Zvolinska v. Allstate Insurance Company of Canada
Licence Appeal Tribunal File Number: 23-003349/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:
Lyudmyla Zvolinska
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
VICE-CHAIR: Henry Harris
APPEARANCES:
For the Applicant: Alexander Makaronets, Counsel
For the Respondent: Kristen Slaney, Counsel
HEARD: By way of written submissions
OVERVIEW
1Lyudmyla Zvolinska, the applicant, was involved in an automobile accident on August 20, 2021, 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, Insurer, 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 $2,460.00 for a neurological assessment, proposed by All Health Medical Centre in a treatment plan/OCF-18 (“plan”), submitted December 30, 2021?
ii. Is the applicant entitled to the physiotherapy services proposed by Mackenzie Medical Rehabilitation Centre in plans, as follows:
(i) $1,417.20, in a plan submitted October 4, 2022; and
(ii) $1,417.20, in a plan submitted December 1, 2022?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
3For issue (i) above, the case conference report and order dated November 9, 2023 refers to the plan being submitted December 30, 2020, however, the correct date is December 30, 2021 which has been reflected above.
RESULT
4The applicant is entitled to the treatment plan for a neurological assessment.
5The applicant is not entitled to the treatment plans for physiotherapy services submitted October 4, 2022 and December 1, 2022.
6The applicant is entitled to interest on any overdue benefits pursuant to section 51 of the Schedule.
ANALYSIS
Issue 1: Neurological assessment
7I find on a balance of probabilities that the neurological assessment is reasonable and necessary.
8To 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.
9The purpose of an assessment is to determine whether a condition exists. For an insured, that means that 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.
10The treatment plan proposing the neurological assessment was prepared by Dr. Basile, physician. The goals of the plan are to evaluate and diagnose the injuries sustained in the accident and make recommendations including the need for further therapy in order to restore a pre-accident level of functioning.
11The applicant submits the neurological assessment is reasonable and necessary to help diagnose any neurological damage and determine the most effective treatment plan tailored to the applicant’s specific needs. The applicant further submits that she has been seen by her treating neurologist, Dr. Prigozhikh, on multiple dates and that the complexity of her symptoms and inadequate response to medical interventions warrant a comprehensive neurological assessment. The applicant relies on Dr. Prigozhikh’s diagnosis of post-concussive syndrome and presentation suggestive of post-traumatic chronic migraines.
12The respondent submits that, through a referral from Dr. Doad, the family doctor, the applicant was already under the care of her OHIP funded treating neurologist, Dr. Prigozhikh. The respondent submits that this does not support the need for another neurologist to assess her.
13Both the applicant and the respondent’s submissions directed me to the clinical notes and records (“CNRs”) of Dr. Prigozhikh, which included the initial neurological referral from Dr. Doad dated August 23, 2021. I note that prior to the treatment plan in dispute being submitted, the applicant had been seen twice by Dr. Prigozhikh. Through telephone consultations, Dr. Prigozhikh made a finding that the applicant developed post-concussive syndrome and noted that the applicant has daily headaches, for which he provided pharmacological treatment and recommended lifestyle modification.
14I find Dr. Prigozhikh’s reports in the months leading up to the treatment plan being submitted on December 30, 2021 to be contemporaneous, corroborating evidence from a medical professional that demonstrates that there are grounds to believe that a condition exists that would warrant further investigation by way of an assessment.
15I am not convinced by the respondent’s argument that the referral for the assessment should be coming from the family doctor if it is medically required, nor that an assessment is not warranted as the applicant is already under the care of an OHIP funded neurologist. While Dr. Prigozhikh diagnosed the applicant’s condition as post-concussive syndrome with frequent headaches, the applicant had not undergone a neurological assessment as contemplated in the treatment plan prepared by Dr. Basile.
16Further, I find that the respondent has not provided evidence to support the argument that this is an assessment that is covered under OHIP and thus the respondent is not responsible to fund it pursuant to s. 47(2) of the Schedule. To advance such argument, the insurer must provide some evidence or submission that, on balance, establishes that the benefit at issue was reasonably available to the insured party from another insurance plan. Here, the respondent simply submitted that if a neurological assessment was a reasonable way forward for the applicant, it is something that can and should be OHIP covered. No evidence was provided by the respondent in support of this submission. As such, I find that the respondent has not established the availability of OHIP for this assessment and s.47(2) does not apply.
17Accordingly, I find on a balance of probabilities that the neurological assessment is reasonable and necessary.
Issue 2: Physiotherapy services
18I find that the applicant has not proven on a balance of probabilities that the treatment plans for physiotherapy are reasonable and necessary.
19The applicant relies on the treatment plans for physiotherapy proposed by Mackenzie Medical Rehabilitation Centre submitted October 4, 2022 and December 1, 2022. The first treatment plan was prepared by Dr. Khoshmashrab, chiropractor, and proposed chiropractic and massage therapy. The second treatment plan was prepared by Mona Modi, physiotherapist, and proposed physiotherapy and massage therapy. Both plans had treatment goals that included pain reduction, increased range of motion and strength, and returning to activities of normal living. The plans note that the applicant reports some improvement with therapy.
20The applicant submits that continued physiotherapy is essential for further physical improvements and sustaining health gains already made. The applicant relies on the two treatment plans to assert that the applicant has shown consistent improvement with the initial rounds of physiotherapy and chiropractic services. The applicant also relied on the report of Dr. Robertus of the Vaughan Pain Clinic as evidence that the applicant reported finding treatments such as physiotherapy, chiropractic and massage therapy to be helpful for a short time.
21The respondent submits that the medical records and insurer’s examination (“IE”) do not find the treatment plans in question to be necessary. The respondent relies on the Physical Medicine and Rehabilitation Specialist Paper Review IE of Dr. Oshidari physiatrist, dated January 12, 2023 to support the denial of the treatment plans. The respondent notes that the IE found that the injuries are soft tissue and contusions and that if the applicant did not respond to approximately one year of physical treatment, further treatment would not assist her and thus the treatment plans are not reasonable or necessary.
22I find that the applicant has not provided compelling contemporaneous evidence to show that the treatment plans for physiotherapy are reasonable and necessary. The treatment plans and CNRs from the Vaughan Pain Clinic note that the applicant reported finding treatments such as physiotherapy to be helpful for a short time or providing some improvement in the past. However, I find that this is not corroborated by contemporaneous medical evidence. It is well established that a treatment plan alone is not sufficient to establish that it is reasonable and necessary, and I do not accept the applicant’s submission that continued physiotherapy is essential for further physical improvements in the absence of such evidence.
23Further, I note that the IE report of Dr. Oshidari indicates that prior to submitting the treatment plans at issue, the applicant had received physical treatment on soft tissue injuries for nearly one year between August 2021 and August 2022 without long-term benefit. On this basis, the IE concluded that the further treatment of the same nature is not going to assist her and is therefore not reasonable or necessary. I find this report persuasive because Dr. Oshidari is a physiatrist who is qualified to render this opinion and because he examined the applicant before he rendered his opinion.
24Accordingly, I find on a balance of probabilities that the treatment plans for physiotherapy are not reasonable and necessary.
Interest
25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is entitled to payment for certain benefits, interest will apply to those amounts that remain overdue, starting from the date they became payable until the date of payment.
ORDER
26The applicant is entitled to the treatment plan for a neurological assessment.
27The applicant is not entitled to the treatment plans for physiotherapy services submitted October 4, 2022 and December 1, 2022.
28The applicant is entitled to interest on any overdue payment of benefits.
Released: March 3, 2025
__________________________
Henry Harris
Vice-Chair