Licence Appeal Tribunal File Number: 19-014569/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:
Ferhad Mushtaq
Applicant
and
Aviva General Insurance
Respondent
DECISION AND ORDER
ADJUDICATOR:
Amanda Marshall
APPEARANCES:
For the Applicant:
Syed M. Raza, Counsel
For the Respondent:
Kimberley Tye, Counsel
HEARD:
By way of written submissions
BACKGROUND
1The applicant was involved in an automobile accident on June 27, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule (“Schedule”) Effective September 1, 2010 (including amendments effective June 1, 2016). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
ISSUES IN DISPUTE
2The following issues are in dispute:
Is the applicant entitled to attendant care benefits (“ACBs”) of $1,512.96 per month from September 4, 2018 to date and ongoing?
Is the applicant entitled to $877.93 for psychological services recommended by Gozlan Psychological in a treatment plan which was denied on June 17, 2019?
Is the applicant entitled to $1,553.72 for chiropractic services recommended by Canadian Chiropractic in a treatment plan which was denied on October 10, 2019?
Is the applicant entitled to the cost of orthotics?
Is the applicant entitled to $2,000.00 for an Orthopaedic Assessment, recommended by Alliance Diagnostics in a treatment plan which was denied on February 11, 2020?
Is the applicant entitled to $671.90 for medication expenses which were denied on February 11, 2020?
Is the applicant entitled to $1,271.70 for a Functional Abilities Evaluation (“FAE”) Assessment, recommended by Spinal Touch in a treatment plan which was denied on February 20, 2020?
Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to ACBs, the cost of orthotics, an orthopaedic assessment, or a FAE. No interest is payable.
4The applicant is entitled to $877.93 for the psychological services and $671.90 for medication expenses. Interest is payable.
5The applicant is entitled to payment up to $1,533.72 for any incurred chiropractic treatment from October 10, 2019 to November 28, 2019, along with any interest.
6The respondent is not liable to pay an award
ANALYSIS
Is the applicant entitled to attendant care benefits of $1,512.96 per month?
7Section 19 of the Schedule provides that ACBs shall be paid for all reasonable and necessary expenses that are incurred as a result of the accident. The onus is on the applicant to show that the ACBs are reasonable and necessary and to prove that they are incurred.
8The applicant submits that the ACBs are reasonable and necessary as he had a decrease in lumbar flexion and required assistance. He relies on the assessment of Attendant Care Needs Form (Form 1) of September 4, 2018 completed by Yalda Mobed, Occupational Therapist (OT).
9The Form 1, like all Form 1s, contains three heads of care: Part 1 is routine personal care (i.e. dressing, grooming, feeding etc.); Part 2 is supervisory functions (i.e. basic hygiene, basic supervisory care etc.); Part 3 is complex healthcare and complex hygiene functions (i.e. bathing, bowel care etc.). The hourly rate that is allotted to the attendant care provider for each part differs. In the Form 1, Ms. Mobed assessed the applicant’s ACBs at $1,512.96 per month.
10The applicant further submits that as per s. 42 (6) the respondent was required to provide ACBs within 10 business days after receiving a Form 1 subject to its right to conduct an insurer examination.
11The applicant engaged the services of Advanta Health at a monthly rate of $810.74 and, therefore, he contends he should be eligible for ACBs from June 27, 2018, to date and ongoing.
12The respondent submits the applicant has failed to meet his onus to prove, on a balance of probabilities, that ACBs are reasonable and necessary. It relies on the OT assessment of OT, Loreta Stanulis-Duz, dated October 24, 2018, that found ACBs needs to be zero.
13The respondent argues that the applicant provided only one ACBs invoice from Advanta Health Care Services Inc. dated October 2, 2018, for assistance provided on September 18, 19, 26, and 27, 2018 totalling $810.74. No further invoices for ACBs have been submitted, and therefore, no ACBs have been “incurred” as per s. 3, nor has the applicant made a promise to pay in exchange for attendant care services.
14A case conference was held on June 2, 2020. During the case conference, the parties agreed the time period in dispute for payment of ACBs was from September 4, 2018, to date and ongoing. The applicant’s submission indicated that the applicant is now seeking ACBs from the date of loss to date and ongoing.
15An insurer is not required to pay for attendant care services incurred before a Form 1 is submitted as per s. 42 (5). As the time period in dispute was agreed to by both parties during the case conference, as the applicant did not submit a Notice of Motion to the Tribunal to amend the time period in dispute, and as an insurer is not required to pay for attendant care services incurred before a Form 1 is submitted, I will be reviewing the applicant’s eligibility for ACBs from September 4, 2018, to date and ongoing.
16The applicant submitted the Form 1 on September 4, 2018. By way of a letter dated September 13, 2018, the applicant was informed an in-home assessment would be arranged to assess his needs as the request for ACBs does not appear to be in line with the documented injuries sustained.1
17I find that the insurer provided a response to the applicant within the required 10 business days of the submission of the applicant’s Form 1 as evidenced by the September 13, 2018 letter and therefore in compliance with s. 42(3) and 42(4) of the Schedule.
18An in-home assessment took place on October 24, 2018. The respondent provided an Explanation of Benefits (“EOB”) on November 22, 2018, denying the ACBs based on the Insurer’s Examination (“IE”) of Orthopaedic Surgeon, Dr. Esmat Dessouki, that found the applicant’s injuries could be treated under the Minor Injury Guideline (“MIG”), and the IE report and Form 1 completed by Ms. Stanulis-Duz that determined ACBs to be zero. The EOB explained that ACBs are not payable pursuant to s. 14(2) as the applicant injuries sustained were such that he would be treated within the MIG.2
19In light of the evidence before me, I am not convinced that, on the balance of probabilities, the applicant has met his onus of establishing entitlement to receive attendant care benefits. The in-home assessment completed by Ms. Mobed’s appeared to have some inconsistencies. It stated that the applicant was able to walk independently but the Form 1 indicated the applicant required 210 minutes per week for supervision of or assistance with walking. With regards to preparing the applicant for meals (including transfer to appropriate location), the Form 1 showed that the applicant requires 630 minutes per week. The applicant was found to be independent in eating, able to prepare light meals and as the applicant was independent in walking, I find the amount of time suggested in the Form 1 does not correspond to the narrative provided in the in-home assessment.
20I find Ms. Stanulis-Duz’s finding persuasive, and the testing methods and her observations credible. In my opinion, the totality of the evidence suggests that while the applicant was experiencing pain with prolonged sitting, bending and reaching, his injuries and impairments do not warrant attendant care benefits. Therefore, the attendant care benefits are not reasonable and necessary.
21Even if I am wrong and the applicant required attendant care benefits, the applicant has only provided a copy of Advanta Health Care Service Inc.’s Account Activity showing an amount outstanding of $810.74. The applicant has not provided any details pertaining to the dates of service, what services were performed, or the hours worked for the services provided. Nor has the applicant provided any evidence to assist with understanding why or what Advanta Health Care would be doing for $810.74 instead of the Form 1 recommended amount of $1,512.96 per month. This results in not knowing what services the applicant received and whether the recommended fee schedule was followed and therefore, whether those expenses were reasonable and necessary. As such, I find the applicant is not entitled to the ACBs claimed.
Medical Benefits
22To receive payment for a medical or rehabilitation benefit under the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the treatment is reasonable and necessary. In order to accomplish this, the applicant should identify the reasonableness of the treatment goals, how the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.
Is the applicant entitled to $877.93 for psychological services?
23The $2,200.00 psychological assessment in dispute was submitted on a treatment plan (“OCF-18”) by Psychologist, Dr. Oren Gozlan. The respondent partially approved the assessment and agreed to pay $1,322.07.
24The respondent submits it relied on the IE report of Psychologist, Dr. Shahriar Moshiri, who opined that the different components within the proposed treatment plan of 13.5 hours could be conducted at a more reasonable cost of $149.61 per hour a psychologist and $58.19 per hour for a psychotherapist totalling $1,322.07.
25The applicant contends that as Dr. Gozlan conducted the assessment and not a psychotherapist, the applicant is entitled to the full cost of the OCF-18.
26Upon my review, the OCF-18 outlined the costs to be $2,000 for the assessment and $200 for documentation. Dr. Gozlan, Psychologist, completed the assessment. The total number of hours for the assessment was captured as 13.5 hours. As Dr. Gozlan is a psychologist, the hourly rate for services was calculated at $149.61 for a total of $2,019.74 for the assessment component of the treatment plan plus the cost for the documentation write up at $200.00. As $2,019.74 would exceed the cap outlined in the Professional Services Guideline, Dr. Gozlan capped the assessment at the maximum of $2,000.00.
27The parties did not dispute the applicant’s need for the psychological assessment, only the cost of it. As Dr. Gozlan administered the psychological assessment and not a psychotherapist, I find the cost of $2,000.00 for the assessment and $200 for the documentation totalling $2,200.00 to be reasonable. The applicant is therefore entitled to the $877.93 balance, plus interest in accordance with s. 51 of the Schedule.
Is the applicant entitled to $1,553.72 for chiropractic services?
28The applicant states that there is an error with the amount of the disputed chiropractic treatment plan recorded in the CCR&O of July 3, 2020. The chiropractic treatment plan was for $1,553.72 and not $877.93 as recorded.
29Upon review, both the applicant and respondent have referred to the disputed treatment plan as $1,553.72. Therefore, I find an error was made on the CCR&O of July 3, 2020 and the denied chiropractic treatment plan proposed by Canadian Chiropractic and Physiotherapy Inc. was in the amount of $1,553.72 and not $877.93.
30The applicant submits that he was removed from the MIG by the time of the treatment plan and based on his medical records, the chiropractic treatment was reasonable and necessary. Also, the applicant contends the respondent is in contravention of s. 38(8) as it did not provide specific reasons for the denial within 10 calendar days and therefore, the applicant is entitled to the treatment plan as per s. 38(11).
31In response, the respondent relies on the June 5, 2019, Orthopaedic IE assessment of Orthopaedic Surgeon, Dr. Manoj Bhargava, wherein he concluded the treatment plan was not reasonable and necessary as he did not find any limitations in the applicant’s range of motion or identify any ongoing accident-related musculoskeletal impairment. Also, the applicant has reached maximum medical recovery and further treatment would not provide any additional benefit.
32With regards to being in contravention of s. 38(8) of the Schedule, the respondent notes that the October 10,2019 correspondence provided a medical reason for the denial, being, “the patient does not appear to show signs of improvement despite continuing treatment”, and therefore should not be considered deficient pursuant to s. 38(11).
Is the plan reasonable and necessary?
33While the applicant submitted that the chiropractic treatment plan is reasonable and necessary based on his medical records, the applicant has not directed the Tribunal to which specific medical records he is referring to nor discussed the reasonableness of the treatment goals, how the goals are being met to a reasonable degree, and that the overall cost is reasonable, which is what he is required to do. As such, I do not find that the applicant has demonstrated that the chiropractic treatment is reasonable and necessary.
Was the respondent in contravention of s. 38 (8)?
34Sections 38(8) and (11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and outlines specific consequences if they fail to comply. Under s. 38(8), the insurer must notify the insured person within 10 business days whether it will pay for the goods and services requested. If it refuses to pay, it must state the medical and all of the other reasons why it considers the goods and services not to be reasonable and necessary. If an insurer fails to comply with any of these requirements, s. 38(11)(2) states, in relevant part, the insurer must pay for all the goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11th business day until such time that it gives proper notice.
Was a proper notice provided?
35The treatment plan was received by the respondent on September 25, 2019 and responded to 11 business days later on October 10, 2019. Even though I find that the applicant has not demonstrated the chiropractic treatment plan is reasonable and necessary, I find that the respondent failed to respond to the treatment plan within 10 business days as required under s. 38(8).
When did the respondent give proper notice?
36As stated above, the respondent contends that the correspondence provided a medical reason and therefore, is not deficient pursuant to s. 38(8) and referenced T.F. v Peel Mutual Insurance Company3 as well as M.R. v. Aviva General Insurance Company4.
37Both T.F. v Peel and M.R. v Aviva found that to be compliant with s 38(8), an insurer’s denial should clear and unequivocal, provide medical and any other reasons, and provide specific details about the insured’s condition that formed the basis for the insurer’s decision or identify information the insurer does not have but requires. It should also refer to the specific benefit along with the section of the Schedule which it relies upon for the denial.
38In reviewing the respondent’s October 10, 2019 EOB, while I find the insurer refers to the specific benefit along with the section of the Schedule upon which it relies on, I do not find the respondent provided a clear medical reason for the denial. The statement “the patient does not appear to show signs of improvement despite continuing treatment” does not provide a reference to any of the applicant’s injuries to allow for an understanding of what injuries have not improved. I do not find that the respondent has met the requirements under s. 38 (8) and provided a medical reason for the denial.
39I note the respondent sent an updated EOB on November 28, 2019. The updated EOB referred to the particular benefit in dispute, the section of the Schedule it relied upon along with a clear and specific medical reason for the denial that being, “the claimant did not have any ongoing musculoskeletal improvement and has reached maximum medical improvement and the OCF-18 in question is not reasonable and necessary…”5 Along with the EOB, the respondent enclosed a copy of orthopaedic assessment completed by Dr. Bhargava dated November 4, 2019.
40Therefore, I find that the respondent did provide a proper notice by November 28, 2019. Thus, as per s. 38(11)2, the respondent shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day respondent received the treatment plan (OCF-18) and ending on November 28, 2019, the date proper notice was provided, along with any applicable interest.
Is the applicant entitled to the cost of orthotics?
41The applicant’s entitlement to the cost of orthotics was added at the case conference of June 2, 2020, with the applicant agreeing to provide further information to the respondent. The respondent stated that the applicant did not provide anything further with respects to the cost of orthotics.
42I agree with the respondent and find that the applicant’s submission did not contain any information, evidence, nor argument regarding his entitlement to the cost of orthotics. Therefore, I find the applicant is not entitled to the cost of orthotics.
Is the applicant entitled to $2,000.00 for an Orthopaedic Assessment?
43The applicant contends his medical records suggest that an orthopaedic assessment is reasonable and necessary.
44The applicant submits that as the respondent failed to provide adequate reasons for its denial letter of January 24, 2020, and as the orthopaedic assessment has already been conducted by Orthopaedic Surgeon, Dr. Joseph Kwok, and the cost incurred, the respondent is required to pay for the orthopaedic assessment.
45The applicant also asks the Tribunal to provide little weight to the IE reports of Orthopaedic Surgeon, Dr. Manoj Bhargava, as the applicant’s injuries were predominantly chronic and a general practitioner could have assessed the applicant’s injuries more fairly than an orthopaedic surgeon.
46The respondent contends that the treatment plan was not reasonable and necessary as the IE assessor, Orthopaedic Surgeon, Dr. Bhargava, opined that the applicant did not have any ongoing, accident-related musculoskeletal impairments and had reached maximum medical recovery.
47The orthopaedic assessment in dispute was submitted by Alliance Diagnostics and Treatment Inc. on January 6, 2020. The respondent’s letter of January 24, 2020 informed the applicant that a paper review would be conducted by Dr. Bhargava. The medical reason provided was “there appear to be pre-existing or concurrent medical conditions that might affect the patient’s care, treatment, and prognosis. The type(s) of treatment does not appear consistent with the patient’s diagnosis….”6
48The applicant stated that the respondent did not provide a reason for its denial. Upon review, the respondent provided several reasons for a s. 44 paper review. While the respondent appears to have provided a standard paragraph and did not highlight which statement applied to the applicant, I do not agree with the applicant that the respondent did not provide a reason for its denial.
49I find the applicant’s request that the Tribunal provide little weight to Dr. Bhargava’s reports contradictory. The applicant requested the Tribunal find the applicant is entitled to the incurred orthopaedic assessment conducted by Orthopaedic Surgeon, Dr. Joseph Kwok, yet does not believe the respondent should have been had an orthopaedic surgeon conduct an IE. The treatment plan was for an orthopaedic assessment. An orthopaedic surgeon is a doctor who specializes in orthopaedic medicine whereas a general practitioner is a generalist. The most qualified medical professional to assess the applicant with respects to an orthopaedic assessment would be an orthopaedic surgeon.
50The applicant had an ultrasound of his spine on July 7, 2018 which stated that his lumbar spine was normal. He had an MRI of his lumbar spine which documented his spine was “unremarkable”. On September 6, 2018, the applicant had an MRI of his shoulder and the findings were that the applicant suffered a low grade muscle strain. An MRI was taken of his pelvis, hips and left shoulder on September 19, 2018. There was no evidence of any fractures or dislocation.
51The Disability Certificate documented the applicant’s injuries as sprain/strain injuries to the applicant’s joints, thoracic and lumbar spine.
52The chronic pain assessment report dated January 28, 2020, conducted by chronic pain consultant, Dr. Igor Wilderman, suggested the applicant suffers from chronic pain and recommended a psychological chronic pain assessment and a socio-emotional assessment be conducted. Dr. Wilderman did not provide a recommendation for an orthopaedic assessment.
53I find the IE assessment reports from Dr. Bhargava persuasive as Dr. Bhargava assessed the applicant in person on May 6 and November 4, 2019 and completed a paper review on February 11, 2020 whereas Dr. Kwok only assessed the applicant one time.
54In his June 5, 2019 IE report, Dr. Bhargava diagnosed the applicant with WAD II and strain/sprain of the lumbar spine which mirrors the injuries in the Disability Certificate. Dr. Bhargava stated that the applicant did not have any ongoing, accident-related musculoskeletal impairments. Similar results were provided in the IE report of November 18, 2019 and again in his paper review of February 11, 2020. As such, I do not find that the applicant has proven, on the balance of probabilities, that the orthopaedic assessment is reasonable and necessary and therefore, the respondent is not responsible for paying for the incurred assessment.
Is the applicant entitled to $671.90 for medication expenses?
55Twenty prescription medications receipts covering the time period from July 4 to December 7, 2019 were sent to the respondent. The applicant states that the prescriptions were for pain medications prescribed by the applicant’s family doctor.
56In response, the respondent stated that as per s. 33(1) it requested a medical note from the applicant’s doctor indicating what medications were required as a result of the accident-related injuries and why the medications were required. However, it did not receive the requested information.
57The prescription medications the applicant was seeking payment for are pain medications and muscle relaxants and the majority of them have been prescribed by the applicant’s family doctor, Dr. Khan. There are two prescriptions prescribed by the chronic pain specialist, Dr. Hossein Aliabadi which are identical to the medications prescribed by Dr. Khan.
58While I understand the respondent requested the applicant’s doctor provide a medical note outlining what medications the applicant required and why they were required, upon review of the clinical notes and records of Dr. Khan and Dr. Aliabadi along with the prescription receipts, I note that even though the doctor did not provide the information in a medical note, all the information contained within the medical records submitted from Dr. Khan should satisfy the request. As the medications prescribed were to assist the applicant in dealing with pain the applicant was experiencing due to his accident-related injuries, I find them to be reasonable and necessary.
Is the applicant entitled to $1,271.70 for a FAE Assessment?
59The applicant submits that based on the recommendations from the orthopaedic report of Dr. Kwok, the applicant is entitled to an FAE.
60The onus is on the applicant to show that an FAE is reasonable and necessary. This includes identifying the reasonableness of the treatment goals, how the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.
61Dr. Kwok recommended the applicant receive additional physiotherapy, massage treatment and/or chiropractic treatments. There is no recommendation from Dr. Kwok for a FAE.
62The applicant has not provided anything further with respects to the reasonableness of the treatment goals, how the goals would be met to a reasonable degree or commented on the overall cost of achieving the goals. Therefore, I do not find that the applicant has proven, on the balance of probabilities, that the FAE is reasonable and necessary.
Is the respondent liable to pay an award under Regulation 664?
63Pursuant to section 10 of Reg. 664, the applicant may be entitled to an award if the respondent unreasonably withheld or delayed payment of a benefit.
64The applicant requests an award with regards to the attendant care benefits as the applicant contends the respondent did not adhere to the provisions in the Schedule and pay for the incurred expense.
65As I have found that the attendant care benefits are not reasonable nor necessary, it follows that no award is payable.
CONCLUSION
66The applicant is not entitled to ACBs, the cost of orthotics, an orthopaedic assessment, or a FAE. No interest is payable.
67The applicant is entitled to $877.93 for the psychological services, $671.90 for medication expenses. Interest is payable.
68The applicant is entitled to payment up to $1,533.72 for any incurred chiropractic treatment from October 10, 2019 to November 28, 2019, along with any interest.
69The respondent is not liable to pay an award
Released: April 25, 2022
__________________________
Amanda Marshall
Adjudicator
Footnotes
- Applicant’s submission, Tab 1, page 11
- Respondent’s submissions, page 39
- 2018 CanLII 39373 (ON LAT)
- 2020 CanLII 63589 (ON LAT)
- Respondent’s submission, Tab 9
- Applicant’s submission, Tab 13, page 6