Licence Appeal Tribunal File Number: 24-009901/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:
Maria Noemi Castro Rubio
Applicant
and
TD General Insurance Company
Respondent
DECISION
VICE-CHAIR:
Julian DiBattista
APPEARANCES:
For the Applicant:
David J Levy, Counsel
For the Respondent:
Kristine Kim, Counsel
HEARD: In Writing
OVERVIEW
1Maria Noemi Castro Rubio, the applicant, was involved in an automobile accident on September 4, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant was deemed catastrophically impaired on January 21, 2021. The applicant received this designation under criterion 8 with 3 marked impairments in the areas of social functioning, concentration and adaptation.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $5,487.74 for physiotherapy services, proposed by Propel Physiotherapy in a treatment plan/OCF-18 (“plan”) submitted March 11, 2024, and denied July 22, 2024?
ii. Is the applicant entitled to $2,290.07 for physiotherapy services, proposed by Propel Physiotherapy in a plan submitted May 8, 2024, and denied July 22, 2024?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the applicant is not entitled to the disputed treatment plans or interest.
ANALYSIS
The applicant is not entitled to the disputed treatment plans.
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.
The applicant is not entitled to physiotherapy proposed on March 11, 2024.
6I find that the applicant is not entitled to the treatment plan.
7The plan proposes the following:
Item
Quantity
Cost
Total Cost
1
Documentation support activity
1 time
$200.00
$200.00
2
Physical Rehabilitation
16 – 1 hour sessions
$119.92/hour
$1,918.72
3
Preparation service (team communication)
8 – 25 minute sessions
$29.98/session
$239.84
4
Exercise, multiple body sites
8 – 1 hour sessions
$89.07/session
$712.56
5
Brace (ankle support)
2 items
$315.40/each
$630.80
6
Brace (hand wrist support)
2 items
$371.20/each
$742.40
7
Documentation support activity (progress report writing)
3.5 hours
$419.72 total
$419.72
8
Treadmills, bikes, sporting equipment/basketballs/soccer balls etc…
1 item
$125.00
$125.00
9
Heat pad (cold and hot packs, Theraphore, all sizes)
1 item
$42.00
$42.00
10
Exercise equipment (headphones, gym bag, towels, exercise mats, foam rollers)
1 item
$145.00
$145.00
8All items with exception of item #4 would be provided by Ms. T Bhogal, physiotherapist. Item #4 would be provided by Ms. C Man, registered massage therapist.
9The goals of the treatment plan have been identified as:
i. Pain reduction;
ii. Increased range of motion;
iii. Increase in strength;
iv. Return to activities of normal living;
v. Improve shoulder, lumbar, cervical range of motion, improve balance, improve oculomotor and vestibular function, improve strength of upper and lower extremities;
vi. Improve energy conservation techniques such as planning, prioritizing and pacing;
vii. Improve self-management of pain and flare-up with mindfulness and relaxation techniques;
viii. Improve overall endurance and stamina;
ix. Improve walking tolerance,
x. Improve confidence with use of pain management strategies,
xi. Improve function of both hands/arms for cooking/cleaning and house chores; and
xii. Improve adherence to home based exercise program.
10The applicant submits that this plan is supported by a s.25 physiatry assessment conducted by Dr. V. Kekosz.
11Dr. Kekosz assessed the applicant on September 20, 2022. The applicant highlights the following comment from Dr. Kekosz’s report.
[The applicant] should continue with physiotherapy, massage and with her medications. She is not a candidate for an active gym exercise program at the present time as she continues to need supervision which is presently being provided by her RSW (rehab support worker).
12The applicant further submits a progress report of Ms. Bhogal, the applicant’s physiotherapist. This report is dated May 15, 2024. The applicant puts emphasis on Ms. Bhogal’s comment that the applicant experienced a setback in rehabilitation following a tear of the right supraspinatus in September 2023.
13The respondent submits the catastrophic impairment assessment of Dr. D Berbrayer, physiatrist in response. In this assessment, Dr. Berbrayer diagnosed the following accident-related injuries and (comments):
i. Closed head injury with reported loss of consciousness (deferring comment to appropriate assessors);
ii. Post-concussive symptoms (deferring comment to appropriate assessors);
iii. Myofascial pain of the cervical spine (appears resolved);
iv. Contusion to both elbows;
v. Bilateral carpal tunnel syndrome, (non-accident related and preexisting);
vi. Mid back strain;
vii. Mechanical low back pain without neurologic deficit;
viii. Bruising of the right arm (healed); and
ix. Bruising of the right side (healed).
14Dr. Berbrayer opined that the applicant has reached the point of maximal medical recovery from the point of view of a physiatrist and further clinical intervention is not reasonable or necessary.
15The respondent further submits that according to the disability certificate completed by Ms. Smita Nayak, Occupational Therapist, on January 11, 2018, the accident-related injuries are listed as:
i. Concussion;
ii. Open wound of scalp;
iii. Sprain and strain of lumbar spine;
iv. Anterograde and Retrograde Amnesia;
v. Other symptoms and signs involving emotional state; and
vi. Other anxiety disorders.
16The injuries listed on the disputed treatment plan are:
i. Unspecified injury of head;
ii. Post-concussion syndrome;
iii. Noise effects on inner ear;
iv. Sprain and strain of cervical spine;
v. Other chronic pain;
vi. Sprain and strain of thoracic spine;
vii. Contusion of elbow;
viii. Contusion of thigh;
ix. Post-traumatic stress disorder;
x. Generalized anxiety disorder;
xi. Other depressive episodes;
xii. Bipolar affective disorder;
xiii. Other symptoms and signs involving cognitive functions and awareness;
xiv. Persistent somatoform pain disorder;
xv. Sprain and strain of shoulder joint;
xvi. Sprain and strain of ankle;
xvii. Sprain and strain of other and unspecified parts of lumbar spine and pelvis;
xviii. Carpal tunnel syndrome;
xix. Impingement syndrome of shoulder;
xx. Disorders of vestibular function; and
xxi. Injury of muscle(s) and tendon(s) of the rotator cuff of shoulder
17The respondent further submits that the injuries to the rotator cuff of the shoulder were unrelated to the accident as evidenced by a report by Dr. K Burton, radiologist, interpreting an ultrasound of the right shoulder taken on September 26, 2023. Dr. Burton noted that the applicant was experiencing worsening right upper arm pain for 2 weeks since a move and heavy lifting. She diagnosed a partial thickness tear to the articular surface of the supraspinatus.
18The respondent submits that it should not be responsible for a treatment plan that addresses this injury and I agree with this.
19Dr. Berbrayer assessed the applicant on three separate occasions, November 5, 2020, July 21, 2022 and July 4, 2024.
20On November 5, 2020, Dr. Berbrayer noted no signs of impingement and good movement of both shoulders.
21On July 21, 2022, Dr. Berbrayer noted no signs of impingement and good movement of both shoulders, with reported pain with repetitive movement in adduction and external rotation in her right shoulder.
22On July 4, 2024, Dr Berbrayer noted the applicant had good range of motion with her left shoulder. However, Dr. Berbrayer noted that the applicant reported pain with abduction, internal and external rotation of her right shoulder. The abduction in the right shoulder was painful after 150 degrees. The internal rotation of her right shoulder was painful after 40 degrees and external rotation was painful after 50 degrees. Dr. Berbrayer further noted flexion of the right shoulder to 160 degrees, extension of 30 degrees and full adduction of the shoulder.
23In her s.25 report, Dr. Kekosz did not identify that the applicant suffered a rotator cuff injury. She noted rotator cuff strength at 4/5. She also recommended that the applicant undergo a diagnostic ultrasound to rule out the possibility of rotator cuff tendonitis. I note that the ultrasound of the right shoulder on September 26, 2023 did not identify any tendonitis.
24I find that each of Dr. Berbrayer’s reports contained a list of physical accident-related impairments that were corroborated by the disability certificate. The disputed treatment plan has a list of items that are not present in either of these documents.
25The disputed treatment plan notes a right rotator cuff injury, which as evidenced in the September 2023 ultrasound report of Dr. Burton, was the result of moving and not as the result of the accident.
26While the treatment plan has identified the supraspinatus tear as an injury not related to the automobile accident that could affect the applicant’s response to treatment, a rotator cuff injury was not indicated as an accident-related injury on the disability certificate.
27I disagree with the applicant’s position that this rotator cuff injury is a setback which the respondent should treat.
28This is corroborated by Dr. Berbrayer’s reports which showed good range of motion in the right shoulder prior to the partial supraspinatus tear which occurred in September of 2023.
29Section 15(1) of the Schedule states that the respondent shall pay for “all reasonable and necessary expenses incurred by or on behalf of the injured person as a result of the accident.”
30The partial thickness tear of the rotator cuff is not an accident-related injury, as evidenced by Dr. Burton’s diagnosis, and therefore the respondent is not liable to pay for treating it. This finding is supported by both the assessments of Dr. Kekosz and Dr. Berbrayer.
31As the treatment plan indicates the rotator cuff injury as an accident-related injury, I am unable to differentiate between treatment proposed for accident related and the injury to the applicant’s supraspinatus. I therefore find that the applicant has not met their burden to prove this treatment plan is reasonable or necessary.
The applicant is not entitled to physiotherapy proposed on May 8, 2024.
32I find that the applicant is not entitled to physiotherapy proposed on May 8, 2024.
33This treatment plan lists identical goals and injuries as listed for the plan dated March 11, 2024 above.
34It proposes four 1 hour sessions of physical rehabilitation and 16, 1 hour sessions of exercise, multiple body sites.
35The applicant submits that this plan is supported by a s.25 physiatry assessment conducted by Dr. V. Kekosz.
36The respondent submits that the injury to the applicant’s rotator cuff was not accident related, and it should not be liable to fund treatment for this injury.
37I have previously found that each of Dr. Berbrayer’s reports contained a list of physical accident-related impairments that were corroborated by the disability certificate. The disputed treatment plan has a list of items that are not present in either of these documents. This treatment plan lists the same accident-related injuries as the March 11, 2024 treatment plan above.
38The disputed treatment plan notes a right rotator cuff injury, which as evidenced in the September 2023 ultrasound report of Dr. Burton, was the result of moving and not as the result of the accident.
39While the treatment plan has identified the supraspinatus tear as an injury not related to the automobile accident that could affect the applicant’s response to treatment, a rotator cuff injury was indicated as an accident related injury.
40I disagree with the applicant’s position that this rotator cuff injury is a setback which the respondent should treat.
41This is corroborated by Dr. Berbrayer’s reports which show good range of motion in the shoulders prior to the partial supraspinatus tear which occurred in September of 2023 and limited range of motion in the right shoulder thereafter.
42Section 15(1) of the Schedule states that the respondent shall pay for “all reasonable and necessary expenses incurred by or on behalf of the injured person as a result of the accident.”
43The partial thickness tear of the rotator cuff is not an accident-related injury, as evidenced by Dr. Burton’s diagnosis, and therefore the respondent is not liable to pay for treating it. This is supported by both the assessments of Dr. Kekosz and Dr. Berbrayer.
44As the treatment plan indicates the rotator cuff injury as an accident related injury, I am unable to differentiate between treatment provided for accident related and non-accident related injuries, I find that the applicant has not met their burden to prove this treatment plan is reasonable or necessary.
Interest
45Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, there is no entitlement to interest.
ORDER
46For the reasons above I order that:
i. The applicant is not entitled to either disputed treatment plan; and
ii. No interest is payable.
47This application is dismissed.
Released: May 28, 2026
__________________________
Julian DiBattista
Vice-Chair