Licence Appeal Tribunal File Number: 23-008585/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:
Merella Yabut
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR: Nathan Prince
APPEARANCES:
For the Applicant: Kim Mohammed-Sieudhan, Paralegal
For the Respondent: Robbie Brar, Counsel
HEARD: By way of written submissions
OVERVIEW
1Merella Yabut, the applicant, was involved in an automobile accident on January 28, 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, Belair Insurance Company Inc., and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
a) Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from February 4, 2021 to November 1, 2021?
b) Is the applicant entitled to the treatment proposed by Humber Civic Care Centre (“HCCC”) in treatment plans/OCF-18s (“plan”), as follows:
(i) $87.19 ($1,995.33 less $1,908.14 approved) for psychological services, in a plan dated April 27, 2021;
(ii) $3,024.62 for a physiotherapy services, in a plan dated June 25, 2021;
(iii) $263.75 ($2,208.83 less $1,945.08 approved) for psychological services, in a plan dated July 20, 2021;
(iv) $2,629.85 for physiotherapy services, in a plan dated September 23, 2021;
(v) $2,322.27 for physiotherapy services, in a plan dated January 5, 2022;
(vi) $1,077.41 ($2,598.35 less $1,521.42 approved) for psychological services, in a plan dated January 26, 2022; and
(vii) $1,011.46 ($1,626.59 less $615.13 approved) for psychological services, in a plan dated November 1, 2022?
c) Is the applicant entitled to the treatment and assessments proposed by Ontario Independent Assessment Centre Inc. (“OIAC”) in plans, as follows:
(i) $1,800.00 for a cognitive assessment, in a plan dated September 3, 2021;
(ii) $100.00 for transportation, in a plan dated September 20, 2021;
(iii) $208.57 ($2,300.00 less $2,091.43 approved) for a chronic pain assessment, in a plan dated November 12, 2021;
(iv) $3,212.01 for assistive devices, in a plan dated December 8, 2021;
(v) $2,000.00 for an MRI, in a plan dated March 11, 2022;
(vi) $2,403.90 for fitness and physiotherapy, in a plan dated July 22, 2022;
(vii) $1,388.62 for a driving reintegration assessment, in a plan dated July 25, 2022; and
(viii) $2,350.00 for a work-site assessment, in a plan dated September 6, 2022?
d) Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
e) Is the applicant entitled to interest on any overdue payment of benefits?
3The Case Conference Report and Order indicated that there was a plan dated December 8, 2021 in the amount of $2,395.31 in dispute. It is listed as a plan for assistive devices; however, this plan is for the provision of occupational therapy services. On November 11, 2022, this plan was fully approved by the respondent and notification of the approval was sent to the applicant. Therefore, this issue is not before me on appeal.
RESULT
4The applicant is not entitled to IRBs;
5The applicant is entitled to the plans for physiotherapy in the amount of $2,629.85, $3,024.62, and $2,322.27 and interest thereon;
6The applicant is entitled to $1,265.05 plus any applicable HST for assistive devices and interest thereon;
7The applicant is not entitled to the remaining plans in dispute;
8The applicant is not entitled to an award.
ANALYSIS
The applicant is not entitled to an IRB
9I find that the applicant has not demonstrated on a balance of probabilities that she is entitled to pre-104 week IRBs for the period from February 4, 2021 to November 1, 2021.
10To receive payment for an 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. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform, and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
11The applicant did not make submissions regarding her entitlement to pre-104 week IRBs. As such, she did not identify the essential tasks of her employment, which tasks she was unable to perform, and to what extent she was unable to perform them. The applicant has therefore not met her onus of demonstrating entitlement to IRBs.
12Therefore, I find that the applicant has not demonstrated on a balance of probabilities that she is entitled to pre-104 week IRBs from February 4, 2021 to November 1, 2021.
The applicant is entitled to the plans for physiotherapy from HCCC
13I find that the applicant has met her onus of demonstrating that the plans for physiotherapy from HCCC are reasonable and necessary.
14To 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.
15The applicant submitted three plans for physiotherapy from HCCC as follows:
a) $2,629.85 for 16 therapy sessions, 16 exercise sessions, 16 chiropractic manipulations, an assessment, and a personalised exercise plan on September 23, 2021;
b) $3,024.62 for 18 therapy sessions, 18 exercise sessions, 18 chiropractic manipulations, an assessment, and a personalised exercise plan on June 25, 2021
c) $2,322.27 for 14 therapy sessions, 14 exercise sessions, 14 chiropractic manipulations, an assessment, and a personalised exercise plan on January 5, 2022; and,
16With respect to the three plans from HCCC, the applicant relies on the treating records and assessments of HCCC; the chronic pain assessment of Dr. Michael Gofeld, chronic pain and anesthesia specialist; the psychological assessment report of Dr. Konstantinos Papazoglou, psychologist; and the function abilities evaluation of Dr. Marco Curcio, chiropractor.
17I find that the clinical notes and records (“CNRs”) of HCCC support the applicant’s position that she suffers from ongoing pain and was receiving a benefit from her treatment sessions. The CNRs from HCCC indicate that the applicant attended for treatment on approximately a weekly basis from February 2, 2021 through to January 5, 2022. The applicant presented with pain in her left shoulder and back pain and received various treatments including TENS, heat/cold, massage, physiotherapy, and acupuncture. The CNRs indicate that the applicant’s ongoing pain affected her ability to stand, bend, and lift, and note that the applicant was improving with treatment.
18Furthermore, I find that the applicant has consistently reported her symptoms to all her assessors. The chronic pain assessment completed on December 7, 2022 by Dr. Gofeld, the psychological report of Dr. Papazoglou, dated July 18, 2021, and the functional abilities evaluation of Dr. Curcio, dated November 2, 2021, all indicate that the applicant reported ongoing pain in her left shoulder, low back, neck, and headaches and I find the the consistency of the applicant’s reporting to be reliable.
19In addition, Dr. Gofeld’s physical examination of the applicant noted significant palpatory tenderness of the spinous processes and interspinous spaces in cervical, cervicothoracic and lumbosacral regions, and the bilateral paravertebral cervical, cervicothoracic and lumbosacral regions. Dr. Gofeld diagnosed the applicant with chronic posttraumatic headaches, chronic neck pain, chronic left shoulder pain, and chronic low back pain and recommended physical rehabilitation as part of a chronic pain management and mild traumatic brain injury program.
20During the functional abilities evaluation conducted by Dr. Curcio, the applicant was observed to have discomfort after prolonged sitting and when shifting from standing to seated positions. Dr. Curcio opined that the applicant suffered from post concussion syndrome, chronic spine joint dysfunction (cervical, thoracic, and lumbar), chronic cervical spine radiculopathy, and left shoulder strain/sprain. Dr. Curcio also conducted validity testing which found reliable overall consistency of effort on the part of the applicant. Dr. Curcio recommended ongoing active and passive rehabilitation with the goals of treatment being increasing range of motion, general strengthening and stretching exercises, education, pain management and promoting postural tolerances.
21I find that the totality of the medical findings by the applicant’s assessors and the contemporaneous recommendations for physical therapy from Dr. Gofeld and Dr. Curcio are sufficient to support a finding that the physical therapy plans proposed by HCCC are reasonable and necessary.
22In denying the plans for physical therapy, the respondent relied on the section 44 report of Dr. Mohamed Khaled who specialises in family medicine. Dr. Khaled conducted a 40-minute examination of the applicant and found that she had developed low back pain as well as left shoulder sprain/strain; however, he opined that facility-based treatment was not reasonable or necessary as she had already received appropriate and adequate facility based soft tissue rehabilitation therapy. In support of this position, Dr. Khaled references several authorities which indicate that prolonged facility based treatment for individuals with injuries similar to those suffered by the applicant are rarely recommended. I am not persuaded by this line of reasoning as it fails to consider the specific factual matrix in this case. Specifically, the CNRs of HCCC clearly indicate that the applicant is obtaining relief from the treatment that she has been receiving.
23Furthermore, Dr. Khaled’s opinion is premised on the fact that there is no objective evidence of ongoing permanent accident related impairment. While I agree with Dr. Khaled that there is no evidence of objective injuries, it does not necessarily follow that the applicant is not experiencing ongoing accident-related pain. To the contrary, as previously noted, I am persuaded that the applicant continues to suffer from chronic pain as reported to all assessors, including Dr. Khaled, and as diagnosed by Dr. Gofeld.
24I find that the applicant has demonstrated on a balance of probabilities that she is entitled to the plans for physiotherapy in the amount of $2,629.85, $3,024.62, and $2,322.27.
The applicant is not entitled to the plan for physiotherapy from OIAC
25I find that the applicant has not demonstrated that the plan for physiotherapy from OIAC is reasonable or necessary.
26A copy of the OCF-18 was not provided, and the nature of the proposed treatment is therefore unknown. As such, I am unable to ascertain whether this plan is reasonable and necessary and therefore find that the applicant has not met her onus of demonstrating that this plan is reasonable and necessary.
The applicant is not entitled to the plans for psychological services
27I find that the applicant has not met her onus of demonstrating that the plans for psychological services from HCCC are reasonable and necessary.
28The applicant submitted four plans for psychological services from HCCC as follows:
a) $87.19 ($1,995.33 less $1,908.14 approved) for a psychological assessment and documentation, in a plan dated April 27, 2021;
b) $263.75 ($2,208.83 less $1,945.08 approved) for 12 therapy sessions and supporting documentation, in a plan dated July 20, 2021;
c) $1,077.41 ($2,598.35 less $1,521.42 approved) for 10 therapy sessions and supporting documentation, in a plan dated January 26, 2022; and
d) $1,011.46 ($1,626.59 less $615.13 approved) for 8 therapy sessions and supporting documentation, in a plan dated November 1, 2022.
29With respect to the partial denial of $87.19, the applicant did not make any submissions as to what this amount represents, or why it is reasonable and necessary. As such, I find that the applicant has not met her onus of demonstrating entitlement to this amount.
30With respect to the partial denial of $263.75, this amount was due to an adjustment to the hourly rate for social workers as per the FSCO Professional Services Guideline’s hourly rate. The applicant did not make any submissions as to why the hourly rate should be higher and therefore, I find that she has not met her onus of demonstrating that the remaining $263.75 is reasonable and necessary.
31With respect to the partial denial of $1,077.41, this is due to a reduction in hours allotted for documentation and the reduction in the length of the proposed treatment sessions from 90 minutes per session to 60 minutes per session. While the applicant pointed me to the opinion of Dr. Gofeld who recommended psychological counselling, the applicant did not point me to any evidence to suggest that 90 minute sessions were reasonable and necessary and therefore I find that the applicant has not met her onus of demonstrating entitlement to this amount.
32With respect to the partial denial of $1,011.46, it is unclear from the applicant’s submissions what the denied amount represents. While I can infer from the proposed goods and services that the partial approval represents part of the proposed therapy and supporting documentation, I am nonetheless unable to ascertain whether the remainder of the treatment is reasonable and necessary because the applicant did not make any submissions regarding the denied amount.
33In sum, as the applicant has not made submissions as to why the denied portions of the plans for psychological services are reasonable and necessary, I find on a balance of probabilities that the applicant has not met her onus of demonstrating that the unapproved amounts for psychological services are reasonable and necessary and she is therefore not entitled to the amounts which have been partially denied.
The applicant is not entitled to the plan for a cognitive assessment.
34I find that the applicant has not met her onus of demonstrating that a cognitive assessment is reasonable and necessary.
35The applicant relies on the aforementioned chronic pain assessment of Dr. Gofeld and the medical record which indicates that the applicant continues to suffer from problems relating to memory and concentration as well as post-concussive symptoms. While this may be the case, I was not pointed to any medical recommendation that supports the position that a cognitive assessment is warranted.
36In addition, the respondent relies upon the neurocognitive assessment of Dr. Konstantine Zakzanis who conducted a 3 hour and 15 minute assessment of the applicant and found that there was no basis to recommend the proposed cognitive assessment. Specifically, Dr. Zakzanis opined that the proposed cognitive assessment did not actually constitute a “functional cognitive assessment” given that the proposed tests (i.e., the TEA and RBMT-3) did not canvass an adequate array of cognitive domains and moreover lack well normed standardization samples.
37Based on the lack of evidence to support the proposed plan and the opinion of Dr. Zakzanis, I find on a balance of probabilities that the applicant has not demonstrated that the plan for a cognitive assessment is reasonable and necessary and she is therefore not entitled to this benefit.
The applicant is not entitled to the plan for transportation
38I find that the applicant has not met her onus of demonstrating that funding for transportation is reasonable and necessary.
39The applicant did not make any submission as to the reasonableness or necessity of the proposed $100.00 for transportation to and from treatment. As such, I find that the applicant has not demonstrated entitlement to this plan.
The applicant is not entitled to the unapproved amount for the plan for a chronic pain assessment
40I find that the applicant has not met her onus of demonstrating that the unapproved amount for a chronic pain assessment is reasonable and necessary.
41The applicant submitted a plan for chronic pain assessment in the amount of $2,300.00 of which $2,091.43 was approved. The amount in dispute is $208.57. The denied amount represents a reduction in the proposed documentation fee and a denial of the proposed transportation costs.
42The applicant did not make any submissions as to why the denied amount was reasonable and necessary and therefore, she has not met her onus of demonstrating entitlement to the denied portion of the plan.
The applicant is entitled to the plan for assistive devices, in part
43I find that the applicant has met her onus of demonstrating that the plan for assistive devices is partially reasonable and necessary.
44The plan seeks funding for the following devices:
i) Line 1: Delivery of Devices - $100.00
ii) Line 2: Completion of OCF-18 - $200.00
iii) Line 3: Time for researching and co-ordinating devices - $99.75
iv) Line 4: Exercise Ball - $45.50
v) Line 5: Exercise Mat - $55.90
vi) Line 6: Set of Resistance Bands - 68.00
vii) Line 7: Theraball Set - $45.50
viii) Line 8: Personal Massager - $186.90
ix) Line 9: BioFreeze Gel - $40.00
x) Line 11: Pulley Unit - $98.50
xi) Line 12: Cervical Pillow - $102.50
xii) Line 13: Cushion - High back - $195.90
xiii) Line 14: TENS unit - $325.00
xiv) Line 15: Bauerfeind Brace -Lumbo - $325.00
xv) Line 16: Orthopaedic (QueenSize) - $1,000.00
45With respect to the orthopaedic mattress and cervical pillow, the applicant relies on her reporting of pain and difficulty sleeping to her assessors, including Dr. Gofeld. However, during the section 44 assessment conducted by Nicholas Livadas, occupational therapist, on March 24, 2022, the applicant advised Mr. Livadas that she was no longer experiencing any problem with sleeping. As such, I find that the orthopaedic mattress and cervical pillow are not reasonable and necessary.
46Similarly, the applicant reported to Mr. Livadas that she no longer had issues with prolonged sitting, and therefore, I find that the high back cushion and back brace are not reasonable and necessary.
47With respect to the TENS unit, personal massager and biofreeze gel, the applicant relies on the records of HCCC which indicate that the applicant received relief from these treatment modalities during her therapy sessions. In denying funding for these devices, the respondent again relies on the report of Mr. Livadas who found that these items were excessive and not reasonable and necessary on the basis that the applicant demonstrated a high level of physical functioning in all muscle groups, functional range of motion in the neck, shoulders, trunk, upper extremities below the shoulders, and lower extremities; and functional mobility for sitting, transferring, walking, dynamic standing, static standing, squatting, and kneeling. While the applicant may not be experiencing functional limitations as noted by Mr. Livadas, I find that the medical record from HCCC clearly indicates that the applicant is obtaining relief from the treatment she is receiving and therefore find that a TENS unit, personal massager, hot/cold packs, and biofreeze gel are reasonable and necessary in realizing the goal of pain reduction.
48The remainder of the proposed assistive devices relate to at-home exercise equipment. I find that there is sufficient evidence to suggest that the applicant would benefit from at-home exercise. Several of the applicant’s assessors, including Dr. Gofeld and Dr. Curcio, opined that the applicant would benefit from at-home exercises. In addition, the respondent’s assessor, Dr. Khaled, recommended an independent exercise program. Therefore, I find that these devices are reasonable and necessary.
49In summary, of the 15 assistive devices being sought, I find the following 11 devices to be reasonable and necessary:
i) Line 1: Delivery of Devices - $100.00
ii) Line 2: Completion of OCF-18 - $200.00
iii) Line 3: Time for researching and co-ordinating devices - $99.75
iv) Line 4: Exercise Ball - $45.50
v) Line 5: Exercise Mat - $55.90
vi) Line 6: Set of Resistance Bands - 68.00
vii) Line 7: Theraball Set - $45.50
viii) Line 8: Personal Massager - $186.90
ix) Line 9: BioFreeze Gel - $40.00
x) Line 11: Pulley Unit - $98.50
xi) Line 14: TENS unit - $325.00
50Therefore, I find that the applicant is entitled to $1,265.05 plus any applicable HST for assistive devices.
The applicant is not entitled to the plan for an MRI
51I find that the applicant has not demonstrated that an MRI is reasonable and necessary.
52The applicant relies on the recommendation of Dr. Curcio who opined that an MRI was reasonable and necessary to investigate the mechanism behind her chronic pain.
53In denying the plan, the respondent relies upon the opinion of section 44 assessor Dr. Khaled who found that the MRI was neither reasonable nor necessary as the accident-related injuries sustained were uncomplicated soft tissue injuries and there was no evidence of neurological or orthopaedic sequela.
54I prefer the opinion of Dr. Khaled over that of Dr. Curcio because I was not pointed to any evidence that would suggest that an MRI was reasonable and necessary, nor do the medical records suggest that the applicant’s symptoms are due to discogenic pain. In addition, the CNRs of HCCC contain an “imaging recommendation” section wherein the treatment provider can select the option for an MRI if they feel it is warranted. In this case, the treatment provider at HCCC did not indicate that they felt an MRI was necessary.
55Furthermore, I find the applicant has not demonstrated that the cost associated with the proposed MRI is reasonable and necessary because the applicant did not make any submissions addressing this.
56As such, I find on a balance of probabilities that an MRI is not reasonable and necessary.
The applicant is not entitled to a driving reintegration assessment
57I find that the applicant has not demonstrated that a driving reintegration assessment is reasonable and necessary.
58The applicant relies on the psychological assessment report of Dr. Papazoglou, completed on July 18, 2021 and his psychological progress report dated June 30, 2022 in which the applicant reported elevated anxiety and hypervigilance with respect to driving. She reported moderate levels of anxiety when engaging in highway driving, driving in heavy traffic, and driving by the location of the subject accident. While Dr. Papazoglou did acknowledge the psychological symptoms the applicant is experiencing, he did not recommend a driving reintegration assessment.
59In denying the plan, the respondent relied upon the section 44 psychological evaluation conducted by Dr. Debra Mandel, psychologist, on October 14, 2022. Dr. Mandel opined that the plan was not reasonable and necessary on the basis that the applicant was unaware of the plan for a driving reintegration assessment and stated that she had driven on the highway was “okay now”, though she does avoid the scene of the subject accident. The applicant reported to Dr. Mandel that she would rather not engage in driving reintegration assessment noting that she feels comfortable with driving.
60Based on the applicant’s self-reporting of comfort with driving and not wanting to complete a driving reintegration program, I find on a balance of probabilities that the plan for a such a program is not reasonable and necessary. As such, the applicant is not entitled to funding for this benefit.
The applicant is not entitled to a work-site assessment
61I find that the applicant has not demonstrated that a work-site assessment is reasonable and necessary.
62The applicant relies on the presence of her chronic pain as well as the opinion of Dr. Gofeld who recommended a work-site assessment based on the applicant’s low back pain while performing job duties.
63In denying the plan, the respondent relied upon the section 44 report of Dr. Khaled who found that a work-site assessment was not reasonable or necessary as the applicant had returned to work in a new position and functions safely and independently.
64Based on the applicant’s reporting to Dr. Khaled that she is working safely and independently, I find on a balance of probabilities that that plan for a work-site assessment is not reasonable and necessary, and the applicant is therefore not entitled to this benefit.
Interest
65Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
66As I have found some of the benefits to be payable, it follows that the applicant is entitled to interest on these benefits.
Award
67The 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.
68The applicant submits that an award should be granted on the basis that the respondent unreasonably withheld the payment of benefits. Specifically, the applicant points me to the respondent’s denial of facility-based rehabilitation treatment as well as the denial of home-based assistive rehabilitation devices. The applicant argues that the respondent has ignored recommendations of its own assessors (IE. Dr. Khaled’s recommendation of an independent exercise program) when considering entitlement to various benefits.
69I am not persuaded that the respondent’s denial of benefits rises to the level of unreasonable behaviour. In denying benefits, the respondent relied on the opinions of its assessors, and while Dr. Khaled did recommend an independent exercise program, he did not go so far as to make a recommendation for assistive devices. Furthermore, the respondent obtained a section 44 assessment which found that the devices were not reasonable and necessary.
70While I was not persuaded by all of the respondent’s reports, and found some of the plans to be reasonable and necessary, I find that it was nonetheless reasonable for the respondent to rely on the reports it had obtained.
71As such, I find that the respondent did not unreasonable withhold benefits and therefore no award is payable.
ORDER
72For the reasons outlined above, I find:
i. The applicant is not entitled to IRBs;
ii. The applicant is entitled to the plans for physiotherapy in the amount of $2,629.85, $3,024.62, and $2,322.27 and interest thereon;
iii. The applicant is entitled to $1,265.05 plus any applicable HST for assistive devices and interest thereon;
iv. The applicant is not entitled to the remaining plans in dispute;
v. The applicant is not entitled to an award.
Released: June 17, 2025
Nathan Prince
Adjudicator