Licence Appeal Tribunal File Number: 23-009028/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:
Emily Duhamel
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Bianca Crocetti, Counsel
For the Respondent:
Nassim Rahimi, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Emily Duhamel, the applicant, was involved in an automobile accident on September 15, 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, TD General Insurance Company, 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 the following services proposed by Physiomed Oakville:
i. $2,740.96 for chiropractic services, proposed in a treatment plan, dated February 2, 2023;
ii. $2,944.96 for chiropractic services, proposed in a treatment plan dated October 19, 2023; and
iii. $451.24 ($1,628.10 less $1,176.86 approved) for chiropractic services, proposed in a treatment plan dated July 11, 2024?
ii. Is the applicant entitled to $2,260.00 for an occupational therapy assessment, proposed by Q Medical, in treatment plan dated December 13, 2022?
iii. Is the applicant entitled to $2,486.00 for a neurological assessment, proposed by Downsview Healthcare, in a treatment plan dated August 18, 2023?
iv. Is the applicant entitled to $2,000.00 for a neurological assessment, proposed by Lifepoint Medical Inc., in a treatment plan dated August 18, 2023?
v. Is the applicant entitled to interest on any overdue payment of benefits?
3The Case Conference Report and Order (“CCRO”), lists the issues in issue i(i)(ii)(iii), as physiotherapy services. The treatment plans are actually for chiropractic services. Therefore, I have amended the issues in dispute to reflect these services, as listed on the treatment plans in dispute.
4The CCRO lists the date of the treatment plan in issue iii) as August 28, 2023. The actual date of the treatment plan is August 18, 2023. Therefore, I have amended the issue in dispute to reflect this date.
5The Motion Order, dated August 8, 2024, lists issue 3 as, “Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from February 1, 2024 to June 1, 2024?” The applicant in her submissions has stated that this issue is withdrawn. Therefore, I have not included this issue in the issues in dispute.
RESULT
6I find the applicant is entitled to the treatment plans for chiropractic services, plus interest.
7I find the applicant is not entitled to the treatment plan for an occupational therapy assessment, proposed by Q Medical, dated December 13, 2022.
8I find the applicant is entitled to the treatment plan for a neurological assessment, proposed by Downsview Healthcare, dated August 18, 2023, plus interest.
9I find the applicant is not entitled to the treatment plan for a neurological assessment, proposed by Lifepoint Medical Inc., dated August 18, 2023.
ANALYSIS
The applicant is entitled to the treatment plans for chiropractic services
10I find that the applicant has proven on a balance of probabilities that she is entitled to the treatment plans for chiropractic services.
11To 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.
12The applicant claims entitlement to $2,740.96 for chiropractic services, proposed by Physiomed Oakville in a treatment plan, dated February 2, 2023. The treatment plan seeks the following:
Assessment, total body: $200.00
16 – one-hour sessions of exercise, multiple body sites: $1,804.96
6 – half-hour sessions of mobilization, multiple body sites: $336.00
10 – one-hour sessions of therapy, multiple body sites: $400.00
13The applicant claims entitlement to $1,628.10 ($2,804.96 less $1,176.86 approved) for chiropractic services, proposed by Physiomed Oakville in a treatment plan, dated July 11, 2023. The treatment plan seeks the following:
16 – one-hour sessions of exercise, multiple body sites: $1,804.96
16 – one-hour sessions of therapy, multiple body sites: $640.00
8 – one-hour sessions of manipulation, multiple body sites: $360.00
14The respondent approved the treatment plan up to $1,176.86 and denied the balance of the treatment as follows:
10 – one-hour sessions of exercise, multiple body sites: $1,128.10
8 – one-hour sessions of therapy, multiple body sites: $320.00
4 – one-hour sessions of manipulation, multiple body sites: $180.00
15The applicant claims entitlement to $2,944.96 for chiropractic services, proposed by Physiomed Oakville in a treatment plan, dated October 19, 2023. The treatment plan seeks the following:
16 – one-hour sessions of exercise, multiple body sites: $1,804.96
16 – one-hour sessions of therapy, multiple body sites: $960.00
4 – one-hour sessions of manipulation, multiple body sites: $180.00
16The goals of the three treatment plans are to return to activities of normal living, to return to pre-accident work activities, to return to modified work activities, pain reduction, increase in strength, and increase in range of motion.
17The applicant submits that treatment plans in dispute are reasonable and necessary based on her accident-related injuries of headaches, concussion symptoms, stress, anxiety, lower back pain and neck pain. The applicant submits that her ongoing complaints are supported in the clinical notes and records (“CNRs”) of Royal Oak Clinic, iScope Concussion & Pain Clinics, and Physiomed Oakville and the report of Dr. Vincenzo Santo Basile, neurologist, dated November 15, 2023, the Concussion Clinic at UHN, dated January 24, 2024 and the Acquired Brain Injury Consultation at Hamilton Health Sciences, dated February 15, 2024.
18The respondent submits that the treatment plans in dispute were denied on the basis that the applicant’s injuries are considered predominantly soft tissue in nature. By correspondence dated October 27, 2023, the respondent advised that it would schedule a s. 44 assessment to determine whether the treatment plan dated October 19, 2023, was reasonable and necessary. The respondent relies upon the IE reports of Dr. David Nikneshan, neurologist, and Dr. Michael Ko, physiatrist, dated February 28, 2024, which concluded that the applicant sustained soft tissue injuries which fall within the MIG. It further relies upon the Paper Review report of Dr. Ko, dated November 15, 2023, which concluded that the treatment plan dated October 19, 2023, for additional chiropractic therapy is not reasonable or necessary. The respondent also argues that the applicant delayed attendance at s. 44 assessments to determine the applicability of the MIG.
19I find that the applicant has provided objective medical evidence from qualified medical practitioners that she continued to suffer ongoing physical pain post-accident and required ongoing treatment of her injuries. Upon review of the clinical notes and records (“CNRs”) of Royal Oak Clinic, I find that the applicant made both physical and psychological complaints consistently post-accident. She was diagnosed with a concussion and reported ongoing concussion symptoms, low back pain and neck pain. In addition, the report from iScope Concussion & Pain Clinic, dated November 18, 2022, supports a diagnosis of a mild traumatic brain injury with a recommendation for interdisciplinary concussion management. The CNRs of Physiomed confirm ongoing concussion symptoms and neck, shoulder and back discomfort with the last CNR dated January 31, 2024. The Neurology report completed by Dr. Basile dated November 15, 2023, diagnosed the applicant with post-concussive syndrome, headaches, chronic daily medication overuse, musculoskeletal type of pain in the neck and lower back, right sided C5-C6 cervical radiculopathy, right sided carpal tunnel syndrome, left sided L3 lumbosacral radiculopathy, chronic pain syndrome with central sensitization and post-traumatic tinnitus. Dr. Basile recommended ongoing multi-disciplinary treatments including massage, physical therapy and chiropractic therapy. In addition, the reports of the Concussion Clinic at UHN, dated January 24, 2024, and the Acquired Brain Injury Consultation at Hamilton Health Sciences, dated February 15, 2024, both support ongoing complaints, a diagnosis of concussion and the need for ongoing therapy.
20I find that the treatment proposed is reasonable and necessary, because the applicant continues to experience ongoing physical symptoms and the treatment was assisting the applicant. In addition, I find that multiple practitioners recommended and supported ongoing treatment. I find the CNRs from Physiomed document the applicant’s improvement with treatment, as evidence that the treatment goals on the plan are being met to a reasonable degree. I find the costs for these treatment plans to be reasonable in meeting their goals.
21I find that while Dr. Nikneshan, neurologist, in his IE report concluded that it is unlikely the applicant suffers a mild traumatic brain injury and instead suffers a whiplash associated disorder type II injury, that falls within the MIG, multiple assessors, including Dr. Basile, iScope Concussion Clinic, the Concussion Clinic at UHN and the Acquired Brain Injury Consultant at Hamilton Health Sciences, all disagreed with his findings and concluded that the applicant suffered a concussion and ongoing impairments as a result. I give weight to the opinions of these assessors who are consistent with their diagnoses.
22I give little weight to the Paper Review Report of Dr. Ko which determined that the treatment plan dated October 19, 2023, is not reasonable or necessary. I find that there is no discussion of the applicant’s diagnosis of a concussion nor any consideration to the records provided which document her ongoing concussion complaints. His report only comments on her lower back, left shoulder and left clavicle area and he concludes that the applicant only sustained soft tissue injuries. I find that the medical documentation provided by the applicant documents her diagnosis of a concussion and supports the need for ongoing chiropractic treatment to deal with her injuries.
23I further find that there is insufficient evidence that the applicant delayed attending s. 44 assessments with respect to her entitlement to the treatment plans in dispute. She attended a Physiatry assessment with Dr. Ko on September 8, 2023 and a Neurology assessment with Dr. Nikneshan on November 30, 2023.
24For the reasons set out above, I find that the applicant has met her onus of proving on a balance of probabilities that the treatment plans for chiropractic services are reasonable and necessary as a result of the accident.
The applicant is not entitled to the treatment plan for an occupational therapy assessment
25I find that the applicant has not proven on a balance of probabilities that she is entitled to the treatment plan for an occupational therapy assessment.
26The applicant claims entitlement to $2,260.00 for an occupational therapy assessment, proposed by Q Medical in a treatment plan, dated December 13, 2022. The treatment plan seeks an attendant care benefit determination and completion of a Form 1.
27The goals of the treatment plan are to ensure the applicant has the ability and/or resources to engage in activities of daily living safely, to provide recommendations to encourage and facilitate restoration of pre-accident independence, mobility, physical tolerances and psychological safety.
28I find that the applicant has not provided any specific 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.
29Given the lack of submissions and medical evidence provided by the applicant with respect to her entitlement to the treatment plan, dated December 13, 2022, I find that the applicant has not met her onus of proving on a balance of probabilities that the treatment plan dated December 13, 2022, is reasonable and necessary as a result of the accident.
The applicant is entitled to the treatment plan for a neurological assessment, dated August 18, 2023
30I find that the applicant has proven on a balance of probabilities that she is entitled to the treatment plan for a neurological assessment.
31The applicant claims entitlement to $2,486.00 for a neurological assessment, proposed by Dr. Basile, neurologist, of Downsview Healthcare, in a treatment plan, dated August 18, 2023. The goals of the neurological assessment are to determine if there is an accident-related neurological impairment and to provide recommendations for recovery.
32The applicant submits that the treatment plan for a neurological assessment is reasonable and necessary based on her family doctor’s recommendation that she undergo a neurological assessment for her concussion and symptoms. The applicant relies upon the CNRs of Royal Oak Clinic, iScope Concussion and Pain Clinic and Physiomed Oakville, and the reports of Dr. Basile, neurologist, dated November 14, 2023, the Concussion Clinic at UHN, dated January 24, 2024 and the Acquired Brain Injury Consultation at Hamilton Health Sciences, dated February 15, 2024.
33The respondent submits that it denied the treatment plan for a neurological assessment on the basis that the injuries reported by the applicant are considered predominantly soft tissue in nature. It relies upon the IE report of Dr. Nikneshan, neurologist, dated February 28, 2024. Dr. Nikneshan concluded that from a neurological standpoint, the applicant suffers from persistent headaches secondary to trauma to the neck. He stated that whiplash associated disorder type II falls within the MIG.
34I find that the applicant has established that the treatment plan for a neurological assessment is reasonable and necessary. I find that the medical documentation shows the applicants ongoing complaints which are reasonable grounds to warrant further investigation into her post-accident pain complaints and difficulties. Additionally, I find the goals of the assessment to be reasonable. The assessment was to determine if there is any neurological impairment and to provide recommendations for her recovery.
35I further find that while Dr. Nikneshan in his IE report concluded that the applicant suffered injuries that fall within the MIG, multiple assessors, including Dr. Basile, iScope Concussion Clinic, the Concussion Clinic at UHN and the Acquired Brain Injury Consultant at Hamilton Health Sciences, all disagreed with his findings and concluded that the applicant suffered a concussion and ongoing impairments as a result. I give weight to the opinions of these assessors who are all consistent with their diagnoses.
36For the reasons set out above, I find that the applicant has met her onus of proving on a balance of probabilities that the treatment plan for a neurological assessment is reasonable and necessary as a result of the accident.
The applicant is not entitled to the treatment plan for a neurological assessment, proposed by Lifepoint Medical
37I find that the applicant is not entitled to a treatment plan for a neurological assessment, proposed by Lifepoint Medical, dated August 18, 2023.
38The applicant claims entitlement to $2,000.00 for a neurological assessment proposed by Lifepoint Medical in a treatment plan, dated August 18, 2023. A copy of this treatment plan was not provided by the applicant in her submissions.
39The respondent submits that there was no treatment plan submitted on August 18, 2023 for a neurological assessment by Lifepoint Medical. It submits that the treatment plan proposed by Lifepoint Medical is for a psychological assessment in the amount of $2,000.00, dated November 8, 2023. The respondent subsequently approved this treatment plan on July 12, 2024. A copy of this treatment plan was provided in the respondent’s submissions.
40I find that there appears to be an error with respect to the issue in dispute as listed in the CCRO. I find that there is no treatment plan, recommending a neurological assessment, proposed by Lifepoint Medical, dated August 18, 2023. I find that the issue in dispute is actually the treatment plan dated November 8, 2023 for a psychological assessment, proposed by Lifepoint Medical, in the amount of $2,000.00. I base this finding on the fact that the applicant is also claiming entitlement to a treatment plan for a neurological assessment, proposed by Downsview Healthcare dated August 18, 2023, as set out above, and the treatment plan dated November 8, 2023, is from the same provider Lifemark and is in the same amount of $2,000.00, being claimed. As the respondent has advised that this treatment plan for the psychological assessment was approved, there is no issue in dispute.
Interest
41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that the applicant is entitled to interest on the overdue benefits of the treatment plans for chiropractic services and the neurological assessment.
ORDER
42For the reasons outlined above, I find:
i. The applicant is entitled to the treatment plans for chiropractic services;
ii. The applicant is not entitled to the treatment plan for an occupational therapy assessment, proposed by Q Medical, dated December 13, 2022;
iii. The applicant is entitled to the treatment plan for a neurological assessment, proposed by Downsview Healthcare, dated August 18, 2023
iv. The applicant is not entitled to the treatment plan for a neurological assessment, proposed by Lifepoint Medical Inc., dated August 18, 2023; and
v. The applicant is entitled to interest on overdue payment of benefits.
Released: May 1, 2025
Melanie Malach
Adjudicator