Citation: Ismail v. Aviva Insurance Canada, 2021 ONLAT 19-005524/AABS

Release Date: 2021/03/10

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:

Abdi Ismail

Applicant

and

Aviva Insurance Canada

Respondent

DECISION AND ORDER

ADJUDICATOR: Avril A. Farlam

APPEARANCES:

For the Applicant: Kathryn McRae Hill, Paralegal

For the Respondent: Ramandeep Kaur Pandher, Counsel

HEARD: by way of written submissions

OVERVIEW

1Abdi Ismail (“applicant”) was involved in an automobile accident on October 21, 2016 (“accident”). The applicant sought benefits from Aviva Insurance Canada (“respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹

2Benefits were denied by the respondent. The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.

ISSUES

3The issues to be decided in this hearing are:

i. Is the applicant entitled to receive a medical benefit in the amount of $3,641.09 for psychological treatment, recommended by Novo Medical Services in a treatment plan submitted on October 31, 2016, and denied by the respondent on November 12, 2018 (“psychological treatment”)?²

ii. Is the applicant entitled to receive a medical benefit in the amount of $2,170.29 for physiotherapy treatment, recommended by Restore Wellness Centre in a treatment plan submitted July 12, 2017, and denied by the respondent on July 21, 2017 (“physiotherapy treatment”)?

iii. Is the applicant entitled to payments for the cost of examinations in the amount of $2,200.00 for a chronic pain assessment, recommended by Novo Medical Services in a treatment plan submitted February 4, 2019, and denied by the respondent on February 5, 2019 (“chronic pain assessment”)?

iv. Is the applicant entitled to payments for the cost of examinations in the amount of $2,219.74 for a driving reintegration assessment, recommended by Novo Medical Services in a treatment plan submitted January 16, 2019, and denied by the respondent on January 16, 2019 (“driving reintegration assessment”)?

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

RESULT

4The applicant is not entitled to the cost of the psychological treatment, physiotherapy treatment, chronic pain assessment or the driving reintegration assessment. No interest is payable. The applicant’s application is dismissed.

LAW

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 the accident. The applicant has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.³

ANALYSIS

Positions of the Parties

6The applicant submits that the psychological treatment, physiotherapy treatment, chronic pain assessment and driving reintegration assessment are all reasonable and necessary based on the medical records by his doctors and other medical providers submitted for this hearing. The applicant also submits that the notices from the respondent do not comply with s. 38(8) of the Schedule and therefore s. 38 (11) applies.

7The respondent submits that the disputed treatment plans are not reasonable or necessary. With respect to the physiotherapy treatment, the respondent submits that the applicant has substituted a replacement treatment plan in place of the one described in issue II in the Tribunal’s Order made February 7, 2020 and it is procedurally unfair for the Tribunal to consider arguments on this replacement treatment plan.

Is the Applicant Entitled to the Psychological Treatment?

8I find that the applicant is not entitled to the psychological treatment because the applicant has not provided any persuasive evidence to meet his burden of proof that it is reasonable and necessary for injuries suffered as a result of the accident.

9There is little support in the applicant’s medical records for the applicant’s submission that this psychological treatment is reasonable and necessary. Although in part 7 of his October 26, 2016 OCF-3, disability certificate, the applicant’s chiropractor Dr. Watkins states a psychological assessment is contemplated or required, Dr. Watkins does not list any suspected psychological injury arising from the accident. Dr. Watkins also indicates the anticipated duration of the disability is 9 to 12 weeks.

10There is no record that the applicant complained to his family physicians about any psychological issues in the two years following the accident.

11The applicant was not assessed by Dr. Vitelli, his psychologist, until two years post-accident. Dr. Vitelli noted the applicant’s complaints of headaches, dizziness, nausea, light headedness, blurring of vision, sleep problems, cognitive issues, anxiety and emotional difficulties. Dr. Vitelli diagnosed moderate level of depression, anxiety, and somatization with severe level of posttraumatic stress, adjustment disorder with mixed anxiety and depressed mood and specific phobia situational type vehicular and recommended more treatment including driver desensitization.

12I give Dr. Vitelli’s October 20, 2018 report no weight for the following reasons.

13Firstly, there is nothing in the records of the applicant’s family physicians showing any significant complaints about the psychological symptoms the applicant described to Dr. Vitelli. There is no evidence that the applicant’s family physicians or any other physician prescribed any medication or other treatment for psychological symptoms before the applicant saw Dr. Vitelli. There is no evidence that the applicant was referred to Dr. Vitelli by his family physicians.

14Secondly, Dr. Vitelli’s diagnosis is made some two years post-accident without any significant prior medical evidence indicating the need for psychological assessment or treatment.

15Thirdly, although Dr. Vitelli stated he considers the October 26, 2016 disability certificate by the applicant’s chiropractor Dr. Watkins, as noted above, Dr. Watkins does not list any suspected psychological injury arising from the accident and indicates the anticipated duration of the disability is 9 to 12 weeks which expired long before Dr. Vitelli assessed the applicant.

16The applicant’s complaints to Dr. Vitelli, which led in part to Dr. Vitelli’s diagnosis, do not appear to be the result of any miscommunication. Although Dr. Vitelli notes that English is not the applicant’s first language, in reply submissions the applicant confirmed that he has no issues conversing in English with his medical doctors.

17The applicant himself does not appear to consider the proposed psychological treatment reasonable and necessary. The applicant did not seek medical treatment for psychological issues until two years post-accident and self-reported to respondent’s assessor Dr. Moshiri in 2018 that he did not suffer from any psychological impairments and did not want any psychological treatment.

18Based on the totality of the evidence, I find that the applicant is not entitled to the cost of this physiotherapy treatment as it is not reasonable and necessary for injuries suffered as a result of the accident.

Is the Applicant Entitled to the Physiotherapy Treatment?

19For this hearing the applicant did not file the treatment plan in the amount of $2,170.29 referred to me for dispute resolution by the Tribunal’s February 7, 2020 Order. Instead, the applicant filed a different OCF-18, treatment plan, by Dr. Deokiesingh, applicant’s chiropractor, dated July 12, 2017, HCAI #116122 for $2,182 proposing various chiropractic, massage, acupuncture and osteopathy treatments (“replacement treatment plan”).

20The respondent submits that it is improper and would be procedurally unfair to consider the applicant’s submissions on the replacement treatment plan because he failed to produce to the respondent the $2,170.29 treatment plan along with the HCAI submission number by March 6, 2020 in accordance with the Tribunal’s February 7, 2020 Order requiring him to make best efforts to do so, failed to seek to amend his application to include the replacement treatment plan and it was not until the applicant delivered his written submissions for this hearing that the respondent became aware that the applicant was attempting to substitute the original treatment plan at $2,170.29 with the replacement treatment plan for $2,182.62.

21The respondent submits that the production deadline in the Tribunal’s February 7, 2020 Order came about because the respondent advised the applicant that no treatment plan in the amount of $2,170.29 had ever been submitted to HCAI for the applicant.

22Further, the respondent submits that the replacement treatment plan was denied July 21, 2017 and as a result the limitation period to dispute the denial of the replacement treatment plan at the Tribunal expired on July 21, 2019. Given that no reasonable explanation has been given why the replacement treatment plan was not listed as an issue in dispute, the Tribunal should not consider this replacement treatment plan.

23In reply the applicant did not respond to the respondent’s submissions regarding the replacement treatment plan although he made submissions about the psychological treatment plan for $3,641.09 and other matters.

24In the absence of any submissions by the applicant as to why or on what terms the replacement treatment plan should be added as an issue to this hearing after the expiration of the limitation period to dispute it’s denial, I decline to add the replacement treatment plan as an issue or to determine it. However, I note that had this issue been before me, based on the evidence presented by the applicant, I would have been unlikely to conclude that this replacement treatment plan is reasonable and necessary.

25In the absence of evidence of the reasonableness and necessity for physiotherapy treatment plan for $2,170.29, based on it’s goals, how the goals will be achieve and the overall cost, the applicant’s submissions lack evidentiary basis. As a result, I find that the applicant is not entitled to the cost of this physiotherapy treatment.

Is the Applicant Entitled to the Chronic Pain Assessment?

26I find that the applicant is not entitled to the chronic pain assessment because the applicant has not provided sufficient evidence to meet his burden of proof that it is reasonable and necessary for injuries suffered as a result of the accident.

27The chronic pain assessment by Dr. Getahun, applicant’s orthopaedic surgeon, is dated August 9, 2019 at a cost of $2,200.00. Dr. Getahun diagnoses strain of cervical, lumbosacral spine with aggravation of pre-existing degenerative changes and bilateral knee likely contusive injuries and aggravation of degenerative changes as a direct result of the accident. Dr. Getahun then diagnoses chronic pain syndrome and recommends the applicant enrol in a multidisciplinary chronic pain program and be referred to a chronic pain clinic.

28I give Dr. Getahun’s report little weight for the following reasons. Firstly, Dr. Getahun’s chronic pain assessment is completed more than two- and one-half years after the accident. Secondly, the imaging report from April 2017 stated that the applicant’s right knee and cervical spine show degenerative changes and small osteophytes throughout the lumbar spine. Thirdly, although the applicant complained to Dr. Getahun of back, neck and bilateral knee pain as well as persistent headaches, in the two and one half years since the accident, the records from his family physicians after 2017 show the pain complaints are intermittent and related in many instances to degenerative changes and lifting heavy objects at work. In January 2018 the applicant told his family physicians that his low back pain condition is improved but he is avoiding triggers. On January 26, 2018 the applicant reported his condition is stable as long as he does not trigger his pain with heavy lifting. It was not until April 2019 that the applicant asked his family physicians for a referral to a pain clinic as his symptoms appear to be worsening in the last couple days because of pushing and pulling at work. Fourthly, although Dr. Getahun diagnoses chronic pain syndrome, he does not state clearly that this is as a direct result of the accident. Fifthly, Dr. Getahun notes the imaging he reviewed noted only degenerative changes. Despite this history and the imaging reports, Dr. Getahun appears to prefer the subjective self-reporting of the applicant as to his pain which undermines the opinion expressed in Dr. Getahun’s report.

29There is little support in the records of the applicant’s family physicians for the reasonableness and necessity of the chronic pain assessment. The applicant was not referred by his family physicians to a pain clinic until April 2019 when the applicant asked for a referral. This tends to indicate that his family physicians more likely than not did not see a chronic pain assessment as reasonable and necessary before that time. Before the chronic pain assessment referral was made, the applicant’s family physicians had already documented that many of the applicant’s pain complaints came about because of his work and that imaging did not reveal any significant medical issues except degenerative changes. Further, in the more than two years between the accident and this chronic pain assessment, the weight of the evidence is that the applicant’s accident-related symptoms were managed with medication prescribed by his family physicians.

30The onus remains on the applicant to establish that the chronic pain assessment is reasonable and necessary. I find that the applicant has not done so here.

31After considering all of the evidence, submissions and cases put forward by the applicant, I find that applicant has not established that the chronic pain assessment is reasonable and necessary as a result of injuries the applicant may have suffered as a result of the accident.

Is the Applicant Entitled to the Driving Reintegration Assessment?

32I find that the applicant is not entitled to the driving reintegration assessment because the applicant has not provided any persuasive evidence to meet his burden of proof that it is reasonable and necessary for injuries suffered as a result of the accident.

33There is little medical evidence in support of the applicant’s position that a driving reintegration assessment is reasonable and necessary. There is no indication in the records of the applicant’s family physicians that the applicant complained about driving anxiety as a result of driving post-accident or received any medication for driving anxiety. Although the applicant complained to Dr. Vitelli that he has difficulty driving, Dr. Vitelli also notes that the applicant still drives and is more cautious when he is driving. Further, after being off work for some weeks post-accident, the applicant took up two jobs which require him to drive to and from his employment.

34The onus remains is on the applicant to establish that the driving reintegration assessment is reasonable and necessary. Entitlement to medical benefits is not automatic but must be established by appropriate evidence. I find that the applicant has not done so here.

35After considering all of the evidence, submissions and cases put forward by the applicant, I find that applicant has not established that the driving reintegration assessment is reasonable and necessary.

The Notice Argument

36Section 38(8) of the Schedule requires the respondent within 10 business days to notify the applicant of the services in the treatment plan that the insurer does not agree to pay for and give the medical and other reasons it considers the services not to be reasonable and necessary.

37The applicant submits that the respondent failed to comply with its obligations under s. 38 by failing to provide “appropriate notices”. The applicant provided no specific submissions as to which notices were not appropriate or why and did not point to any evidence on this issue.

38As a result, I find that the applicant has not established any failure by the respondent to comply with s. 38.

Interest

39As no benefits are payable, no interest is payable.

ORDER

40For the reasons outlined above, the applicant is not entitled to the cost of the psychological treatment, physiotherapy treatment, chronic pain assessment or the driving reintegration assessment. No interest is payable. The applicant’s application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2The respondent submits that this treatment plan was submitted on October 31, 2018, not October 31, 2016. I find this to be correct as the treatment plan filed by the applicant for the hearing is dated October 29, 2018.
3. 3Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.).