Citation: Al-Baik v. Security National Insurance Company, 2024 ONLAT 21-015634/AABS

Licence Appeal Tribunal File Number: 21-015634/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:

Yasmin Al-Baik

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR:

Harry Adamidis

APPEARANCES:

For the Applicant:

Yasmin Al-Baik, Applicant Alex Nikolaev, Counsel

For the Respondent:

Jonathan White, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Yasmin Al-Baik, the applicant, was involved in an automobile accident on February 9, 2020, 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.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to $3,696.50 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 submitted to the insurer on July 24, 2020 and denied on July 29, 2020?

ii. Is the applicant entitled to $1,258.78 for physiotherapy services, proposed by Bristol Rehab and Medical Clinic in a treatment plan/OCF-18 submitted to the insurer on December 2, 2020 and denied on December 15, 2020?

iii. Is the applicant entitled to $3,878.00 for physiotherapy services, proposed by Mississauga Active Physiotherapy Services in a treatment plan/OCF-18 submitted to the insurer on January 12, 2021 and denied on January 22, 2021?

iv. Is the applicant entitled to $2,774.60 for physiotherapy services, proposed by Mississauga Active Physiotherapy in a treatment plan/OCF- 18 submitted to the insurer on May 18, 2021 and denied on June 1, 2021?

v. Is the applicant entitled to $2,554.40 for an orthopaedic assessment, proposed by Excell Medical Diagnostics submitted to the insurer on August 9, 2021 and denied on September 8, 2021?

vi. Is the applicant entitled to $2,200.00 for an occupational therapy assessment, proposed by Iscope Concussion and Pain Centres in a treatment plan/OCF-18 submitted to the insurer on August 9, 2021 and denied on August 19, 2021?

vii. Is the applicant entitled to $2,140.23 for physiotherapy services, proposed by Iscope Concussion and Pain Centres submitted to the insurer on August 9, 2021 and denied on August 19, 2021?

viii. Is the applicant entitled to $2,813.60 for physiotherapy services, proposed by Mississauga Active Physiotherapy in a treatment plan/OCF-18 submitted to the insurer on November 9, 2021 and denied on November 19, 2021?

ix. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Mississauga Active Physiotherapy in a treatment plan/OCF-18 submitted to the insurer on November 29, 2021 and denied on December 14, 2021?

x. 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?

xi. Is the applicant entitled to interest on any overdue payment of benefits?

3The case conference order incorrectly lists issue 5 as “psychological services.” This was corrected above to reflect that the actual proposed treatment is an orthopedic assessment.

RESULT

4The applicant is not entitled to any of the physiotherapy treatment plans, an occupational therapy assessment, nor an award.

5The applicant is entitled to the orthopaedic and psychological assessments plus interest.

ANALYSIS

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.

Physiotherapy

7The applicant is not entitled to six treatment plans for physiotherapy.

8The applicant submits that recommendations from health care providers support her assertion that physiotherapy is reasonable and necessary. In the alternative, the applicant submits that she is entitled to payment for the plans because no medical reasons are given in the denials as required by s. 38(8) of the Schedule.

9The respondent relies on insurer examinations (IEs) which found that physiotherapy is not reasonable and necessary. The respondent also submits that it denied plans for physiotherapy for various reasons including an incomplete Application for Accident Benefits (OCF-1), insufficient medical information requiring IEs to be scheduled, and completed IEs that did not support the plans. The respondent asserts that these denials complied with s. 38(8) of the Schedule.

10As the applicant argues that the respondent’s denials were noncompliant, I must analyze this first as a favourable ruling may lead to the consequences found in s. 38(11) of the Schedule, without requiring a reasonableness/necessity evaluation.

The respondent’s denials are compliant with s. 38 of the Schedule

11The applicant also argues that she is entitled to payment for physiotherapy because no medical reasons were provided in the denials as required by s. 38(8) of the Schedule.

12The respondent issued a letter for issue 1 on July 29, 2020 which explains that this treatment plan cannot be processed because the applicant had not yet completed an Application for Accident Benefits (OCF-1). Section 32 of the Schedule requires a person who is applying for benefits to complete an OCF-1. As this is a statutory requirement, I find that not completing an OCF-1 constitutes a valid reason for not processing the treatment plan. In reply, the applicant submits that the respondent has had a completed OCF-1 for three years, but has not taken any further action on this plan. However, the applicant has not put the new OCF-1 in evidence, nor referred to any evidence to support her position. As such, there is no evidentiary basis for me to find that s. 38(8) of the Schedule applies to issue 1.

13The denial letters for issue 2, dated July 15, 2021; issue 7, dated August 19, 2021; and issue 8, dated November 19, 2021, indicate that these treatment plans for physiotherapy were denied based on the findings in the IE by Dr. Rabinovitch, MD. She found that the applicant sustained sprain and strain injuries in her spine and that these injuries were treatable within the Minor Injury Guideline. As such, I find that medical reasons were provided for these denials.

14The denial letters for issue 3, dated January 22, 2021, and issue 4, dated June 1, 2021, indicate that the applicant’s Treatment Application Form (OCF-23), dated March 11, 2020 shows that the applicant has sprain and strain injuries that are treatable within the MIG. To further look into the situation, the respondent arranged for insurer examinations. In my view, the respondent provided reasons to, as it is the case here, initially deny entitlement to a proposed treatment plan and arrange for IEs.

15Having reviewed the respondent’s letters, I find that the denials comply with section 38(8) of the Schedule and the applicant has not satisfied me that any payment is owing for these plans as a result of any noncompliance. I now turn to whether the treatment plans are reasonable and necessary.

The physiotherapy treatment plans are not reasonable and necessary

16The applicant points to recommendations for physiotherapy and submits that this evidence supports her entitlement to all six treatment plans for physiotherapy.

17The IE of Dr. Deborah Rabinovitch, physiatrist, is dated May 1, 2021. She diagnosed the applicant with sprain and strain injuries that fall within the Minor Injury Guideline (MIG). I note that the applicant was subsequently removed from the MIG based on her psychological impairments.

18The s. 25 report of Dr. Tajedin Getahun, orthopaedic surgeon, dated October 26, 2021 diagnoses the applicant with chronic pain and recommends physiotherapy. Dr. Getahun notes that the applicant developed psychosocial sequelae after the accident, but does not directly link these symptoms to the applicant’s pain. He also describes the nature of the applicant’s impairments as “restricted range of motion of the spine with evidence of nonverifiable radicular symptomatology.”

19Dr. Getahun’s chronic pain diagnosis was made without the benefit of a neurological and psychological assessment. This is significant because his diagnosis was made without knowing how the applicant’s neurological and psychological conditions impact her experience pain.

20In the IE by Dr. Nagib Yahmad, neurologist, dated June 5, 2023, the applicant reported that she continues to experience pain more than three years after the accident. Dr. Yahmad noted that there was no objective evidence of myelopathy, plexopathy, active ongoing radiculopathy or neuropathy. He also noted that there was weakness throughout the upper and lower extremities, but this weakness could not be explained on a neurological basis. Dr. Yahmad concluded that the applicant exhibited pain-focused behaviour but there was no neurological impairment causing that pain.

21Dr. Getahun attributed the applicant’s pain to “radicular symptomology” that he could not verify. As noted above, a subsequent neurological examination confirms that the applicant does not suffer from radiculopathy. This seriously undermines Dr. Getahun’s chronic pain finding. Consequently, I give little weight to his chronic pain diagnosis.

22The applicant’s pain focused behaviour is better explained by Dr. Debra Mandel, psychologist, who completed an IE dated July 29, 2022. She diagnosed the applicant with a somatic symptom disorder, predominant pain as well as specific phobia (vehicular). The severity of the applicant’s symptoms also led to a finding that she suffers a substantial inability to perform the essential tasks of her pre-accident employment.

23Dr. Fahimeh Aghamohseni, psychologist, issued a Psychological Assessment Report dated March 3, 2022 for the applicant. She also diagnoses the applicant with a somatic pain disorder, along with major depressive disorder and specific phobia, vehicular.

24The applicant cites the following passage from Dr. Aghamohseni’s report:

…physical, psychological, and behavioural sequelae continue to have a negative effect on various aspects of Ms. Al-Baik’s daily life, including mental health, physical activity, household, personal care, family relationships, and engagement in social and meaningful life activities.

25According to the applicant, this citation supports the conclusion that her injuries must be treated wholistically with both physical and psychological treatment.

26I disagree. This report only recommends psychological treatment. Dr. Aghamohseni does not recommend physiotherapy, or any other type of physical therapy. Additionally, she lists her qualifications at the start of the report. She is a psychologist and has no qualifications to diagnose and recommend treatment for physical impairments. Consequently, I find that this report does not support the treatment plans for physiotherapy.

27I have found that Dr. Getahun’s chronic pain diagnosis cannot be relied upon. Consequently I also find, on a balance of probabilities, that the applicant has not established that she has chronic pain. While the evidence does show that she has a somatic pain disorder that was diagnosed by two psychologists, the applicant has not persuaded me that physiotherapy can be used to treat a psychological condition. In particular, I have found that Dr. Aghamohseni’s report does not support the use of physiotherapy to treat her somatic pain disorder. For these reasons, I find that the treatment plans for physiotherapy are not reasonable and necessary.

Orthopaedic assessment

28The applicant is entitled to an orthopaedic assessment.

29For an assessment to be reasonable and necessary, the applicant must show that there is persuasive medical evidence to warrant an investigation into the existence of a condition.

30The applicant submits that the respondent obtained its own physiatry report and fairness dictates that she should be entitled to her own report as well. She further submits that the respondent’s psychologist found that the applicant suffers from a somatic symptom disorder. Consequently, it was reasonable for her to obtain an orthopaedic assessment to explore her pain disorder. The assessment was also reasonable because the applicant’s family doctor noted functional limitations and chronic pain.

31The respondent argues that the orthopaedic assessment is not payable because Dr. Getahun’s chronic pain assessment is deeply flawed. It also submits that the clinical notes of the applicant’s family doctor show that she reported chronic neck and back pain before and after the accident. Given these circumstances, the respondent asserts that the applicant has failed to prove that her soft-tissue neck and back injuries required an orthopaedic assessment. As such, she is not entitled to the treatment plan.

32There is no dispute among the parties that applicant had pain issues before the accident. The parties also agree that the applicant’s accident-related injuries also caused her to experience pain.

33The respondent agrees that the accident caused the applicant to develop a somatic pain disorder and functional limitations related to that disorder. This is demonstrated by the respondent approving an IRB and attendant care because of the serious impact of the functional limitations caused by the accident have had on her life.

34The applicant was experiencing accident related pain at the time she incurred this assessment. In my view, it was reasonable for her to seek an orthopaedic assessment to better understand what was causing her pain. Ultimately, this was the wrong type of assessment, but there was no way she could have known this because she had not yet been diagnosed with a somatic pain disorder. For these reasons, I find that she is entitled to this orthopaedic assessment.

Occupational therapy assessment

35The applicant submits that this assessment is reasonable and necessary in light of the respondent’s recent approval of attendant care benefits because this assessment will assist in evaluating her ongoing attendant care needs.

36The respondent argues that the applicant sustained soft tissue injuries in the accident and that this type of injury is not enough to establish that this treatment plan is reasonable and necessary.

37The applicant has only put into evidence the last two pages of the treatment plan in Tab 7 of her disclosure. The comments section states that the assessment is meant to better understand the applicant’s level of functioning and enable “recommendations to be formulated to maximize their functional restoration.” There is no mention evaluating the applicant’s attendant care needs.

38The applicant has not shown, as she asserts in her submissions, that there is a link between the treatment plan and her attendant care needs. Consequently, she has not satisfied me that this assessment is reasonable and necessary.

Psychological assessment

39The applicant is entitled to a psychological assessment.

40The applicant submits that she is entitled to a psychological assessment because the respondent’s psychological assessment confirmed the same mental health diagnosis. She also submits that other health care providers recommended psychological treatment and that she could not have accessed psychological treatment without this assessment.

41The respondent submits that this plan was denied because it duplicates the previously approved services provided in the psychological assessment of Dr. Sharleen McDowall, psychologist.

42In reply, the applicant submits that she was not assessed by Dr. McDowall and no report was produced. Thus, according to the applicant, this treatment plan is not duplicative.

43The respondent’s explanation of benefits, dated August 11, 2022, denied the treatment plan in dispute. In a different explanation of benefits form, also dated August 11, 2022, the respondent approved the treatment plan for the psychological assessment by Dr. McDowall.

44The respondent had two treatment plans for psychological assessments. On the same day, it decided to deny the assessment incurred by the applicant and to approve the assessment which had not been incurred. The explanation of benefits letters provide no insight into why the respondent chose to approve the un-incurred treatment plan over the incurred plan.

45The parties agree that the applicant has a psychological impairment caused by the accident and that a psychological assessment to investigate this condition is reasonable and necessary. Additionally, Dr. McDowall did not assess the applicant and no duplication of services has not occurred. For these reasons, I find that the applicant is entitled to this treatment plan.

Interest

46The applicant is entitled to interest pursuant to s. 51 of the Schedule for the orthopaedic and psychological assessments.

Award

47Under s. 10 of Reg. 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.

48The applicant made no submissions on why the respondent is liable to pay an award. Consequently, I find that no award is payable.

ORDER

49The applicant is not entitled to the six treatment plans for physiotherapy, an occupational therapy assessment, nor an award.

50The applicant is entitled to orthopaedic and psychological assessments plus interest.