Licence Appeal Tribunal File Number: 23-010294/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:
Yasmin Al-Baik
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR: Timothy Porter
APPEARANCES:
For the Applicant: Alex Nikolaev, Counsel
For the Respondent: Jonathan White, Counsel
Court Reporters: Laura Tang (October 7-9) Kim Terryberry (October 10-11)
HEARD: by Videoconference: October 7-11 2024
OVERVIEW
1Yasmin Al-Baik, the applicant, was involved in an automobile accident on February 9, 2020, 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, 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 an income replacement benefit ("IRB") in the amount of $400.00 per week from June 30, 2023, to ongoing?
ii. Is the applicant entitled to $1,101.00 for physiotherapy (acupuncture), proposed by Mississauga Active Physiotherapy in a treatment plan/OCF-18 ("plan") submitted November 29, 2021?
iii. Is the applicant entitled to $3,042.56 for physiotherapy, proposed by Mississauga Active Physiotherapy in a plan submitted March 1, 2022?
iv. Is the applicant entitled to $3,080.00 for physiotherapy, proposed by Mississauga Active Physiotherapy in a plan submitted March 29, 2022?
v. Is the applicant entitled to $1,563.72 for physiotherapy, proposed by Prime Health Care in a plan submitted October 18, 2022?
vi. Is the applicant entitled to $1,790.00 for physiotherapy, proposed by Prime Health Care in a plan submitted October 18, 2022?
vii. Is the applicant entitled to $2,694.24 for physiotherapy, proposed by Prime Health Care in a plan submitted March 2, 2023?
viii. Is the applicant entitled to $1,836.16 for physiotherapy, proposed by Prime Health Care in a plan submitted June 1, 2023?
ix. Is the applicant entitled to $2,120.78 for vestibular physiotherapy, proposed by Iscope Concussion and Pain Centers in a plan submitted January 21, 2022?
x. Is the applicant entitled to $1,550.00 for Botox treatment, proposed by Iscope Concussion and Pain Centers in a plan submitted January 21, 2022?
xi. Is the applicant entitled to $8,686.38 for assistive devices, proposed by Prime Health Care in a plan submitted July 27, 2023?
xii. Is the applicant entitled to $2,098.64 for chiropractic treatment, proposed by Prime Health Care in a plan submitted October 12, 2023?
xiii. Is the applicant entitled to $8,882.79 for chronic pain treatment, proposed by Prime Health Care in a plan submitted November 7, 2023?
xiv. Is the applicant entitled to $1,750.00 for psychological assessments ($5,950.00 less $4,200.00 approved), proposed by Prime Health Care in a plan submitted February 16, 2023?
xv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
xvi. Is the applicant entitled to interest on any overdue payment of benefits?
3The issue of $1,750.00 for psychological services set out in issue 7 in the case conference report and order of March 21, 2024, is a duplicate of issue 15 from the same order for $1,750.00 ($5,950.00 less $4,200.00 approved), both submitted on February 16, 2023. The issue has been listed only once above as issues xiv.
4Issue iii from above is listed as physiotherapy, proposed by Mississauga Active Physiotherapy in a plan submitted March 1, 2022, the plan is for psychological intervention by a psychologist at Mississauga Active Physiotherapy.
RESULT
5The applicant has demonstrated on a balance of probabilities that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience and is entitled to income replacement benefits from June 23, 2023, to date and ongoing.
6The applicant is entitled to the following treatment plans:
i. $3,042.56 for physiotherapy (psychological), proposed by Mississauga Active Physiotherapy in a plan submitted March 1, 2022.
ii. $1,550.00 for Botox treatment, proposed by Iscope Concussion and Pain Centers in a plan submitted January 21, 2022.
iii. $1,750.00 for psychological assessments ($5,950.00 less $ 4,200.00 approved), proposed by Prime Health Care in a plan submitted February 16, 2023.
iv. $8,882.79 for chronic pain treatment, proposed by Prime Health Care in a plan submitted November 7, 2023.
7The applicant is not entitled to the following treatment plans:
i. $8,686.38 for assistive devices, proposed by Prime Health Care in a plan submitted July 27, 2023.
ii. $1,101.00 for physiotherapy, proposed by Mississauga Active Physiotherapy in a plan submitted November 29, 2021.
iii. $2,120.78 for vestibular physiotherapy, proposed by Iscope Concussion and Pain Centers in a plan submitted January 21, 2022.
iv. $3,080.00 for physiotherapy, proposed by Mississauga Active Physiotherapy in a plan submitted March 29, 2022.
v. $1,563.72 for physiotherapy, proposed by Prime Health Care in a plan submitted October 18, 2022.
vi. $1,790.00 for physiotherapy, proposed by Prime Health Care in a plan submitted October 18, 2022.
vii. $2,694.24 for physiotherapy, proposed by Prime Health Care in a plan submitted March 2, 2023.
viii. $1,836.16 for physiotherapy, proposed by Prime Health Care in a plan submitted June 1, 2023.
ix. $2,098.64 for chiropractic treatment, proposed by Prime Health Care in a plan submitted October 12, 2023.
8No award is due.
9The applicant is entitled to interest on all overdue benefits.
ANALYSIS
The applicant is entitled to post-104-week Income Replacement Benefits
10For the reasons that follow, I find that the applicant is entitled to post-104-week income replacement benefits for the period June 23, 2023, to date and ongoing as she has proven, on a balance of probabilities, that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, and experience.
11To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training, or experience.
12The Respondent has paid income replacement benefits in the amount of $45,999.99 and has paid attendant care benefits more than 2 years post-accident.
13The applicant submits that she suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited due to psychological impairments and chronic pain syndrome that have arisen as a direct result of the subject accident. She relies on the submitted OCF-3, the orthopaedic report of Dr. Getahun, the psychiatric assessment report of Dr. Shahmalak, the psychological assessment report of Dr. Aghamohseni, the clinical notes and records of family physician Dr. Patricia Lee and the neuropsychological report of Dr. Steiner.
14The respondent denies that the applicant suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited and in the alternative that the applicant's presentation is the result of falls subsequent to the subject accident or psychosocial stressors that arose unrelated to the accident. The respondent relies on the labour market survey and vocational evaluation by Ruth Billet, the neurology report of Dr. Yahmad, the psychological report of Dr. Syed and the physiatry report of Dr. Ko.
15I find that the applicant's education, experience, and training suggest that she is best suited for employment involving regulatory affairs. The applicant has established that prior to the accident she graduated from university with a bachelor's in microbiology and at the time of the accident was engaged in a regulatory management consulting role. The applicant submitted that she was successful enough at this role that, post-accident, she obtained a second concurrent full-time role with another company in the same industry. The roles included travel by car to construction locations within Ontario, administrative functions at a desk and computer terminal, regulatory interpretation, and project implementation oversight. In order to perform these duties, the applicant was required to have manual dexterity, work for periods in a sedentary position, work with computers, interpret government legislation and regulation, provide advice to management, concentrate, and have the ability to meet deadlines under pressure. Roles classified in this occupation will usually require a university degree.
16I find that the applicant persevered and has attempted to work following the loss of her private sector roles and following a period of unemployment because the applicant obtained a job with a federal government department that was in the same regulatory field the applicant had been working within. The Applicant was terminated from the role with the federal government in July 2022 and has been unemployed since.
17I find that the applicant has established a diagnosis of chronic pain syndrome. The testimony of orthopaedic surgeon Dr. Getahun and his report dated October 26, 2021, is given a greater weight because of his thorough document review and use of the American Medical Association's Guides diagnostic criteria for chronic pain syndrome.
18I am persuaded by the applicant's testimony and evidence that her chronic pain syndrome ("CPS") negatively impacts her employability. I find that the applicant's CPS resulted from the accident and that the CPS results in symptoms that negatively impact the employability of the applicant. The applicant's testimony regarding her symptoms and experiences are corroborated by the clinical notes and records from Dr. Lee, which demonstrate the consistent and pervasive symptoms the applicant is experiencing, including an aversion to screen time, an inability to concentrate, fatigue, and an inability to remain in a sedentary position. The evidence submitted regarding the applicant's time in the role with the Government of Canada also demonstrate the implications of her symptoms on employment performance, with accusations of narcotic use, taking hours longer than policy allows for drive time to locations, attendance issues and issues with interacting with others.
19I agree with the applicant's assessors because the assessments by Dr. Shahmalack, Dr. Steiner and Dr. Getahun paint a clear and convincing picture of an applicant whose functional limitations have been worsening over time and who is struggling with pain. It is the resulting struggle with pain that negatively impacts the applicant's ability to concentrate, attend, participate, and produce in competitive employment. I accept these opinions because the respondent has not advanced evidence sufficient to refute them.
20I also agree with the assessment by Dr. Shahmalack when he opined that the applicant would experience increased pain and stress, emotional dysregulation and likely lacks the mental function to attend, participate and produce in most work roles. I am also persuaded by Dr. Steiner who opined that the applicant has a marked disturbance in energy, concentration and motivation and concludes she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited.
21An applicant for IRB is not prohibited from working and having worked does not render the insured ineligible for the benefit. I am not persuaded by Dr. Ko, who opined that from a physical perspective the applicant does not suffer a complete inability to engage in any employment for which she is reasonably suited, citing that the applicant worked full-time following the accident.
22The implication of the respondent's three assessors' findings, that only minor physical injuries exist more than two years post-accident, is that the applicant's substantial and continuing pain complaints are not to be trusted. I disagree. The applicant's assessors had clear findings and diagnoses which I find are not challenged by the respondent's assessors. The basis of the applicant's claim is in relation to her CPS diagnosis. Dr. Ko testified that he does not diagnose chronic pain or chronic pain syndrome in his physiatry practice. Psychologist Dr. Syed inferred that the applicant may not be trustworthy in relation to her reports of functional limitations and symptoms and opined that the applicant's test results were unreliable and invalid. I do not accept the inference that the applicant's reports cannot be trusted on the basis of Dr. Syed's test results because the applicant has remained consistent and clear over a number of years with multiple assessors and care providers and similar testing by Dr. Steiner did not have the same validity concerns. Dr. Nagib Yahmad, neurologist, concluded that there was no physical neurological reason that the applicant could not engage in employment options. The neurological findings of Dr. Yahmad match the findings of all neurologists who assessed the applicant over a number of years and the applicant's neurological function is not in question. Therefore, the report is not particularly useful in challenging the chronic pain syndrome findings of Dr. Getahun.
23The chronic pain diagnosis of Dr. Lee on February 10, 2020, is not in relation to the subject accident and is distinct from the CPS diagnosis. The Respondent pointed to Dr. Lee's diagnosis of chronic pain on February 10, 2020, as evidence that chronic pain was pre-existing. I find the chronic pain and CPS diagnoses are different diagnoses and, while perhaps related, are distinct as the diagnosis from 2020 covers a period pre-accident where the Applicant was demonstrably functional and performing at work. Meanwhile, I find the CPS diagnosis comes at a time when the Applicant had been consistently complaining of significant, debilitating neck, shoulder, back and knee pain, which cannot be correlated, and she is either underperforming at her federal government role or is unemployed.
24Generally, Tribunal members have defined what constitutes reasonably suitable employment as "employment in a competitive, real-world setting, taking into account employer demands for reasonable hours and productivity. The work should also be comparable in terms of status and wages"; see 16-000874 v. Certas Home and Auto Insurance Company. I agree and apply this principle to this case.
25The roles proposed by the respondent are not comparable in terms of status and wages. I am not persuaded by the Vocational Evaluation report by Ruth Billet because the applicant's pre-accident employment aptitude profile is listed in a letter and numerical acronym format, but the results are indecipherable without additional information and there is no analysis that provides insight into why the alternative vocational options suggested by Ms. Billet, for example, "Administrative Officer" and "Biological Technician," may be suitable. The roles proposed by Ms. Billet all require a college, vocational education, or apprenticeship training, which is not comparable to roles requiring a university education, which the applicant previously held. The combination of a lack of analysis or reasoning for the suggested alternative employment, the lack of transparency in the aptitude testing and the diminished educational requirements of the proposed suitable roles leave me questioning the reasonableness of the alternative suggestions.
26The applicant has demonstrated that she would not be able to reasonably fulfill the expectations of reasonable hours and productivity. The employment records from the applicant's federal government role demonstrate that the applicant was having difficulty meeting expectations and was ultimately terminated on this basis. The CNRs of Dr. Lee demonstrate that the applicant is regularly seeking notes to support time off work in relation to symptoms the applicant is experiencing as a result of the subject accident. The Dr. Lee CNRs also demonstrates the consistent and pervasive symptoms the applicant is experiencing, including an aversion to screen time, an inability to concentrate, fatigue, and an inability to remain in a sedentary position; all of which would negatively impact the applicant's ability to reasonably fulfill the expectations of a real-world employer.
27I find that the applicant has demonstrated, on a balance of probabilities, that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience.
Are the treatment plans reasonable and necessary?
28To 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 because 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.
The mental health testing and therapy plan is reasonable and necessary
29For the reasons that follow, I find on a balance of probabilities that the plan for $3,042.56 issued by Fahimeh Aghamohseni, psychologist, is reasonable and necessary.
30The plan was issued April 4, 2022, in the amount of $3,042.56 and recommended 2 hours of testing, and 12 sessions of mental health therapy. The goal of the therapy is to support the applicant to return to the normal activities of daily living.
31The respondent denied the plan on April 5, 2022, as the applicant indicated in the OCF-23 (confirmation of disability) of March 11, 2020, that her injuries fell within the minor injury guideline, and that an assessor to be named later will review the treatment plan. There is no evidence before me of follow-up correspondence from the respondent or that the assessment was conducted, the respondent did not make submission specific to this treatment plan.
32The applicant testified that mental health therapy was very helpful. The applicant is no longer within the minor injury guideline. I accept these submissions and facts and note that the respondent has not offered evidence sufficient to refute them.
33I find that the treatment plan is reasonable and necessary because the applicant has effectively articulated the need, as a result of the subject accident, and the goals are reasonable.
The Botox treatment is reasonable and necessary
34For the reasons that follow, I find that on a balance of probabilities the treatment plan for $1,550.00 dated January 21, 2022, is reasonable and necessary as a treatment for the ongoing, regularly reported migraine headaches the applicant suffers as a result of the subject accident.
35The plan proposes two separate injections of Botox, listed as pharmacotherapy, and delivered by a nurse practitioner. The goals of the plan are pain reduction and increased range of motion in the applicant's neck with the objective of returning the applicant to the activities of normal living.
36The respondent denied the plan on February 4, 2022, because the respondent surmised the treatment was a result of the applicant falling down stairs, which the respondent submits is not as a result of the subject accident.
37The reasons for the fall down the stairs within the home are not entirely clear. There is no evidence to suggest the applicant had been falling down stairs prior to the subject accident. There is no evidence that the falls are directly linked to the subject accident although the applicant testified the falls were a result of dizziness and fainting that were a result of the subject accident. The falls were recorded in the clinical notes and records of Dr. Lee and appear to have occurred in early November 2020 and early July 2021. The notes of Dr. Lee do not identify headaches or migraines as symptoms that resulted from the falls, rather the symptoms identified as a result of the falls are bruising, pain in the right knee and left foot. The falls occurred more than 13 and 6 months prior to the recommendation for the treatment.
38I am not persuaded by the respondent's reasoning because the falls occurred well before the recommended treatment and the treatment recommended is for migraine headaches which were not identified as symptoms resulting from the falls.
39I am persuaded by the applicant's evidence, wherein the applicant complained about migraine headaches to Dr. Lee, her family physician (on January 19, 2021, July 16, 2021, January 6, 2022, May 24, 2022, September 28, 2022, November 16, 2022, September 13, 2023, October 19, 2023), and to Dr. Aaron Kirschner on December 22, 2021, and November 11, 2022. Notably, Dr. Kirschner and nurse practitioner Linda Johnson of Iscope both diagnosed the applicant with headache with migraine features.
40I find that the treatment plan is reasonable and necessary because the goals of the treatment align with identified impairments that are a result of the subject accident; the costs of the treatment are reasonable against the goals identified and the respondent has not submitted evidence sufficient to challenge the applicant's evidence.
The psychological assessment is reasonable and necessary
41For the reasons that follow, I find on a balance of probabilities that the remaining $1,750.00 for a psychological assessment ($5,950.00 less $4,200.00 approved) of February 16, 2023, is reasonable and necessary to support the applicant in addressing and mitigating her accident-related functional limitations.
42The goals of the plan are an assessment of neurocognitive and emotional functions to examine her cognitive/emotional functioning and to provide recommendations for treatment so that the applicant can return to her activities of normal living. The plan proposes a full assessment of neuropsychological function in 2 parts and psychological assessment of mental health, all provided by a regulated psychologist. The respondent partially approved the plan: approving both parts of the neurological assessment but denying psychological assessment of mental health because the respondent maintained that the maximum amount payable in respect of fees and expenses for any one assessment or examination is $2,000.00 (plus HST) and it did not schedule an insurer's examination.
43The applicant submits that multiple assessors have recommended continued psychological intervention to support recovery of the applicant including David Ross, psychologist, Fahimeh Aghamohseni, psychotherapist, and Dr. Shahmalak. The applicant testified that there was a change from her pre-accident psychological functioning and in particular she has a low mood, anxiety and no motivation, the applicant also testified that peer support programs and counselling was very helpful and if the plan had not been denied she would continue to attend as these services would support her recovery.
44The reasoning provided by the respondent for the partial approval does not make sense. The respondent approved two assessments of neurocognitive function and denied the single psychological assessment on the basis that they would only pay $2,000.00 per single assessment; However, in their partial approval, the respondent approved $4,000.00 for neurocognitive assessments and denied $1,750.00 for a single psychological assessment. It is unclear how the reasoning and decision align.
45The applicant has outlined the utility of the proposed assessment and that she would utilize the services and the assessment to address ongoing symptoms the applicant has regularly identified. The plan's cost is lower than the maximum allowable for a single assessment.
46I find that the assessment is reasonable and necessary because the applicant has established the necessity of the assessment through her testimony and submission of multiple supportive opinions, the goals are reasonable, and the cost is reasonable in comparison to the goals of the plan.
The chronic pain plan is reasonable and necessary
47For the reasons that follow, I find that the chronic pain treatment plan of $8,882.79 of November 7, 2023, is reasonable and necessary to support the applicant in returning to the activities of normal living and rehabilitating her identified functional limitations.
48The chronic pain plan proposes a total body assessment, 18 sessions of physical therapy provided by a regulated professional, 18 sessions of acupuncture by a regulated professional, and 8 sessions of 1.5 hours of counselling with a psychotherapist. The goals of the therapy are pain reduction, increased range of motion, increased strength, and a return to the activities of normal living.
49The applicant submits that she suffers from chronic pain syndrome which has been diagnosed by Dr. Getahun. The applicant testified that she finds physiotherapy, massage, acupuncture, and mental health counselling beneficial to her recovery.
50The denial on the basis of Dr. Ko's assessment is unconvincing. The plan was denied by the respondent on the day it was received, initially, on the basis of Dr. Ko's prior physical neurological assessment report issued June 5, 2023. Dr. Ko testified that it is not within the scope of his practice to diagnose chronic pain; it would have been virtually impossible for Dr. Ko to have found the plan reasonable and necessary within his scope of practice. The plan was again denied in a report dated February 22, 2024, following an assessment by Dr. David Berbrayer, physiatrist. Dr. Berbrayer opines that the proposed facility-based treatment is not reasonable and necessary. Dr. Berbrayer reviews a great deal of documentation including the report by Dr. Getahun; however, he does not coordinate his opinion with any of his physical findings or document review which causes me to provide it less weight.
51In contrast, Dr. Getahun, utilizing the American Medical Association Guides to the Evaluation of Permanent Impairment (6th Edition, 2008, pp. 23-24) ("AMA Guides"), identifies that the applicant satisfies 5 of the 6 criteria within his areas of expertise for a chronic pain syndrome diagnosis:
a. Utilizing beyond recommendation, abusing or dependent upon prescription drugs. For example, in the clinical notes and records of family doctor Dr. Lee dated May 16, 2022, the applicant raises a significant stressor that her manager accused her of using narcotics. Further, on February 8, 2023, Dr. Lee is suspicious of the applicant's answers regarding renewals of prescriptions and demands that the applicant attend in person for any further renewals. Again, on March 24, 2023, Dr. Lee outlines that the applicant is "demanding" pain medication.
b. Excessive dependence on health care providers. I find the applicant's statement to multiple assessors that her partner moved in post accident to provide support and now handles the bill payments and provides support for dressing as evidence to support this. The medical records are also replete with medical interventions without resolution, with the applicant at times seeing her family doctor bi-weekly
c. Secondary physical deconditioning. Dr. Getahun points to the deconditioning affecting her cervical and thoracolumbar spine as a result of pain avoidance, as determined during his physical exam.
d. Withdrawal from self, family, work, recreation, or other social contacts. Exploring the evidence, I find that the applicant has withdrawn from work, which demonstrates a lack of engagement, because she regularly requested sick notes from Dr. Lee (April 21, 2022, June 2, 2022, June 8, 2022, June 20, 2022) and then discontinued work completely in July of 2022. I find there are numerous consistent self reports of withdrawal from social activities and friends over a number of years.
e. Failed to restore her pre-injury function after a period of disability. Dr. Getahun assesses that the applicant, at that time, had been similarly disabled for more than a year and was not showing any signs of improvement. I turn to the assessment of Dr. Rabinovitch from June 20, 2021, where the assessor opined that the applicant had active range of motion in all directions within normal limits, with reported local pain for the cervical and lumbar spine as well as both shoulders and contrast this with the findings in Dr. Ko's report of June 5, 2023, where cervical and lumbar spine flexion was limited to 40 degrees and 20 degrees on rotation and shoulders range of motion was limited to 90 degrees. On a balance of probabilities, I find the applicant's pain and guarding behaviour is getting worse over time and contributing to physical deconditioning.
f. Development of psychosocial sequelae after the initial incident. I turn to the report of psychologist Dr. Shahmalak who assessed the applicant in November 2023 and issued his report in January 2024. Dr. Shahmalak diagnoses the applicant with Specific phobia, situational type (vehicular), Major Depressive Disorder, moderate with anxious distress (possibly pre-existing and worsened by the subject accident), and Somatic Symptom Disorder with predominant pain, persistent (possibly pre-existing and worsened by the subject accident). I accept the findings of Dr. Getahun and Dr. Shahmalak because the respondent has not offered evidence to counter them.
52I find that the plan is necessary because the applicant has established that she suffers from functionally disabling pain and has been diagnosed with chronic pain as a result of the subject accident. I find that the plan is reasonable because the goals are clear and align with well documented functional impairments the applicant has regularly identified.
The assistive devices treatment plan is not reasonable and necessary
53For the reasons that follow, on a balance of probabilities, I find that the assistive devices treatment plan for $8,686.38 of July 27, 2023, is not reasonable and necessary.
54The plan proposes several assistive devices including a massage chair for $3,800.00; orthopaedic mattress for $1,676.84; a bath bench for $175.50; a bathtub grab bar for $91.00; a steam mop for $175.50; railings at the stairs for $1,098.00 and an Everlast Upright Exercise Bike for $499.00. The goals for the plan are to provide the applicant with recommended and necessary assistive devices to facilitate the return to her activities of normal living.
55The plan was denied by the respondent on August 29, 2023, as per the s. 44 insurer's assessment by Dr. Ko dated June 5, 2023. Dr. Ko opined that his examination of the applicant did not reveal any clinical evidence of structural musculoskeletal injuries or nerve impingement. I agree with these opinions regarding physical functionality because the applicant has not submitted evidence sufficient to challenge them.
56The applicant did not testify specifically about this plan. While an inference of utility can be made on some items based on the testimony of the applicant, the applicant has not established how the goals of the treatment plan will be met to a reasonable degree for each of the items at the costs proposed. As such, there is an insufficient basis to find that she is entitled to this treatment plan.
The physiotherapy, acupuncture and chiropractic treatment plans are not reasonable and necessary
57For the reasons that follow, on a balance of probabilities, I find that the physiotherapy treatment plans are not reasonable and necessary.
58The November 29, 2021, plan submitted by Mississauga Active Physiotherapy proposes acupuncture treatment for $1,101.00. The goals of the plan are pain reduction, restore function and to stimulate the central nervous system. The plan proposes an assessment and 9 sessions of acupuncture.
59The January 21, 2022, plan for $2,120.78 recommends vestibular physiotherapy, proposed by Iscope Concussion and Pain Centers. The goals of the plan are pain reduction, increase strength and increase range of motion. The plan proposes 12 sessions of physical rehabilitation by a physiotherapist and 7 units of planning, preparation, or documentation.
60The March 29, 2022, plan for $3,080.00 recommends physiotherapy, proposed by Mississauga Active Physiotherapy. The plan proposed 12 sessions of acupuncture, 12 sessions of physical treatment by a physiotherapist and 12 sessions of physical rehabilitation with a chiropractor. The goals of the treatment are pain reduction, increased strength, and increased range of motion.
61The October 18, 2022, plan for $1,563.72 recommends physiotherapy, proposed by Prime Health Care. The plan proposed 10 sessions of therapeutic intervention by a chiropractor. The goal of the treatment is to restore core stability and full spine flexibility and return to the activities of normal living.
62The October 18, 2022, plan for $1,790.00 recommends physiotherapy, proposed by Prime Health Care. The plan proposes 12 sessions of "therapy, motor and living skills and 12 sessions of "planning, service" by chiropractor Chad Hefford. The goals of the treatment are pain reduction, increase strength and increased range of motion.
63The March 2, 2023, plan for $2,694.24 recommends physiotherapy, proposed by Prime Health Care. The plan proposes 4 sessions of body manipulation, 8 sessions of acupuncture, 12 sessions of physical therapy, 10 sessions of muscle stimulation and 12 sessions of exercise to be delivered by 3 regulated professionals and 1 unregulated provider. The goals of the treatment are pain reduction increase range of motion, increase strength and to restore core stability.
64The June 1, 2023, plan for $1,836.16 recommends physiotherapy, proposed by Prime Health Care. The plan proposes 4 sessions with a chiropractor, 4 sessions of acupuncture, 4 sessions of therapy with an unregulated provider, 8 sessions of exercise with a chiropractor, 6 sessions of muscle stimulation with a chiropractor and 4 sessions of physical therapy with a regulated provider. The goals of the plan are to increase strength, increase range of motion, restore core stability and full spine flexibility along with pain reduction.
65The October 12, 2023, plan for $2,098.64 recommends chiropractic treatment, proposed by Prime Health Care. The plan proposed 8 sessions of acupuncture, 4 sessions of physical therapy by an unregulated provider, 8 sessions of body manipulation by a chiropractor, 8 sessions of exercise by a chiropractor and 4 sessions of physical therapy by a regulated professional. The goals of the treatment are pain reduction, increase in strength, increased range of motion and to restore full spine flexibility.
66The applicant submits that physical treatments are helpful and improve her pain symptoms.
67The respondent submits that there is no compelling medical evidence to support ongoing physical therapy and that there has been minimal improvement based on the documentation received. The respondent also relies on the opinion of Dr. Rabinovitch of May 1, 2021, and Dr. Ko of June 5, 2023.
68I do not agree with the applicant that the physical treatment plans are reasonable and necessary. The applicant has testified that cupping, acupuncture, physiotherapy, chiropractic, and massage treatment are helpful. In addition, the applicant testified that she has paid out of pocket to obtain massage, acupuncture, and cupping. The medical evidence does not support the applicant's position, for example, the applicant's assessor Dr. Getahun outlines that the applicant is showing signs of physical deconditioning and no signs of physical improvement.
69Cupping, acupuncture, physiotherapy, chiropractic, and massage treatment have not been working. The applicant had utilized more than $10,000.00 in rehabilitation benefits in 2020 and 2021 and the physical treatment plans continue to highlight the exact same goals without any noticeable improvement in functionality. From the clinical notes and records of Dr. Lee on September 16, 2021, the applicant reported that she is doing physiotherapy and chiropractic treatments, but she is not getting better.
70With regard to physical treatments, I prefer the evidence of Dr. Rabinovitch who opined that the applicant had active range of motion in all directions within normal limits, with reported local pain for the cervical and lumbar spine as well as both shoulders. This suggests to me that the pain the applicant is experiencing is not improving as a result of physical treatments and therefore on a balance of probabilities is not addressing the pain complaints of the applicant.
71With regard to the physical treatments, I am persuaded by Dr. Ko's testimony and report which submits that his examination of the applicant did not reveal any clinical evidence of structural musculoskeletal injuries or nerve impingement.
72I agree with the opinions of Dr. Rabinovitch and Dr. Ko regarding physical functionality because the applicant has not submitted evidence sufficient to challenge them.
73I find that the treatment plans are not reasonable and necessary because physical treatments have not demonstrated a reasonable chance of providing the rehabilitation benefits the applicant is seeking and therefore the cost is not reasonable and necessary.
Interest
74Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies on all approved treatment and assessment plans.
Award
75The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. No specific basis for an award was submitted. The applicant is not entitled to an award, as she has not met her onus.
ORDER
76The applicant has demonstrated on a balance of probabilities that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience and is entitled to income replacement benefits from June 23, 2023, to date and ongoing.
77The applicant is entitled to the following treatment plans:
i. $3,042.56 for physiotherapy (psychological), proposed by Mississauga Active Physiotherapy in a plan submitted March 1, 2022.
ii. $1,550.00 for Botox treatment, proposed by Iscope Concussion and Pain Centers in a plan submitted January 21, 2022.
iii. $1,750.00 for psychological assessments ($5,950.00 less $ 4,200.00 approved), proposed by Prime Health Care in a plan submitted February 16, 2023.
iv. $8,882.79 for chronic pain treatment, proposed by Prime Health Care in a plan submitted November 7, 2023.
78The applicant is not entitled to the remaining plans in dispute.
79No award is due.
80The applicant is entitled to interest on all overdue benefits.
Released: March 18, 2025
Timothy Porter Adjudicator