Licence Appeal Tribunal File Number: 23-000457/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:
Sevil Tabrizi Miandoab
Applicant
and
Nordic Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Robert Rock
APPEARANCES:
For the Applicant:
Alexander Makaronets, Counsel
For the Respondent:
Laura Bruce, Counsel
HEARD:
By way of written hearing
OVERVIEW
1Sevil Tabrizi Miandoab, the applicant, was involved in an automobile accident on October 16, 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, Nordic Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PROCEDURAL ISSUES
2The respondent raises a preliminary issue regarding non-compliance with the page limits ordered in the November 14, 2023, Case Conference Report and Order (CCRO). The respondent alleges the applicant’s written submissions exceed the 10-page limit outlined in the CCRO and asks that pages 11-14 of the applicant’s submission be stricken from evidence.
3The applicant has made no submission regarding the length of her written submission.
4In review of the written submission, I find that the length of the written submission is 8 pages of written content. The extra pages in the submission are comprised of an index page, two separate title pages, and a final page that only includes a signature line.
5I find that the applicant’s full written submission conforms to the CCRO, and no pages will be stricken from evidence.
ISSUES
6The issues in dispute are:
i. Is the applicant entitled to $3,737.86 for chiropractic services, proposed by Newmarket Health & Wellness Center Inc. in a treatment plan/OCF-18 (“plan”) dated May 6, 2022?
ii. Is the applicant entitled to $2,603.33 for psychotherapy services, proposed by All Health Medical Centre. in a treatment plan dated January 27, 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 May 17, 2023?
iv. Is the applicant entitled to $2,260.00 for a chronic pain assessment, proposed by All Health Medical Centre in a treatment plan dated May 17, 2023?
v. Is the applicant entitled to $3,809.58 for physiotherapy services, proposed by Newmarket Health & Wellness Center Inc. in a treatment plan dated May 23, 2023?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
7The applicant has not proven on a balance of probabilities that she is entitled to the various treatment plans or assessments in dispute.
8As there are no overdue benefits, no interest is payable.
ANALYSIS
9To 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. The applicant is not entitled to the treatment plan for chiropractic services.
10I find that the applicant has not met her burden to demonstrate on a balance of probabilities that the treatment plan for chiropractic services is reasonable and necessary.
11The chiropractic treatment plan seeks to provide an assessment, twelve sessions of multidisciplinary rehabilitation and massage, ten sessions of acupuncture, exercise, various exercise equipment, and documentation.
12The goals for the treatment plan are, pain reduction, increase in strength, return to activities of normal living, and return to modified work activities. The applicant submits that based on the provided medical evidence they are entitled to the treatment plan for chiropractic services and relies on the clinical notes and records (CNRs) of her family doctor, Dr. Eftekhari, and an evaluation by Dr. Kavousi, Physical Medicine and Physiatry.
13The applicant makes reference to the CNRs of Dr. Eftekhari but has not provided the full CNRs as part of their evidence. The respondent has provided excerpts of the CNRs, so I have relied on those in review of Dr. Eftekhari’s opinions. In the excerpts of the CNRs, I find they do not support chiropractic services as reasonable and necessary. The doctor records occasional reports of pain from the applicant and does make referrals for the applicant to see specialists, but I find no referral or recommendation for chiropractic services in the CNRs.
14I then find that the evaluation completed by Dr. Kavousi, on April 10, 2024, does not support the applicant’s position that the OCF-18 for chiropractic services is reasonable and necessary. At the conclusion of Dr. Kavousi’s evaluation, the doctor did not outline chiropractic services as a course of treatment, and instead focused on providing the applicant with information on home exercises, and activity modifications, proper lifting techniques and posture.
15The respondent relies on an independent medical evaluation completed by Dr. Dharamshi, GP, and certified independent medical examiner, on May 31, 2022.
16I find that this independent medical evaluation does not support the OCF-18 for chiropractic services as reasonable or necessary. Dr. Dharamshi completed a full document review and physical examination in developing his diagnosis that the applicant suffered minor physical injuries as defined in the MIG, and that she has attained maximal medical improvement and recovery from facility-based treatment. Dr Dharamshi recommended self-directed home exercise program, increasing activities of daily living, and returning to her health club.
17I find that the applicant has not met her onus to prove on a balance of probabilities that the chiropractic treatment plan is reasonable and necessary. Dr. Dharamshi and Dr. Kavousi both recommend home based exercises to the applicant in their recommendations, and neither mentioned chiropractic services in their respective reports.
18The applicant is not entitled to the OCF-18 for chiropractic treatment.
b. The applicant is not entitled to the OCF-18 for psychotherapy services.
19I find that the applicant has not met her burden to demonstrate on a balance of probabilities that the OCF-18 for psychotherapy services is reasonable or necessary.
20The treatment plan has not been included in evidence. The applicant has made no submission regarding psychotherapy services or as to why the psychotherapy services are reasonable and necessary.
21Accordingly, I find that the applicant has not met her onus to prove on a balance of probabilities that the treatment plan for psychotherapy services is reasonable or necessary.
22The applicant is not entitled to the OCF-18 for psychotherapy services.
c. The applicant is not entitled to the OCF-18 for a neurological assessment.
23I find that the applicant has not proven on a balance of probabilities that the OCF-18 for a neurological assessment is reasonable or necessary.
24The applicant relies on an assessment report by Dr. Prigozhikh, neurologist, completed on February 22, 2024.
25I find the assessment of Dr. Prigozhikh does not support the neurological assessment as reasonable and necessary. This assessment by Dr. Prigozhikh was completed nearly 10 months after the OCF-18 was submitted, and I am unclear how it supports the treatment plan as reasonable and necessary if completed well after the submitted treatment plan. In the assessment, the doctor does not refer to the need for a neurological assessment, nor does he recommend any further testing as necessary. The only follow up noted in the assessment is a request by the doctor for the applicant to maintain a diary of her headaches.
26The respondent also relies on an independent medical evaluation completed by Dr. Shamisa, neurosurgeon, on June 3, 2023.
27I find that the independent medical evaluation by Dr. Shamisa does not support the neurological assessment as reasonable or necessary. Dr. Shamisa concludes that there are no accident-related neurological concerns that would warrant the assessment. In the doctor’s opinion, the applicant’s pre-existing headaches were managed by the family doctor and post-accident, this management would be reasonable for the exacerbation of the headaches. Dr. Shamisa also concludes that exacerbation of her headaches will not prevent maximal medical recovery.
28I find that the applicant has not met her onus to prove on a balance of probabilities that a neurological assessment is reasonable and necessary. I was not directed to any evidence outlining the need for a neurological assessment. Dr. Shamisa specifically found in his medical evaluation that a neurological assessment was not reasonable and necessary.
29The applicant is not entitled to the OCF-18 for a neurological assessment.
d. The applicant is not entitled to the OCF-18 for a chronic pain assessment.
30I find that the applicant has not proven on a balance of probabilities that the OCF-18 for a chronic pain assessment is reasonable or necessary.
31The applicant relies on an evaluation report by Dr. Kavousi, Physical Medicine and Physiatry dated ?!?!?.
32I find that the evaluation completed by Dr. Kavousi, on April 10, 2024, does not support the applicant’s position that the OCF-18 for a chronic pain assessment is reasonable and necessary. While Dr. Kavousi states that “symptoms are chronic in nature” presumably regarding the applicant’s low back pain, I place little weight on the use of the term “chronic in nature” as an endorsement for a chronic pain assessment, as the rest of the assessment does not discuss chronic pain. The doctor provided a very brief outline of his examination results in the evaluation, and they show relatively unremarkable results. While the applicant uses this examination as justification for a chronic pain assessment it should be noted that this was not the purpose of the examination, which was an investigation into the applicant’s low back pain. Dr. Kavousi does not include a chronic pain assessment in the plan section of the evaluation, nor any chronic pain recommendations. Instead, the doctor focuses more on providing the applicant with education and home exercise as next steps.
33The respondent relies on an independent medical evaluation completed by Dr. Dharamshi, GP and certified independent medical examiner on May 31, 2022.
34I find that the general practitioner report completed by Dr. Dharamshi does not support a chronic pain assessment as reasonable and necessary. Dr. Dharamshi did not find any indication of chronic pain conditions during his evaluation. During the examination, the applicant reported that she had increased her working hours to 35 hours per week, and that she had returned to the gym. The doctor concludes that the applicant demonstrates musculoligamentous injuries to the lumbosacral spine.
35I find that the applicant has not met her onus to prove on a balance of probabilities that a chronic pain assessment is reasonable and necessary. The submissions do not point me to evidence that speaks to the need for a chronic pain assessment.
36The applicant is not entitled to the OCF-18 for a chronic pain assessment.
e. The applicant is not entitled to the OCF-18 for physiotherapy services.
37I find that the applicant has not proven on a balance of probabilities that the OCF-18 for physiotherapy services is reasonable and necessary.
38The treatment plan includes: 12 therapy sessions, 10 acupuncture sessions, 6 manipulation sessions, 4 mobilization sessions, 2 exercise sessions, various equipment, education sessions, and documentation.
39The goals of the treatment plan are pain reduction, increase range of motion, increase in strength, and return to activities of normal living.
40The applicant has not supplied any evidence to support continued need for physiotherapy. In the applicant’s submissions, she argues that “despite prolonged and dedicated attempt at rehabilitation, the applicant continues to experience pain”. The applicant does not provide an argument as to why additional physiotherapy would work, when previous physiotherapy treatment plans have not met the outlined goals of the plan.
41The respondent relies on an independent medical evaluation completed by Dr. Dharamshi, GP and certified independent medical examiner on May 31, 2022.
42I find that the independent medical report does not support the OCF-18 for physiotherapy services as reasonable or necessary. Dr. Dharamshi completed a full document review and physical examination in developing his diagnosis that the applicant suffered minor injuries as defined in the MIG, and she has attained maximal medical improvement and recovery from facility-based treatment.
43I find that the applicant has not met her onus to prove on a balance of probabilities that the treatment plan for physiotherapy is reasonable and necessary. The submissions do not point me to evidence that identifies the need for continued physiotherapy, nor does it point to evidence that continued physiotherapy would meet the goals of the treatment plan.
44The applicant is not entitled to the OCF-18 for physiotherapy services.
Interest
45Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, no interest is owing.
ORDER
46I find that:
i. The applicant is not entitled to the treatment plans and assessments in dispute.
ii. As no benefits are overdue, no interest is owing.
iii. The application is dismissed.
Released: February 3, 2025
Robert Rock
Adjudicator