Citation: Ghaffir v. Aviva Insurance Company of Canada, 2021 ONLAT 20-004462/AABS

Released Date: 09/10/2021

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:

Seyed Mehdi Ghaffari

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Aryan Kamyab, Counsel

For the Respondent:

Kelvin Brown, Counsel

HEARD:

By Way of Written Submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1Seyed Mehdi Ghaffari (“applicant”) was involved in an automobile accident on April 3, 2018 (“accident”). The applicant sought payment of attendant care benefits and other medical benefits from Aviva Insurance Company of 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 attendant care benefits (“ACB”) in the amount of $1,694.45 per month for the period October 11, 2019 to date?

ii. Is the applicant entitled to receive a medical benefit in the amount of $4,071.86 for physiotherapy services, recommended by Jared Bruce in a treatment plan which was denied by the respondent on August 13, 2019?

iii. Is the applicant entitled to receive a medical benefit in the amount of $1,771.50 for physiotherapy services, recommended by Scope Concussion & Pain Centre in a treatment plan which was denied by the respondent on July 8, 2019?

iv. Is the applicant entitled to receive a medical benefit in the amount of $1,822.50 for physiotherapy services, recommended by Scope Concussion & Pain Centre in a treatment plan which was denied by the respondent on August 6, 2019?

v. Is the applicant entitled to receive a medical benefit in the amount of $2,486.00 for other goods and services, recommended by Scope Concussion & Pain Centre in a treatment plan which was denied by the respondent on October 4, 2019?

vi. Is the applicant entitled to chronic pain treatment recommended by All Health Medical Centre in the amount of $13,386.90 submitted on November 14, 2019 and denied on November 19, 2020?²

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

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

RESULT

4The applicant is not entitled to ACB in the amount of $1,694.45 per month for the period October 11, 2019 to date, or in any other amount. I decline to determine the reasonableness and necessity of the two treatment plans for $4,071.68 and $1,822.50 as the respondent has already approved them. The applicant is not entitled to the disputed treatment plans for $1,771.50, $2,486.00 or $13,386.90. No award is made. No interest is payable.

LAW

Attendant Care Benefits (“ACB”)

5Section 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)(e) 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.

6Section 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.

Medical and Rehabilitation Expenses

7Sections 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 necessary³.

ANALYSIS

Is the Applicant Entitled to ACB in the amount of $1,694.45 per Month for the Period October 11, 2019 to date?

8The applicant made no submissions pointing to any evidence in support of his claim for entitlement to ACB and made no submissions and filed no evidence relating to quantum of incurred ACB. The burden of proof is on the applicant to establish both entitlement and quantum to ACB and he has not met it. As a result, the applicant has not established this claim.

9Further, I am satisfied from the October 2019 report of the respondent’s occupational therapist, Robert Compos, that the applicant does not require attendant care assistance. This is consistent with the respondent’s surveillance.

Is the Applicant entitled to the Disputed Treatment Plans for Physiotherapy in the amounts of $$4,071.86, $1,771.50 and $1,822.50?

10These three disputed treatment plans recommended by three separate treatment providers were denied in 2019.

11There is no need for me to determine the reasonableness and necessity of the two treatment plans for $4,071.68 and $1,822.50 and I decline to do so because the respondent has already approved them. The applicant submits that the $4,071.86 treatment plan was approved in late 2020 and the $1,822.50 treatment plan was approved in March 2020 but submits these benefits were initially denied and therefore unreasonably withheld or delayed. I will deal with these submissions below with respect to the award claimed by the applicant.

12The applicant submits that the respondent continues to deny the $1,771.50 treatment plan recommended by iScope Concussion & Pain Centre even though the August 25, 2020 note from the applicant’s neurologist, Dr. Gladstone, and the records from the applicant’s Brain SPECT dated July 21, 2020, show the reasonableness and necessity of the proposed treatment as the applicant suffers severe migraines.

13The respondent submits that the applicant has not satisfied his onus to demonstrate entitlement to this treatment plan, because he has made no submissions as to why this treatment plan is reasonable and necessary for his specific impairment by identifying reasonable treatment goals, that the goals are being met to a reasonable degree and that the overall financial and time cost is reasonable and necessary.

14This treatment plan for $1,771.50 by Dr. Rosso dated April 23, 2019 is not for physiotherapy as suggested by the applicant, but is for Botox injections. I find that the applicant is not entitled to this disputed treatment plan because the applicant has not provided sufficient evidence to meet his burden of proof that it is reasonable and necessary.

15There is no medical opinion supporting the reasonableness and necessity for Botox injections from the applicant’s treating neurologist, Dr. Gladstone, who in his August 25, 2020 report to the applicant’s family physician Dr. Mohammady, diagnoses chronic daily headaches, but recommends the Cambia prescription be repeated and notes that Cambia has “worked for him before”.

16The lack of support from Dr. Gladstone for Botox injections is consistent with the June and August 2019 reports from respondent’s physiatrist Dr. Ismail who opined that the recommended Botox injections were not reasonable and necessary because Dr. Ismail did not find any associated neurological impairment related to the applicant’s headaches, and because Dr. Gladstone prescribed Cambia and the applicant’s headaches had responded well to this treatment. Dr. Ismail defers to the treatment prescribed by Dr. Gladstone and concludes that “his treating neurologist is in the best position to determine if in fact other modes of treatment are required…”

17The lack of support from Drs. Gladstone and Ismail for Botox injections is consistent with the applicant’s self-reporting to Dr. Ismail that “Cambia has been really good.”

18When considered together with the medical opinions of Drs. Gladstone and Ismail, the records from applicant’s Brain SPECT dated July 21, 2020 and iScope Concussion & Pain Centre, are insufficient to establish the reasonableness and necessity of the proposed Botox treatment.

19I also find that the July 9, 2019 recommendation of Dr. Mehdiratta, the applicant’s neurologist, that the applicant’s migraines be treated with Botox is insufficient to establish that this treatment plan is reasonable and necessary, and I give this recommendation little weight. Dr. Mehdiratta does not refer to the applicant’s use of Cambria prescribed by his treating neurologist Dr. Gladstone, nor does he explain how the Botox would be administered, the frequency of this medication or indicate what accident-related complaints would be treated, all of which would be necessary to establish reasonableness and necessity. I prefer the evidence of Dr. Gladstone, the treating neurologist.

20There is little evidence as to how the proposed treatment will achieve its goals, or evidence establishing that the proposed treatment is reasonable and necessary as a result of injuries suffered in the accident, or that the overall cost is reasonable and necessary.

Is the Applicant entitled to the Disputed Treatment Plan for Other Goods and Services in the amounts of $2,486.00?

21This treatment plan by Dr. Mehdiratta, physician, dated March 8, 2019, proposes a neurological assessment of $900.00, file review of $300.00, report writing of $800.00, treatment plan of $200.00, and tax, all totalling $2,486.00.

22Initially the applicant did not make any submissions regarding this treatment plan. In reply, the applicant submitted that on August 12, 2019, Dr. Ranelli, applicant’s neuro-ophthalmologist, noted chronic pain and adverse affective problems with anxiety and depression, and Dr. Rosso in a Brainscope Testing Report dated September 5, 2019, noted the applicant was assessed at a chronic pain clinic and cervical and lumbar spine nerve block injections were recommended. As such, the applicant submits the chronic pain assessment and chronic pain treatment referred to below are both reasonable and necessary.

23Although the respondent objected to the filing of this treatment plan and the treatment plan for $13,386.90 in reply, I have considered the applicant’s reply in this particular instance in fairness to both parties. While generally reply submissions are not to be used to bolster inadequate initial submissions or submit evidence missing from initial submissions, here the respondent has been given the right of sur-reply by the Tribunal’s February 19, 2021 Order, which eliminates any prejudice to the respondent.

24The respondent submits that this treatment plan and the treatment plan for $13,386.90 are not reasonable and necessary and relies on the November 2019 report of it’s physiatrist Dr. Oshidari.

25I find that the applicant is not entitled to this disputed treatment plan because the applicant has not provided sufficient evidence to meet his burden of proof that it is reasonable and necessary.

26Dr. Ranelli, in assessing the applicant’s visual or neuro-ophthalmological impairments, noted the applicant has chronic pain without any further explanation, without any recommendation for treatment or assessment or any discussion of what treatment and assessment the applicant had already received regarding his chronic pain or possible treatment goals. It appears that Dr. Ranelli declined to diagnose, treat or make an assessment recommendation.

27As part of his summary of the applicant’s ongoing treatment, the applicant’s radiologist, Dr. Rosso, as part of a BrainScope test, noted that the applicant had been assessed at a chronic pain clinic and was advised to receive nerve block injections. Dr. Rosso also notes that the applicant refused the treatment recommended at the pain clinic, tending to indicate that this proposed treatment plan may not be reasonable and necessary.

28Like Dr. Ranelli, it appears that Dr. Rosso declined to diagnose, treat or make an assessment recommendation. As a result, I find that the notes of Drs. Ranelli and Rosso are insufficient medical evidence to establish that this proposed treatment plan is reasonable and necessary, and I give them little weight. Further, neither Dr. Ranelli or Dr. Rosso opine sufficiently on reasonable treatment goals, that the goals are being met to a reasonable degree and that the overall financial and time cost are reasonable and necessary.

29I prefer the opinion of Dr. Oshidari who opined in November 2019 that this chronic pain assessment was not reasonable and necessary because: the applicant had been assessed and treated by two physiatrists and a rheumatologist post-accident; there is no opinion from a psychologist or psychiatrist that the applicant is suffering from a pain disorder; and the applicant was not taking the medication prescribed by his treating specialists. Dr. Oshidari recommended the applicant take his prescribed medication and undertake self-directed aqua therapy.

30Given that post-accident the applicant has been in the care of three pain specialists, including two physiatrists, and at least one of the physiatry assessments was close in time to this proposed treatment plan, and, given that the applicant appears to have not been taking his prescribed medication, I find that this proposed assessment is not reasonable and necessary.

31There is little evidence as to how the proposed assessment will achieve its goals, or evidence establishing that the proposed treatment is reasonable and necessary as a result of injuries suffered in the accident and not duplicative of other services available to the applicant, or that the overall cost is reasonable and necessary.

Is the Applicant entitled to the Disputed Treatment Plan for Chronic Pain Treatment in the amount of $13,386.90?

32This treatment plan by Dr. Shteynberg, chiropractor, dated November 14, 2019, proposes 26 physical rehabilitation sessions for $2,593.50, 26 sessions of active rehab for $2,933.06, 26 sessions of massage therapy for $1,512.94, 16 sessions of individual psychotherapy for $3,590.72, two MD visits of $400.00, OCF-18 claim form of $200.00, psychology progress report of $400.00 and transportation of $1,560.00 and tax, all totalling $13,386.90.

33I find that the applicant is not entitled to this disputed treatment plan because the applicant has not provided sufficient evidence to meet his burden of proof that it is reasonable and necessary.

34Initially the applicant did not make any submissions regarding this treatment plan, but in reply, submitted that the notes of Drs. Ranelli and Rosso established that this treatment plan is reasonable and necessary. For the reasons set out above, I find that the notes of Drs. Ranelli and Rosso are insufficient medical evidence to establish that this proposed treatment plan is reasonable and necessary, and I give them little weight.

35Further, in this treatment plan, Dr. Shteynberg lists the applicant’s injuries and sequelae from the accident as including “other chronic pain”, chronic pain lumbar and cervical spine, shoulder, hip, leg, left wrist pain, neck and right-sided rib pain, headache. In the treatment plan Dr. Shteynberg refers to a chronic pain assessment report dated November 6, 2019 by Dr. Brown, physician. Dr. Brown’s report was not filed at this hearing by the applicant and is not referred to by the applicant in either his initial or reply submissions.

36There is little support for Dr. Shteynberg’s list of the applicant’s pain injuries and sequelae in the proposed treatment plan in the records of the applicant’s physicians in evidence at this hearing.

37There is no evidence that any of the applicant’s treating specialists have diagnosed a chronic pain condition other than chronic daily headaches diagnosed by Dr. Gladstone on August 25, 2020, some nine months after this treatment plan was proposed. The applicant’s chronic daily headaches had been treated with prescribed Cambia which both Dr. Gladstone and the applicant reported had worked for him.

38The respondent has provided evidence that for approximately two years post-accident the applicant has received some $22,000.00 of medical rehabilitation benefits including psychological and physiotherapy treatment. The applicant did not dispute this submission in reply.

39Further, the applicant has failed to demonstrate with appropriate medical evidence that this proposed treatment, which involves significant cost, would differ from the treatment already approved. Still further, the applicant has not submitted evidence that this treatment plan has been incurred or that s. 3(8) of the Schedule applies.

40There is little evidence as to how the proposed treatment will achieve its goals or evidence establishing that the proposed treatment is reasonable and necessary as a result of injuries suffered in the accident, or that the overall cost is reasonable and necessary.

Special Award

41Section 10 of Regulation 664 provides that the Tribunal may make a special award in addition to awarding benefits and interest if the respondent has unreasonably withheld or delayed payments.

42The applicant submits that the insurer has a duty to accommodate the insured person’s physical and severe psychological condition, has unreasonably withheld, delayed and denied reasonable and necessary medical treatment and has failed to adjust the applicant’s claim in good faith.

43The applicant submits that the respondent initially denied the two treatment plans before approving the $4,071.68 and $1,822.50 in 2020 and therefore, unreasonably withheld or delayed these benefits.

44The respondent denies any unreasonable withholding of payment and delay.

45I find that there was no payment unreasonably withheld or delayed because there is no evidence of this. The respondent originally denied these two treatment plans on the basis of the information on file including the report of it’s assessor Dr. Ismail who advised that the disputed treatment was not reasonable and necessary. When provided with new medical information, the respondent approved these two treatment plans which shows that the respondent reconsidered its position in response to new medical information and continued to adjust the file in good faith. Further, given that the applicant submitted no evidence that these two treatment plans were incurred, no delay or withholding of payment has been established.

46I also find on the evidence before me that there is no evidence that the respondent has unreasonably withheld or delayed payments with respect to any of the other benefits claimed by the applicant.

47For these reasons, there is no award.

Interest

48No interest is payable as no benefits are payable.

ORDER

49The applicant is not entitled to ACB in the amount of $1,694.45 per month for the period October 11, 2019 to date, or in any other amount. I decline to determine the reasonableness and necessity of the two treatment plans for $4,071.68 and $1,822.50 as the respondent has already approved them. The applicant is not entitled to the disputed treatment plans for $1,771.50, $2,486.00 or $13,386.90. No award is made. No interest is payable.

Footnotes

1. 1O. Reg. 34/10.
2. 2This issue added by Tribunal’s August 14, 2020 Order.
3. 3Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.).