Licence Appeal Tribunal File Number: 23-002343/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:
Mohammed Masood Shahrawan
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ludmilla Jarda
APPEARANCES:
For the Applicant:
Sevda Guliyeva, Paralegal
For the Respondent:
Jonathan White, Counsel
HEARD:
By Written Submissions
OVERVIEW
1Mohammed Massod Shahrawan, the applicant, was involved in an automobile accident on March 9, 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, Aviva 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:
Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from June 22, 2022, to March 9, 2023?
Is the applicant entitled to $990.00 ($5,755.24 less $4,765.24 approved) for chiropractic services, proposed by Health One Markham Inc. in a treatment plan dated April 1, 2021?
Is the applicant entitled to $1,080.00 ($2,889.39 less $1,809.39 approved) for physiotherapy services, proposed by Health One Markham Inc. in a treatment plan dated April 6, 2021?
Is the applicant entitled to $994.81 ($4,167.08 less $3,172.67 approved) for physiotherapy services, proposed by Health One Markham Inc. in a treatment plan dated June 10, 2021?
Is the applicant entitled to $1,294.40 ($2,188.80 less $894.40 approved) for physiotherapy services, proposed by Health One Markham Inc. in a treatment plan dated July 8, 2021?
Is the applicant entitled to $569.61 (2,194.03 less $1,624.42 approved) for psychological services, proposed by E Clinic United Healing in a treatment plan dated November 3, 2022?
Is the applicant entitled to $3,441.95 for occupational therapy, proposed by E Clinic United Healing in a treatment plan dated November 4, 2022?
Is the applicant entitled to $2,556.80 for assistive devices, proposed by E Clinic United Healing in a treatment plan dated November 11, 2022?
Is the applicant entitled to $1,231.04 for yoga therapy, proposed by E Clinic United Healing in a treatment plan dated January 16, 2023?
Is the applicant entitled to $1,050.00 for a Nutritional Assessment, proposed by E Clinic United Healing in a treatment plan dated January 11, 2023?
Is the applicant entitled to the assessments proposed by Q Medical, as follows:
(a) $590.20 ($2,506.79 less $1,916.59 approved) for a Psychological Assessment, in a treatment plan dated February 15, 2022;
(b) $252.33 ($2,512.33 less $2,260.00 approved) for a Psychiatrist Assessment, in a treatment plan dated October 11, 2022; and
(c) $2,510.86 for a Chronic Pain Assessment, in a treatment plan dated October 11, 2022?
- Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons that follow, I find that:
the applicant is not entitled to an IRB;
the applicant is not entitled to the disputed treatment plans; and
the applicant is not entitled to interest.
4The application is dismissed.
ANALYSIS
Income Replacement Benefit
5I find that the applicant has not proven, on a balance of probabilities, that he is entitled to an IRB for the period of June 22, 2022, to March 9, 2023 at the rate of $400.00 per week.
6To receive payment for pre-104-week IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. He must identify the essential tasks of his employment, which tasks he is unable to perform, and to what extent he is unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that he meets the test.
7At the time of the accident, the applicant was employed on a full-time basis as a machine operator at A&M Heat Treating Ltd., he was self-employed on a part-time basis as a tow truck driver, and he occasionally worked at his father’s mechanic shop. Following the accident, the applicant did not return to work as a machine operator or as a tow truck operator, but he reportedly continued to occasionally work at his father’s mechanic shop.
8The applicant submits that he suffers from a substantial inability to perform the essential tasks of his pre-accident employment on a full-time basis and as such, he is entitled to an IRB. The applicant argues that in considering the applicant’s ability to perform the essential tasks of his pre-accident employment, the respondent’s assessors did not take into account his chronic pain, his limited range of motion, his persistent physical symptoms, his ongoing nausea, vertigo, and cognitive impairments, and his psychological impairments like anxiety, depression, and post-traumatic stress, nor did they consider how these symptoms impact his ability to stand for long periods, handle heavy objects, and concentrate in a factory setting.
9The respondent submits that the applicant has not satisfied his burden to prove his entitlement to an IRB. The respondent states that the applicant’s IRB was suspended on April 19, 2022, because the applicant did not provide various documents requested pursuant to s. 33 of the Schedule. The applicant’s IRB were subsequently terminated, effective June 22, 2022, after the respondent obtained insurer examination reports from Dr. Shafik Dharamshi, physician, Dr. Galit Kleiner, neurologist, and Dr. Rod Day, psychologist. These assessors determined that the applicant did not suffer from a substantial inability to perform the essential tasks of his pre-accident employment as a result of his accident-related injuries.
10I find that the evidence does not support a finding that the applicant suffers from a substantial inability to perform the essential tasks of his pre-accident employment as required by s. 5(1) of the Schedule.
11According to the Emergency Department record dated March 9, 2021, the applicant sustained a laceration to his left eyelid, requiring sutures, and he was diagnosed with a left eyelid injury. Diagnostic imaging of his head, cervical spine, lumbar spine, and thoracic spine were unremarkable. Shortly after, he consulted Dr. James Gorman, a general practitioner, and based on a clinical note dated March 15, 2021, the applicant complained of pain to his neck and back, and a headache. On examination, his range of motion was normal. He was assessed with a laceration to his left upper eyelid.
12In support of his claim for an IRB, the applicant submitted two Disability Certificates (OCF-3). The first OCF-3 is dated March 26, 2021, and was completed by Dr. Karma Patel, chiropractor. Dr. K. Patel indicated that the applicant was substantially unable to perform the essential tasks of his employment at the time of the accident and within 104 weeks of the accident and he could not return to work on modified hours and/or duties. He noted that the applicant was unable to fully see through his left eye, and he was experiencing pain with lifting, bending, turning his head, and using his left thumb.
13The second OCF-3 is dated April 28, 2022, and was completed by Dr. Hetal Patel, chiropractor. Dr. H. Patel indicated that the applicant was substantially unable to perform the essential tasks of his employment at the time of the accident and within 104 weeks of the accident and that he could not return to work on modified hours and/or duties. However, she did not identify the essential tasks of the applicant’s employment, which tasks he was unable to perform, and to what extent he was unable to perform them. As a result, there is insufficient evidence to support the applicant’s inability to return to work.
14While the applicant suggests that less weight should be place on the reports of the respondent’s assessors on the basis that they did not consider several of the applicant’s accident-related impairments, I find that the applicant’s evidence is insufficient to support his entitlement to an IRB. The applicant reported to his s. 25 assessors, Dr. Tony Toneatto, psychologist, Dr. Sadiq Hasan, psychiatrist, and Aliah Zain, occupational therapist, that he was unable to return to work due to his accident-related injuries. However, none of these assessors expressed an opinion regarding the applicant’s ability to return to work, nor did they opine that he suffers from a substantial inability to perform the essential tasks of his pre-accident employment.
15Further, in her attendant care needs assessment report dated December 9, 2021, Ms. Zain noted that during functional testing the applicant demonstrated functional range of motion for his head, neck, trunk, upper extremity, and lower extremity. He did not demonstrate any difficulties with his balance, sitting, and standing tolerance, and with his ability to kneel, squat, crouch, and bend. Although the applicant reported increased pain in his neck and shoulder during functional testing, he also reported that he can complete his self-care tasks, albeit slowly.
16Moreover, the applicant was assessed by the respondent’s assessors, Dr. Dharamshi, Dr. Kleiner, and Dr. Day. These assessors opined that the applicant did not suffer from a substantial inability to perform the essential tasks of his pre-accident employment as a result of his accident-related injuries.
17From a physical perspective, Dr. Dharamshi diagnosed the applicant with a whiplash associated disorder (grade 1), left thumb strain, and left knee contusion. While he noted that the applicant sustained a head injury, laceration, and post-traumatic headaches, further evaluation was deferred to a neurologist. In terms of employment, Dr. Dharamshi indicated that the applicant was employed as a heat-treating technician in a factory and his tasks included standing, bending, reaching, and lifting between 10 to 50 pounds. On examination, there was no indication of a residual accident-related impairment, and Dr. Dharamshi concluded that the applicant was able to perform all essential tasks of his pre-accident employment.
18From a neurological perspective, Dr. Kleiner found that the applicant may have sustained post-traumatic vestibulopathy based on the medical history he provided, but on examination, the applicant did not have any neurological complaints or findings. Dr. Kleiner concluded that there was no limitation with respect to the applicant’s ability to perform the essential tasks of his pre-accident employment.
19From a psychological perspective, Dr. Day diagnosed the applicant with an adjustment disorder with mixed anxiety and depressed mood as a result of the accident, and he noted that the applicant was on the cusp of meeting the criteria for a major depressive disorder. Dr. Day found that the applicant’s psychological symptoms had an adverse effect on the applicant’s daily functioning, but that this did not prevent the applicant from progressively returning to his previous activities of normal living from a psychological perspective. Dr. Day was not satisfied that the applicant suffered from a substantial inability to perform the essential tasks of his pre-accident employment, and he recommended that the applicant participate in psychotherapy to address his anxiety and depression symptoms and to return to his pre-accident daily functioning.
20Based on the evidence as a whole, I find that the applicant has not satisfied his onus to prove, on a balance of probabilities, that he is entitled to an IRB.
21I find that the applicant has not demonstrated, on a balance of probabilities, that the disputed treatment plans are reasonable and necessary.
22To receive payment for a treatment and assessment plan under ss. 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 the treatment plan, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable and necessary.
23It is well established that applicants to the Tribunal are obligated to make their own case, and as part of this obligation, applicants must adduce all evidence which they need or intend to rely on. In the present case, neither party directed the Tribunal to the treatment plans relating to Issues 6, 7, 8, 9, 10, 11(i), 11(ii), and 11(iii). As a result, these treatment plans are not part of the evidentiary record.
The applicant is not entitled to the unapproved balance for chiropractic services and physiotherapy services (Issues 2, 3, 4, and 5)
24I find that the applicant has failed to demonstrate, on a balance of probabilities, that the unapproved balance of the disputed treatment plans for chiropractic services and physiotherapy services are reasonable and necessary.
25The treatment plan dated April 1, 2021, in the amount of $5,775.24 for chiropractic services (Issue 2) proposes an initial assessment, chiropractic treatment, a cervical pillow, back support with massager, biofreeze gel, a small gel pack, a large gel pack, kinesiology tape, TENS unit, theraband/tube, personal protection equipment (“PPE”), transportation expenses, and completion of the treatment plan. The goals of the treatment plan are to reduce pain, to increase range of motion, and to return to activities of normal living. The respondent partially approved the treatment plan in the amount of $4,765.24. It denied the cost of the PPE in the amount of $90.00 and the transportation expenses in the amount of $900.00.
26The treatment plan dated April 6, 2021, in the amount of $2,889.39 for physiotherapy services (Issue 3) proposes massage therapy, PPE, transportation expenses, a massage gun, and completion of the treatment plan. The goals of the treatment plan are to reduce pain, to increase range of motion, and to return to activities of normal living. The respondent partially approved the treatment plan in the amount of $1,809.39. It denied the cost of the PPE in the amount of $180.00 and the transportation expenses in the amount of $900.00.
27The treatment plan dated June 10, 2021, in the amount of $4,167.08 for physiotherapy services (Issue 4) proposes a re-assessment, chiropractic treatment, kinesiology tape, PPE, transportation expenses, and completion of the treatment plan. The goals of the treatment plan are to reduce pain, to increase range of motion, and to return to activities of normal living. The respondent partially approved the treatment plan in the amount of $3,172.67. It denied the proposed tax in the amount of $120.25 and reduced it to $5.84 as the only item that is taxable in the proposed treatment plan is the kinesiology tape. It also denied the cost of the PPE in the amount of $80.00, and the transportation expenses in the amount of $800.00.
28The treatment plan dated July 8, 2021, in the amount of $2,188.80 for physiotherapy services (Issue 5) proposes massage therapy, PPE, transportation expenses, and completion of the treatment plan. The respondent partially approved the treatment plan in the amount of $894.40. The goals of the treatment plan are to reduce pain, to increase range of motion, and to return to activities of normal living. It denied the costs of the PPE in the amount of $160.00, the transportation expenses in the amount of $800.00, and it reduced the hourly rate for massage therapy services per the Professional Services Guidelines (“PSG”).
29The applicant argues that the cost of the PPE and the transportation expenses are reasonable and necessary. The applicant states that in the context of a global pandemic, the PPE was required to safely access necessary treatment. He submits that expenses necessary for ensuring the safe treatment of an insured person are reasonable and necessary, and they are in line with the overall objective of the Schedule. As for the transportation expenses, the applicant states that insured persons must frequently travel to attend treatment, even if each trip do not exceed 50 kilometres, and that the cumulative distance should be considered.
30The respondent submits that the unapproved balance of the disputed treatment plans is not reasonable and necessary. The respondent did not approve the costs associated with the PPE because the Ministry of Health COVID-19 Operational Requirements of June 15, 2020, requires healthcare providers and their employers to fund PPE. It argues that the Tribunal has previously held in numerous decisions that the costs of PPE are not covered under the Schedule, and they are not reasonable and necessary expenses (see: Bowen v. Aviva Insurance Company, 2024 CanLII 23451 (ON LAT), Kireev v. Certas Home and Auto, 2024 CanLII 41003 (ON LAT), and Vila v. Aviva Insurance Company, 2023 CanLII 50529 (ON LAT)). The respondent did not approve the transportation expenses because the proposed distance of travel does not exceed the 50 kilometres deductible set out in the Schedule (see: Schedule, s. 3(1), “authorized transportation expenses”).
31I find that the unapproved balance of the four treatment plans identified above is not reasonable and necessary. I find that the costs of the PPE are not covered under the Schedule.
32I further find that the evidence does not support a finding that the proposed transportation expenses set out in the treatment plans are authorized transportation expenses under the Schedule. The proposed transportation expenses were not calculated by applying the rates set out in the Transportation Expense Guideline as required by the Schedule. Also, there is no indication in the treatment plan that the proposed distance of travel exceeds 50 kilometers for a trip. The Schedule provides that unless the insured person sustained a catastrophic impairment, only transportation expenses incurred after the first 50 kilometres of a trip are covered.
33I also find that the unapproved balance for massage therapy services for Issue 5 is not reasonable and necessary. While neither party addressed this unapproved balance in their written submissions, it is well established that the PSG sets out the maximum expenses payable for a range of healthcare services under the Schedule. The PSG provides that the maximum hourly rate for massage therapists is $58.19 per hour, which is the amount approved by the respondent. The applicant has not directed me to evidence to support an hourly rate greater than $58.19 for massage therapy services.
34Finally, I find that the applicant has not met his burden of proving that the unapproved balance for tax payable for Issue 4 is reasonable and necessary. The applicant did not direct me to evidence to support the amount of tax sought in the treatment plan, and he did not address the unapproved balance in his written submissions.
35Accordingly, I find that the applicant has not proven that the unapproved balance of the four treatment plans above is payable.
The applicant is not entitled to the unapproved balance for psychological services (Issue 6)
36I find that the applicant has not demonstrated, on a balance of probabilities, that the unapproved balance of the treatment plan for psychological services is reasonable and necessary.
37The treatment plan dated November 3, 2022, proposes psychological services in the amount of $2,194.03. Since the treatment plan was not included in the evidentiary record, the particulars of the goods and services and their related costs are unknown. The respondent partially approved the treatment plan in the amount of $1,624.42. It denied the balance of $569.61 on the basis that the hourly rate for the service provider, i.e. a social worker, was in excess of the maximum hourly rate set out in the PSG.
38The applicant did not address his entitlement to this treatment plan in his written submissions. As such, the applicant’s position regarding this treatment plan is unknown.
39The respondent submits that the hourly rate proposed in the treatment plan for social worker services exceeds the maximum hourly rate set out in the PSG, and the applicant has not demonstrated that a higher rate should be permitted. Relying on Qian v. Aviva Insurance Company, 2022 CanLII 81517 (ON LAT), the respondent states that $100.00 per hour for social worker services is reasonable, and it agrees to pay this hourly rate for the services proposed in the treatment plan.
40Although the PSG does not provide an hourly rate for social workers, it provides that the maximum hourly rate for unregulated providers is $58.19 per hour. Given that the PSG is silent on the maximum hourly rate for a social worker, it is left to the parties to determine what the acceptable hourly rate would be, and if they are unable to do so, the Tribunal must decide.
41I find that the applicant has not met his burden of proving that an hourly rate greater than $100.00 per hour is reasonable and necessary in the circumstances. The applicant has not directed me to evidence to support an hourly rate greater than $100.00 per hour for social worker services. As a result, I accept that $100.00 per hour is a reasonable hourly rate for social worker services.
42As such, the applicant has not met his evidentiary burden and proven that the unapproved balance of the treatment plan is payable.
The applicant is not entitled to occupational therapy services (Issue 7)
43I find that the applicant has not demonstrated, on a balance of probabilities, that the treatment plan for occupational therapy services is reasonable and necessary.
44The treatment plan dated November 4, 2022, proposes occupational therapy services in the amount of $3,441.95. Since the treatment plan was not included in the evidentiary record, the particulars of the goods and services and their related costs are unknown.
45The applicant submits that the treatment plan is reasonable and necessary. He states that the necessity of occupational therapy services is supported by a variety of comprehensive assessments conducted by various healthcare professionals including Ms. Zain, Dr. Toneatto, Dr. Sarah Talebizadeh, psychologist, Dr. Hasan, Dr. Dharamshi, Dr. Kleiner, and Dr. Day. The applicant also relies on the clinical notes from Health One Markham Inc.
46The applicant argues that he has physical, cognitive, and psychological impairments that warrant occupational therapy intervention. He states that he has cognitive challenges such as memory issues and impaired problem-solving abilities that impact his daily function. He states that his persistent physical pain and limited range of motion impact his ability to perform both personal care and job-related tasks, and his anxiety and depression exacerbate his physical symptoms.
47The respondent submits that occupational therapy services are not reasonable and necessary. It argues that the applicant reported being independent with self-care, he resumed his housekeeping activities, and he had no limitations with standing or walking. Further, while the applicant psychological symptoms affect his daily functioning, it does not prevent him from progressively returning to his previous activities of normal living. The respondent relies on the June 20, 2022 reports of Dr. Dharamshi, Dr. Kleiner, and Dr. Day.
48I find that the evidence supports a finding that occupational therapy services may be reasonable and necessary. In her psychological insurer examination report dated March 17, 2023, Dr. Talebizadeh concluded that the applicant met the diagnostic criteria for adjustment disorder with mixed anxiety and depressed mood. She also found that the applicant was presenting with features of agoraphobia as a result of the accident given that he avoids leaving his house. She indicated that the applicant had been avoidant of daily tasks and social activities to a significant degree since the accident, and she recommended that he partake in activation treatment with an occupational therapist or a rehabilitation specialist. The benefit of this treatment would be to encourage him to reengage in activities both outside and inside the house.
49However, I find that the evidence does not support a finding that the disputed treatment plan is reasonable and necessary. As the disputed treatment plan was not included in the evidentiary record, the particulars of the treatment plan are unknown, including the goals of the treatment plan, the scope of the proposed goods and services, including the occupational therapy services, and the associated costs. Further, while the applicant argues that the treatment plan is reasonable and necessary because of his physical, cognitive, and psychological impairments resulting from the accident, his evidence does not establish that the overall costs of the goods and services proposed in the treatment plan are reasonable and necessary.
50While I have found that occupational therapy services may be reasonably required, this finding is insufficient to substantiate that the disputed treatment plan is reasonable and necessary. Without the particulars of the overall cost of the disputed treatment plan, I am unable to determine whether the expenses proposed in the treatment plan are reasonable.
51Accordingly, I find that the applicant has not established that the treatment plan for occupational therapy services is payable.
The applicant is not entitled to assistive devices (Issue 8)
52I find that the applicant has not demonstrated, on a balance of probabilities, that the treatment plan for assistive devices is reasonable and necessary.
53The treatment plan dated November 11, 2022, in the amount of $2,556.80 proposes recorded material, meditation chair, exercise equipment, meditation cushion, meditation candle, electronic devices, salt lamp, incense set, room divider, Muse S. Brain Sense headband, educational material, mental health journal, cards for calm, PlayingCBT Therapy game, eye pillow, back roll, yoga block, yoga wheel, delivery costs, and completion of the treatment plan.
54The applicant submits that assistive devices are essential for addressing his complex needs resulting from the accident. Relying on the various reports of Dr. Dharamshi, Ms. Zain, Dr. Day, Dr. Kleiner, Dr. Toneatto, and Dr. Hasan, and the clinical notes from Health One Markham Inc., the applicant argues that assistive devices such as a cervical pillow, gel ice packs, massage gun, vestibular rehabilitation tools, stability aids, and biofeedback devices are reasonable and necessary to address his accident-related physical, cognitive, and psychological symptoms.
55The respondent submits that the disputed treatment plan is not reasonable and necessary. In his psychology insurer examination paper review report dated December 2, 2022, Dr. Day concluded that the research studies cited to support the proposed goods did not pertain to the specific goods proposed. Further, it was his opinion that while meditation and mindfulness is clinically beneficial, it does not require ancillary equipment beyond a simple chair or mat. He found that the treatment plan was not reasonable and necessary, and he recommended that the applicant participate in appropriate mental health treatment such as psychotherapy to address his accident-related impairments.
56I find that the evidence does not support a finding that the disputed treatment plan is reasonable and necessary. As the disputed treatment plan was not included in the evidentiary record, the particulars of the treatment plan such as the goals of the treatment plan are unknown. Further, while the applicant argues that the treatment plan is reasonable and necessary, in his written submissions, he does not address his entitlement to the assistive devices set out in the disputed treatment plan, and he does not direct the Tribunal to evidence supporting his claim for entitlement. Rather, his submissions and evidence are directed to his entitlement to assistive devices that were included in the treatment plans for Issues 2 and 3 above, and these assistive devices were approved by the respondent.
57Accordingly, I find that the applicant has not established that the treatment plan for assistive devices is payable.
The applicant is not entitled to yoga therapy (Issue 9)
58I find that the applicant has not demonstrated, on a balance of probabilities, that the treatment plan for yoga therapy is reasonable and necessary.
59The treatment plan dated January 16, 2023, proposes yoga therapy in the amount of $1,231.04. Since the treatment plan was not included in the evidentiary record, the particulars of the goods and services and their related costs are unknown.
60The applicant submits that the treatment plan is reasonable and necessary. Relying on the various reports of Dr. Dharamshi, Dr. Kleiner, Dr. Day, Dr. Toneatto, Dr. Hasan, and Dr. Talebizadeh, and the clinical notes from Health One Markham Inc., the applicant argues that yoga therapy would be beneficial to address his neck pain and limited range of motion, to improve his overall physical function, to improve his vestibular function and reduce episodes of vertigo, to reduce stress and anxiety, to improve his sleep, and to enhance his mood.
61The respondent submits that the treatment plan is not reasonable and necessary. In his physician insurer examination paper review report dated October 28, 2022, Dr. Dharamshi noted that he had previously assessed the applicant on April 26, 2022 and at that time, no residual accident-related impairment was identified from a musculoskeletal perspective. He concluded that the applicant had attained maximum medical improvement and maximum medical recovery from facility-based treatment.
62I find that the evidence does not support a finding that yoga therapy is reasonable and necessary. As the disputed treatment plan was not included in the evidentiary record, the particulars of the treatment plan are unknown, including the goals of the treatment plan, the scope of the proposed goods and services, including yoga therapy, and the associated costs. Further, while yoga therapy may be reasonable and necessary to address the applicant’s accident-related impairments from a psychological perspective, the applicant’s evidence does not establish that the overall costs of the goods and services proposed in the treatment plan are reasonable and necessary.
63Accordingly, I find that the applicant has not established that the treatment plan for yoga therapy is payable.
The applicant is not entitled to a nutritional assessment (Issue 10)
64I find that the applicant has not demonstrated, on a balance of probabilities, that the treatment plan for a nutritional assessment is reasonable and necessary.
65The treatment plan dated January 11, 2023, proposes a nutritional assessment in the amount of $1,050.00. Since the treatment plan was not included in the evidentiary record, the particulars of the goods and services and their related costs are unknown.
66The applicant submits that the treatment plan is reasonable and necessary, and he relies on the reports of Dr. Dharamshi, Dr. Kleiner, Dr. Day, Dr. Hasan, Dr. Toneatto, and Dr. Talebizadeh, and the clinical notes from Health One Markham Inc. While the applicant acknowledges that these medical records do not expressly mention nutritional needs, he argues that his accident-related impairments support the need for a nutritional assessment. The applicant states that an anti-inflammatory diet could address his persistent pain and discomfort and enhance his physical health. He also indicates that dietary adjustments could help manage his nausea, improve his vestibular health, and help with mood regulation.
67The respondent submits that the applicant has not demonstrated that a nutritional assessment in addition to psychotherapy would be reasonably required. In her psychology insurer examination report dated March 17, 2023, Dr. Talebizadeh concluded that the treatment plan was not reasonable and necessary. She indicated that while the applicant’s lack of appetite is a symptom associated with his accident-related psychological condition, it was her opinion that his psychological condition should be treated directly rather than treating the symptom. She indicated that once the applicant’s mood improves, his overall functioning will also improve, including his appetite. She recommended that the applicant resume psychological counselling.
68I find that the evidence does not support a finding that a nutritional assessment is reasonable and necessary. As the disputed treatment plan is not included in the evidentiary record, the particulars of the treatment plan are unknown, including the goals of the treatment plan, the scope of the proposed goods and services, including the nutritional assessment, and the associated costs. Further, the applicant’s evidence does not establish that the overall costs of the goods and services proposed in the treatment plan are reasonable and necessary. He does not explain why a nutritional assessment is reasonably required when psychological counselling can address his accident-related psychological condition.
69Accordingly, I find that the applicant has not established that the treatment plan for a nutritional assessment is payable.
The applicant is not entitled to the unapproved balance for a psychological assessment (Issue 11(i))
70I find that the applicant has not demonstrated, on a balance of probabilities, that the unapproved balance of the treatment plan for a psychological assessment is reasonable and necessary.
71The treatment plan dated February 15, 2022, proposes a psychological assessment in the amount of $2,506.79. Since the treatment plan was not included in the evidentiary record, the particulars of the goods and services and their related costs are unknown. The respondent partially approved the treatment plan in the amount of $1,916.59. It denied the balance of $590.20 on the basis that the transportation expenses are not payable as the applicant reportedly travelled to his assessment via public transportation (i.e., subway), and that an interpreter was not required to conduct the assessment.
72The applicant did not address his entitlement to the unapproved balance of the treatment plan in his written submissions. As such, the applicant’s position regarding this treatment plan is unknown.
73The respondent maintains that the unapproved balance of the treatment plan is not payable. Based on Dr. Day’s psychology insurer examination report dated June 22, 2022, a psychological assessment is reasonable and necessary. However, since the applicant reported that he travelled to his psychological assessment by subway and no interpreter was used for the assessment, Dr. Day found that transportation expenses and interpretation fees were not reasonably required.
74I find that the evidence does not support a finding that the unapproved balance of the treatment plan is reasonable and necessary. The applicant has not directed me to evidence to support that the proposed transportation expenses are authorized transportation expenses under the Schedule. Further, the applicant does not explain why costs associated with interpretation services are reasonable and necessary when no interpretation services were utilized for the psychological assessment.
75As such, the applicant has not met his evidentiary burden and proven that the unapproved balance of the treatment plan is payable.
The applicant is not entitled to the unapproved balance for a psychiatry assessment (Issue 11(ii))
76I find that the applicant has not demonstrated, on a balance of probabilities, that the unapproved balance of the treatment plan for a psychiatry assessment is reasonable and necessary.
77The treatment plan dated October 11, 2022, proposes a psychiatry assessment in the amount of $2,512.33. Since the treatment plan was not included in the evidentiary record, the particulars of the goods and services and their related costs are unknown. The respondent partially approved the treatment plan in the amount of $2,260.00. It denied the balance of $252.33 on the basis that it was not required to pay hourly rates for the proposed service provider in an amount greater than those set out in the PSG. Also, the respondent is not required to pay more than a total of $2,000.00 in respect to fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it pursuant to s. 25(5)(a) of the Schedule.
78The applicant did not address his entitlement to the unapproved balance of the treatment plan in his written submissions. As such, the applicant’s position regarding this treatment plan is unknown.
79The respondent maintains that its partial approval of the treatment plan complies with the maximum hourly rates for service providers under the PSG and s. 25(5)(a) of the Schedule and that the unapproved balance is not payable.
80I find that the evidence does not support a finding that the unapproved balance of the treatment plan is reasonable and necessary. The applicant has not directed me to evidence to support that the hourly rates for service providers should exceed the maximum hourly rates set out in the PSG. Further, the applicant does not explain why a psychiatry assessment in an amount greater than $2,000.00 is reasonably required.
81As such, the applicant has not met his evidentiary burden and proven that the unapproved balance of the treatment plan is payable.
The applicant is not entitled to a chronic pain assessment (Issue 11(iii))
82I find that the applicant has not demonstrated, on a balance of probabilities, that the treatment plan for a chronic pain assessment is reasonable and necessary.
83The treatment plan dated October 11, 2022, proposes a chronic pain assessment in the amount of $2,510.86. Since the treatment plan was not included in the evidentiary record, the particulars of the goods and services and their related costs are unknown.
84The applicant submits that the treatment plan is reasonable and necessary and relies on the reports of Dr. Dharamshi, Dr. Kleiner, Dr. Day, Dr. Hasan, Dr. Toneatto, and Dr. Talebizadeh, and the clinical notes from Health One Markham Inc. The applicant argues that the evidence supports that he suffers from continuous left-sided neck pain extending to his shoulder, left knee pain, left thumb pain, and headaches, his physical pain symptoms are exacerbated by his accident-related anxiety and depression, and his cognitive challenges contribute to his nausea and vertigo.
85The respondent submits that there is no evidence that the applicant suffers from chronic pain or any physical impairment as a result of the accident. In his physician insurer examination report dated October 28, 2022, Dr. Dharamshi concluded that the applicant was not experiencing any residual accident-related impairments, and that he had reached maximum medical improvement from a musculoskeletal perspective. The respondent further argues that the applicant does not meet at least three of the six criteria set out in the American Medical Associations’ Guides to the Evaluation of Permanent Impairment, 6th Edition (the “Guides”) for establishing chronic pain.
86I find that the evidence supports a finding that a chronic pain assessment may be reasonable and necessary. In his psychology assessment report dated September 24, 2022, Dr. Toneatto diagnosed the applicant with the following psychological conditions as a result of the accident: somatic symptom disorder with predominant pain, persistent; major depressive disorder, moderate; specific phobia, situational (driving/vehicular); and unspecified trauma and stressor-related disorder. Given the applicant’s persistent, severe, and debilitating pain in his head, neck, shoulders, back, and joints, he recommended that the applicant undergo an assessment at a chronic pain facility.
87It is well established that the purpose of an assessment is to determine if a condition exists as a result of an accident. To establish that an assessment is reasonable and necessary, the applicant must point to objective evidence to support a finding that there are grounds to suspect that he has the condition for which he seeks the assessment. In the present case, the applicant is not required to show that he has chronic pain, he only needs to establish that there are grounds to suspect that he has chronic pain.
88Nevertheless, while I find that there is objective evidence to support a finding that there are grounds to suspect that the applicant suffers from chronic pain as a result of the accident, this finding is insufficient to substantiate that the disputed treatment plan is reasonable and necessary. Without the particulars of the overall costs of the disputed treatment plan, I am unable to determine whether the expenses proposed in the treatment plan are reasonable.
89Accordingly, I find that the applicant has not established that the treatment plan for a chronic pain assessment is payable.
Interest
90Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are overdue, no interest is payable.
ORDER
91For the reasons outlined above, I find that:
the applicant is not entitled to an IRB;
the applicant is not entitled to the disputed treatment plans; and
the applicant is not entitled to interest.
92The application is dismissed.
Released: January 29, 2025
Ludmilla Jarda
Adjudicator
