Licence Appeal Tribunal File Number: 23-007599/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:
Ranjan Thomas
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Kim Mohammed-Sieudhan, Paralegal
For the Respondent:
Robbie Brar, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Ranjan Thomas, the applicant, was involved in an automobile accident on August 26, 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, Intact 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 $2,993.83 for occupational therapy services proposed by Ontario Independent Assessment Centre Inc. (“OIAC”) in a treatment plan/OCF-18 (“plan”) dated April 28, 2022?
ii. Is the applicant entitled to chiropractic and massage treatment services proposed by Alma Rehab Inc. (“Alma”) as follows:
i. $3,157.39 in a plan dated December 3, 2021; and
ii. $2,825.37 in a plan dated April 12, 2022?
iii. Is the applicant entitled to $781.89 ($2,864.40 less $2,082.51 approved) for biopsychosocial and social worker services proposed by OIAC in a plan dated October 13, 2022?
iv. Is the applicant entitled to $4,412.73 for social worker services and driving sessions proposed by OIAC in a plan dated September 21, 2022?
v. Is the applicant entitled to psychological and social worker services proposed by Alma as follows:
i. $723.71 ($2,668.79 less $1,945.08 approved) in a plan dated April 12, 2022; and
ii. $1,496.20 in a plan dated January 3, 2023?
vi. Is the applicant entitled to $1,900.00 for an MRI of the knee proposed by OIAC in a plan dated January 27, 2022?
vii. Is the applicant entitled to assistive devices proposed by OIAC as follows:
i. $511.20 (personal massager) in a plan dated October 21, 2021;
ii. $674.37 (knee brace) in a plan dated January 10, 2022;
iii. $1,984.51 (including body pillow, laundry basket and cane) in a plan dated April 28, 2022; and
iv. $1,875.87 (knee, shoulder, and back brace) in a plan dated October 28, 2022?
viii. Is the applicant entitled to assessments proposed by OIAC as follows:
i. $108.57 ($2,200.00 less $2,091.43 approved) for an in-home and attendant care assessment in a plan dated March 24, 2022;
ii. $1,800.00 for a functional cognitive assessment in a plan dated April 21, 2022;
iii. $108.57 ($2,000 less $1,891.43 approved) for a biopsychosocial assessment in a plan dated May 5, 2022;
iv. $1,800.00 for a functional abilities assessment in a plan dated May 25, 2022;
v. $108.57 ($1,388.62 less $1,280.05 approved) for a driving reintegration assessment in a plan dated May 25, 2022;
vi. $2,300.00 for an orthopaedic assessment in a plan dated June 10, 2022;
vii. $2,300.00 for a neurological assessment in a plan dated June 10, 2022; and
viii. $2,350.00 for a chronic pain assessment in a plan dated October 13, 2022?
ix. Is the applicant entitled to $50.39 ($1,995.33 less $1,944.94 approved) for a psychological assessment proposed by Alma in a plan dated January 10, 2022?
x. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
xi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to the plans for a functional cognitive assessment, and a chronic pain assessment.
4The applicant is not entitled to the remaining plans in dispute.
5The applicant is entitled to interest in accordance with s. 51 of the Schedule on any overdue payment of benefits.
6The respondent is not liable to pay an award.
ANALYSIS
7To 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.
Applicant’s pre-accident medical conditions
8The applicant refers to clinical notes and records (“CNRs”) of his family physician, Dr. Jasbir Singh Baath, in submitting that he had the following medical conditions prior to the accident: hypertension, hyperlipidemia, Type-II diabetes, sprains in his neck, shoulders, left arm, and left knee due to a forklift-related work injury in 2019, plantar fasciitis, sleep apnea, lower back pain, psoriasis, and left heel pain. The applicant submits that the accident exacerbated his pre-existing conditions and induced relapses of past injuries that had mostly or entirely resolved by the date of the accident.
General submissions made by the applicant
9With respect to the denied physical treatment, OT services, and social work services, the applicant submits that he relies on the medical documentation he put into evidence as well as the professional opinions detailed within the assessment reports as evidence of his chronic pain, psychological difficulties, and loss of function because of the accident and that the disputed plans are reasonable and necessary.
General submissions made by the respondent
10The respondent submits that, as referenced in the Insurer’s Examination (“IE”) report of Dr. David Mula, physician, based on a WSIB report prepared by Dr. Baath, on January 10, 2019, the applicant was accidentally struck by a forklift on the left side of his body, from head to leg, with a diagnosis of contusion of multiple areas of the body on the left side. The respondent submits that ongoing symptoms that the IE reports do not consider related to the accident are likely caused by the forklift accident. I note, however, that the respondent does not refer to evidence to substantiate this.
The applicant is not entitled to the plan dated April 28, 2022 for OT services
11The applicant has not established on a balance of probabilities that the plan for OT services is reasonable and necessary.
12The plan in the amount of $2,993.83 was proposed by Tony (Nuo) Wang, occupational therapist, and Daria Lioubimova, nurse. The plan proposes education, promoting health and preventing disease (eight 1.5-hour sessions), provider travel time (eight hours), “planning, service,” (eight half hour sessions) “preparation, service,” and documentation and support activity. The goals of the plan are pain reduction, increased range of motion, increase in strength, and to return to activities of normal living.
13The applicant relies on an occupational therapy (“OT”) assessment conducted by James Moorthy, occupational therapist, dated April 11, 2022. Based on the applicant’s reporting of physical difficulties, a review of medical documentation, and a physical examination, Mr. Moorthy recommended eight OT sessions over sixteen weeks. Mr. Moorthy is of the view that OT services are considered essential, and that without them, the applicant is at increased risk of prolonged recovery, with complications including de-conditioning, weakness, psychological sequelae, and reduced motivation to participate in rehabilitation.
14The respondent relies on the Insurer’s Examination (“IE”) report dated July 6, 2022 of Dr. Mula, physician with a specific focus in chronic pain management. Dr. Mula assessed the applicant on June 15, 2022 to address the disputed plan for OT services. Based on a review of extensive medical documentation, self-reporting by the applicant, and a physical examination, Dr. Mula provided the following accident-related diagnoses: myofascial strain of the cervical spine, left shoulder and upper extremity, lumbosacral spine, and left knee. Dr. Mula opined that the disputed plan for OT services is not reasonable and necessary for the applicant’s accident-related injuries because there is no consistent, compelling evidence of accident-related musculoskeletal injury or impairment that would be expected to result in the need for OT sessions, within the scope of his medical discipline.
15I prefer the opinion of Dr. Mula because he is a physician with a specific focus in chronic pain management.
16Further, the applicant did not make submissions with respect to why eight sessions of OT services are reasonable and necessary as a result of the accident, how the goals set out in the proposed plan would be met to a reasonable degree, or how the overall costs of achieving them are reasonable.
17For these reasons, I find that the applicant has not established on a balance of probabilities that the plan for OT services is reasonable and necessary.
The applicant is not entitled to the plans for chiropractic and massage treatment services
18The applicant has not established on a balance of probabilities that the disputed plans for chiropractic and massage services are reasonable and necessary.
19The plan dated December 3, 2021 in the amount of $3,157.39 was proposed by Dr. Abdalrahim Abed, chiropractor. The plan proposes a total body assessment, fifty-four sessions of chiropractic treatment (therapy, exercise, and manipulation of multiple body sites), nine sessions of massage therapy, and a personalized home exercise program.
20The plan dated April 12, 2022 in the amount of $2,825.37 was proposed by Dr. Mandeep Braich, chiropractor. The plan proposes an assessment/reassessment, forty-eight sessions of chiropractic treatment (therapy, exercise, and manipulation of multiple body sites), eight sessions of massage therapy, and a personalized home exercise program.
21The physical impairments listed on the plans are headache, sprain and strain of the cervical, thoracic, and lumbar spine, sprain and strain of other and unspecified parts of the knee, other chest pain, sprain and strain of shoulder joint and rotator cuff capsule, other sprain and strain of wrist, low back pain, whiplash associated disorder (WAD2) with complaint of neck pain with musculoskeletal signs, other chronic pain, acute pain, and sprain and strain of hip and elbow.
22The goals for both plans are pain reduction, increased range of motion, increase in strength, to return to activities of normal living, to return to pre-accident work activities, and to return to modified work activities. There is an indication in both plans that the applicant continues to show slow ongoing improvements.
23The applicant submits that the disputed plans are reasonable and necessary to assist him with pain management and to help him return to his pre-accident activities of daily living. The applicant refers to Dr. Baath’s CNRs indicating that he complained of post-accident pain in his neck, shoulders, upper back, left knee, and left elbow on various dates, including on August 30, December 6 and December 16, 2021, January 25, April 12, May 19, June 30, and October 24, 2022, and January 26, 2023. The applicant also refers to CNRs from Karmy Chronic Pain Medical Clinic from September 26, 2023, where he consulted with Dr. Kamran Karatela, physician, for chronic pain in his neck, left shoulder, elbow, left knee, and back caused by the accident.
24The applicant also submits that he attended fifty-two sessions at Alma from August 27, 2021 to August 19, 2022. The applicant refers to his initial chiropractic assessment dated August 27, 2021, recommending he undergo an initial course of treatment twice weekly for four to six weeks, with modalities including chiropractic therapy, soft tissue therapy, TENS and IFC, heat, psychological counselling, and education. The applicant also refers to a physiotherapists’ initial assessment dated August 31, 2021, which indicated similar findings, and his last re-assessment on April 12, 2022, where further therapy was recommended in the form of IFC, heat, active care, and chiropractic therapy.
25The applicant further submits that, in addition to the recommendations of his physical treatment specialists at Alma, the applicant was prescribed physiotherapy on January 26, 2023, by his longtime treating practitioners at Sandalwood. The applicant points out that Dr. Baath, of Sandalwood, has been his primary care physician for many years, and that his recommendations regarding treatment should be given due weight.
26The applicant also submits that physical treatment was effective in reducing his pain, and that it has long been established and regularly upheld that pain relief, even if temporary, is a legitimate rehabilitative goal, particularly in a case like his, where his injuries have not resolved within their expected course. He refers to two decisions of the Financial Services Commission of Ontario: General Accident Assurance Co. of Canada v. Dominic Violi, 2000 ONFSCDRS 177 and Seth Amoa-Williams v. Allstate Insurance Company of Canada, 2000 ONFSCDRS 96 (“Amoa-Williams”).
27Although I am not bound by decisions of the Financial Services Commission of Ontario, I agree with the principle that pain relief is a legitimate rehabilitative goal. However, in assessing whether a treatment plan is reasonable and necessary, I find that there must be a consideration of whether some meaningful pain relief was achieved. I agree with the reasoning of the Arbitrator in Amoa-Williams. In determining whether the two insureds were entitled to the rehabilitation treatment expenses at issue, the Arbitrator considered the number of treatment sessions, whether the treatment was necessary or effective, and how long it might be expected to continue. In coming to a determination, the Arbitrator held that treatment that is more frequent or prolonged than recommended needs to be justified.
28I have reviewed forty-seven entries from Alma’s CNRs from August 31, 2021 to August 19, 2022 detailing the applicant’s treatment. Some of the entries were illegible. Of the entries I could decipher, I noted there were only seven entries that indicated there was “some improvement.” Other entries did not report any improvement or indicated that there was no change. I also note that all the assessments (dated August 27, 2021, November 11, 2021, December 3, 2021, and April 12, 2022) recommended treatment twice weekly for four to six weeks, with no reduction of treatment recommended over time. Although the proposed plans indicate that the applicant continues to show “slow ongoing improvements,” the applicant has been attending treatment sessions for almost one year, and the assessments continue to recommend the same number of sessions that were recommended in the initial session. I also note that the assessments dated November 11, 2021, December 3, 2021, and April 12, 2022 do not provide any written explanation with respect to why additional treatment is warranted.
29Based on this evidence, I find that the applicant has not established on a balance of probabilities that the prolonged nature of the proposed treatment is reasonable and necessary to achieve meaningful pain relief.
30Further, although the applicant submits that the treatment was effective in reducing his pain, he does not make submissions with respect to how the remaining goals of the disputed plans have been met to a reasonable degree and how the overall costs of achieving them are reasonable. In addition, the applicant does not make submissions addressing why such prolonged treatment is reasonable and necessary.
31For these reasons, I find that the applicant has not established, on a balance of probabilities, that the disputed plans for chiropractic and massage services are reasonable and necessary.
The applicant is not entitled to the remainder of the plan dated October 13, 2022 for biopsychosocial and social worker services
32The applicant has not established on a balance of probabilities that the remainder of the plan for biopsychosocial and social worker services is reasonable and necessary.
33The plan was proposed by Dr. Marco Curcio, chiropractor, and Daria Lioubimova, nurse. The plan proposes twelve 1.5-hour sessions of counseling, communication with others, treatment planning, a progress report, and completion of the OCF-18. The goals of the plan are pain reduction, social and emotional rehabilitation, executive-cognitive rehabilitation, to return to activities of normal living, and to return to pre-accident level of social and psychological functioning.
34The applicant submits that the proposed plan is reasonable and necessary to assist him with pain management and to help him return to his pre-accident activities of daily living.
35In his submissions, the applicant generally refers to the biopsychosocial assessment that was conducted by Dr. Nazila Isgandarova, registered psychotherapist and social worker, and Nicole Massey, social worker, on May 20, 2022. During the assessment, the applicant reported physical pain, headaches, sleep difficulties, sadness, feelings of guilt, behavioural changes, vehicle-related anxiety, and cognitive difficulties related to concentration and memory. He also reported working at reduced hours and modified duties. Assessment tests indicated that the applicant was experiencing a moderate level of emotional distress since the accident, mostly in the form of symptoms of anxiety and somatic pain. Dr. Isgandarova and Ms. Massey recommended twelve 1.5-hour social work counselling sessions to provide the applicant with emotional support, to assist him in better managing his pain and losses in his life, to assist with community integration, to assist him with handling interpersonal relationships, to maintain sleep hygiene, to assist with coping strategies and managing vehicular anxiety.
36I note that the assessment does not discuss why 1.5-hour sessions are necessary as opposed to the typical one-hour sessions.
37The respondent partially approved the plan in the amount of $2,082.51 and denied $781.89. The respondent refers to its letter to the applicant dated November 9, 2022, indicating that it approved twelve one-hour counseling sessions, rather than the proposed 1.5-hour sessions. In the letter, the respondent requested additional information with respect to the nature and type of treatment to consider approving longer sessions. Further, the respondent indicated that it approved one hour of the provider’s time ($91.43) to complete the OCF-18 form, advising that if completing the form went over one hour, it would require a reason why the additional time (a total of $200.00) was needed. The OCF-18 was completed by Daria Lioubimova, nurse. The respondent referred the applicant to s. 25 of the Schedule, which states that an insurer is not liable to pay for expenses in excess of the Financial Services Commission of Ontario’s Professional Services Guideline (“Guideline”).
38Although the applicant relies on the professional opinions detailed within the biopsychosocial assessment as support that the disputed plan is reasonable and necessary, he does make submissions with respect to why 1.5-hour sessions are reasonable and necessary as opposed to one-hour sessions, nor does he direct me to any evidence that he provided more information to the respondent about the nature and type of treatment.
39Further, I note that the maximum hourly rate for non-catastrophic impairments in the Guideline for nurses is $91.43. The applicant did not make submissions with respect to why more than one hour is reasonable and necessary to complete the OCF-18 for the disputed plan.
40The onus rests with the applicant to establish that the additional costs are reasonable and necessary.
41For these reasons, I find that the applicant has not established on a balance of probabilities that the remainder of the plan for biopsychosocial and social worker services is reasonable and necessary.
The applicant is not entitled to the plan dated September 21, 2022 for social worker services and driving sessions
42The applicant has not established on a balance of probabilities that the plan for social worker services and driving sessions is reasonable and necessary.
43The plan was proposed by Dr. Curcio, and Preya Maulkhan, nurse. The plan proposes ten 1.5-hour driving sessions with a certified driving instructor, twelve one-hour driving related sessions, communication with others, a progress report, treatment planning, provider travel time, documentation for health care provider, and completion of the OCF-18. The goals of the plan are pain reduction, to return to pre-accident level of psychological functioning, and to return to activities of normal living.
44The applicant refers to the March 21, 2022 psychological assessment conducted by Dr. Papazoglou. Based on the applicant’s self reporting of physical and psychological symptoms, sleep issues, mild cognitive changes with respect to memory and concentration, as well as psychometric testing, Dr. Papazoglou diagnosed the applicant with Adjustment Disorder (with mixed anxiety and depressed mood) as a result of the accident.
45The applicant also refers to a driving anxiety assessment conducted on June 20, 2022 by Zubina Ladak, psychological associate. Based on the applicant’s self reporting of pain, limitations, sleep, and emotional difficulties, and psychometric testing, Ms. Ladak concluded that the applicant met the criteria for a diagnosis of Somatic Symptom Disorder with predominant pain as well as a Specific Phobia relating to vehicular travel. Ms. Ladak recommended twelve sessions of cognitive behavioural therapy focusing on establishing baseline anxiety levels, relaxation training, in-session exposure and desensitization, as well as ten in-vehicle de-sensitization training sessions conducted by a certified driving instructor, to assist the applicant in overcoming his fear and restoring his confidence as a driver and comfort as a passenger when travelling in motor vehicles.
46The respondent submits that the IE report completed by Dr. Kelly McCutcheon, psychologist, dated February 24, 2022, did not diagnose a specific phobia or driving related anxiety, and that the applicant’s family physician’s CNRs did not mention ongoing anxiety or psychological impairment. Further, Dr. Rakesh Ratti, psychologist, completed an IE report dated November 24, 2022 in relation to the disputed plan, and concluded that the applicant presents with minimal emotional / psychological distress in regard to the accident and does not meet criteria for any mental health diagnosis. As a result, Dr. Ratti opined that the disputed plan was not reasonable and necessary.
47Given the contradictory findings with respect to the applicant’s driving-related anxiety in the assessments conducted by the applicant’s assessors Dr. Papazoglou on March 21, 2022 and Ms. Ladak on June 20, 2022, and the respondent’s assessors Dr. McCutcheon on February 24, 2022 and Dr. Ratti on November 24, 2022, I am not persuaded on a balance of probabilities of the reasonableness and necessity of the disputed plan for social worker services and driving sessions.
48Further, the applicant does not make submissions with respect to how the goals set out in the proposed plan would be met to a reasonable degree and how the overall costs of achieving them are reasonable.
49For these reasons, I find that the applicant has not established on a balance of probabilities that the plan for social worker services and driving sessions is reasonable and necessary.
The applicant is not entitled to the remainder of the plan dated April 12, 2022 for psychological and social worker services
50The applicant has not established on a balance of probabilities that the remainder of the plan for psychological and social worker services is reasonable and necessary.
51The plan dated April 12, 2022 in the amount of $2,668.79 was proposed by Dr. Konstantinos Papazoglou, psychologist. The plan proposes twelve 1.5-hour sessions of therapy, as well as documentation and support activity. The goals of the plan are pain reduction, to reduce psychological symptoms, to improve emotional status, to optimize coping with pain, to return to activities of normal living, to return to pre-accident level of psychological functioning.
52The respondent partially approved the plan in the amount of $1,945.08, and $723.71 was denied. The respondent refers to its letter to the applicant dated May 25, 2022, indicating that it approved one hour of the provider’s time ($149.61) to complete the OCF-18 form, advising that if completing the form went over one hour, it would require a reason why the additional time (a total of $200.00) was needed. Further, the respondent indicated that it approved twelve one-hour counseling sessions, rather than the proposed 1.5-hour sessions. In the letter, the respondent requests additional information with respect to the nature and type of treatment to consider approving longer sessions.
53The applicant does not make submissions with respect to why 1.5-hour sessions are reasonable and necessary, as opposed to one-hour sessions, nor does he direct me to any evidence that he provided more information to the respondent about the nature and type of treatment.
54Further, I note that the maximum hourly rate for non-catastrophic impairments in the Guideline for psychologists is $149.61. The applicant did not make submissions with respect to why more than one hour is reasonable and necessary to complete the OCF-18 for the disputed plan.
55For these reasons, I find that the applicant has not established on a balance of probabilities that the remainder of the plan for psychological and social worker services is reasonable and necessary.
The applicant is not entitled to plan dated January 3, 2023 for psychological and social worker services
56The applicant has not established on a balance of probabilities that the plan dated January 3, 2023 for psychological and social worker services is reasonable and necessary.
57The plan dated January 3, 2023 in the amount of $1,496.20 was proposed by Dr. Papazoglou. The plan proposes eight one-hour sessions of therapy, as well as documentation and support activity. The goals of the plan are the same as those for the April 12, 2022 plan, above. The plan refers to a progress report that addresses the applicant’s improvement at the end of the previous plan.
58The applicant generally refers to Dr. Papazoglou’s March 21, 2022 psychological assessment, where Dr. Papazoglou recommended twelve 1.5-hour psychological treatment sessions. I also note that Mr. Moorthy’s April 11, 2022 OT report and Dr. Isgandarova and Nicole Massey’s May 20, 2022 biopsychosocial assessment recommended psychological counseling.
59The respondent approved twelve one-hour counseling sessions from the plan dated April 12, 2022. Although Dr. Papazoglou refers to a progress report in the January 3, 2023 plan, I find this progress report is not attached to the plan, nor does the applicant put it into evidence. The applicant does not make submissions with respect to any progress that has been made since the completion of the April 12, 2022 plan, nor why additional sessions are reasonable and necessary, which makes it difficult for me to assess the reasonableness and necessity of the plan.
60The applicant has the onus to prove that the additional treatment is reasonable and necessary. I find that he has not met this burden because he does not provide evidence or submissions on this issue.
61Further, the applicant does not make submissions with respect to how the goals of the proposed plan would be met to a reasonable degree and how the overall costs of achieving them are reasonable.
62For these reasons, I find that the applicant has not established on a balance of probabilities that the plan dated January 3, 2023 for psychological and social worker services is reasonable and necessary
The applicant is not entitled to the plan for an MRI of the knee
63The applicant has not established on a balance of probabilities that the plan for an MRI of the knee is reasonable and necessary.
64The plan was prepared by Dr. Curcio and Daria Lioubimova. The plan proposes an MRI of the leg, and documentation and support activity. The goals of the plan are pain reduction, to further explore neurological and musculoskeletal injuries sustained because of the accident, to return to activities of normal living, and to return to pre-accident work activities. The plan lists one of the applicant’s injuries as “sprain and strain of other and unspecified parts of knee.”
65The applicant relies on his problems related to his left knee which have been extensively reported in his medical documentation and the examination by Mr. Moorthy in his report dated April 11, 2022. The applicant argues that MRI investigation into the pathology of this injury is reasonable and necessary, and to date he has still not undergone an MRI of the left knee.
66The applicant points out that in denying the MRI, the respondent relied on Dr. Michael Hanna’s physician reports dated November 30, 2021, February 8, 2022 and February 24, 2022 where Dr. Hanna recommended the applicant undergo a left knee MRI should his symptoms persist. However, in another paper review dated February 24, 2022 he indicated that an MRI of the left knee was not reasonable and necessary, but the applicant can obtain a referral for a knee MRI through his family physician should his symptoms persist. The applicant argues that Dr. Hanna gave no reason why the MRI would be reasonable if arranged through his family doctor, yet unreasonable if arranged through the insurer.
67The applicant relies on the Tribunal decision of 16-002818 v. Unifund Assurance Company, 2017 CanLII 39709 (ON LAT) (“Unifund”), in submitting that an injured person is not required to seek out a publicly funded program before a reasonable and necessary treatment plan shall be approved. I am not bound by other decisions of the Tribunal. In any event, I find that the Unifund decision is distinguishable. This decision dealt with an OHIP-funded program in the context of a psychological assessment, and the Tribunal indicated that it made its decision based on the facts of the case.
68I agree with the reasoning in the Tribunal decision cited by the respondent, Walters v. Aviva General Insurance, 2023 CanLII 26931 (ON LAT), which held that the insurer was not obligated to pay for MRIs because the insured could have obtained them under OHIP, pursuant to s. 47(2) of the Schedule. This section provides that payment of a medical benefit is not required for the portion of an expense that is reasonably available under any other insurance plan or law.
69Under s. 47(2), the onus is on the insurer to advance some evidence or submission that establishes the MRI was reasonably available to the insured under OHIP. The burden then shifts to the insured to prove that the benefit was not reasonably available. The respondent submits that the burden is met here because the applicant’s submissions and CNRs clearly show that he had numerous x-rays performed of his entire body in 2021 and again in 2023.
70I find that considering the evidence shows the applicant had numerous x-rays performed, an MRI would have reasonably been available to him. The applicant did not submit that the benefit was not reasonably available through OHIP.
71For these reasons, I find that the applicant has not established on a balance of probabilities that the plan for an MRI of the knee is reasonable and necessary.
General submissions made by the applicant - plans for assistive devices
72With respect to the plans for assistive devices, the applicant generally submits that the disputed plans are reasonable and necessary to assist him with pain management and to help him return to his pre-accident activities of daily living. The applicant further submits that Dr. Baath’s recommendations as to devices that will help in the applicant’s recovery should be given due weight, as Dr. Baath has been his primary care physician for many years. The applicant argues that the respondent erred in its judgement that the treatment plans were not reasonable or necessary, relying on unsupported or questionable conclusions by its assessors, and failing to account for pain relief as a legitimate rehabilitative goal.
The applicant is not entitled to the personal massager
73The applicant has not established on a balance of probabilities that the plan for the personal massager is reasonable and necessary.
74The plan dated October 21, 2021 was proposed by Dr. Curcio and Daria Lioubimova. The plan proposes the completion of the OCF-18, delivery of the device, and a personal massager ($186.90). The goals of the plan are pain reduction, increased range of motion, and to return to activities of normal living.
75The applicant refers to Dr. Baath’s CNRs from October 24, 2022, where he noted the applicant complained of pain in multiple areas because of the accident and provided a prescription advising the applicant to use a Thumper massager.
76The respondent relies on the IE assessment report dated November 30, 2021, prepared by Dr. Michael Hanna, physician, who assessed the applicant on November 16, 2021 to address the plan for the personal massager. Based on a review of medical documentation, the applicant’s self reporting, and a physical examination, Dr. Hanna diagnosed the applicant with myofascial sprain/strain of the cervical, thoracic, and lumbar regions, and left knee sprain/strain. Dr. Hanna concluded that the proposed goods are unlikely to add any long-term benefits from the applicant’s accident-related injuries and therefore, the plan is not considered reasonable and necessary.
77Although Dr. Baath recommended the use of a Thumper massager, I prefer the opinion of Dr. Hanna, who provided an explanation to support his position, i.e., that the massager was unlikely to add any long-term benefits from the applicant’s accident-related injuries. Further, the applicant does not make submissions on how the goals of the proposed plan would be met to a reasonable degree and how the overall costs of achieving them is reasonable.
78For these reasons, I find that the applicant is not entitled to the personal massager as he has not demonstrated on a balance of probabilities that the plan is reasonable and necessary.
The applicant is not entitled to a knee brace
79The applicant has not established on a balance of probabilities that the plan for the knee brace is reasonable and necessary.
80The plan dated January 10, 2022 was proposed by Dr. Curcio and Narmin Shirin, nurse. The plan proposes completion of the OCF-18, a Bauerfeind Kneebrace – GenuTrain A3/P3 ($331.30), and delivery of the device. The goals of the plan are pain reduction, increased range of motion, and to return to activities of normal living.
81The applicant refers to Dr. Baath’s CNRs from December 6, 2021, where he assessed the applicant with neck, left shoulder and left knee pain post-accident, and prescribed a knee brace. I also note there is a page in Dr. Baath’s CNRs with pictures of a variety of foot, ankle, and knee devices, with the GenuTrain P3 device circled, as well as an indication of “L knee brace,” signed by Dr. Baath.
82The respondent relies on the IE assessment report dated February 8, 2022, prepared by Dr. Hanna, who conducted a paper assessment to address the plan for a knee brace. Based on a review of documentation and his prior findings from the assessment conducted on November 16, 2021, Dr. Hanna concluded that the disputed plan is not reasonable and necessary given that there was no evidence of radiculopathy, myelopathy, or neuropathy and that following left knee x-rays, there were no acute findings. Dr. Hanna opined that a knee brace is not indicated for the applicant’s accident-related knee injury.
83I prefer Dr. Hanna’s opinion and recommendation because he provides an explanation based on the medical evidence, whereas Dr. Baath does not. Further, the applicant does not make submissions on how the goals of the proposed plan would be met to a reasonable degree and how the overall costs of achieving them is reasonable.
84For these reasons, I find that the applicant is not entitled to the knee brace as he has not demonstrated on a balance of probabilities that the plan is reasonable and necessary.
The applicant is not entitled to the plan dated April 28, 2022 in the amount of $1,984.51 that includes a body pillow, laundry basket and cane
85The applicant has not established on a balance of probabilities that the plan dated April 28, 2022 for various assistive devices is reasonable and necessary.
86The plan was proposed by Mr. Moorthy and Daria Lioubimova. The plan proposes a body pillow, a cervical pillow, an electric heat pad, a long-handled shoe horn, a long-handled toilet brush, hyperthermy (multiple body sites), a lightweight pail, mop and broom with dustpan, a wheeled laundry basket, a cane, a Bauerfeind Knee brace ($331.30), a pressure relieving gel cushion, a long-handled body scrub brush, a personal massager ($186.90), documentation and support activity, and delivery of the devices. The goals of the plan are pain reduction, increased range of motion, and to return to activities of normal living.
87The applicant relies on Mr. Moorthy’s April 11, 2022 OT, attendant care, and housekeeping assessment. The applicant submits that Mr. Moorthy recommends a handheld Thumper massager to provide pain relief for his neck and left shoulder, an electrical heating pad for his lower back, a knee brace for his left knee, several long-handled devices to reduce his need for bending, a walking cane, a body pillow and cervical pillow to improve his pain-impaired sleep, a gel cushion to reduce pain aggravation in his lower back, and various other devices to reduce pain and facilitate increased function.
88I have already found that the applicant is not entitled to the Thumper massager as well as the knee brace in separate plans, above. With respect to the other assistive devices recommended by Mr. Moorthy, I am not persuaded by the recommendations made based on one assessment. The applicant does not make submissions with respect to how the goals of the proposed plan would be met to a reasonable degree and how the overall costs of achieving them is reasonable.
89For these reasons, I find that the applicant has not established on a balance of probabilities that the plan dated April 28, 2022 for various assistive devices is reasonable and necessary.
The applicant is not entitled to the plan dated October 28, 2022 in the amount of $1,875.87 for a knee, shoulder, and back brace
90The applicant has not established on a balance of probabilities that the plan for a knee, shoulder, and back brace is reasonable and necessary.
91The plan is proposed by Dr. Curcio and Daria Lioubimova. The plan proposes a Bauerfeind Kneebrace – GenuTrain P3 – Left Knee ($331.30), a Bauerfeind Shoulder brace – OmoTrain S, a Bauerfeind Back Brace - LordoLocForte, delivery of devices, and documentation and support activity. The goals of the plan are pain reduction, increased range of motion, and to return to activities of normal living.
92I have already found that the applicant is not entitled to the knee brace in a separate plan, above.
93The plan on its own is not compelling evidence in support of assistive devices. The applicant does not make submissions on how the goals of the proposed plan would be met to a reasonable degree and how the overall costs of achieving them is reasonable.
94For these reasons, I find that the applicant has not established on a balance of probabilities that the plan for a knee, shoulder, and back brace is reasonable and necessary.
Assessments
95The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
The applicant is not entitled to the remainder of the plan for an in-home and attendant care assessment dated March 24, 2022
96The applicant has not established on a balance of probabilities that the remainder of the disputed plan is reasonable and necessary.
97The plan was proposed by Mr. Moorthy and Daria Lioubimova. The plan proposes an assessment and completion of the OCF-18. The goals of the plan are pain reduction, to return to activities of normal living, and to determine provision for future goods and services.
98The respondent partially approved the plan in the amount of $2,091.43 and denied $108.57. The respondent refers to its letter to the applicant dated April 7, 2022, indicating that it approved one hour of the provider’s time ($91.43) to complete the OCF-18 form. The respondent refers to s. 25 of the Schedule, which states that an insurer is not liable to pay for expenses in excess of the Guideline. The OCF-18 was completed by Daria Lioubimova, nurse.
99I note that the maximum hourly rate for non-catastrophic impairments in the Guideline for nurses is $91.43. The applicant did not make submissions with respect to why more than one hour is reasonable and necessary to complete the OCF-18 for the disputed plan.
100For these reasons, I find that the applicant has not established on a balance of probabilities that the remainder of the disputed plan is reasonable and necessary.
The applicant is entitled to the plan for a functional cognitive assessment
101I find that the applicant has demonstrated that there are grounds on which to believe that a condition exists that would warrant further investigation by way of a functional cognitive assessment.
102The plan was proposed by Julian Amchislavsky, occupational therapist, and Daria Lioubimova. The plan proposes an assessment, and completion of the OCF-18. The goals of the plan are pain reduction, increase in strength, access for specific functional cognitive deficits, to return to activities of normal living, and to return to modified work activities.
103The applicant relies on his problems related to memory and sleep as documented in the reports of Dr. Papazoglou dated March 21, 2022 and Mr. Moorthy dated April 11, 2022, including Mr. Moorthy’s psychometric testing indicating the applicant’s memory difficulties with recall and recognition. The applicant submits that a cognitive assessment is reasonable and necessary to investigate the extent of his cognitive difficulties, their effects on his function, and their relationship to his post-accident fatigue and sleep difficulties. I note that based on his assessment of the applicant, Mr. Moorthy recommended a comprehensive OT cognitive assessment.
104The respondent relies on Dr. Mula’s IE assessment report dated July 6, 2022, concluding that the plan is not reasonable and necessary as the applicant did not report cognitive changes and does not reasonably require a functional cognitive assessment by an OT.
105The applicant points out that Dr. Mula’s report does not indicate that objective testing was performed with respect to the applicant’s cognition, nor does it indicate what, if any, questions were posed to the applicant regarding his post-accident cognitive decline.
106I prefer Mr. Moorthy’s report dated April 11, 2022, where he based his recommendation for a cognitive assessment on psychometric testing indicating memory difficulties with recall and recognition. I have also considered that the applicant reported mild cognitive changes with respect to memory and concentration to Dr. Papazoglou on March 21, 2022.
107The respondent did not dispute the cost of the assessment.
108For these reasons, I find that the applicant has demonstrated that there are grounds on which to believe that a condition exists that would warrant further investigation by way of a functional cognitive assessment.
The applicant is not entitled to the remainder of the plan for a biopsychosocial assessment
109The applicant has not established on a balance of probabilities that the remainder of the plan for a biopsychosocial assessment is reasonable and necessary.
110The plan was proposed by Dr. Curcio and Daria Lioubimova. The plan proposes an assessment and completion of the OCF-18. The goals of the plan are pain reduction, to return to activities of normal living, to help the applicant develop the skills and resources needed to enhance social functioning and provide counselling therapy and referral to other supportive social services, to help the applicant re-integrate into and strengthen the family, social and community networks, and to identify social work issues and create a treatment plan that may be related to individual and family counselling, social and family functioning/re-integration, and employment functioning/re-integration.
111The applicant submits that due to his physical limitations, emotional challenges, reduced level of socialization and financial difficulties following the accident as documented in the medical records and assessment reports put into evidence, a biopsychosocial assessment is reasonable and necessary to determine the extent of his post-accident withdrawal from social, familial and community networks and to devise appropriate treatment solutions.
112The respondent partially approved the plan in the amount of $1,891.43 and denied $108.57. The respondent refers to its letter to the applicant dated May 19, 2022 in submitting that it agreed to pay for an hour of the provider’s time (i.e., $91.43) to complete the OCF-18 form. The respondent directs the applicant to s. 25 of the Schedule, which provides that an insurer is not liable to pay for expenses in excess of the Guideline. The respondent indicates in the letter that if completing the form took longer than an hour, it would require the provider to give a reason why the additional time (a total of $200.00) was needed. The OCF-18 was completed by Daria Lioubimova, nurse.
113Although the applicant made submissions about the reasonableness and necessity of the assessment, he did not make submissions with respect to the remainder of the plan that was partially denied, i.e., the completion of the OCF-18. The applicant did not make submissions with respect to why more than one hour is reasonable and necessary to complete the OCF-18 for the disputed plan.
114For these reasons, I find that the applicant has not established on a balance of probabilities that the remainder of the plan for a biopsychosocial assessment is reasonable and necessary.
The applicant is not entitled to the plan for a functional abilities assessment
115The applicant has not demonstrated that there are grounds on which to believe that a condition exists that would warrant further investigation by way of a functional abilities assessment.
116The plan was proposed by Dr. Curcio and Narmin Shirin. The plan proposes an assessment, completion of the OCF-18, and transportation for the applicant. The goals of the plan are to assess the applicant’s handgrip strength, pinch grip strength, as well as range of motion for affected joints, and to determine if any disability exists beyond the acute stages of the injury.
117The applicant relies on his presenting physical limitations and psychoemotional challenges following the accident as documented in the medical records and assessment reports described, in submitting that a functional abilities assessment is reasonable and necessary to objectively assess the extent of his chronic disability.
118The respondent relies on Dr. Mula’s July 6, 2022 report concluding that the disputed plan is not reasonable or necessary as functional abilities assessments are typically conducted in the context of a multidisciplinary referral in which one or more medical assessors makes a determination regarding a question of disability, typically occupational in nature, using the functional data to assist in making that determination. Dr. Mula opined that such a determination on a standalone basis would not likely be of assistance to the applicant and would not alter their diagnosis or management. I have no reason to question the opinion of Dr. Mula with respect to this plan.
119Further, the applicant does not direct me to corroborating evidence of any of his treating physicians or assessors who recommend the need for a functional abilities assessment.
120For these reasons, I find that the applicant has not demonstrated that there are grounds on which to believe that a condition exists that would warrant further investigation by way of a functional abilities assessment.
The applicant is not entitled to the remainder of the plan for a driving reintegration assessment
121The applicant has not established on a balance of probabilities that the remainder of the plan for a driving reintegration assessment is reasonable and necessary.
122The plan was proposed by Dr. Zubina Ladak, psychologist, and Narmin Shirin, nurse. The plan proposes an assessment and completion of the OCF-18. The goals of the plan are pain reduction, to return to the pre-accident level of psychological functioning, and to return to activities of normal living.
123The respondent partially approved the plan in the amount of $1,280.05 and denied $108.57. The respondent refers to its letter to the applicant dated June 8, 2022 in submitting that it agreed to pay for an hour of the provider’s time (i.e., $91.43) to complete the OCF-18 form. The respondent directs the applicant to s. 25 of the Schedule, which provides that an insurer is not liable to pay for expenses in excess of the Guideline. The respondent indicates in the letter that if completing the form took longer than an hour, it would require the provider to give a reason why the additional time was needed. The OCF-18 was completed by Sharin Narmin, nurse.
124The applicant did not make submissions with respect to why the remainder of the plan for a driving reintegration assessment is reasonable and necessary. For these reasons, I find that the applicant has not established on a balance of probabilities that the remainder of the plan for a driving reintegration assessment is reasonable and necessary.
The applicant is not entitled to the plan for an orthopaedic assessment
125The applicant has not demonstrated that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an orthopaedic assessment.
126The plan was proposed by Dr. Gilbert Yee, physician, and Narmin Shirin. The plan proposes an assessment, completion of the OCF-18, and transportation for the applicant. The goals of the plan are to determine underlying musculoskeletal dysfunctions, to determine whether present up to date complaints are of musculoskeletal nature, to provide a detailed insight on existing injuries and description of current complaints, to obtain data for the treating health professionals to use to provide the applicant with proper medical treatment and speed up his recovery process, and to determine whether there is the need for further interventions and/or treatment.
127The applicant relies on well-documented chronic pain and impairments following the accident (see paragraph 23, above), in submitting that an orthopaedic assessment is reasonable and necessary to assess the pathology and underlying musculoskeletal dysfunction of his pain and formulate recommendations to facilitate his recovery and pain relief.
128The respondent relies on the IE report dated September 8, 2022 of Dr. Jamsheed Desai, neurologist, which concluded that the plan is not reasonable and necessary from a neurological perspective as there were no identifiable neurologic impairments or disabilities. Dr. Desai opined that most the applicant’s ongoing symptoms were musculoskeletal in nature and therefore it was more appropriate for physical medicine and rehabilitation consultation to occur.
129The respondent also relies on Dr. Mula’s July 21, 2022 IE report concluding that from a musculoskeletal perspective, there is no indication for an orthopaedic assessment, as there is no objective evidence of an injury that would require orthopaedic intervention.
130I place great weight on the reports of Dr. Desai and Dr. Mula with respect to this plan. They are in agreement that the plan is not reasonable and necessary and have considered this from both a neurological and musculoskeletal perspective. Further, the applicant does not direct me to corroborating evidence of any of his treating physicians or assessors who recommend the need for an orthopaedic assessment.
131For these reasons, I find that the applicant has not demonstrated that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an orthopaedic assessment.
The applicant is not entitled to the plan for a neurological assessment
132The applicant has not demonstrated that there are grounds on which to believe that a condition exists that would warrant further investigation by way of a neurological assessment.
133The plan was proposed by Dr. Curcio and Narmin Shirin. The plan proposes an assessment, completion of the OCF-18, and transportation for the applicant. The goals of the plan are to determine, based on an organized and thorough examination, whether in fact neurological dysfunction exists, to identify which components of the neurological system are affected, if possible, to determine the precise location of the problem, and to identify barriers to recovery, provide diagnoses, conclusions, and recommendations.
134The applicant relies on the medical records, particularly the comments of Dr. Tullio in his neurodiagnostic report dated October 31, 2022, suggesting that spinal cord deterioration may be contributing to his neurological symptoms. The applicant submits that a neurological assessment is reasonable and necessary to determine the extent of his post-accident headaches and peripheral neuropathy caused by the accident and canvas appropriate treatment options.
135I have reviewed Dr. Tullio’s report and I find that it does not make any reference to the accident. Further, Dr. Tullio indicated that the EMG studies conducted were normal, and that the applicant has evidence of a mild sensory neuropathy related to his diabetes. Dr. Tullio also indicated that the applicant’s B12 deficiency could have contributed to some of his symptoms as vitamin B12 deficiency can cause a sensory neuropathy as well as subacute combined degeneration of the spinal cord.
136I find that Dr. Tullio’s report does not indicate that the peripheral neuropathy is related to the accident. Further, the applicant does not direct me to corroborating evidence of any of his treating physicians or assessors who recommend the need for a neurological assessment.
137For these reasons, I find that the applicant has not demonstrated that there are grounds on which to believe that a condition exists that would warrant further investigation by way of a neurological assessment.
The applicant is entitled to the plan for a chronic pain assessment
138The applicant has demonstrated that there are grounds on which to believe that a condition exists that would warrant further investigation by way of a chronic pain assessment.
139The plan was proposed by Dr. Igor Wilderman, physician, and Daria Lioubimova. The plan proposes an assessment, documentation and support activity, and transportation for the applicant. The goals of the plan are to uncover the consequences resulting from the accident and the effect of the accident on the applicant’s physical ability and social limitations, to establish accident-related benefits and any diagnostic or treatment recommendations, to aid in establishing the current diagnosis, extent of the injuries, prognoses, and recommendations for recovery, and to determine the exact nature of syndromes.
140The applicant relies on well-documented chronic pain and impairments following the accident, in submitting that a chronic pain assessment is reasonable and necessary to assess the pathology and underlying musculoskeletal dysfunction of his pain and formulate recommendations to facilitate his recovery and pain relief. I note that in their May 20, 2022 biopsychosocial assessment of the applicant, Dr. Isgandarova, registered psychotherapist, and Ms. Massey, social worker, recommended a chronic pain assessment, and that the applicant was referred to a chronic pain specialist in August of 2023.
141The respondent relies on Dr. Sukhi Bhangu, physician’s IE physiatry report dated December 23, 2022, where Dr. Bhangu opined that the applicant would have reached maximum therapeutic benefit to further assessment, facility-based therapies and/or goods and services, and therefore the disputed plan is not reasonable and necessary.
142I prefer Dr. Isgandarova and Ms. Massey’s conclusions and recommendation for a chronic pain assessment, which I find are consistent with the applicant’s pain complaints as a result of the accident. I have considered that the applicant has made consistent complaints of pain because of the accident between August of 2021 and September of 2023 to various treatment providers and assessors, which corroborates the need for a chronic pain assessment.
143The respondent does not dispute the cost of the proposed chronic pain assessment.
144For these reasons, I find that the applicant has demonstrated that there are grounds on which to believe that a condition exists that would warrant further investigation by way of a chronic pain assessment.
The applicant is not entitled to the remainder of the plan for a psychological assessment
145The applicant has not established on a balance of probabilities that the remainder of the plan for a psychological assessment is reasonable and necessary.
146The plan was proposed by Dr. Papazoglou. The plan proposes an assessment and documentation and support activity. The goals of the plan are pain reduction, pain management, “trauma symptoms, anxiety, depression, driving anxiety,” to return to activities of normal living, and to return to the previous level of psychological functioning.
147The respondent partially approved the plan in the amount of $1,944.94 and denied $50.39. The respondent refers to its letter to the applicant dated March 18, 2022 in submitting that it agreed to pay for an hour of the provider’s time (i.e., $149.61) to complete the OCF-18 form. In the letter, the respondent advised the applicant that fees charged must comply with the Guideline. The respondent indicated in the letter that if completing the form took longer than an hour, it would require the provider to give a reason why the additional time was needed.
148The applicant did not make submissions with respect to why the remainder of the plan for a psychological assessment is reasonable and necessary. For these reasons, I find that the applicant has not established on a balance of probabilities that the remainder of the plan for a psychological assessment is reasonable and necessary.
Interest
149Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on any overdue payment of benefits.
Award
150The 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.
151The applicant submits that the respondent has mishandled his claim, unreasonably withholding payment of medical and rehabilitation benefits without giving due consideration to the compelling evidence before it. The applicant argues that, in denying his claims, the respondent elected to rely on unsupported and even contradictory conclusions within its IE reports, as long as their conclusions may be used to deny the applicant the benefits he is entitled to. The applicant further submits that through six transfers of adjusters on his claim, file transfer notes seem to indicate that the respondent was unaware or unwilling to acknowledge the applicant’s persistent issues, which has resulted in a multi-year gap in rehabilitative treatment which has negatively impacted his recovery.
152The respondent submits that the applicant should not be entitled to an award for the reasons provided in supporting its denials.
153It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, to attract an award under Reg. 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. I find that the respondent’s behavior does not reach that high standard with respect to the functional cognitive assessment and the chronic pain assessment, to which I found the applicant was entitled, because I find the respondent continued to adjust the file by obtaining reports from assessors. If the respondent made an incorrect decision in relying on assessors, this is insufficient to attract an award. For these reasons, I find that there is no basis for ordering an award under Reg. 664.
ORDER
154For the above reasons, I find:
i. The applicant is entitled to the plans for a functional cognitive assessment, and a chronic pain assessment.
ii. The applicant is not entitled to the remaining plans in dispute.
iii. The applicant is entitled to interest on any overdue payment of benefits.
iv. The respondent is not liable to pay an award.
Released: August 7, 2025
Laura Goulet
Adjudicator