Licence Appeal Tribunal File Number: 22-008190/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:
Sydney Patricio
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Ryan Jeffries, Paralegal
For the Respondent:
Michael Rattray, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Sydney Patricio, the applicant, was involved in an automobile accident on February 5, 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, Security National Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
Dispute regarding the amounts listed in issue (i) of the case conference Order dated March 14, 2023
2The respondent disagrees in its submissions regarding the amount in dispute listed in issue (i) from the case conference Order dated March 14, 2023, regarding an invoice dated May 5, 2021, in the amount of $672.00 from Physiomed Yorkdale.
3The applicant makes no submissions regarding issue (i) as listed in the case conference Order dated March 14, 2023. The applicant does not disagree with the respondent in his reply.
4The respondent submits that by correspondence dated May 21, 2021 to the applicant it partially approved an amount of $562.00 of the $672.00 invoice dated May 5, 2021 from Physiomed Yorkdale. The respondent further submits that by correspondence dated May 22, 2021, it denied the full amount of $672.00 and therefore, the amount listed in issue (i) in the case conference Order dated March 14, 2023 is incorrect.
5I find that the correct amount in dispute in issue (i) is $672.00 for an invoice dated May 5, 2021, from Physiomed Yorkdale and not as listed in the case conference Order dated March 14, 2023.
Dispute regarding the amounts listed in issue (ii) of the case conference Order dated March 14, 2023
6The parties disagree in their submissions regarding the amounts in dispute listed in issue (ii) from the case conference Order dated March 14, 2023, regarding a treatment plan (“plan”) dated May 13, 2021, in the amount of $25,718.80 for catastrophic assessments, submitted by Omega Medical Associates Ltd.
7The applicant submits that issue (ii) involves a plan dated May 13, 2021 of Omega Medical Associates Ltd.in the amount of $25,718.80 for catastrophic assessments including comprehensive file review, ENT assessment, hearing test, vestibular testing, mental/behavioural assessment, psychometry testing, OT ADL and community assessment, OT situational assessment, physiatry assessment, neurology assessment, gastrointestinal assessment, psychology assessment, executive summary, OCF-18 completion, OCF-19 completion and PPE expenses.
8The parties agree that the respondent sent the applicant correspondence dated May 26, 2021, with a partial approval of the plan dated May 13, 2021, in the amount of $11,763.30, inclusive of HST, for the following assessments: psychiatry assessment, neurology assessment, gastrointestinal assessment, psychology assessment, executive summary, OCF-18 completion, OCF-19 completion and PPE expenses. The parties disagree that the amount of $13,955.50 remains in dispute over and above the $11,763.30 approved as listed in the $25,718.80 plan dated May 13, 2021, for Omega Medical Associates Ltd. after the partial approval dated May 26, 2021.
9The respondent submits that it sent the applicant further correspondence dated June 19, 2021, following an Insurer’s Examination (“IE”) with Dr. Michael Hanna with additional approvals in the amount of $7,345.00 inclusive of HST for the following assessments and testing: ENT assessment for $2,000; psychometry testing for $500, OT ADL and community assessment for $2,000; and OT situational assessment for $2,000. Therefore, the respondent submits that the amounts as listed under issue (ii) in the case conference report and Order dated March 14, 2023 are incorrect. The respondent submits that the correct amount in dispute for issue (ii) is $6,610.50 ($13,955.50 less $7,345.00 approved) for the plan dated May 13, 2021, from Omega Medical Associates Ltd.
10The applicant does not deny receiving the respondent’s correspondence dated June 19, 2021 in his reply.
11In the applicant’s reply, he agrees with the respondent that a comprehensive file review has been held not reasonable and necessary by the Tribunal. However, the applicant has not agreed to withdraw this assessment from the amount in dispute.
12I find that the correct amount in dispute under issue (ii) is whether the applicant is entitled to $6,610.50 over and above the $19,108.30 approved as listed in the $25,718.80 plan dated May 13, 2021, for Omega Medical Associates Ltd., and not as listed in the case conference Order dated March 14, 2023.
13Since I have found that the correct amount in dispute for issue (ii) is $6,610.50 ($25,718.80 less $19,108.30 approved) for a plan dated May 13, 2021, for Omega Medial Associates Ltd., I will only discuss the assessments and testing remaining in dispute including comprehensive file review for $2,000; hearing test for $350; vestibular testing for $1,500, and mental/behavioural assessment for $2,000, plus HST.
ISSUES
14The issues in dispute are:
i. Is the applicant entitled to $672.00 for chiropractic and massage treatments, proposed by Physiomed Yorkdale in an invoice/OCF-21 dated May 5, 2021?
ii. Is the applicant entitled to $6,610.50 ($25,718.80 less $19,108.30 approved) for a catastrophic impairment assessment, proposed by Omega Medical Associates Ltd. in a treatment plan/OCF-18 (“plan”) dated May 13, 2021?
iii. Is the applicant entitled to $102.40 ($3,180.00 less $3,077.60 approved) for physiotherapy, proposed by Physiomed Yorkdale in a plan dated September 14, 2021?
iv. Is the applicant entitled to $432.75 for other goods and services, proposed by Physiomed Yorkdale in an invoice/OCF-21 dated March 9, 2022?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
15The application is dismissed, and I find that the applicant is not entitled to the following:
a. The amount of $672.00 for an invoice dated May 5, 2021, from Physiomed Yorkdale;
b. Any expenses over and above the $19,108.30 approved listed in the $25,718.80 treatment plan dated May 13, 2021, from Omega Medical Associates Ltd.;
c. Any expenses over and above the $3,077.60 approved listed in the $3,180.00 treatment plan dated September 14, 2021, from Physiomed Yorkdale;
d. The amount of $432.75 for an invoice dated March 9, 2022, from Physiomed Yorkdale, and;
e. Interest in accordance with the Schedule for any overdue payments.
ANALYSIS
Is the applicant entitled to the May 5, 2021 and March 9, 2021 invoices from Physiomed Yorkdale?
16The applicant has made no submissions regarding the invoices from Physiomed Yorkdale, therefore he has not discharged his onus of proving on a balance of probabilities that the invoices are payable. I find that the applicant is not entitled to the amount of $672.00 for an invoice dated May 5, 2021 from Physiomed Yorkdale and the amount of $432.75 for the invoice dated March 9, 2022 from Physiomed Yorkdale.
Is the applicant entitled to expenses over and above the $19,108.30 approved listed in the $25,718.80 treatment plan dated May 13, 2021 from Omega Medical Associates Ltd.?
17The applicant is seeking payment in the sum of $2,000 for the following cost of examinations to determine whether the applicant has sustained a catastrophic impairment:
a. Comprehensive file review;
b. Mental/behavioural assessment.
18The applicant also seeks $350 for a hearing test and $1,500 for vestibular testing.
19The treatment plan was divided into different examinations and additional testing as part of a particular examination. The request for each examination is a request for a medical benefit on behalf of the applicant and the test for a medical benefit falls under the reasonable and necessary test. The reasonable and necessary test is outlined in s.15 of the Schedule.
20The applicant is seeking additional charges for a comprehensive file review, hearing and vestibular testing used as a part of the approved ENT assessment and mental/behavioural assessment in addition to the approved psychometry testing and psychological assessment.
21The onus is on the applicant to prove on a balance of probabilities that each of the examinations and additional testing within the treatment plan are reasonable and necessary and if so, whether the fee reasonable. I do not find that the examinations and additional testing listed in the treatment plan to be reasonable and necessary for the following reasons.
Is the applicant entitled to a comprehensive file review?
22The applicant has made no submissions regarding whether a comprehensive file review is reasonable and necessary. In his reply, the applicant agrees with the respondent that the Tribunal has found that a comprehensive file review is not reasonable and necessary. As a result, I do not find it to be a reasonable and necessary and it is therefore denied.
Is the applicant entitled to a hearing test and vestibular testing?
23The applicant submits that he requires vestibular testing to address his symptoms of vertigo, balance and dizziness. The applicant further submits that he requires a two-day assessment for vestibular testing separate from the approved ENT assessment to allow him to be well rested for the examination.
24The applicant relies on the ENT evaluation report dated January 22, 2022 completed by Dr. Lukas Kus, otolaryngologist. Dr. Kus indicates that he conducted a virtual assessment on October 20, 2022, together with hearing and vestibular testing at an in-person assessment on October 27, 2022. The in-person assessment and testing were performed on the same day. There is no explanation provided by Dr. Kus to explain the purpose of the virtual evaluation on a separate date. Dr. Kus does not indicate that the applicant needed to be well rested for the assessment and testing. Dr. Kus indicates that the prior audiogram results were not included in the medical documentation provided to the assessment centre. However, he did review the results of prior vestibular testing by Dr. Majestic Tam, otolaryngologist.
25The applicant submits that the hearing and vestibular testing is not part of the ENT assessment. The applicant has made no submissions to explain the reason for the additional charges for the hearing and vestibular testing or whether these are separate assessments. In addition, the applicant does not explain the reason to repeat the hearing test and vestibular testing which was completed in the previous year. The applicant has not provided a plausible explanation regarding the reason for additional charges for hearing and vestibular testing since the tests were conducted on the same day as the in-person assessment.
26The respondent relies on the IE report of Dr. Hanna in finding that the applicant already completed hearing and vestibular testing a year earlier and that these tests are part of the approved ENT assessment. The respondent further submits that there is no basis for the applicant’s assertion that the ENT assessment should take place over two days. The respondent further argues that the applicant makes no submissions to explain how the hearing and vestibular testing are separate from the approved ENT assessment.
27I find that the applicant has not met his burden of proof in establishing that the additional charges for hearing and vestibular testing are reasonable and necessary and they are therefore denied.
Is the applicant entitled to a mental/behavioural assessment under criteria 8?
28The applicant submits that the applicant is entitled to two different psychological assessments under each criterion 7 and 8 to determine whether he has sustained a catastrophic impairment under the Schedule. The applicant submits that the catastrophic assessments, opinions and conclusions under criterion 7 and 8 are separate and distinct from each other.
29The respondent submits that the two separate reports of Dr. Pushpa Kanagaratnam, psychologist, are a duplication, and both his conclusions under criterion 7 and 8 could have been made under one report.
30The applicant attended one assessment on October 19, 2021 with Dr. Kanagaratnam to determine whether he sustained a catastrophic impairment under criterion 7 and 8. Dr. Kanagaratnam made the same findings of psychometric testing in both reports. Dr. Kanagaratnam generated two separate reports both dated November 29, 2021, with two separate conclusions under criterion 7 and 8. The reports are identical except for their separate conclusions. It would appear that the request for two assessments are duplicative in nature and that the findings under both criterion 7 and 8 could be made in a single report.
31Although I agree with the applicant that there are two separate conclusions under criteria 7 and 8, on review of the psychological and mental/behavioural reports, the assessments and psychometric testing are identical. In addition, both assessments are the same and were completed on the same day and the reports are finalized on the same date.
32I find the applicant has failed to establish that two separate assessments and reports are reasonable and necessary to address his catastrophic impairment under criterion 7 and 8. Therefore, the mental/behavioural assessment is denied.
Is the applicant entitled to the treatment plan for physiotherapy from Physiomed Yorkdale?
33To receive payment for a treatment plan (OCF-18) under 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. 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 same are reasonable.
34As the applicant has made no submissions regarding the treatment plan dated September 14, 2021, for physiotherapy from Physiomed Yorkdale, he has not met his burden of proving that the plan is reasonable and necessary. I find that the applicant is not entitled to any expenses over and above the $3,077.60 approved listed in the $3,180.00 treatment plan dated September 14, 2021, of Physiomed Yorkdale.
Interest
35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since the applicant was not successful on establishing that any of the assessments, testing, treatment plan and invoices are reasonable and necessary, interest is not payable.
ORDER
36The application is dismissed, and I find that the applicant is not entitled to the following:
i. The amount of $672.00 for an invoice dated May 5, 2021, of Physiomed Yorkdale;
ii. Any expenses over and above the $19,108.30 approved listed in the $25,718.80 treatment plan dated May 13, 2021, of Omega Medical Associates Ltd.;
iii. Any expenses over and above the $3,077.60 approved listed in the $3,180.00 treatment plan dated September 14, 2021, of Physiomed Yorkdale;
iv. The amount of $432.75 for an invoice dated March 9, 2022, of Physiomed Yorkdale, and;
v. Interest in accordance with the Schedule for any overdue payments.
Released: August 29, 2024
Lisa Holland
Adjudicator