Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-002740/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:
Margherita Scioli
Applicant
and
TD Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Michael Beauchesne
APPEARANCES:
For the Applicant:
Jane Conte, Counsel
For the Respondent:
Alanna Pink, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Margherita Scioli (the “applicant”) was involved in an automobile accident on August 30, 2018, 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 TD Home and Auto Insurance Company (the “respondent”) 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 physiotherapy services proposed by the Vaughan Wellness Clinic as follows:
i. $2,206.91 in a treatment plan (the “OCF-18”) submitted on September 17, 2021, and denied on September 29, 2021; and
ii. $1,469.14 in an OCF-18 submitted on August 26, 2022, and denied on August 30, 2022?
ii. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the OCF-18s at issue; therefore, no interest or award is payable.
PROCEDURAL ISSUES
4The applicant’s submissions briefly speak to the reasonableness and necessity of OCF-18s that pertain to assessment care needs and a driver evaluation. I find these issues are not properly before the Tribunal, and therefore do not address them in this decision. There are no issues pertaining to OCF-18s for assessment care or driver evaluation listed in the application on file, dated March 2, 2022. The case conference report and order for his matter, released on February 1, 2023, does not reflect the parties’ agreement that these issues are in dispute. There were no motions filed with the Tribunal to add these OCF-18s as issues in dispute, and the respondent’s submissions do not address these OCF-18s.
ANALYSIS
The applicant’s entitlement to the disputed OCF-18s
5I find the applicant has failed to show the OCF-18s in dispute are reasonable and necessary.
6To receive payment for a treatment and assessment plan under sections 15 and 16 of the Schedule, the applicant must show, 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 the proposed OCF-18s for physiotherapy are reasonable and necessary because they will allow her to “focus on her physical limitations,” which have made it difficult to complete her employment duties and household chores. She says the treatment proposed in the OCF-18s will help her in her recovery process and, at the very least, allow her to manage her severe symptoms. The applicant claims she has been advised by multiple treating physicians that physiotherapy services are needed, and that records from her treatment providers indicate she was seeing some improvement to her overall condition and pain management. The applicant relies on the clinical notes and records of Mackenzie Health Richmond Hill Hospital, Bluewater Imaging, Dr. Doriana Parkin (family physician), the Vaughan Wellness Clinic, Dr. Farooq Ismail (physiatrist), Dr. Rakesh Jetly (psychiatrist), and Dr. Zeeshan Waseem (physiatrist).
8The respondent’s submissions argue that continued facility-based treatment will provide no further benefit to the applicant’s pain or recovery. The respondent says that updated medical records after March 2021 do not show the applicant has improved or gained any significant pain relief from previous treatment, adding that the applicant has not reported any improvements and, in fact, has reported worsening symptoms, in the almost five years that have passed since the accident. The respondent relies on the section 44 insurer’s examinations (the “IEs) of Dr. Andrzej Gwardjan (physiatrist) and Dr. Nagib Yahmad (neurologist).
9I find the applicant did not produce sufficient medical evidence to persuade me that her left elbow pain or function requires physiotherapy to improve. The bulk of the applicant’s submissions focus on left elbow pain, and she points to an ultrasound of her left elbow completed by Bluewater Imaging on February 11, 2020, that confirms she had suffered a mild deep ulnar ligament sprain. The applicant also produced a Mackenzie Health MRI dated July 18, 2022, that shows a partial thickness tear of a left elbow tendon that potentially involves a second tendon in her left elbow.
10However, the post-MRI consultation with Dr. Ismail on July 21, 2022, recommends only that the applicant treat her left-elbow injury by wearing a tensor bandage for three months—no recommendation for physiotherapy is offered. Further, the applicant’s submissions do not point to any physiotherapy recommendations offered by Dr. Waseem in his section 25 report of March 20, 2023. Rather, the applicant contends that Dr. Waseem believed “some improvement with treatment is possible,” and I was not pointed to evidence that confirms Dr. Waseem was, in fact, referring to the treatment proposed in the OCF-18s.
11While I accept that short-term pain relief is a valid medical care goal as argued by the applicant in her submissions and reply, I agree with the respondent that there is insufficient evidence to show the applicant’s pain benefits from physiotherapy treatment. The records of the Vaughan Wellness Clinic, as referenced by the applicant, show her left arm pain was only slightly better by February 28, 2019, and she did not point me to any further evidence in these treatment records—up to November 2020 when her sessions reportedly ended—that demonstrated even a modest pain improvement from physiotherapy.
12This is corroborated by Dr. Waseem’s report, which notes the applicant’s overall symptoms persisted over four years despite appropriate conservative measures, and that her recovery will probably be refractory to medical management. Dr. Gwardjan voiced a similar opinion in his addendum reports (dated December 9, 2021, and October 3, 2022) to the physical examination report he completed on June 9, 2021, which say that given the nature of the injuries sustained, time elapsed since the accident, physical findings, and response to prior rehabilitation interventions, the request for additional physical rehabilitation is not reasonable and necessary in relation to any physical injury sustained at the time of the accident. In my view, the opinions of Drs. Waseem and Gwardjan do not support a need for physiotherapy to treat the applicant’s injuries and pain.
13The applicant’s reply indicates that Dr. Gwardjan failed to consider certain evidence, including Dr. Parkin’s notes, the records of Mackenzie Health, the applicant’s December 2020 ultrasound, and the extensive medical history of treatment sought for left elbow injuries. However, I prefer Dr. Gwardjan’s reports to the other evidence before me because they are the only reports that directly assessed the reasonableness and necessity of the OCF-18s at issue from a physiatry perspective. And I find it compelling that the reports of two different physiatrists—one who performed an examination on behalf of the applicant and the other on behalf of the respondent—arrive at similar findings that, on balance, essentially tell me physiotherapy is unlikely to produce any further benefit.
14This is further corroborated by the report of Dr. Yahmad, dated December 9, 2021, which concludes that additional facility-based treatment proposing similar care would not be expected to provide further therapeutic benefit from a physical neurological perspective. In fact, Dr. Gwardjan proposes an alternate form of treatment, and notes in his addendum reports that the applicant is fully capable of engaging in an independent active exercise program without requiring formal supervision as there is no additional risk of harm in the absence of residual impairment. The applicant’s submissions did not address this recommendation and I see no reason, on the face of the evidence before me, to disagree.
15This leaves only Dr. Parkin’s initial recommendation for physiotherapy from September 2018, and neither the applicant’s submissions, nor her reply, direct me to evidence of any further recommendations from Dr. Parkin to show she continued to recommend physiotherapy.
16In terms of the consultation with Dr. Jetly on February 7, 2023, the applicant’s submissions emphasize that she is diagnosed with somatic symptom disorder, that her chronic pain, concussion, and disability resulted from the accident, and that this represents a loss of pre-accident function leading to grieving and depression. She adds that the reasonableness and necessity of the treatment proposed in the OCF-18s is underscored by the improvements to her psychological well-being that would result from addressing her physical limitations.
17The respondent argues that Dr. Jetly’s references to chronic pain are not within the scope of practice for psychiatrists, and that the OCF-18s are solely related to physical impairments. The respondent adds that the purpose of Dr. Jetly’s report relates to the mental health of the applicant and therefore should not be given consideration in the context of OCF-18s for physical treatment.
18I find Dr. Jetly’s evidence provides limited value to assess the reasonableness and necessity of the OCF-18s at issue. It is not clear to me how Dr. Jetly’s report is relevant because the applicant’s submissions do not identify mental health improvements relating to her psychological diagnosis as a treatment goal of the OCF-18s, nor do her submissions point to evidence that convinces me Dr. Jetly was referring to the OCF-18s when he noted that treatment will improve her condition. As such, I did not place much weight on this aspect of the applicant’s argument.
19In conclusion, I accept the applicant sustained injuries in the accident that continue to cause her pain. However, the compelling medical evidence before me is in consensus that further facility-based physical treatment is unlikely to provide any further benefit. On balance, I am not convinced the applicant has shown she is entitled to these OCF-18 because she has not demonstrated they are reasonable and necessary.
Interest
20There are no benefits owing, so no interest is payable pursuant to section 51 of the Schedule.
Award
21Under section 10 of Regulation 664, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. In this case, there are no benefits payable, so the respondent is not liable to pay an award.
ORDER
22The applicant is not entitled to the OCF-18s at issue; therefore, no interest or award is payable. The application is dismissed.
Released: January 22, 2024
Michael Beauchesne
Adjudicator