pre-existing neck and back pain and recommend physiotherapy treatment. She also asserts that the respondent’s denial was based on the IE Addendum Report of Dr. Soric, physiatrist, dated September 17, 2021, which agreed that her fibromyalgia symptoms worsened after the accident, but concluded that her soft tissue injuries had healed and that no physiotherapy was required. In her view, this position is flawed and more weight should be given to the reports that recommend physiotherapy.
22The respondent submits that the applicant has not pointed to any medical evidence that justifies physiotherapy, let alone the large number of sessions of physiotherapy in this treatment plan. According to the respondent, the applicant has not met her burden of establishing that physiotherapy is reasonable and necessary.
23The applicant cites the Chronic Pain Assessment Report of Dr. Karmy, dated March 8, 2021 which recommends physiotherapy. She also cites the letter by Dr. Karen Dobkin, her family doctor, dated October 3, 2021 which specifically recommends this treatment plan for physiotherapy. Additionally, I note that the respondent previously took me to the above mentioned reports of Dr. Basile, dated December 10, 2019, and Dr. Jha, dated March 29, 2021. Both neurological reports recommend physiotherapy.
24Dr. Soric physically examined the applicant and determined that her pain was non-radicular. This is a markedly different finding from the two neurologists, Dr. Basile and Dr. Jha, who identified radicular pain.
25Dr. Soric’s report shows that he was aware of the radicular pain diagnosis by the two neurologists. The report also notes a third radicular pain diagnosis attributed to the accident in a Progress Note by Dr. Dulara Hussain, neurologist, dated May 28, 2020. Dr. Soric disagrees with these findings but does not explain why. He merely says that the new information “does not compel me to change my opinion regarding her musculoskeletal injuries.”
26Neurologists have specialized training and expertise to diagnose pain caused by nerve damage such as radicular pain. The consensus among three neurologists is that the applicant sustained radicular pain as a result of the accident. Dr. Soric disagrees, but he provides no insight into why he has a different opinion. As such, I give more weight to the radicular pain findings of the three neurologists because of their expertise and specialized testing, such as Dr. Basile’s electrodiagnostic study that found radiculopathy in the applicant’s neck, are more persuasive than Dr. Soric’s unexplained differing opinion.
27As such, I further find that the recommendations for physiotherapy by Dr. Basile and Dr. Jha establish the applicant’s entitlement to the treatment plan for physiotherapy in issue 4.
28Issue 3 is a treatment plan for physiotherapy and assistive devices. The applicant makes no submissions on why two treatment plans for physiotherapy are reasonable and necessary. The applicant also makes no submissions on why she is entitled to the assistive devices. As such, the applicant has provided no basis for me to conclude that this treatment plan is reasonable and necessary.
Assistive devices
29The applicant is not entitled to assistive devices.
30The applicant submits that the respondent denied this plan in an explanation of benefits letter dated August 23, 2021 because of Dr. Soric’s report which states that the applicant required no further assistance despite the information in the OHIP records. Additionally, Dr. Dobkin, the applicant’s family doctor, recommended these assistive devices in a letter dated October 3, 2021. Consequently, the applicant submits that she is entitled to this treatment plan.
31The respondent submits that the applicant has failed to justify any of the 47 assistive devices recommended in the treatment plan. The respondent further submits that the question of whether Dr. Soric properly assessed the treatment plan is irrelevant because the applicant has met her onus in justifying it.
32I have reviewed the explanation of benefits letter cited by the applicant. The letter does not cite Dr. Soric’s report. Instead, the adjuster determined that the goods requested in the treatment plan are “not as a result of your accident-related impairments” and an IE was scheduled.
33The October 3, 2021 letter of Dr. Dobkin states that she is in agreement that the applicant will benefit from the devices. This brief statement provides no explanation or insight into how these devices will benefit the applicant. In my view, Dr. Dobkin’s statement lacks the sufficient detail that is needed to find that this treatment plan is reasonable and necessary.
Interest
34The applicant is entitled to interest pursuant to s. 51 of the Schedule for the treatment plan for physiotherapy in issue 4.
ORDER
35The applicant is not entitled to a neurological assessment, a chronic pain assessment, physiotherapy and assistive devices in the treatment plan listed as issue 3, nor the assistive devices in the treatment plan listed as issue 5.
36The applicant is entitled to physiotherapy in the treatment plan listed as issue 4 and interest.
Released: April 12, 2024
Harry Adamidis
Adjudicator