Licence Appeal Tribunal File Number: 24-010975/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:
Mozhgan Daei
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Nadia Mauro
APPEARANCES:
For the Applicant:
Carlos Ortiz, Paralegal
For the Respondent:
Robbie Brar, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Mozhgan Daei, the applicant, was involved in an automobile accident on May 28, 2020, 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, Unifund Assurance 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 an income replacement benefit in the amount of $400.00 per week from June 4, 2020, to ongoing?
ii. Is the applicant entitled to the treatment plans proposed by Seksek Chiropractic Professional Corp. as follows:
(a) Is the applicant entitled to $2,017.37 for occupational therapy services, in a treatment plan (“OCF-18”) submitted October 28, 2022, and denied November 11, 2022?
(b) Is the applicant entitled to $2,686.77 for physiotherapy services, in an OCF-18 submitted December 30, 2022, and denied January 16, 2023?
(c) Is the applicant entitled to $779.61 ($3,674.61 less $2,895.00 approved) for psychological services, in an OCF-18 submitted January 30, 2023, and denied February 22, 2023?
(d) Is the applicant entitled to $1,651.75 for physiotherapy services, in an OCF-18 submitted April 21, 2023, and denied May 4, 2023?
(e) Is the applicant entitled to $1,451.72 ($3,199.61 less $1,747.89 approved) for psychological services, in an OCF-18 submitted June 16, 2023, and denied July 14, 2023?
(f) Is the applicant entitled to $3,199.61 for psychological services, in an OCF-18 submitted October 12, 2023, and denied January 11, 2024?
(g) Is the applicant entitled to $2,569.01 for chiropractic services, in an OCF-18 submitted October 11, 2024, and denied November 4, 2024?
(h) Is the applicant entitled to $2,494.75 for physical rehabilitation services, in an OCF-18 submitted September 13, 2024, and denied September 26, 2024?
iii. Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by Ashkan Psychotherapy Professional Corp. in an OCF-18 submitted July 29, 2024, and denied August 12, 2024?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to pre-104 week IRBs from June 4, 2020 to May 26, 2022, plus interest in accordance with s. 51 of the Schedule.
4The applicant is not entitled to the treatment plans for a psychological assessment, physical rehabilitation, chiropractic services, occupational therapy services, and physiotherapy services.
5The applicant is not entitled to the unapproved portions of the psychological services, nor the psychological services dated October 12, 2023.
6The applicant is not entitled to an award.
ANALYSIS
Income Replacement Benefits (“IRB”)
Pre-104 Week IRB
7I find that the applicant has established entitlement to pre-104 week IRBs.
8To 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.
9The applicant submits following the accident, she stopped working in her role as a Personal Support Worker (“PSW”) for 10 days and returned on reduced hours (25 hours/week) and modified duties. The applicant submits that she had to stop working as a PSW due to her accident-related injuries and is currently working part-time as a Lab Patient Technician. The applicant relies on the disability certificate (“OCF-3”) dated February 4, 2022, to support that she has suffered a substantial inability to perform the essential tasks of her employment. The applicant further submits that she has suffered a complete inability to engage in any employment for which she is reasonably suited by education, training, or experience.
10The respondent submits that the executive summary report s. 44 report of physician, Dr. Michael Hanna, concluded that the applicant does not suffer a complete inability to engage in any employment for which she is reasonable suited. The respondent submits that the applicant’s ability to work has improved since the time of its s. 44 assessments in 2022 and the applicant has not discharged her onus of establishing compelling medical evidence to suggest entitlement to any IRB.
11I find that the evidence supports that the applicant was substantially unable to perform the essential tasks of her employment pursuant to s. 5(1) of the Schedule.
12The applicant’s employment file with ParaMed indicates that the necessary tasks of her employment include lifting/transferring clients and the physical demand level is medium-heavy (constant 1-20lbs, frequent 11-50lbs, and occasional 21-100lbs). The clinical notes and records (“CNRs”) of the applicant’s family doctor, Dr. Nezhat Arabi report that the applicant complained of left shoulder pain as a result of the accident. An ultrasound of the left shoulder dated July 20, 2020, revealed supraspinatus tendinosis. A radiograph of the left shoulder dated July 20, 2020, revealed underlying rotator cuff arthropathy.
13The applicant’s family practitioner, Dr. Arabi, and physiotherapist, Peter Theodosopoulos, wrote letters stating that the applicant should engage in modified duties. Specifically, Mr. Theodosopoulos wrote on July 16, 2020, that “it is advised that she refrain from sustained or prolonged use of her left upper extremity and neck. It is also recommended she continue regular hours and modified duties as described below. She should avoid/limit repetitive bend/twist of her neck and left shoulder. Minimize any overhead activity with he left shoulder and any reaching pushing pulling lift and carry (20lbs) as tolerated.” Dr. Arabi wrote on September 24, 2020, and December 1, 2020, that “the [applicant] with shoulder pain need to start modified light duties and only a 25hrs work per week”. [sic]
14On October 6, 2020, a letter from the applicant’s employer confirms she was placed on modified work hours. On April 8, 2022, the applicant resigned from her position. It is not clear whether the applicant engaged in any other employment between April 8, 2022, and June 29, 2023, when she began working as a Lab Patient Technician.
15The s. 44 Vocational Assessment of vocational evaluator, Teri Pereira, dated October 21, 2022, indicates that after the accident, the applicant continued working as a home support worker 24 hours per week from 7:00 am to 12:00 pm in a retirement home rather than at clients’ homes. Mr. Pereira opined that the applicant “may be able to return to her pre-accident occupation in a role that matches her physical capacity.”
16I place significant weight on the s. 44 functional abilities evaluation of kinesiologist, Mr. Danny Monck, dated October 21, 2022, given the physical tasks of a PSW and that this assessor uses and reports on specific testing to ascertain whether the applicant displays an ability to perform those tasks. Mr. Monck ultimately opined that the applicant did not demonstrate the abilities that would meet the job demands of her pre-accident employment.
17I give little weight to the executive summary report of Dr. Hanna, because this assessor did not opine on the test pursuant to s. 5(1) of the Schedule, rather he opined on the test set out in s. 6. For the purposes of establishing entitlement to pre-104-week IRBs, there must be a substantial inability to engage in employment tasks, not a complete inability to engage in any employment. Given that this assessor wrote an executive summary and did not otherwise examine the applicant, I do not find it to be persuasive when speaking to the applicant’s inability to engage in the substantial tasks of her employment.
18While Dr. Mohammad Khan, in his s. 44 physiatry report, dated October 21, 2022, concludes that the applicant does not suffer a substantial inability to perform the essential tasks of her pre-accident employment, Dr. Khan qualifies this statement by stating “at this point in time, more than two years after the subject accident, there are no physical medical contradictions to engaging in her pre-accident employment”. As such, I do not find the conclusion of Dr. Khan persuasive when ascertaining the applicant’s ability to perform her employment tasks with respect to the 104 weeks post accident.
19Given the foregoing, I find that the applicant has proven, on a balance of probabilities, that she was substantially unable to perform the essential tasks of her pre-accident employment.
20The applicant is therefore entitled to IRBs from June 4, 2020 to May 26, 2022. In terms of the quantum of IRBs, the Case Conference Report and Order, dated December 20, 2024, identified the amount of IRBs in dispute as being $400.00 per week. The onus rests with the applicant to prove the quantum. The applicant has not provided any submissions on quantum, and as such, I am unable to make a determination as to the quantum of pre-104 week IRBs.
Post-104 Week IRB
21To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.
22I find that the applicant has not suffered a complete inability to engage in any employment for which she is reasonably suited by education, training or experience, pursuant to s. 6 of the Schedule. The applicant has made submissions and provided evidence that supports she is working part-time as a Lab Patient Technician to date. Thus, the evidence supports, and by her own admission, the applicant is engaging in employment activity.
23The s. 44 vocational assessment report of Mr. Pereira indicates that potential suitable occupations for the applicant would be visiting homemakers, licenced practical nurse, and retail salesperson and salesclerk. The job purpose of the applicant’s employment as a Lab Patient Technician includes collecting patient specimens, data entry, phlebotomy, and ECG’s. I find that this falls in line with employment that she is reasonably suited by education, training or experience.
24Therefore, I find that she does not satisfy the post-104-week test under s. 6 of the Schedule.
Occupational Therapy, Chiropractic, and Physiotherapy Services
25I find that the applicant has not proven, on a balance of probabilities, that the proposed treatment plans are reasonable and necessary.
26To 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.
27The OCF-18 completed by occupational therapist, Maya Ramakrishnan, dated October 28, 2022, sought funding for an occupational therapy assessment. The goals of the treatment plan are to reduce pain, increase range of motion and strength, and to return to activities of normal living.
28The OCF-18s completed by physiotherapist, Gayatriben Panchal, dated December 30, 2022, and April 21, 2022, sought funding for physiotherapy services. The goals of the treatment plan are to reduce pain, increase range of motion and strength, and to return to activities of normal living.
29The OCF-18 completed by chiropractor, Dr. Tanya Conzalez, dated October 11, 2024, sought funding for chiropractic services. The goals of the treatment plan are to reduce pain, increase range of motion and strength, and to return to activities of normal living.
30The OCF-18 completed by Gayatriben Panchal, dated September 13, 2024, sought funding for physical rehabilitation services. The goals of the treatment plan are to reduce pain, increase range of motion and strength, and to return to activities of normal living.
31The applicant’s submissions are sparse with respect to the above treatment plans. While the applicant highlights some impairments denoted in the OCF-18s for occupational therapy, dated October 28, 2022, physiotherapy, dated December 20, 2022, and April 21, 2023, the applicant does not make submissions with respect to the reasonableness and necessity of the proposed plans.
32In my view, the OCF-18s alone are not sufficient in establishing that the proposed services are reasonable and necessary. There must be contemporaneous and corroborating evidence around the time the treatment plans were submitted to the respondent for consideration, that would support that they are reasonable and necessary. The applicant has neither directed to me medical evidence that would support the need for the proposed plans nor pointed me to a medical opinion that opines on the reasonableness and necessity of the same.
33I also find that the clinical notes and records of the applicant’s family practitioner, Dr. Arabi, are not supportive of the proposed treatment plans. While the applicant attends her family doctor’s office on a number of occasions between 2022 and 2024, I am not directed to evidence of Dr. Arabi recommending or referring the applicant for the above proposed therapies.
34The applicant has the burden of proving, on a balance of probabilities, that the proposed treatment plans are reasonable and necessary. In this matter, I find that the applicant has fallen short of meeting her burden. As such, I find that the applicant has not established that the above-noted proposed treatment plans are reasonable and necessary.
Psychological services dated January 30, 2023
35I find that the applicant has not proven, on a balance of probabilities, that the unapproved portions of the proposed psychological services, dated January 30, 2023, are reasonable and necessary.
36The OCF-18 completed by psychologist, Dr. Allan Shapiro, dated January 30, 2023, was partially approved in the amount of $3,674.61. The OCF-18 sought funding for the following:
Line 1: Therapy, mental health and addictions, for 14 sessions, in the amount of $1.855.00
Line 2: Documentation support activity for claim form in the amount of $200.00
Line 3: Assessment (examination), total body, in the amount of $149.61
Line 4: Translation, for 14 sessions in the amount of $1,260.00 ($90.00 per session)
Line 5: Clinical supervision, for 14 sessions in the amount of $210.00 ($15.00 per session)
37The respondent submits that the unapproved amount of $779.61 was denied based on adjustments to the hourly rate and duplicated costs.
38I find that the denial letter, dated February 22, 2023, indicates that the goods and/or services not approved by the respondent are Line 3, 4, and 5. The denial letter indicates that as per the Professional Services Guidelines (“Guidelines”), Line 2: documentation support activity, and Line 3: assessment have a combined payable maximum of $200.00. The denial letter further indicates that the hourly costs of Line 4: translation is not reasonable and necessary, and Line 5: clinical supervision is a duplication of the services provided under Line 1: therapy.
39The applicant does not make submissions with respect to the reasonableness and necessity of the unapproved services listed above as Line 3: assessment, Line 4, translation, and Line 5: clinical supervision. I am not pointed to evidence that would confirm the purpose of these line items, nor how these line items relate to the overall goals of the proposed treatment plan. As such, I find that there is insufficient information to make a determination with respect to whether these goods/services are reasonable and necessary.
40Therefore, I find that the applicant has not met her burden to prove on a balance of probabilities that the unapproved portions of the psychological services, dated January 30, 2023, are reasonable and necessary.
Psychological services dated June 16, 2023
41I find that the applicant has not proven, on a balance of probabilities, that the unapproved portions of the proposed psychological services, dated June 16, 2023, are reasonable and necessary.
42The OCF-18 completed by Dr. Allan Shapiro, dated June 16, 2023, was partially approved in the amount of $1,747.89. The OCF-18 sought funding for the following:
Line 1: Therapy, mental health and addictions, for 12 sessions, in the amount of $1,598.00 ($132.50/hour)
Line 2: Documentation support activity for claim form in the amount of $200.00
Line 3: Assessment (examination), total body, in the amount of $149.61
Line 4: Clinical supervision, for 12 sessions in the amount of $180.00 ($15.00 per session)
Line 5: Translation, for 12 sessions in the amount of $1,080.00 ($90.00 per session)
43The respondent submits that the unapproved amount of $1,451.72 was denied pursuant to the Guidelines.
44I find the denial letter, dated July 14, 2023, indicates that the denied portions of the OCF-18 are Line 1, 2, and 5. The denial letter indicates that Line 1: therapy, was denied on the basis that the type of practitioner listed on the OCF-18 is not listed in the Guidelines, and as such, the insurer adjusted the hourly rate for this practitioner to $58.19. The denial letter also indicates that Line 2: documentation support is a duplicate form, and the fee for Line 5: translation exceeds what is reasonable for this good/service.
45The applicant has not made submissions with respect to the adjusted hourly rate of Line 1, nor has the applicant provided the credentials of the treating practitioners for the proposed treatment plan to confirm the range and breadth of their experience. More importantly, the applicant has not provided any of the treating practitioner’s credentials as it would relate to the proposed treatment plan. As such, I find that the applicant has not established that the proposed $132.50/hour, is reasonable and necessary.
46The applicant also does not make submissions with respect to the reasonableness and necessity of the unapproved services listed above as Line 2: documentation support and Line 5: translation. I am not pointed to evidence that would confirm the purpose of these line items, nor how these line items related to the overall goals of the proposed treatment plan. As such, I find that there is insufficient information to make a determination with respect to whether these goods/services are reasonable and necessary.
47Therefore, I find that the applicant has not met her burden to prove on a balance of probabilities that the unapproved portions of the psychological services, dated June 16, 2023, are reasonable and necessary.
Psychological services, dated October 12, 2023, and Psychological assessment, dated July 29, 2024
48I find that the applicant, has not proven on a balance of probabilities, that the proposed treatment plans for psychological services and assessment are reasonable and necessary.
49The OCF-18 completed by Dr. Allan Shapiro, dated October 12, 2023, sought funding in the amount of $3,199.61 for psychological services.
50The OCF-18 completed by psychotherapist, Maryam Askan, dated July 29, 2024, sought funding in the amount of $2,486.00 for a psychological assessment.
51The applicant submits that her psychological and behaviour impairments are depressive episode and anxiety disorders. The applicant submits that the treatment goals are pain reduction, increased range of motion, strength improvement, addressing psychological issues, reduce symptoms, improve adaptive skills, and facilitate a return to normal activities. The applicant also submits that a psychological evaluation is needed to confirm diagnoses and formulate a treatment plan.
52The respondent submits that the proposed treatment plan for psychological services and assessment were denied based on the s. 44 psychological assessment reports of Dr. McGrory, dated January 3, 2024, and October 22, 2024. The respondent submits that the applicant has not provided compelling evidence as to why Dr. McGrory’s opinion is flawed as it related to the reasonableness and necessity of these treatment plans.
53It is the applicant’s burden to prove, on a balance of probabilities, that the proposed treatment is reasonable and necessary, and submissions alone are unsatisfactory. There must be contemporaneous and corroborating evidence that would support that the applicant has a condition that warrants further investigation by way of an assessment. In the present case, the applicant has not directed me to corroborating evidence that would support the proposed treatment plan is reasonable and necessary.
54While the applicant attended her family doctor, Dr. Arabi, on January 25, 2024, with complaints of “low energy, anhedonia depressed mood, anxiety, decreased concentration and memory” the CNR suggests that this was for personal reasons unrelated to the accident, and Dr. Arabi does not opine during this visit that her psychological complaints were accident related. Moreover, a CNR of Dr. Arabi on June 23, 2023, states that “depression [is] well controlled”. The applicant has not pointed me to evidence of Dr. Arabi recommending or referring the applicant for psychological services or evaluation.
55As the applicant has not pointed me to any other contemporaneous and corroborating medical evidence, I give significant weight to the s. 44 reports of Dr. McGrory, as this assessor was asked to opine on the proposed treatment plans. The s. 44 report of Dr. McGrory, dated January 3, 2024, acknowledged that the applicant has psychological impairments, such as adjustment disorder, with mixed anxiety and depressed mood and specific phobia (driving anxiety), however, concluded that “additional treatment would have limited benefit” and found the proposed treatment plan for psychological services to not be reasonable and necessary. With respect to the proposed psychological assessment, Dr. McGrory opined in his report, dated October 22, 2024, that “over four years post-MVA, additional treatment will not provide benefit.”
56Given the above, I find that the applicant has not proven, on a balance of probabilities, that the proposed treatment plans for psychological services dated June 16, 2023, and psychological assessment, dated July 29, 2024, are reasonable and necessary.
Interest
57The applicant is entitled to interest on any overdue benefits pursuant to s. 51 of the Schedule.
Award
58The 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.
59The applicant submits that the respondent willfully ignored the medical evidence and the evidence of their own assessors who reported on her vocational limitations.
60The respondent submits that the applicant has not provided any evidence or reference in the adjuster log notes that establish any unreasonable withheld or delayed benefits, nor bad faith adjusting.
61While I note that there is discrepancy between the opinions of the respondent’s assessors, I do not find that the respondent willfully ignored the evidence of its own assessors such that it unreasonably withheld or delayed benefits. The applicant also does not point me to evidence that would support the respondent ignored medical evidence that would establish bad faith adjusting.
62As such, I find that the respondent is not liable to pay an award.
ORDER
63I find that:
i. The applicant is entitled to pre-104 week IRB from June 4, 2020 to May 26, 2022, plus interest pursuant to s. 51 of the Schedule;
ii. The applicant is not entitled to the treatment plan for occupational therapy, dated October 28, 2022;
iii. The applicant is not entitled to the treatment plan for physiotherapy services, dated December 30, 2022;
iv. The applicant is not entitled to the unapproved portions of the treatment plan for psychological services, dated January 30, 2023;
v. The applicant is not entitled to the treatment plan for physiotherapy services, dated April 21, 2023;
vi. The applicant is not entitled to the unapproved portions of the treatment plan for psychological services, dated June 16, 2023;
vii. The applicant is not entitled to the treatment plan for psychological services, dated October 12, 2023;
viii. The applicant is not entitled to the treatment plan for chiropractic services, dated October 11, 2024;
ix. The applicant is not entitled to the treatment plan for physical rehabilitation, dated September 13, 2024;
x. The applicant is not entitled to the treatment plan for a psychological assessment, dated July 29, 2024; and
xi. The respondent is not liable to pay an award.
Released: February 26, 2026
Nadia Mauro
Adjudicator