Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-014402/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:
Thi Xuan Hop Nguyen Applicant
and
Wawanesa Insurance Respondent
DECISION
ADJUDICATOR: Harouna Saley Sidibé
APPEARANCES:
For the Applicant: Todd Reybroek, Counsel
For the Respondent: James Schmidt, Counsel
HEARD: By way of written submissions
BACKGROUND
1Thi Xuan Hop Nguyen, the applicant, was involved in an automobile accident on February 12, 2019, 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, Wawanesa Insurance, 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 $6,662.22 for chiropractic services, proposed by Hydroactive in a plan dated July 19, 2023?
ii. Is the applicant entitled to $2,289.00 for concussion assessment, proposed by Hydroactive in a plan dated October 18, 2023?
iii. Is the applicant entitled to $2,799.00 for neurological assessment, proposed by HydroHealth in a plan dated August 15, 2023?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3In her submissions, the applicant has withdrawn issues 1 (attendant care benefits) and 2 (housekeeping and home maintenance benefits) as indicated in the Case Conference Report and Order ("CCRO") dated May 14, 2024. This is reflected in the issues set out above.
RESULT
4For the reasons above, I find that:
The applicant is not entitled to the treatment plans in dispute.
The applicant is not entitled to interest pursuant to s.51 of the Schedule.
ANALYSIS
5To 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.
Is the applicant entitled to the treatment plan for chiropractic services?
6I find that the proposed chiropractic treatment plan dated July 19, 2023, is not reasonable or necessary.
7The treatment plan, signed by chiropractor David Huang, details a course of care involving 18 sessions of manipulation, exercises, and facility fees, along with 36 therapy sessions targeting multiple body sites. While the stated goals, pain reduction, improved range of motion, return to daily and work activities, and enhanced function are appropriate, the proposed chiropractic approach lacks support from the applicant's treating medical professionals.
8The applicant continues to report chronic pain in the neck, back, and shoulders, as documented by her family physician, Dr. Martin Nhan Tong, and pain specialist Dr. Dima Rozen. Dr. Rozen diagnosed Chronic Pain Syndrome and recommended ongoing physiotherapy, not chiropractic care. His report, dated August 3, 2022, attributes the applicant's symptoms to an aggravation of pre-existing conditions caused by the accident and emphasizes the importance of physiotherapy.
9The respondent relies on independent medical examinations conducted by Dr. Ato Sekyi-Otu, orthopaedic surgeon, and Dr. Garry Moddel, neurologist. Dr. Sekyi-Otu found no objective pathology and classified all spinal regions as AMA Guides Category 1 (0% WPI), attributing symptoms to self-limiting behaviours. Dr. Moddel found no neurological impairment or barriers to recovery. While these assessments do not fully address the chronic pain diagnosis, they further underscore the lack of objective findings supporting the need for chiropractic intervention.
10Medical imaging from Humber River Hospital (CNRs dated June 26, 2020, and February 4, 2021) reveals mild findings such as lateral recess stenoses and mild compression of the left S1 root. However, these findings are not explicitly linked to the accident and do not substantiate the necessity of chiropractic treatment.
11The applicant's treatment history shows consistent engagement with physical therapy prior to the pandemic, which was reduced due to concerns about the virus. Her therapy included massage, electrical treatments, and stretching exercises, but not strengthening exercises. She continues to walk daily for 30 minutes, demonstrating a commitment to recovery through non-chiropractic means.
12The occupational therapy assessment by Mr. Justin Moy, dated June 27, 2023, acknowledges prior accidents in 2009 and 2016, with full recovery from the former and neck/back injuries from the latter. The current symptoms are distinguishable and exacerbated by the recent accident, but again, no recommendation for chiropractic care is made.
13Considering the totality of the evidence, including the treatment plan, medical reports, and the applicant's complaints, I find that the proposed chiropractic treatment plan lacks sufficient medical support and is not aligned with the recommendations of her treating professionals.
14Therefore, based on the balance of probabilities, I find that the proposed chiropractic treatment plan dated July 19, 2023, is not reasonable or necessary.
Is the applicant entitled to the treatment plans for assessments?
15The purpose of assessments is to determine whether a condition exists. For an insured, they bear the onus of demonstrating that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
a) Concussion assessment
16I find that the proposed treatment plan dated October 18, 2023, is not reasonable and necessary.
17The treatment plan, signed by chiropractor David Huang, includes a total body assessment, documentation to support activity for the claim form, and three interpretation services. The stated goals include pain reduction, increased range of motion and strength, improvement of concussion-related signs and symptoms, and return to normal and work-related activities.
18The applicant submits that she is experiencing post-concussive symptoms, including headaches, dizziness, blurred vision, balance issues, cognitive difficulties, and sleep disturbances. These complaints are documented in the October 18, 2023, OCF-18. She argues that a concussion assessment is necessary to clarify the diagnosis and guide appropriate treatment.
19The respondent opposes the proposed assessment, arguing that there is no contemporaneous diagnosis of concussion by any treating physician, no referral to a specialist under OHIP, and no objective neurological findings consistent with a concussion. The respondent further notes that the only support for the applicant's claim appears to be an occupational therapy questionnaire, which it submits is insufficient to justify the proposed assessment.
20I agree with the respondent's view that the Clinical Notes and Records (CNRs) from the applicant's treating physicians and assessors do not explicitly mention concussion symptoms. The independent neurological examination conducted by Dr. Garry Moddel on June 27, 2023, found no neurological impairment related to the accident to support a concussion diagnosis.
21Based on the available evidence, I conclude that the applicant has not established sufficient grounds to justify a concussion assessment. While a formal diagnosis isn't necessary to support an assessment, there must be a reasonable basis to suspect that a condition exists and warrants further investigation. In this case, the CNRs do not mention concussion-related symptoms, and the independent neurological examination performed by Dr. Moddel on June 27, 2023, revealed no neurological impairment linked to the accident. Although the symptoms listed in the OCF-18 may resemble those associated with post-concussive syndrome, the lack of supporting medical evidence and clinical indicators weakens the case for the proposed assessment.
22Consequently, on a balance of probabilities, I find that the treatment plan is not reasonable and necessary.
b) Neurological assessment
23I find that the proposed treatment plan dated August 15, 2023, is not reasonable and necessary.
24The treatment plan, signed by Dr. Vincenzo Basile, includes a full-body test, supporting documentation for a claim form, and three interpretation services. The stated goals are pain relief, a neurological assessment to determine accident-related impairment, return to daily activities, and guidance on multidisciplinary care.
25The applicant relies on Dr. Getahun's recommendation dated October 13, 2022, which suggests a neurology assessment due to persistent headaches, dizziness, and radicular symptoms. She submits that further assessment would assist in guiding multidisciplinary care.
26However, the respondent correctly notes that Dr. Garry Moddel already conducted a comprehensive neurological evaluation on June 27, 2023. Dr. Moddel concluded that there was no evidence of neurological impairment related to the accident. The respondent argues that repeating such an assessment would be duplicative and unnecessary.
27Further, while Dr. Kirwin indicated in October 2020 that a neurology consult and EMG were arranged, there is no record of a follow-up neurology consultation in the file. Nonetheless, the absence of that record does not justify a second assessment, particularly in light of Dr. Moddel's recent and thorough evaluation.
28Additional medical opinions support the conclusion that the applicant's symptoms are not neurologically based. Dr. Sekyi-Otu, in his June 27, 2023, report, attributed the applicant's symptoms to uncomplicated myofascial strains, which typically resolve within six to twelve weeks. He also noted discrepancies in shoulder motion that he attributed to self-limiting behaviours, not structural abnormalities. He identified a subclinical leg length discrepancy but found it not causally related to the accident.
29Dr. Kirwin's physiatry evaluation also noted cervical pain radiating to the hands but found no objective signs of impairment consistent with carpal tunnel syndrome or other neurological conditions. His findings do not support the need for further neurological investigation.
30Critically, the applicant has not submitted Dr. Getahun's report to the Tribunal as evidence. Without this report, the Tribunal cannot assess the basis or credibility of the recommendation. The applicant has therefore failed to lead sufficient evidence demonstrating a meaningful neurological impairment that would justify the proposed assessment.
31Based on the totality of the evidence, including the recent neurological evaluation by Dr. Moddel and the absence of objective findings supporting neurological impairment, I find that the proposed treatment plan dated August 15, 2023, is not reasonable and necessary. The applicant has not provided sufficient evidence to support the need for a repeat neurological assessment.
32Consequently, on a balance of probabilities, I find that the treatment plan is not reasonable and necessary.
Interest
33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no treatment plans are due, no interest is owing.
ORDER
34For the reasons below, it is ordered that:
i. The applicant is not entitled to the treatment plans in dispute.
ii. The applicant is not entitled to interest pursuant to s.51 of the Schedule.
Released: August 26, 2025
Harouna Saley Sidibé Adjudicator