Licence Appeal Tribunal File Number: 22-003976/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:
Izzat Kassam
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Hande Bilhan
APPEARANCES:
For the Applicant: Izzat Kassam, Applicant Derek L Smith, Counsel
For the Respondent: Allstate Insurance Company of Canada Brittanny K Tinslay, Counsel
HEARD: By way of written submissions
OVERVIEW
1Izzat Kassam, the applicant, was involved in an automobile accident on October 21, 2017, 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, Allstate Insurance Company of 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 $2,103.34 for physiotherapy services, proposed by Good Physiotherapy in an OCF-18/treatment plan dated January 8, 2021?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the physiotherapy services in dispute.
4As treatments in dispute are not owing, the applicant is not entitled to interest.
ANALYSIS
5Under s. 15 and 16 of the Schedule, to receive payment for a treatment and assessment plan 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.
6I find that the applicant has not met her onus to prove that the services in the remaining OCF-18 are reasonable and necessary, given that no demonstrable progress has been achieved despite many years of various treatments approved and paid for by the respondent.
7As she has not met her onus to prove that the services are reasonable and necessary, the applicant is not entitled to the physiotherapy services in dispute.
Physiotherapy Services
8The Applicant submits that, as a result of the injuries sustained in the accident, the additional physiotherapy treatment she seeks is reasonable and necessary, and that she is entitled to the benefit claimed, as well as interest on the overdue benefit, pursuant to the Schedule.
9The applicant relies on the evidence contained in medical reports and records of the family doctor Dr. Elissa Weinberg, physiatrist Dr. Zeeshan Waseem, the psychologist Dr. R.S. Miller, and the treatment plan provided by her physiotherapist. She notes that all of the above providers have recommended ongoing physiotherapy.
10The applicant submits that the medical opinion of Dr. Zarnett, the orthopedic surgeon who provided the last insurer examination, is an outlier from the other medical opinions noted. In response to the respondent’s submission that the goals in the disputed OCF-18 are not achievable, the applicant argues that pain relief can be a legitimate goal of treatment under the Schedule.
11The respondent maintains that the applicant sustained soft tissue injuries as a result of the motor vehicle accident on October 21, 2017, and subsequently developed psychological issues which resulted in her being removed from the minor injury guideline (“MIG”).
12They further submit that the applicant has disputed various issues before the Tribunal since the accident and has been approved for various treatments in the past, including some that were resolved as part of the current Tribunal application.
13The respondent submits that the goals for treatment to date have not been met to a reasonable degree and that the treatment plan in dispute is not reasonable and necessary. They rely on various post accident medical reports, the applicant’s own statements that she has not found relief/improvement as a result of past treatments, as well as the orthopedic assessment reports of Dr. Dessouki and Dr. Zarnett, along with a paper review addendum report of the latter doctor.
14I am guided by the three-part test for determining if a treatment plan is reasonable and necessary, as outlined in a decision of the Financial Services Commission of Ontario (“FSCO”), Jennifer Esterreicher and Non-Marine Underwriters, Mbrs. of Lloyds, FSCO A04-001750, December 18, 2008:
i. The treatment goals, as identified, are reasonable;
ii. The goals are being met to a reasonable degree; and
iii. The overall costs [not just financial, but also investment of time, etc.] of achieving these goals is reasonable taking into consideration both the degree of success and the availability of other treatment.
15The disputed treatment plan dated January 8, 2021, for physiotherapy treatment lists the following goals: pain reduction, increased range of motion, increase in strength, improved balance, ambulation, joint stability, return to activities of normal living, and return to pre-accident work activities. I note that same or similar goals have been identified in multiple treatment plans since 2018 and the goals do not appear to have been achieved to a reasonable degree.
16The applicant submits that her family physician has referred her for further physiotherapy. While I see the recommendation, I note that her family physician also noted on several occasions, that the treatments were not leading to desired outcomes for the applicant.
17The applicant also submits that physiotherapy was recommended by her psychologist. I do not put weight on this recommendation as physiotherapy does not fall into the area of expertise of a psychologist.
18The applicant submits that she was seeking therapy in part to assist with her function. As one of the proof points, the applicant offers the Driver Rehabilitation Assessment Report completed by Marjorie Green, occupational therapist. However, this assessment was conducted in January 2022, an entire year after the plan for physiotherapy was submitted. I further note that the same report found that her muscle tension from anxiety was exacerbating her symptoms. Therefore, it is unclear that further physiotherapy treatments would address her stated medical goal of improving function. I do not put weight on this report as reason for proposing the disputed physiotherapy plan.
19While I find the report of Dr. Waseem comprehensive, I do not agree with his view that previous treatments have achieved their goals nor that further progress can be achieved. In fact, the applicant herself is on record stating the opposite in several medical reports.
20The current plan in dispute additionally identifies the following as barriers to the treatment goals:
i. Multiple areas of injury
ii. Severity of injuries
iii. Lumbar herniated disk injury with radiculopathy
iv. Recovering right knee, medial meniscus injury
v. Psych/depressive issues
vi. Pre-existing conditions (daughter passed away in 2013)
21The plan makes the following recommendations to overcome these barriers to the treatment goals: regular physiotherapy, registered massage therapy, follow- ups with family doctor, with specialists and psychological counseling.
22It is unclear how the disputed physiotherapy plan will accomplish the stated treatment goals or be helpful in overcoming the barriers to the overall treatment goals.
23The applicant was removed from the MIG as a result of psychological issues that she developed, and she was approved for various treatment plans subsequently. In 2019 she was approved for another physiotherapy treatment plan to attempt to help her reach her treatment goals.
24Dr. Rick Zarnett conducted a further s. 44 orthopedic assessment. In his report issued on July 8, 2021, he found that the applicant sustained uncomplicated myofascial strains to the cervical and thoracolumbar spine and possible contusion to both knees. Dr. Zarnett found that there were no objective reproducible abnormalities to substantiate the applicant’s complaints. His view was that the applicant had reached maximum medical improvement.
25I do not find that the applicant’s evidence establishes that the disputed physiotherapy treatment is reasonable and necessary. I am not convinced that further physiotherapy will help the applicant meet her medical goals as outlined in the OCF-18 to a reasonable degree and that the overall costs (not just financial, but also investment of time, etc.,) of achieving them are reasonable.
23The applicant is not entitled to the physiotherapy services in dispute.
Interest
24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As treatments in dispute are not owing, the applicant is not entitled to interest.
ORDER
25I find that the applicant has not met her onus to prove that the services in the remaining OCF-18 are reasonable and necessary and therefore:
i. The applicant is not entitled to the physiotherapy services in dispute.
ii. As treatments in dispute are not owing, the applicant is not entitled to interest.
Released: June 19, 2024
Hande Bilhan
Adjudicator