Citation: Salim v. Aviva General Insurance, 2020 ONLAT 19-006944/AABS

Released Date: 12/14/2020

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:

Moh’d N Salim

Applicant

and

Aviva General Insurance

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant:

Lisa Bishop, Counsel

For the Respondent:

Louise Kanary, Counsel

Heard by Way of Written Submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1Moh’d N Salim (the “applicant”) was skateboarding when he impacted a motor vehicle that came out in front of him on June 23, 2017 (the “accident”). The applicant sustained mandible, nasal, left elbow, pelvic and sacral fractures, psychological injuries and was hospitalized until July 7, 2017. The applicant was 20 years of age at the time of the accident. The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹

2The applicant was denied non-earner benefits (“NEB”), attendant care benefits (“ACB”) and medical benefits by Aviva General Insurance (the “respondent”). The applicant submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

ISSUES

3The issues to be decided in this hearing are:

i. Is the applicant entitled to receive an NEB in the amount of $185.00 per week for the period July 21, 2017 to date and ongoing?

ii. Is the applicant entitled to ACB in the amount of $1,773.19 per month for the period June 23, 2017 to date and ongoing?

iii. Is the applicant entitled to a medical benefit in the amount of $1,554.48 in dispute for the unapproved amount of treatment plan submitted in amount of $2,073.37 for occupational therapy services recommended by Healthbound Health Network in a treatment plan (OCF-18) submitted on April 10, 2018, and denied by the respondent on April 26, 2018?

iv. Is the applicant entitled to a medical benefit in the amount of $1,570.97 (original treatment plan amount of $3,566.29, partially approved in amount of $1,995.32) for psychological treatment recommended by Healthbound Health Network in a treatment plan (OCF-18) submitted on June 22, 2018, and denied by the respondent on July 4, 2018?

v. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

4I find that the applicant is not entitled to NEB, ACB or the denied portions of the two disputed treatment plans. No award made. No interest is payable.

LAW

Medical and Rehabilitation Expenses

5Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment plan he or she seeks is reasonable and necessary.²

Attendant Care Benefits

6Section 19 of the Schedule provides that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident provided by an aide or attendant (“ACB”). Section 3(7) provides further guidance on when an expense is incurred:

i. the insured person has received the goods or services to which the expense relates;

ii. the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense; and,

iii. the person who provided the goods or services a) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or b) sustained an economic loss as a result of providing the goods or services to the insured person.

7Section 42(1) provides that an application for ACB must be in the form of, and contain the information required to be provided in, the document entitled Assessment of Attendant Care Needs (“Form-1”). Section 42(5) provides that an insurer is not required to pay an expense for ACB which is incurred prior to a Form 1 being submitted to the insurer. The onus is on the applicant to prove entitlement to ACB and that the ACB claimed is reasonable and necessary pursuant to s. 19 on a balance of probabilities.

Non-Earner Benefits (NEB)

8Section 12 of the Schedule requires an insurer to pay NEB to an insured person who does not qualify for an income replacement benefit and who suffers from “a complete inability to carry on a normal life” as the result of an impairment sustained in an accident. The impairment must arise within 104 weeks after the accident.

9Section 3(7)(a) further provides that a person suffers a “complete inability to carry on a normal life” if that person suffers an impairment as a result of the accident that continuously prevents him or her from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

10The onus is on the applicant to prove that he or she suffers from a complete inability to carry on a normal life. This standard has often been cited as being one of the most difficult thresholds to meet under the Schedule.

11The Ontario Court of Appeal³ set out the approach to determining whether an insured has satisfied the s. 3(7) test:

a. There must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident.

b. The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period of time prior to the accident. The duration will depend on the facts of the case.

c. All of the applicant’s pre-accident activities must be considered but greater weight may be placed on activities that were more important to the applicant’s pre-accident life.

d. The applicant must prove that his/her accident related injuries continuously prevent him/her from engaging in substantially of his/her pre-accident activities. This means that the disability or incapacity must be uninterrupted.

e. “Engaging in” should be interpreted from a qualitative perspective. Even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging” in the activity.

f. If pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities.

ANALYSIS

Is The Applicant Entitled to NEB?

12The applicant submits that he meets the test for an NEB as he suffers from a complete inability to carry on a normal life as a result of the accident. Pre-accident, the applicant was a university student and employed part-time. His hobbies included skateboarding, painting, drawing, judo, playing chess and soccer. Pre-accident the applicant lived with his sister in an apartment and was independent in activities of daily living.

13Post-accident, the applicant submits that he has near constant back and left hip, pelvis pain and buttock and arm numbness which interferes with his ability to sit at his desk to do schoolwork, pain in his elbow, neck and occasional headaches which disrupt his sleep. The applicant also submits he has dizziness, attention, concentration and memory issues which make it difficult for him to stay on task and requires more time to complete schoolwork. The applicant also submits that he requires help with grooming, feeding, hygiene and bathing, has to use a cane, has a limp, has increased anxiety as a pedestrian and a driver, hypochondriac tendencies, low mood and sexual dysfunction. These injuries prevent him from resuming some, but not all of his pre-accident activities.

14The applicant’s self-reporting of pain and limitations to the University of Guelph Student Health Services office and to Luciano De Feo, applicant’s occupational therapist in March 2018 are not supported by the weight of the evidence. Applying the above principles, I find that the applicant’s evidence is insufficient to establish he suffers from a complete inability to carry on a normal life for the following reasons.

15Firstly, in the June 27, 2017 OCF-3, disability certificate, Dr. Cyganiko, the applicant’s physician at the hospital, indicates that the applicant suffers a complete inability to carry on a normal life which is expected to be temporary. By way of explanation Dr. Cyganiko states only “pt hospitalized” and gives no detail tending to suggest that the hospitalization was the reason for the applicant’s complete inability to carry on a normal life. Further, Dr. Cyganiko indicates the anticipated duration of the disability is 5-8 weeks. In fact, the applicant was discharged from the hospital and able to travel to Saudi Arabia to be with family by mid July 2017.

16The applicant discussed his travel plans with Dr. Petrisor, the applicant’s physician at Hamilton Health Sciences who noted July 11, 2017 that the clips had been taken out of his elbow, the wound is clean, dry, well healing, he is doing well, x-ray is entirely satisfactory and he was given a hinged-elbow brace. Dr. Petrisor noted the applicant is heading to Saudi Arabia for a couple of months and Dr. Petrisor would see him in September 2017 when he comes back. The applicant submits that he went to Saudi Arabia to be cared for by his family but submitted no medical evidence as to the state of his injuries between mid-July and September 2017 or how much, if any, medical or other care he required during this period.

17Secondly, when the applicant returned to Canada he was able to increase his participation at university and attend university full-time in the fall of 2017 instead of part-time. The University of Guelph records show the applicant as a part time student in the winter and summer terms of 2017 on academic probation. These records show the applicant was a full time student in the fall of 2017 on academic probation. Dr. Cyganiko’s statement in his June 27, 2017 disability certificate that the applicant is unable to continue in post-secondary education, proved to be temporary as Dr. Cyganiko opined. The applicant’s academic performance actually improved post-accident. By summer, 2018, approximately a year post-accident, the applicant was off academic probation and by fall, 2018 was on the Dean’s Honours List.

18Thirdly, post-accident, the applicant was able to resume sports including judo and to take up wrestling, a contact sport. This is confirmed in the applicant’s July 20, 2019 record at Guelph General Hospital emergency department for an injury during judo and in the July 31, 2019 record at emergency for a head injury from wrestling.

19Fourthly, although the applicant submits he requires help from his sister and his partner with grooming, feeding, hygiene and bathing, there is no evidence from his sister or his partner to support this. To the contrary, the September 25, 2017 assessment of Health Bound Physiotherapy (“Health Bound”), applicant’s physical therapist, is that “at present walking with cane for outside activities and at home without cane, patient functionally independent and able to do all BADL activities by himself.” “Patient does not require any sitting assistance…Does climbing with stair independently with cane”. Dr. Cyganiko’s statement in his June 27, 2017 disability certificate that the applicant suffers a substantial inability to perform the housekeeping and home maintenance services that he normally performed before the accident, proved to be temporary. Even though the applicant uses a cane and limps, the weight of the evidence shows that this does not prevent him from being functionally independent. The applicant told Dr. Aghamohseni, his psychologist, that he lives with his sister in a two bedroom apartment.

20Fifthly, the applicant was able to resume earning income, albeit in a reduced amount post-accident. For the tax year 2017, the applicant’s tax information shows earnings of $1,945 and in 2018 earnings of $588.

21Lastly, although the applicant submits that he has increased anxiety as a pedestrian and a driver, hypochondriac tendencies, low mood and sexual dysfunction as a result of the accident, the applicant has put forward no significant medical evidence that he is prevented from carrying on a normal life as a result of any psychological injuries from the accident. Dr. Aghamohseni, diagnosed major depressive disorder, single episode, in the moderate range with anxious distress, somatic symptom disorder with predominant pain, in the persistent range, at severe levels, and specific phobia, situational type, vehicular, but did not indicate that the applicant’s condition was not treatable, manageable or that the applicant would be unable to carry on a normal life.

22Having reviewed all of the evidence and based on the totality of the evidence, I find that the applicant has not discharged his burden to establish that he suffers from a complete inability to carry on a normal life as a result of the accident, and as a result is not entitled to NEB for the period claimed.

Is The Applicant Entitled to ACB From June 23, 2017 To Date And Ongoing?

23I find that the applicant is not entitled to ACB for the period in dispute as this benefit is not reasonable and necessary. After reviewing the medical documentation submitted, I find that there is insufficient evidence to establish that the applicant needs continuing ACB.

24The applicant’s Form 1 is dated June 23, 2017. Shortly after being discharged from the hospital in July 2017, the applicant travelled to Saudi Arabia where he says he was cared for by his family. As noted above, the applicant submitted no medical evidence as to the state of his injuries between mid-July and September 2017 or to establish how much, if any, medical or other care he required during this period.

25After the applicant returned from his trip to Saudi Arabia in September 2017, he was not assessed for ACB by Mr. De Fero, his own occupational therapist until March 2018, some eight months post-accident. The applicant did not send his Form 1 to the respondent until April 9, 2018, some ten months post-accident when he submitted it with Mr. De Fero’s report. Under s. 42(5), the applicant is not eligible for ACB prior to April 9, 2018 when his Form 1 was received by the respondent.

26Further, I find that the applicant has not met his burden to prove on the balance of probabilities that ACB was incurred by him within the meaning of s. 3(7). The applicant alleges that attendant care was provided to him by his family in Saudi Arabia, sister and partner, but has failed to submit proof that any expense was incurred. This is important because s. 3(7)(e) in conjunction with s. 19(1)(a) of the Schedule requires that an expense in respect of goods or services is not incurred by an insured person unless the goods or services were received by the insured, the insured has paid, promised to pay or is legally obligated to pay the expense and the person who provided the goods or services did so in the course of their employment or sustained an economic loss as a result of providing the goods and services. Here, the applicant brought forward no OCF-6s, receipts, invoices, expenses, proof of incurred economic loss, details of ACB services allegedly provided, names of providers, dates, time spent or expenses incurred. The only evidence of care received is the applicant’s self-reporting, without detail or documentation.

27The applicant submits that the ACB must be found “deemed incurred” and relies on several cases⁴ and s. 3(8) of the Schedule. Section 3(8) relieves an insured from proving the care expense was incurred if it was withheld by the insurer despite having been reasonable and necessary. I do not find Mr. De Fero’s assessment, the applicant’s self-reporting of pain and limitations to Health Bound and the university student health centre to be sufficiently persuasive evidence to deem ACB incurred or reasonable and necessary and therefore payable. When the respondent received Mr. De Fero’s assessment, it arranged for it’s own occupational therapist, Rebecca Oatman, to assess the applicant. Ms. Oatman opined that the applicant is able to perform self-care activities independently and does not require an aide or attendant to assist with these tasks as he shows sufficient mobility, range of motion, strength and cognitive and psychosocial functioning to perform these tasks independently. I prefer the opinion of Ms. Oatman that ACB is not required over that of Mr. De Fero, that it is because Ms. Oatman’s opinion is borne out by the applicant’s delay in seeking ACB for so many months after the accident, and in failing to submit any details or documentation that he incurred any ACB.

28Having reviewed all of the evidence and based on the totality of the evidence, I find that the applicant has not discharged his burden to establish ACB is reasonable and necessary and incurred. As a result the applicant is not entitled to ACB for the period claimed.

Disputed Portion of the Treatment Plan For Occupational Therapy-$1,554.48

29Health Bound’s Luciano De Fero, the applicant’s occupational therapist, proposed an OCF-18, treatment plan, submitted April 10, 2018 in the total amount of $2,073.37. The treatment plan proposed 4 occupational therapy sessions at $598.52, communication with service providers at $199.52, progress report at $199.50, review of external file materials at $199.50, provider travel time at $598.52 and form completion at $200.00. The goal is to provide ongoing coaching and treatment to assist the applicant to return to his pre-MVA ADLs “especially his productive tasks” and the functional goal of return to activities of normal living.

30The respondent determined that this treatment plan was only partially reasonable and necessary based on the insurer’s examination conducted by Rebecca Oatman who did an in-home assessment following submission of this treatment plan and opined that the applicant “has received no occupational therapy treatment to date, and he reports ongoing issues with attention/concentration, as well as has not resumed aspects of his leisure activities. One session of Occupational Therapy intervention is therefore considered necessary to assist with resumption of discontinued activities and support his recovery”. As a result, the respondent approved $519.89 comprised of one session of occupational therapy at $149.63, one hour of documentation support activity at $99.75, 30 minutes of preparation service at $49.88, one hour of provider travel time at $149.63 and form completion at reduced cost of $70.00 which reflected Mr. De Feo’s familiarity with the applicant. The respondent denied the balance of the treatment plan cost being $1,554.48.

31The applicant submits that allowing one of four sessions of occupational therapy provides the applicant with very little assistance, there is no follow-up, there is no counselling, there is no feedback. The applicant also submits that the four sessions recommended were more than reasonable for the applicant’s multitude of issues that the occupational therapist was tasked to help him with including “physical, emotional and cognitive”.

32I find that the weight of the applicant’s medical evidence is not sufficient to establish that more than one occupational therapy session is reasonable and necessary to meet the goals of the treatment plan, nor has he made submissions or brought forward evidence to establish that the overall cost of the treatment plan is reasonable and necessary. The onus is on the applicant and he has not met it. To the contrary, the evidence shows that by early 2018 when this treatment plan was proposed, the applicant had been a full-time university student since September 2017, had returned to work in 2018, had resumed many of his pre-accident activities, albeit with some pain. The applicant submits that assistance with managing pain has been recognized as a legitimate treatment goal and relies on several cases in support of this proposition.⁵ However, pain reduction is not one of the stated goals in this treatment plan. Further, the applicant did not take any pain medication indicating that his pain was manageable.

Disputed Portion of the Treatment Plan For Psychological Treatment-$1,570.97

33Health Bound’s Dr. Aghamohseni, applicant’s psychologist, proposed an OCF-18, treatment plan, dated February 20, 2018 and submitted June 22, 2018 in the total amount of $3,566.29. The treatment plan consists of 12 hours of psychological treatment at $1,795.32, six hours of pre and post-session preparation $897.72, progress evaluation report at $673.25 and form completion at $200.00 with goals dealing with numerous psychological issues regarding activity limitations, driving anxiety and avoidance, managing daily pain, sleep difficulties, emotional shock and stress, unhappiness, anger, irritation, family conflict, and the functional goal of return to activities of normal living. The treatment plan is accompanied by a psychological assessment report which is stated to be not for an assessment but for the purpose of proposing treatment.

34The respondent determined that this treatment plan was only partially reasonable and necessary. As a result, in its explanation of benefits (“EOB”) dated July 4, 2018, the respondent approved $1,995.23 comprised of twelve sessions of psychological counselling at the psychologists hourly rate of $149.61 and the psychotherapists hourly rate of $58.19 and documentation of $200.00. The respondent denied the balance of the treatment plan cost being the planning/preparation/brokerage service as they are included in the $200.00 maximum fee allowable for an OCF-18 completion or fees for progress report for a denied total of $1,570.97. The respondent also advised that before it could consider payment of any invoices, confirmation was required regarding which practitioner would be completing the service, applicable college registration information and confirmation as to how the therapy was to be provided. The respondent submits that despite this partial approval, no records from the treatment provider have been produced and there has been no response to the respondent’s EOB and no indication the treatment plan has been incurred.

35The applicant submits that the applicant attended a psychological assessment on February 23, 2018 with Dr. Aghamohseni who reported that the applicant is experiencing symptoms consistent with issues of depression and a heightened state of anxiety and other psychological issues requiring 12 sessions of therapy as outlined in the treatment plan.

36I find that the weight of the applicant’s medical evidence is not sufficient to establish that the denied portion of this treatment plan is reasonable and necessary to meet the goals of the treatment plan, nor has he made submissions or brought forward evidence to establish that the overall cost of the treatment plan is reasonable and necessary. The onus is on the applicant and he has not met it. Dr. Aghamohseni opines that the 12 sessions of psychological counselling are reasonable and necessary and the respondent does not dispute this, subject to invoicing information. However, Dr. Aghamohensi, the author of the treatment plan and the proposed service provider, does not explain how the treatment plan services and resultant cost disputed by the respondent, are reasonable and necessary. Further, there is no evidence before me that this treatment has been incurred.

Award

37Section 10 of Ontario Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments. There was no payment unreasonably withheld or delayed. The respondent was entitled to deny NEB, ACB and portions of the two disputed treatment plans for the reasons it expressed which were not unreasonable given the evidence. For these reasons, there is no award.

Interest

38As there are no benefits payable, no interest is payable.

ORDER

39For the reasons outlined above, I find that the applicant is not entitled to NEB, ACB or the denied portions of the two disputed treatment plans. No award made. No interest is payable. The applicant’s application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair, 2015 ONSC 3635 (Div. Crt).
3. 3Heath v. McLeod, 2009 ONCA 391; Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508.
4. 4McMichael v. Belair Ins. Co., FSCO A02-001081; 17-001681 v. Motor Vehicle Accident Claims Fund.
5. 5Cubello v. Guidolin [2000] O.J. No. 1468; West v. Aviva Canada, FSCO A09-002136; R.F. v. Unifund Assurance Company, 18-007571 (ON LAT).