Citation: Buco v. BelairDirect Insurance Company, 2025 ONLAT 23-005196/AABS - A

Licence Appeal Tribunal File Number: 23-005196/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:

Cristina Buco

Applicant

and

BelairDirect Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR:

Kathleen Wells

APPEARANCES:

For the Applicant:

Todd A. Reybroek Alexander Makaronets, Counsel

For the Respondent:

Alexnder Makaronets Navjot Banipal, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Christina Buco, the applicant, was involved in an automobile accident on August 16, 2022, 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, BelairDirect Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided in the hearing are:

1. Is the applicant entitled to $1,293.42 for physiotherapy services, proposed by Scarborough Health & Wellness Centre Inc. in a treatment plan submitted January 6, 2023?
2. Is the applicant entitled to $2,217.45 for an attendant care assessment, proposed by Paramount Medical Assessment Ltd in a treatment plan submitted March 3, 2023?
3. Is the applicant entitled to $2,181.46 for an orthopedic assessment, proposed by Paramount Medical Assessment Ltd in a treatment plan submitted March 10, 2023?
4. Is the applicant entitled to $2,260.00 for a chronic pain assessment, proposed by Paramount Medical Assessment Ltd in a treatment plan submitted May 5, 2023?
5. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

1. The applicant is not entitled to the treatment and assessment plans in question.
2. The applicant is not entitled to interest.
3. The application is dismissed.

ANALYSIS

Is the applicant entitled to $1,293.42 for a treatment plan for physiotherapy services dated January 6, 2023?

4I find, on a balance of probabilities, that the applicant is not entitled to the treatment plan for physiotherapy services, dated January 6, 2023.

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.

6The treatment plan was prepared by Dr. Alisa Blumberg, chiropractor, and is dated January 6, 2023. It proposes 16 physiotherapy sessions and $200.00 for the completion of the treatment plan for a total of $1293.42. The goals of the treatment plan are pain reduction, increased strength, increased range of motion and return to activities of normal living.

7The applicant submits that the treatment plan is reasonable and necessary because of the severity of the applicant’s injuries and because the applicant has benefited from physiotherapy in the past. The applicant relies on the OCF-3, prepared by Dr. Andrea Nalli, chiropractor, dated September 7, 2022; the clinical notes and records (“CNRs”) of Dr. Jae-Hoon Cho, physician; the CNRs of Dr. Viacheslav Prigozhikh, neurologist; and the CNRs of Dr. Ceri J. Davies, physician.

8I note that Dr. Cho’s CNRs may not be complete as they end on August 22, 2022, and Dr. Cho’s referral of the applicant to Dr. Prigozhikh on October 24, 2022, was not included in the CNRs of Dr. Cho’s submitted by the applicant.

9The applicant also relies on the s.44 insurer’s examination report (“s. 44 report’) of Dr. Esmat Dessouki, orthopaedic surgeon, dated December 28, 2022. The applicant further relies on correspondence from the respondent approving an OCF-23 for services totalling $2,200.00. The complete OCF-23 was not submitted by the applicant.

10The respondent argues that the applicant has not met her onus to prove that the treatment plan is reasonable and necessary. The respondent relies on Dr. Dessouki’s December 28, 2022 s. 44 report, as well as Dr. Dessouki’s subsequent paper reviews dated April 18, 2023 and June 16, 2023.

11I am not persuaded that the applicant has established that the treatment plan is reasonable and necessary. While the applicant argues that Dr. Dessouki’s December 28, 2022 s.44 report confirms that the applicant has suffered a fractured toe and soft tissue injuries to the cervix, lower back, shoulder, wrist and ankle, and that the applicant has benefited from physiotherapy, the applicant does not address the conclusions of Dr. Dessouki’s report. As the respondent notes, Dr. Dessouki opined that the applicant had achieved maximal recovery from her injuries, that he found no objective evidence of residual musculoskeletal impairment as a result of the applicant’s accident-related injuries, and that no further investigation or treatment was recommended, which I find undermines the applicant’s position. Dr. Dessouki affirmed his findings in his two subsequent paper reviews, dated April 18, 2023, and July 16, 2023.

12Further, the applicant has not addressed how the goals of the treatment plan would be met, or whether the costs of the treatment plan are reasonable.

13For these reasons, I find on a balance of probabilities that the applicant has not met her burden to establish that the treatment plan for physiotherapy services, dated January 6, 2023 is reasonable and necessary.

Is the applicant entitled to $2,217.45 for a treatment plan for an attendant care assessment dated March 23, 2023?

14I find, on a balance of probabilities, that the applicant is not entitled to the treatment plan for an attendant care assessment.

15The treatment plan was prepared by Kim James, chiropractor, and Natalya Khramtsova, nurse, and submitted on March 23, 2023. It identifies the goals of the plan as pain reduction and a return to activities of daily living.

16The applicant submits that she suffers from pain in her great toe, as a result of her accident-related injuries, which impacts her ability to carry out her functions of daily living. The applicant relies on the CNRs of her physician, Dr. Davies, which reveal that the applicant complained of pain in her toe on September 28, 2023, more than a year after the accident. The applicant was advised to wear her orthotics more frequently and was referred for an Xray. The Xray revealed no toe fracture but did reveal a bunion and mild osteoarthritis in the MTP joint. Dr. Davies’s CNRs do not indicate a recommendation for attendant care.

17The respondent argues that the applicant has not met her onus to establish that the treatment plan is warranted.

18I agree with the respondent. The applicant submits that her toe injury affects her balance, mobility and ability to perform her daily activities independently. However, I find that the applicant has not provided any detail about the applicant’s functional impairments. Absent any corroborating medical or other evidence, I have insufficient evidence to determine that there are grounds to believe that an attendant care assessment is warranted.

19For these reasons, I find that the applicant has not met her onus to establish on a balance of probabilities, that an attendant care assessment is reasonable and necessary. Therefore, the applicant is not entitled to the treatment plan for an attendant care assessment, dated March 23, 2023.

Is the applicant entitled to a treatment plan for an orthopaedic assessment dated March 10, 2023?

20I find, on a balance of probabilities, that the applicant is not entitled to the treatment plan for an orthopaedic assessment.

21The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

22The treatment plan was prepared by Dr. Tajedin Getahun, of Paramount Medical Assessment Ltd., and was submitted on March 10, 2023. It identifies pain reduction, determination of the most appropriate treatment of the applicant’s condition, return to activities of daily living, and determining the causes of the patient’s symptoms and their impact on her daily life as the goals of the treatment plan.

23The applicant submits that an orthopaedic assessment is warranted because of the severity and complexity of the applicant’s accident-related injuries. The respondent counters that the applicant has not met her onus to establish that the orthopaedic assessment is warranted.

24I find that the evidence presented does not support a finding that the treatment plan for an orthopaedic assessment is warranted. The applicant relies solely on Dr. Dessouki’s diagnosis in his December 28, 2022 s.44 report to support her claim that an orthopaedic assessment is needed to establish appropriate treatment and rehabilitation plans. However, as noted above, in his s.44 report, Dr. Dessouki opined that the applicant had achieved maximal recovery from her accident-related injuries and recommended no further investigation or treatment. Further, in Dr. Dessouki’s paper review dated April 18, 2022, he opined that the treatment plan for an orthopaedic assessment was not reasonable and necessary, and reiterated that he had no recommendation for further investigation or treatment of the applicant’s accident-related injuries.

25Therefore, I find that the applicant has not met her onus to prove, on a balance of probabilities, that the treatment and plan for an orthopaedic assessment, is reasonable and necessary.

26Accordingly, the applicant is not entitled to the treatment plan dated March 10, 2023.

Is the applicant entitled to a treatment plan for a chronic pain assessment dated May 5, 2023.

27I find, on a balance of probabilities, that the applicant is not entitled to the treatment plan for a chronic pain assessment.

28The treatment plan was prepared by Dr. Mohamed Abounaja, physician, of Paramount Medical Assessment Ltd., and submitted on May 5, 2023. The goals of the treatment plan are: pain reduction, increase in strength, return to activities of normal living, to restore pre-accident function, and determine the exact nature of patient's syndrome and to arrange appropriate multidisciplinary pain management program to assist in the recovery process.

29The applicant submits that a chronic pain assessment is warranted because the applicant has experienced ongoing “largely uncontrolled” pain since the accident, and that a chronic pain assessment is necessary to identify treatments for pain management. The respondent argues that the applicant has not met their onus to prove that a chronic pain assessment is reasonable and necessary.

30I find that the applicant has not established grounds to believe that the applicant is experiencing pain that warrants a chronic pain assessment. While the treatment and assessment plan refers to multiple injuries, it does not provide detail as to the location of the applicant’s pain, and the applicant refers only to headaches in their submissions.

31The applicant relies on the CNRs of Dr. Viacheslav Prigozhikh, neurologist, who reported to Dr. Cho that the applicant presented with chronic daily headaches with migraine features on March 17, 2023. Dr. Prigozhikh noted that the applicant told him that she had not had headaches before the accident, but Dr. Prigozhikh did not directly attribute the applicant’s headache pain to the applicant’s accident-related injuries. Headaches were the only pain referenced in Dr. Prigozhikh’s report, which indicates that he recommended dietary changes and over-the-counter pain medication for moderate to severe headaches.

32The applicant has not directed me to any evidence that the applicant complained to her family doctors of accident-related headache pain. I find that Dr. Cho’s referral form, which was included in Dr. Prigozhikh’s CNRs, sheds little light on the applicant’s headache symptoms, or how they are related to the applicant’s accident-related injuries. The referral form, which is dated more than 2 months after the accident on October 24, 2022, indicates that the accident occurred “3 days ago” on August 16, 2022, and lists chest pain, neck pain and stiffness and a broken toe in addition to the applicant’s complaint of persistent headaches, but there is no corresponding reference to headaches in Dr. Cho’s available CNRs.

33For these reasons, I find that the applicant has not met her onus to prove, on a balance of probabilities, that the treatment plan for a chronic pain assessment is reasonable and necessary.

34Therefore, the applicant is not entitled to the treatment plan dated May 5, 2023.

Interest

35As no payments are outstanding, no interest is due.

ORDER

36I find that:

i. The applicant is not entitled to the treatment plans in dispute. ii. The applicant is not entitled to interest. iii. The application is dismissed.