Licence Appeal Tribunal File Number: 23-007510/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:
Raymond Cris Flores Derequito
Applicant
and
Belair Direct
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Dayana Soto Santana, Paralegal
For the Respondent:
Tracy Brooks, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Raymond Cris Flores Derequito, the applicant, was involved in an automobile accident on September 14, 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, Belair Direct, 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 $3,404.88 for physical rehabilitation, massage therapy, acupuncture and assistive devices, proposed by 101 Physio, in a treatment plan, dated September 15, 2022?
ii. Is the applicant entitled to the treatment and assessments proposed by 101 Assessment Centre as follows:
a. $2,460.00 for an orthopaedic assessment, in a treatment plan dated February 3, 2023; and
b. $2,460.00 for a social work assessment, in a treatment plan dated September 7, 2023?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
3The Case Conference Report and Order (“CCRO”) lists issue 2 as, “Is the applicant entitled to $814.29 ($2,460.00 less $1,645.71 approved) for a psychological assessment proposed by 101 Assessment Centre in a plan submitted October 17, 2022.” The respondent in its submissions has stated that this treatment plan has been approved and is no longer in dispute. It has provided the approval letter dated August 22, 2024. Therefore, I accept that the respondent has approved this treatment plan in full and I have not included it in the issues in dispute.
4The CCRO lists issue 4 as, “Is the applicant entitled to $1,845.77 ($3,790.70 less $1,944.93 approved) for psychological services proposed by 101 Assessment Centre in a plan submitted February 3, 2023?”. The respondent in its submissions has stated that this treatment plan has been approved and is no longer in dispute. The applicant in his reply submissions has stated that it was not aware that this treatment plan was approved. While the respondent has not provided me with a copy of the approval letter, I accept the respondent’s submission that this treatment plan was approved in full and is payable. Therefore, I have not included it in the issues in dispute.
RESULT
5The applicant is not entitled to the treatment plans in dispute or interest. The application is dismissed.
ANALYSIS
The applicant is not entitled to the treatment plan for physical rehabilitation, massage therapy, acupuncture and assistive devices
6I find that the applicant has not proven on a balance of probabilities that he is entitled to the treatment plan for physical rehabilitation, massage therapy, acupuncture and assistive devices.
7To receive payment for medical and rehabilitation benefits under sections 15 and 16 of the Schedule, the applicant has the onus of proving 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.
8The applicant claims entitlement to $3,404.88 for physical rehabilitation, massage therapy, acupuncture and assistive devices, proposed by Dr. Nilav Bhowmik, chiropractor, of 101 Physio, in a treatment plan, dated September 15, 2022. The treatment plan seeks the following:
i. Education, promoting health and preventing disease – one-hour
ii. Physical rehabilitation – 12 one-hour sessions
iii. Massage therapy – 6 ½ hour sessions
iv. Acupuncture – 6 one-hour sessions
v. Hot/cold gel pack, back support, cervical pillow, pain relief cream
vi. Claimant transportation to treatment – 12 sessions
vii. Assessment (examination), total body
9The goals of the treatment plan are pain reduction, increase range of motion and return to activities of normal living.
10The applicant submits that he is entitled to the treatment plan in dispute because the medical evidence demonstrates that he continues to suffer from back pain, neck pain, and shoulder stiffness since the accident. The applicant relies upon the x-rays of the cervical spine, thoracic spine and lumbar spine. The applicant further submits that his family physician, Dr. Rajinder Kaur Atwal, made a referral to continue physiotherapy and chiropractic services. The applicant relies on the three Tribunal decisions in S.M. v. Aviva General Insurance Company, 2020 CanLII 27439 (ON LAT); Rodrigues v. Wawanesa Mutual Insurance Company, 2022 CanLII 117087 (ON LAT); and Wright v. The Personal, 2021 CanLII 134536 (ON LAT), where the Tribunal ordered entitlement to treatment plans.
11The respondent submits that the treatment plan in dispute is not reasonable or necessary as the applicant has not provided any objective evidence in support of the disputed treatment plan. The respondent relies upon the section 44 Insurer Examination (“IE”) report of Dr. Ahmad Belfon, physician, dated December 2, 2022, which concluded that the treatment plan in dispute was not reasonable or necessary. The respondent further relies upon the section 44 IE report of Dr. Jonathan Siegel, psychologist, dated May 12, 2023, where the applicant reported the following:
He started physiotherapy within a week and attended 101 Physio for an estimated three to four months. He was attending once per week and it helped a little. He discontinued because he notes that he was taking the bus and he felt that it was too cold to travel in the winter. He did not restart physiotherapy. Upon probing, he stated that he did not feel that he needed more physiotherapy.
12I find that the applicant has not provided sufficient medical evidence to support a finding that the treatment plan in dispute is reasonable and necessary for the following reasons.
13The applicant in his reply submissions has provided a copy of the Account Summary for Mediation, from 101 Physio, and has submitted that the respondent has paid $1,967.10 towards physical rehabilitation treatment for the applicant. The Account Summary references an OCF-23, dated September 15, 2022, in the amount of $2,200.00 which was approved on September 28, 2022, and subsequently incurred by the applicant. I note that the OCF-23 is dated the same date as the treatment plan in dispute. I find that this OCF-23 was not submitted or referred to by the applicant in his submissions. I further find that the applicant has not submitted any evidence about the treatment he did receive following the accident and whether the treatment was effective.
14While the applicant submits that the clinical notes and records (“CNRs”) of Dr. Atwal support ongoing physiotherapy and chiropractic services, I find that the applicant only saw Dr. Atwal on September 16, 2022, the day after the accident. The applicant attended for treatment at 101 Physio through the approved OCF-23 and did not return to see Dr. Atwal for further assessment of his injuries. Dr. Atwal did not provide any further assessment or recommendations for treatment after September 16, 2022.
15Upon review of the CNRs of 101 Physio, the records reflect that the applicant attended for treatment on seven occasions in 2022, the last being December 6, 2022. He then attended for five treatment sessions in June and July 2023. I find that there are no notes on the applicant’s progress or improvement in the CNRs. The CNRs note the modalities and active therapy used on the applicant’s treated areas. There are no recommendations within these CNRs for ongoing or additional treatment.
16I find the IE report of Dr. Belfon, dated December 2, 2022, persuasive. Dr. Belfon diagnosed the applicant with an uncomplicated, sprain/strain to the cervical spine, thoracic spine and lumbar spine as well as a healed forehead laceration which he concluded were minor injuries. Dr. Belfon concluded that the applicant should continue the therapies available to him within the confines of the Minor Injury Guideline (“MIG”) and eventually be transitioned to a diligent home stretching and conditioning routine in order to maintain therapeutic gains. I find that the applicant received treatment under the MIG and did not provide any medical evidence to support that he should be removed from the MIG based on his physical injuries.
17Finally, I find that the applicant has not dealt with the key elements to establishing entitlement to the disputed treatment plan in his submissions. He has not provided any submissions on the therapeutic goals, whether they are being met, or their costs. The applicant has not established whether and how the services proposed in the disputed treatment plan are reasonable.
18For the reasons set out above, I find that the applicant has not met his onus of proving on a balance of probabilities that the treatment plan dated September 15, 2023 is reasonable and necessary as a result of the accident.
The applicant is not entitled to the treatment plan for an orthopaedic assessment
19I find that the applicant has not proven on a balance of probabilities that he is entitled to the treatment plan for an orthopaedic assessment.
20The applicant claims entitlement to $2,460.00 for an orthopaedic assessment, proposed by Dr. Bill Nikols, chiropractor, of 101 Assessment Centre, in a treatment plan dated February 3, 2023. The goals of the treatment plan are pain reduction, increase range of motion, increase strength, return to activities of normal living and return to pre-accident work activities.
21I find that the applicant has not provided any submissions or evidence in support of the reasonableness and necessity of the treatment plan in dispute. I find that the applicant also did not submit a reply to directly address the treatment plan or the submissions of the respondent in respect to same.
22Given the lack of submissions and medical evidence provided by the applicant with respect to his entitlement to the treatment plan dated February 3, 2023, I find that the applicant has not met his onus of proving on a balance of probabilities that the treatment plan dated February 3, 2023 is reasonable and necessary as a result of the accident.
The applicant is not entitled to the treatment plan for a social work assessment
23I find that the applicant has not proven on a balance of probabilities that he is entitled to the treatment plan for a social work assessment.
24The applicant claims entitlement to $2,460.00 for a social work assessment, proposed by Isabelle Zonenberg, social worker, of 101 Assessment Centre, in a treatment plan dated September 7, 2023. The goals of the treatment plan are to “assess the applicant’s needs with regards to resource management, coping mechanisms and other issues as assessed.” Under Additional Comments, the “social work assessment is recommended to address psychosocial issues that prove that arose as a result of the accident including familial conflict, financial change, and work loss; vocational coaching, quality of life and social reintegration.”
25I find that the applicant did not provide any submissions or evidence in support of the reasonableness and necessity of the treatment plan dispute in his initial submissions. In his reply submissions, the applicant submitted that a social work assessment is beneficial to the applicant, “due to his holistic consideration of mental and physical health, socio-economical factors, employment history and the like to determine immediate as well as long-term needs.” The applicant further submits that based on the psychological assessment report by Dr. Konstantinos Papazoglou, psychologist, dated December 2, 2022, the applicant is experiencing psychological and emotional concerns that are preventing him from functioning at full capacity. The applicant submits that a social work assessment will address these mental complications.
26The respondent submits that the treatment plan in dispute and the report of Dr. Papazoglou, dated December 2, 2022, are inconsistent in their findings and cannot be relied on. The respondent submits that the treatment plan recommends a social work assessment to address “familial conflict, financial challenges and loss of social function,” but then notes that the applicant has returned to his pre-accident employment, familial responsibilities, housekeeping and social activities and hobbies. The respondent submits that the report of Dr. Papazoglou notes that the applicant maintains close relationships with his family, he returned to work, he resumed engaging in housekeeping, he is independent with matters of self-care and he is engaged in social activities and hobbies. The respondent relies upon the section 44 IE report of Dr. Siegel, psychologist, dated January 2, 2024 which concluded that the treatment plan was not reasonable or necessary.
27I find that the applicant has not provided sufficient evidence in support of the reasonableness and necessity of the treatment plan in dispute. I find the decision cited by the respondent in Janette Blas v. Aviva Insurance Canada, 2021 CanLII 127471, persuasive. The Tribunal held that it is well settled that a treatment plan without supportive medical evidence is not enough to establish that the recommended treatment is reasonable and necessary. The applicant has not provided any medical evidence to support that a social work assessment has been recommended by any treating practitioners. Upon review of the Psychological Progress report by Dr. Tulika Anand, dated January 3, 2024, submitted by the applicant, Dr. Anand recommends additional psychological sessions. There is no recommendation by Dr. Anand for a social work assessment.
28I find that the applicant has not dealt with the key elements to establishing entitlement to the disputed treatment plan in his submissions. He has not provided any submissions on the disputed treatment plan’s therapeutic goals, whether they are being met, or their costs. The applicant has not established whether and how the services proposed in the disputed treatment plan are reasonable. The applicant’s only submission with respect to the treatment plan is that he is experiencing psychological and emotional concerns that are preventing him from functioning at full capacity which a social work assessment will address.
29Further, I give weight to the IE report of Dr. Siegel, dated January 2, 2024 as I find that it is substantially consistent with the medical evidence in this matter. Dr. Siegel notes in his previous psychological report, that he recommended that the applicant receive psychological counselling. Dr. Siegel concluded that based on his current assessment, the applicant has benefited from the mental health counselling he has received and his scores on self-report psychometric questionnaires indicate a significant improvement since the last assessment. Dr. Siegel concluded in his report that the treatment plan for a social work assessment was not reasonably required and there is no indication on the treatment plan how a social work assessment would provide additional value-added information over and above the information that was obtained by Dr. Papazoglou, psychologist. I agree with the respondent’s submission that the applicant has not provided any evidence as to why a social work assessment is required in addition to the psychological assessment report previously completed by Dr. Papazoglou and the psychological treatment received by the applicant to date.
30In addition, Dr. Siegel in his report confirms that the applicant is driving to and from work, he quit his second job because he is earning more money with his new position, he is engaged in hobbies and socializing, he is independent with personal care and housekeeping, his memory and concentration are good, and his mood is good with good relationships with his wife and family members. I find that Dr. Siegel’s findings are in direct contradiction to the treatment plan which recommends the social work assessment to address “familial conflict, financial challenges and loss of social function.” Based on the findings of Dr. Siegel, the applicant has returned to his pre-accident employment, familial responsibilities, housekeeping and social activities and hobbies. I find that the applicant has not provided any evidence or submission to refute the findings of Dr. Siegel.
31For the reasons set out above, I find that the applicant has not met his onus of proving on a balance of probabilities that the treatment plan dated September 7, 2023 is reasonable and necessary as a result of the accident.
Interest
32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, there is no interest payable.
ORDER
33For the reasons outlined above, I find that the applicant is not entitled to the treatment plans in dispute or interest. The application is dismissed.
Released: March 20, 2025
__________________________
Melanie Malach
Adjudicator