Thavanayagam v. TD General Insurance Company
Licence Appeal Tribunal File Number: 23-001698/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:
Sajan Thavanayagam
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR: Caley Howard
APPEARANCES:
For the Applicant: Alexander Makaronets, Counsel
For the Respondent: Colin Birch, Counsel
HEARD: By way of written submissions
OVERVIEW
1Sajan Thavanayagam, the applicant, was involved in an automobile accident on December 1, 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, 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 $8,325.85 for driving therapy services, proposed by All Health Medical Centre in a treatment plan/OCF-18 (“treatment plan”) dated June 1, 2023?
ii. Is the applicant entitled to $1,525.84 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan dated May 24, 2023?
iii. Is the applicant entitled to $2,520.00 for a neurological assessment, proposed by All Health Medical Centre in a treatment plan dated June 19, 2023?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find:
i. The applicant is not entitled to $8,325.85 for driving therapy services;
ii. The applicant is not entitled to $1,525.84 for physiotherapy services;
iii. The applicant is not entitled to $2,520.00 for a neurological assessment; and
iv. As there are no overdue benefits, the applicant is not entitled to interest.
ANALYSIS
Entitlement to treatment and assessment plans
4To 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.
a) Driving therapy services
5I find that the applicant is not entitled to $8,325.85 for driving therapy services.
6The treatment plan for driving therapy services, submitted June 1, 2023, was completed by Dr. Erin Langis, psychologist, and sought funding for $8,325.85. The goals of the treatment plan were pain reduction, return to pre-accident level of psychological functioning and return to activities of normal living.
7The applicant submits that the treatment plan for driving therapy services is reasonable and necessary. In support of his position, he relies on the November 22, 2022 Insurer’s Examination report of Dr. Peter Cobrin, psychologist.
8The respondent submits that the treatment plan is not reasonable and necessary. In support of its position, the respondent relies on the November 22, 2022 report of Dr. Cobrin, the February 16, 2023 Psychological Report of Dr. Nina Belyakova, psychologist, and the April 9, 2023 Driving Reintegration Evaluation of Dr. Langis. It also relies on video surveillance of the applicant taken on September 9, 10 and 27, 2023.
9The applicant submits that Dr. Cobrin diagnosed him with major depressive disorder and a Specific Phobia pertaining to traveling in vehicles on September 19, 2022. The applicant submits that the treatment plan was proposed to deal with the Specific Phobia pertaining to travel in vehicles, as diagnosed by Dr. Cobrin.
10I give little weight to Dr. Cobrin’s report because:
i. Dr. Cobrin’s report does not recommend driving therapy, provide an opinion as to the reasonableness of the goals of such therapy or indicate how those goals could be met. Rather, his report was prepared at the request of the respondent in relation to a treatment plan proposing chiropractic and massage therapy, specifically to help the insurer determine whether the applicant should remain within the Minor Injury Guideline (MIG);
ii. Dr. Cobrin’s assessment of the applicant included one psychological test, the PAI, the results of which were invalid. As a result, Dr. Cobrin’s diagnosis was based solely on Dr. Cobrin’s interview of the applicant on September 19, 2022 and lacks objective test results;
iii. Dr. Cobrin’s interview with the applicant occurred six months prior to the date of the disputed treatment plan and therefore does not provide a contemporaneous report of the applicant’s symptoms at the time the treatment plan was submitted; and
iv. Dr. Cobrin’s report does not indicate that he reviewed any clinical notes and records from treatment providers that confirmed the applicant’s self-reported psychological symptoms.
11I find that Dr. Cobrin’s report is insufficient to meet the applicant’s onus of demonstrating, on a balance of probabilities, that the disputed treatment plan is reasonable and necessary. Therefore, I find that the applicant is not entitled to the treatment plan.
b) Physiotherapy treatment services
12I find that applicant is not entitled to $1,525.84 for physiotherapy treatment services.
13The treatment plan for physiotherapy treatment, submitted May 24, 2023, was completed by Dr. Edwin Wong, chiropractor, and requested funding for $1,525.84 for physiotherapy. The goals of the treatment plan were listed as pain reduction, increase in strength, increased range of motion and a return to the activities of normal living.
14The applicant submits that the treatment plan is reasonable and necessary and in support of his position he relies on: the clinical notes and records (CNRs) of Dr. Wali, dated January 4, 2022; the OCF-3 dated June 16, 2022 and completed by Dr. Na Ryung Kim, chiropractor; the CNRs of Mackenzie Medical Rehabilitation Centre; the Insurer’s Examination report of Dr. Maria Nesterenko, physician, dated November 22, 2022; the CNRs of Dr. Arunasalam dated October 28, 2023; and the disputed treatment plan.
15The respondent submits that the applicant has already obtained the maximum therapeutic benefit from physical therapy and so the disputed treatment plan is not reasonable and necessary. In support of its position, the respondent relies on the October 3, 2023 Insurer’s Examination report of Dr. Nesterenko and the January 11, 2024 Insurer’s Examination – Paper Review of Dr. Nesterenko.
16I find that the documents relied upon by the applicant show that he has repeatedly reported experiencing pain in his neck, back, shoulder and head due to the accident, beginning with his visit to Dr. Wali on January 4, 2022, approximately one month after the accident, and concluding with a diagnosis of chronic pain and a referral to a pain clinic by Dr. Arunasalam on October 28, 2023.
17The applicant submits that the CNRs of Mackenzie Medical Rehabilitation Centre show the positive effects of the physiotherapy treatment he received there. However, the applicant does not direct me to any particular entry in the CNRs that demonstrate this. I was not directed to any entries that noted the effects of treatment on the applicant’s pain levels or functional abilities. I find that much of the handwriting in the CNRs is illegible and I was unable to locate any such entries in the CNRs. I find that the CNRs do not show that the applicant received a benefit from the physiotherapy treatment.
18The applicant also directs me to his report of a 50% improvement in his pain symptoms during the insurer’s examination of Dr. Nesterenko, dated November 22, 2022. However, I find that the report does not indicate that the applicant attributed this improvement to his physiotherapy treatments. In addition, I find that Dr. Nesterenko’s objective assessment of the applicant revealed no ongoing objective musculoskeletal impairment attributable to the accident-related injuries and opined that the applicant had achieved maximum therapeutic benefit from such care. Therefore, I find that Dr. Nesterenko’s report of November 22, 2022 does not support the applicant’s claim that physiotherapy treatment continued to be reasonable and necessary in May 2023, when the disputed treatment plan was submitted.
19Therefore, I find that the applicant has not proven, on a balance of probabilities, that the disputed treatment plan is reasonable and necessary. The applicant is not entitled to $1,525.84 for physiotherapy services.
c) Neurological assessment
20I find that the applicant is not entitled to $2,520.00 for a neurological assessment.
21The applicant has the onus of proving there are reasonable grounds to believe that a condition exists that would warrant further investigation by way of an assessment.
22The treatment plan for a neurological assessment, submitted June 19, 2023, was completed by Dr. Vincenzo Basile, neurologist, and requested funding for $2,520.00. The goals of the treatment plan were listed as pain reduction, increased range of motion, increase in strength, treatment recommendations, return to activities of normal living, identify impairments and help achieve maximum recovery.
23The applicant submits that a neurological assessment is reasonable and necessary due to the persistent headaches he has suffered since the accident. He relies on: a referral to a neurologist of his choice made by Dr. Mary Mathews, physician, on May 13, 2023; the treatment plan; the CNRs of Dr. Viachislav Prigozhikh, neurologist, dated October 10, 2023; and the referral by Dr. Kiritharan Arunasalam, physician, to a pain clinic, dated October 28, 2023.
24The respondent submits that a neurological assessment is covered by OHIP and the respondent is therefore not required to pay for it, pursuant to s. 47(2) of the Schedule. The respondent relies on G.T. v. Unifund Assurance Company, 2017 CanLII 81567 (“G.T.”), in which the Tribunal held that once an insurer proves that a benefit is, in whole or in part, reasonably available through an insurance plan or law, the burden then shifts to the applicant to prove that the benefit is not in fact reasonably available. While I am not required to follow Tribunal decisions, I agree with the assessment of the burden of proof in G.T.
25The respondent submits that the applicant attended a neurological consultation with Dr. Prigozhikh on October 10, 2023, which it submits was covered by OHIP. The applicant does not dispute that his consultation with Dr. Prigozhikh was covered by OHIP. Rather, he submits that he requires a second neurological assessment with Dr. Basile, to be funded by the respondent. I find that the respondent has not directed me to any evidence as to whether a second neurological assessment would be reasonably available through OHIP and so it has not shifted the burden to the applicant.
26In support of his claim for a neurological assessment, the applicant relies on Dr. Mathews’ referral to a neurologist of his choice. Following his receipt of this referral, I find that the applicant made an appointment with Dr. Prigozhikh and attended a consultation with Dr. Prigozhikh on October 10, 2023. I find that the applicant has been examined by a neurologist with respect to his chronic headaches, as recommended by Dr. Matthews.
27The applicant also relies on the CNRs from his consultation with Dr. Prigozhikh, in which Dr. Prigozhikh diagnosed the applicant with chronic headaches with migraine features. I find that Dr. Prigozhikh prescribed various medications and dietary supplements for headache prevention and insomnia, made recommendations for lifestyle modification and recommended that the applicant follow up with him in three months.
28As the applicant was examined by, and can continue to follow up with, the neurologist of his choice, Dr. Prigozhikh, I find that the referral to a neurologist from Dr. Mathews is insufficient to prove that the psychological assessment proposed in the treatment plan is reasonable and necessary. I find that the applicant is not entitled to $2,520.00 for the neurological assessment.
Interest
29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, the applicant is not entitled to interest.
ORDER
30I find:
i. The applicant is not entitled to $8,325.85 for driving therapy services;
ii. The applicant is not entitled to $1,525.84 for physiotherapy services; and
iii. The applicant is not entitled to $2,520.00 for a neurological assessment.
iv. Because there are no overdue benefits, the applicant is not entitled to interest.
Released: January 8, 2025
Caley Howard
Adjudicator