OVERVIEW

1Elena Ivanov, the applicant, was involved in an automobile accident on August 28, 2022, 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 the services and assessments proposed by Health-Pro Wellness, as follows: i. $735.09 ($2,380.80 less $1,645.71 approved) for a Psychological Assessment, in a treatment plan dated January 30, 2023; ii. $2,564.59 ($3,805.60 less $1,241.01 approved) for chiropractic and massage therapy services, in a treatment plan dated January 24, 2023; iii. $948.11 ($3,566.29 less $2,618.18 approved) for psychological services, in a treatment plan dated February 13, 2023; iv. $2,458.18 ($3,642.78 less $1,184.60 approved) for chiropractic and massage therapy services, in a treatment plan dated April 11, 2023; v. $1,688.39 for orthopaedic shoes, in a treatment plan dated August 6, 2024; vi. $2,458.18 ($3,642.78 less $1,184.60 approved) for chiropractic and massage therapy services, in a treatment plan dated August 1, 2023; and vii. $948.11 ($3,566.29 less $2,618.18 approved) for psychological services, in a treatment plan dated October 23, 2023?

ii. Is the applicant entitled to $1,522.90 (USD) for accommodations, airfare, and rental car, submitted on a claim form ("OCF-6), dated May 2, 2023?

iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

3The Case Conference Report and Order ("CCRO") lists issue 1(vii) as, "Is the applicant entitled to $3,566.29 for psychological services, in a treatment plan dated October 23, 2023?". Upon review of the parties' submissions, this treatment plan was partially approved by the respondent in the amount of $2,618.18. Therefore, the amount in dispute is actually $948.11. I have revised the issue in dispute accordingly.

RESULT

4I find that the applicant is not entitled to the balance of the treatment plan for a Psychological Assessment, dated January 30, 2023.

5I find that the applicant is not entitled to the balance of the treatment plans for psychological services, dated February 13, 2023 and October 23, 2023.

6I find that the applicant is partially entitled to the balance of the treatment plans for chiropractic and massage therapy services, dated January 24, 2023, April 11, 2023 and August 1, 2023, plus interest as follows:

i. Treatment plan dated January 24, 2023 – entitled to $2,514.20 ($2,564.59 less $50.39) ii. Treatment plan dated April 11, 2023 – entitled to $2,407.79 ($2,458.18 less $50.39) iii. Treatment plan dated August 1, 2023 – entitled to $2,407.79 ($2,458.18 less $50.39)

7I find that the applicant is not entitled to the treatment plan for orthotics and orthopaedic shoes, dated August 6, 2024.

8I find that the applicant is not entitled to the OCF-6 for expenses, dated May 2, 2023.

9I find that the respondent is not liable to pay an award.

ANALYSIS

Entitlement to Medical and Rehabilitation Benefits

10To receive payment for a treatment and assessment plan under sections 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. In the context of an assessment, while the applicant does not need to prove the condition exists, he must prove with persuasive evidence that there is some accident-related condition that warrants investigation via the proposed assessment.

Entitlement to the balance of the treatment plan for a Psychological Assessment, dated January 30, 2023

11The applicant is not entitled to the balance of the treatment plan for a Psychological Assessment, dated January 30, 2023.

12The applicant claims entitlement to $735.09 ($2,380.80 less $1,645.71 approved) for a Psychological Assessment, proposed by Health-Pro Wellness, in a treatment plan dated January 30, 2023. The treatment plan recommends the following:

Psychological Assessment: $2,000.00 Treatment and Assessment Plan (OCF-18): $200.00 Interpreting Services (if necessary): $160.00

13By Explanation of Benefits Payable ("EBP"), dated May 4, 2023, the respondent partially approved the treatment plan for a Psychological Assessment in the amount of $1,645.71. The respondent advised that the treatment plan does not provide a detailed breakdown of the services to be provided and therefore it is unable to determine the components of the assessment, the providers involved, or the length of time required for each component. The respondent approved 10 hours of the practitioner's hourly rate of $149.61. It advised that to consider payment for greater than 10 hours, it will need a copy of the report along with a detailed breakdown of each component of the assessment, the length of time required for each component and the practitioners providing the service. The respondent also lowered the documentation fee for completion of the treatment plan form and agreed to pay one hour of the practitioner's time at $149.61. It advised that if completing the form went over one hour, it would require the provider to give a reason why the additional time was needed.

14The applicant has not specifically addressed the components of the treatment plan that were denied by the respondent. Rather, her submissions focus on whether her psychological symptoms warrant the proposed Psychological Assessment.

15The respondent submits that the applicant has not provided any further documentation to support that the Psychological Assessment took longer than the 10 hours approved or that completion of the treatment plan form took longer than one hour of the provider's time to support further payment. In addition, the respondent submits that the applicant did not require an interpreter for the assessment.

16I find that there is no dispute that the applicant is entitled to the Psychological Assessment as this was partially approved by the respondent. The issue before me is whether the applicant has met her onus of proving that the components of the treatment plan and the recommended costs are reasonable and necessary.

17I find that as the applicant has not provided any submissions or evidence to support that the Psychological Assessment took longer than the approved 10 hours to complete or that the treatment plan form took longer than the approved one hour to complete, she has not proved on a balance of probabilities that she is entitled to the balance of the treatment plan in dispute.

Entitlement to the balance of the treatment plan for Psychological Services, dated February 13, 2023

18The applicant is not entitled to the balance of the treatment plan for psychological services, dated February 13, 2023.

19The applicant claims entitlement to $948.11 ($3,566.29 less $2,618.18 approved) for psychological services, proposed by Health-Pro Wellness, in the treatment plan dated February 13, 2023. The treatment plan recommends the following:

12 one-hour sessions of mental health therapy: $1,795.32 12 half-hour Pre & Post Session Preparation & Sessions: $897.72 Progress Evaluation & Report: $673.25 Treatment & Assessment Plan (OCF-18): $200.00

20By EBP, dated May 4, 2023, the respondent partially approved the treatment plan for psychological services, in the amount of $2,618.18. The respondent advised that insurers are not responsible for any business expenses that effectively increase the hourly rate payable. It relies upon the Professional Service Guideline, Superintendent's Guideline No. 03/14, September 2014 (the "Guideline") which states,

The Professional Service Guideline indicates that administration costs, overhead, and related costs, fees, expenses, charges, and surcharges are not to be charged to the insurer. Expenses related to planning and preparation, are already included within the hourly rate approved.

The respondent advised that expenses related to planning and preparation are already included within the hourly rate approved. It further advised that it lowered the documentation fee for completion of the treatment plan form and agreed to pay an hour of the provider's time at $149.61. It advised that if completing the form went over one hour, it would require the provider to give a reason why the additional time was needed.

21The applicant has not specifically addressed the components of the treatment plan that were denied by the respondent. Rather, her submissions focus on whether psychological counselling sessions are reasonable and necessary.

22The respondent submits that the insurers are not responsible for business expenses that effectively increase the hourly rate payable, relying on the Guideline. In addition, the respondent submits that the applicant has not provided any further documentation to support that completion of the treatment plan form took longer than one hour of the provider's time to support further payment.

23I find that there is no dispute that the applicant is entitled to the psychological counselling services as these were approved by the respondent. The issue before me is whether the applicant has met her onus of proving that the denied components of the treatment plan and the recommended costs are reasonable and necessary.

24I find that as the applicant has not provided any submissions or evidence to address the denied components of the treatment plan, the proposed costs or why the treatment plan form took longer than the approved one hour to complete, she has not proved on a balance of probabilities that she is entitled to the balance of the treatment plan in dispute.

Entitlement to the treatment plan for psychological services, dated October 23, 2023

25The applicant is not entitled to the balance of the treatment plan for psychological services, dated October 23, 2023.

26The applicant claims entitlement to $948.11 ($3,566.29 less $2,618.18 approved) for psychological services, proposed by Health-Pro Wellness, in the treatment pan dated October 23, 2023. The treatment plan recommends the following:

12 one-hour sessions of mental health therapy: $1,795.32 12 half-hours - Pre & Post Session Preparation & Service: $897.72 4.5 hours - Progress Evaluation & Report: $673.25 Treatment & Assessment Plan (OCF-18): $200.00

27By EBP dated September 4, 2024, the respondent partially approved the treatment plan for psychological services, in the amount of $2,618.18. The respondent advised the following:

Line 2: Service Planning/Administration Costs:

Insurers are not responsible for any business expenses that effectively increase the hourly rate payable. The Professional Service Guideline indicates that administration costs, overhead, and related costs, fees, expenses, charges and surcharges are not to be charged to the insurer. Expenses related to planning and preparation, are already included within the hourly rate approved.

Line 4: OCF-18 Form Fee reduced to 1 HR

We have lowered the documentation fee. We agree to pay an hour of the provider's time for them to complete the OCF-18 form. If completing the form went over one hour, we require the provider to give a reason why the additional time was needed.

28The applicant has not specifically addressed the components of the treatment plan that were denied by the respondent. Rather, her submissions focus on whether psychological counselling sessions are reasonable and necessary.

29The respondent submits that the insurers are not responsible for business expenses that effectively increase the hourly rate payable, relying on the Guideline. In addition, the respondent submits that the applicant has not provided any further documentation to support that completion of the treatment plan form took longer than one hour of the provider's time to support further payment.

30I find that there is no dispute that the applicant is entitled to the psychological counselling services as these were approved by the respondent. The issue before me is whether the applicant has met her onus of proving that the denied components of the treatment plan and the recommended costs are reasonable and necessary.

31I find that as the applicant has not provided any submissions or evidence to address the denied components of the treatment plan, the proposed costs or that the treatment plan form took longer than the approved one hour to complete, she has not proved on a balance of probabilities that she is entitled to the balance of the treatment plan in dispute.

Entitlement to the balance of the treatment plans for Chiropractic and Massage Therapy Services

32The applicant is partially entitled to the balance of the treatment plans for chiropractic and massage therapy services. The applicant is not entitled to the balance of the cost of completing the treatment plan forms.

33The applicant claims entitlement to the balance of the treatment plans proposed by Health-Pro Wellness for chiropractic and massage therapy services as follows:

a. $2,564.59 ($3,805.60 less $1,241.01 approved), in the treatment plan dated January 24, 2023 (20 chiropractic sessions, 20 functional exercise sessions, 20 modalities, 12 massage therapy sessions and completion of OCF-18);

b. $2,458.18 ($3,642.78 less $1,184.60 approved), in a treatment plan dated April 11, 2023 (19 chiropractic sessions, 19 functional exercise sessions, 19 modalities, 12 massage therapy sessions and completion of OCF-18); and

c. $2,458.18 ($3,642.78 less $1,184.60 approved), in a treatment plan dated August 1, 2023 (19 chiropractic sessions, 19 functional exercise sessions, 19 modalities, 12 massage therapy sessions and completion of OCF-18).

34By EBP dated May 4, 2023, the respondent partially approved the treatment plans dated January 24, 2023 and April 11, 2023, based on the Insurer's Examination ("IE") report of Dr. Matthew Krievins, general practitioner, dated April 28, 2023. Dr. Krievins concluded that treatment efforts should focus on active rehabilitation and exercise progression, with limited use of passive treatment modalities. Therefore, Dr. Krievins concluded that only the goods and services directed at exercise were found reasonable and necessary. Based on Dr. Krievins report, the respondent only approved the exercise services and denied the chiropractic and massage therapy services. The respondent further advised that it lowered the documentation fee for completion of the treatment plan form and agreed to pay an hour of the provider's time at $149.61. It advised that if completing the form went over one hour, it would require the provider to give a reason why the additional time was needed.

35By EBP dated August 3, 2023, the respondent partially approved the treatment plan dated August 1, 2023 in the amount of $1,184.60 for 19 exercise sessions at $56.41 each and $112.81 for completion of the treatment plan form. The respondent relied upon the IE report of Dr. Davar Nikneshan, neurologist, that concluded, "there is no role for proposed chiropractic treatment or massage therapy as it pertains to management of the claimant's headaches." It also relied upon the IE report of Dr. Krievins. The respondent further advised that it lowered the documentation fee for completion of the treatment plan form and agreed to pay an hour of the provider's time at $149.61. It advised that if completing the form went over one hour, it will require a reason why the additional time was needed.

36The applicant submits that she is entitled to the balance of the three treatment plans for chiropractic and massage therapy services. She argues that the treatments she received were reasonable and necessary because they provided short-term pain relief and increased her ability to participate in activities of daily living. She maintains that she has made numerous ongoing complaints of pain necessitating treatment since the accident, and she reported her complaints to her treating health professionals. She submits that the goals of the recommended treatment are pain reduction, increase in range of motion, increase in strength, and a return to activities of normal living. She argues that these are legitimate, proportional, and achievable given her injuries, further supporting the reasonableness and necessity of the treatments. The applicant relies upon the Clinical Notes and Records ("CNRs") of Dr. Igor Portnoi, family physician, and the CNRs of Health-Pro Wellness.

37The respondent submits that the balance of the treatment plans are not reasonable and necessary based on the IE reports of Dr. Krievins and Dr. Nikneshan. The respondent argues that the applicant has not provided objective medical evidence to support the need for these treatment modalities.

38I find that Dr. Portnoi in his CNRs, documents the applicant's ongoing physical complaints and recommends continued ongoing physical treatment contemporaneous to the treatment plans in dispute. I find that Dr. Portnoi's CNR dated December 14, 2022, recommends continuing with physiotherapy and massage therapy. His CNRs dated April 21, 2023, and May 19, 2023, recommend continuing with physiotherapy and acupuncture and notes these modalities have a good effect on musculoskeletal symptoms. The CNR dated July 6, 2023, recommends continuation with physiotherapy and range of motion exercises. I therefore find that these records support the contemporaneous need for further physical therapy as recommended in the treatment plans in dispute.

39Upon review of the CNRs of Health-Pro Wellness, I find that the applicant attended treatment from October 11, 2022, to August 13, 2024, despite the denials of the treatment plans in dispute. The CNRs note the applicant's ongoing complaints of upper back, mid-back, neck, shoulder and right arm pain, with self-reports of 30% improvement overall as of January 24, 2023. The CNRs further note consistent objective findings of reduced cervical, thoracic and shoulder active range of motion with pain reported and restricted C3-5, T4-6 bilaterally. I find that these records support the applicant's continuous physical complaints and the need for ongoing treatment.

40I give limited weight to the IE Report of Dr. Krievins, dated April 28, 2023, where he assessed the reasonableness and necessity of the treatment plan dated January 24, 2023. The applicant reported that she began treatment at Health-Pro Wellness approximately five weeks following the accident and currently attends two times per week. Her treatment consists of heat therapy, electro-stimulation, massage and chiropractic manual therapy and exercises. She also performs a home-based exercise program every other day. Dr. Krievins concluded that from a strictly musculoskeletal perspective, the applicant does not suffer an ongoing impairment as a result of the injuries she sustained to her cervical spine, thoracic spine, or shoulders as a direct result of the accident. However, he found that she does suffer ongoing impairment pertaining to her left wrist and hand. Dr. Krievins concluded that further physical therapy should focus on active rehabilitation directed towards the left wrist and hand, with limited passive modalities. Therefore, only the exercise sessions proposed in the treatment plan are reasonable and necessary. I find that Dr. Krievins conclusions regarding the applicant's cervical spine, thoracic spine and shoulders are contradicted by the applicant's complaints of ongoing pain noted in the CNRs of Dr. Portnoi and the objective findings in the CNRs of Health-Pro Wellness. I further find that while Dr. Krievins does support active rehabilitation for the applicant's left wrist and hand, he has not provided any rationale within his report as to why chiropractic and massage therapy are not reasonable and necessary. Without further explanation as to the basis on which he formed this conclusion, I give further weight to the applicant's treating family physician and therapists who regularly assessed the applicant and who recommended further chiropractic and massage therapy.

41I give no weight to the IE report of Dr. Nikneshan, relied upon by the respondent, because a copy of this report has not been submitted to the Tribunal.

42Regarding the goals listed in the treatment plans in dispute, the applicant relies upon the Tribunal decision in J.R. v. Certas Home and Auto Insurance Co., 2018 CanLII 141005 (ON LAT), where the Tribunal found that "it is well settled that pain reduction is a legitimate goal for treatment". I agree with the applicant that the goals of pain reduction, increase in range of motion, increase in strength and a return to activities of normal living are legitimate, proportional and achievable goals given her injuries, which further supports the reasonableness and necessity of the treatments recommended.

43With respect to the cost of the treatment plans in dispute, while I find that the applicant is entitled to the chiropractic and massage therapy services in the treatment plans, she has not provided any submissions with respect to the cost of completing the treatment plan forms. I therefore find that she has not proven on a balance of probabilities that she is entitled to $200.00 for completing the forms and I agree that she is only entitled to the hourly rate attributed by the respondent in the amount of $149.61 for each treatment plan.

44For the reasons outlined above, I find that the applicant has proven on a balance of probabilities that she is entitled to the balance of the treatment plans in dispute as follows:

Entitlement to the treatment plan for orthotics and orthopaedic shoes

45The applicant is not entitled to the treatment plan for orthotics and orthopaedic shoes.

46The applicant claims entitlement to $1,688.39 for orthotics and orthopaedic shoes, proposed by Health-Pro Wellness in the treatment plan dated August 6, 2024. The treatment plan recommends the following:

Custom Orthotics: $450.00 Custom Orthopaedic Shoes: $500.00 Treatment and Assessment Plan: $200.00 Documentation, Support Activity: $112.81 Biomechanical Gait Analysis: $112.81 Dispensing: $112.81 Compression stockings: $199.96

47By correspondence dated August 22, 2024, the respondent denied the treatment plan based on a lack of documentation to indicate that the applicant sustained a foot injury as a result of the motor vehicle accident. The respondent requested supporting documentation.

48The applicant submits that she is entitled to orthopaedic shoes because they are medically necessary to provide proper foot support, reduce pain, and assist in restoring her mobility and daily functioning. She submits that on February 29 and March 11, 2024, Dr. Portnoi diagnosed her with hand osteoarthritis, plantar fasciitis, and fibromyalgia. She submits that the foot ultrasound conducted on March 26, 2024, revealed early bilateral plantar fasciitis and a right foot fibroma. The foot x-ray on March 27, 2024, demonstrated bilateral plantar calcaneal spurs, bunions, and early osteophyte formation. She claims that these conditions have led to persistent pain, swelling, and difficulty with walking and standing.

49The respondent submits that the treatment plan for orthopaedic shoes is not reasonable and necessary based on the lack of documentation supporting that the applicant sustained a foot injury as a result of the motor vehicle accident. The respondent submits that the CNR of Dr. Portnoi, dated September 7, 2023, was the first notation documenting the applicant's reported left foot pain between her 4th and 5th digits which started two days earlier after she wore a new pair of shoes. The respondent submits that Dr. Portnoi opined that her left foot pain appeared related to new shoes that may have been too tight, and he recommended she wear wider shoes. The respondent further submits that on September 28, 2023, Dr. Portnoi recommended orthotics/orthopaedic shoes as a result of imaging on September 11, 2023, however, there is no suggestion this diagnosis or recommendations were related to the subject accident.

50I find that the applicant has not proven entitlement to the treatment plan for orthotics and orthopaedic shoes.

51I find the treatment plan in dispute does not identify a diagnosis with respect to the applicant's foot under the injuries listed at Part 6. The goals of the treatment plan are listed as, "restore patient's natural foot function and biomechanical balance of the lower body, helping to resolve pain associated with abnormal kinetic chain stresses on the spine and extremities." There are no further particulars provided and there is no mention that the recommendation for orthotic and orthopaedic shoes is based on any specific diagnosis.

52Upon review of the CNRs of Dr. Portnoi post-accident, there is no mention of any foot complaints. It is not until September 7, 2023, that the applicant first complained of "L foot pain, dorsum, between 4th and 5th digits proximal to webbed space" for two days. Dr. Portnoi notes that the pain started after changing to new shoes, which she wore for one day. He advised the applicant to wear wider shoes. On September 28, 2023, Dr. Portnoi noted the X-Ray of the left foot on September 11, 2023, showed "mild degenerative change first metatarsal phalangeal joint, calcaneal plantar spur". He noted that there was some improvement in the left foot pain after a course of Naproxen and stated that orthotics/orthopaedic shoes would be beneficial. I find that while the foot ultrasound on March 26, 2024, does support that the applicant suffers from bilateral plantar fasciitis and a right foot fibroma, the applicant has not pointed the Tribunal to any medical evidence or opinion to support that it was caused by the subject accident. Without such medical evidence, I do not find that the applicant has proved that she is entitled to the treatment plan proposing orthotics and orthopaedic shoes as a result of an accident-related impairment.

53For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that the treatment plan for orthotics and orthopaedic shoes is reasonable and necessary as a result of the subject accident.

Entitlement to the OCF-6 for accommodations, airfare and rental car

54The applicant is not entitled to the OCF-6 for accommodations, airfare and a rental car.

55The applicant claims entitlement to $1,522.90 (USD) for accommodations, airfare and a rental car, submitted on an OCF-6 dated May 2, 2023. The applicant submits that as a direct consequence of the accident, she incurred unforeseen out-of-pocket expenses for extended accommodations ($60.00); return airfare to Toronto ($1,059.00); and a rental vehicle from Enterprise ($403.90).

56By EBP dated May 16, 2023, the respondent denied the expenses in the OCF-6 on the basis that there is no coverage for extended accommodations, airfare, or rental car expenses under the Schedule.

57The applicant submits that these costs are reasonable and necessary and arose solely due to the accident occurring in Florida, which prevented the applicant from returning home immediately.

58The respondent submits that there is no coverage for these expenses in the Schedule. The respondent further submits that the applicant made no submissions as to what section of the Schedule would support these expenses being paid.

59I find that the applicant has not pointed the Tribunal to which section of the Schedule that these expenses are payable under. I find that simply submitting an OCF-6 without establishing statutory entitlement to the claimed expense is not sufficient to prove entitlement.

60For the reasons outlined above, I find that the applicant has not proved on a balance of probabilities that she is entitled to the expenses claimed in the OCF-6.

Interest

61Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is entitled to a partial payment of the balance of the chiropractic treatment plans, I find that interest is payable on the amount owing pursuant to s. 51 of the Schedule.

Award

62The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

63I find that applicant has not made any submissions with respect to her entitlement to an award. I therefore find that she has not proven that the respondent unreasonably withheld or delayed the payment of benefits.

64For the reasons outlined above, I find that the applicant has not proved on a balance of probabilities that she is entitled to an award.

ORDER

65For the reasons outlined above, I find:

i. The applicant is not entitled to the balance of the treatment plan for a Psychological Assessment; ii. The applicant is not entitled to the balance of the treatment plans for psychological services, iii. The applicant is partially entitled to the balance of the treatment plans for chiropractic and massage therapy services, plus interest as follows: i. Treatment plan dated January 24, 2023 – entitled to $2,514.20 ($2,564.59 less $50.39) ii. Treatment plan dated April 11, 2023 – entitled to $2,407.79 ($2,458.18 less $50.39) iii. Treatment plan dated August 1, 2023 – entitled to $2,407.79 ($2,458.18 less $50.39) iv. The applicant is not entitled to the treatment plan for orthotics and orthopaedic shoes; v. The applicant is not entitled to the OCF-6 for expenses; and vi. The respondent is not liable to pay an award.