Citation: Hammoud v. Co-operators General Insurance Company, 2022 ONLAT 20-004608/AABS

Licence Appeal Tribunal File Number: 20-004608/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:

Hassan Hammoud

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Kevan Wylie, Counsel

For the Respondent:

Julianne Brimfield, Counsel

HEARD:

By way of written submissions

1The applicant was involved in an automobile accident on April 27, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).¹ He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) after his claims for benefits were denied by the respondent.

2The applicant was a passenger of a vehicle that was rear-ended by another vehicle. The airbags did not deploy, and he did not lose consciousness. Neither police nor ambulance attended the scene of the accident.

3The applicant submits that his pre-existing chronic back pain was exacerbated by the accident. The respondent submits that the applicant has not proven that his ongoing complaints were caused by the accident and that the disputed treatment plans are reasonable and necessary.

4On September 4, 2020, the applicant was removed from the Minor Injury Guideline (“MIG”) because of his pre-existing conditions and psychological impairments. As such, the applicant’s policy limits for medical, rehabilitation, and attendant care benefits are $130,000.00.

ISSUES:

5The following are the issues to be determined, as per the Case Conference Order dated October 14, 2020:

Is the applicant entitled to $4,720.24, less $3,616.24 approved by the respondent for a chiropractic treatment plan (“OCF-18”) dated May 9, 2019, recommended by Spinetec Healthcare Solutions?
Is the applicant entitled to $4,134.72 for a physiotherapy OCF-18 dated November 7, 2019, recommended by Spinetec Healthcare Solutions?
Is the applicant entitled to $3,959.56 for a hydrotherapy OCF-18 dated November 7, 2019, recommended by Spinetec Healthcare Solutions?
Is the applicant entitled to $2,680.00 for a personal training OCF-18, dated November 7, 2019, recommended by Spinetec Healthcare Solutions?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent liable to pay an award pursuant to Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

6I find that the applicant is not entitled to:

i. $1,104.00 for acupuncture services;

ii. $4,134.72 for physiotherapy services;

iii. $3,959.56 for hydrotherapy services;

iv. $2,680.00 for personal training services;

v. Interest on any overdue payment of benefits;

vi. An award pursuant to Regulation 664.

PRODUCTION ISSUES

7The respondent submits that the applicant did not produce all of his pre-accident medical records, despite acknowledging at the case conference that these records were relevant due to his pre-existing issues. The respondent further submits the applicant failed to produce pre-accident physiotherapy records, prescription summaries prior to 2019 or the records of several physicians seen pre-accident. As a result, the respondent submits that the parties do not have a complete picture of the applicant’s complaints, medication use and treatment in the pre-accident period. I note that as per the Case Conference Order dated October 14, 2020, the applicant was not ordered to produce pre-accident physiotherapy records. As such, I will not consider any submissions with respect to this record.

8The applicant in his reply submits that the respondent has failed to prove any prejudice. Further, the applicant submits that the respondent is well aware of his pre-existing condition, and it is not controversial. I also note that the applicant did produce a number of medical documents and best efforts for the pre-accident physician records on February 26, 2021.² I also note that the respondent could have brought a motion to compel the applicant to produce these records and chose not to do so.

HEARSAY EVIDENCE

9I find the self reporting made by the applicant to Dr. Abram to be hearsay evidence, but it is admissible for this hearing. Hearsay evidence is prima facie admissible pursuant to section 15 of the Statutory Powers Procedure Act (“SPPA”). Section 15(1) of the SPPA states that subject to subsections (2) and (3), a Tribunal may admit evidence into a hearing, such as oral testimony or any document even if it was not given/proven under an oath or affirmation or admissible as evidence in a court.

10The applicant in his reply submits that the respondent’s submissions at paragraphs 30, 39, 49, 55, 60, 62 are inadmissible hearsay evidence. Specifically, the applicant submits that the self-reporting that he made to Dr. Abram is hearsay evidence.

11The applicant refers to the Supreme Court of Canada decision in R v. Baldree³ wherein, it was determined that hearsay evidence is presumptively inadmissible as a matter of law.

12The applicant submits that these self-reporting remarks made by him to Dr. Abram are untested, unreliable and inadmissible. He further submits that he requested an oral hearing or videoconference hearing, but the Tribunal ordered a written hearing instead. The applicant argues that he has not been given an opportunity to cross examine Dr. Abram and this results in procedural unfairness.

13I acknowledge the danger of admitting hearsay evidence due to its inherent unreliability in accordance with the decision of the District Court of Ontario, in Dayday v. MacEwan⁴. For the purposes of this hearing, I am prepared to accept the hearsay evidence as this is a written hearing and neither party has presented evidence that is under oath or affirmation. Moreover, the applicant himself is relying on hearsay evidence, in particular the complaints he made to his numerous physicians to support his entitlement to the disputed OCF-18s. The respondent was also not given an opportunity to conduct a cross examination of the applicant to determine the accuracy of this self-reported evidence.

ANALYSIS

Are the treatment plans Reasonable and Necessary?

14I find that the OCF-18s are not reasonable or necessary for the reasons that will be discussed later.

15Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

16The applicant bears the evidentiary onus to demonstrate that each OCF-18 in dispute is reasonable and necessary. The reasonableness and necessity of treatment must be held to an established standard which requires:

a. The treatment goals as identified must be reasonable;

b. The treatment goals are being met to a reasonable degree; and

c. The overall costs of achieving those goals are reasonable.⁵

17The respondent submits that the applicant only sustained soft tissue injuries as a result of the accident, as documented by his family physician, Dr. Singh. The respondent further submits that the applicant has not met his evidentiary burden to demonstrate his ongoing pain complaints were caused by the accident rather than his pre-existing chronic pain and lumbar spine degeneration. It is the respondent’s position that the applicant’s current pain complaints are not related to the accident.

18The applicant’s position is that his pre-existing chronic back pain was exacerbated by the accident, and this is demonstrated in his family physician’s records, and the OHIP Summary and the Decoded List of Services. I agree with the applicant for the reasons outlined below.

19As demonstrated by the records, the applicant had pre-existing chronic back pain that predated the accident for at least 3 years. He was on Naproxen, Oxycodone and did physiotherapy. An MRI of the lumbar spine conducted on December 2, 2016, revealed: L5-S1 disc desiccation, edematous endplate changes and mild disc space narrowing are noted; minor endplate marginal osteophytes with mild diffuse disc bulging and annular tear noted; and at L4-L5, moderate diffuse disc bulge, and superimposed small central focal disc herniation.⁶

20I acknowledge that on April 29, 2019, Dr. Singh diagnosed the applicant with a whiplash injury and muscle spasm in the lower back, which are typically MIG injuries.⁷ However, the applicant was removed from the MIG by the respondent. Moreover, the records show that the applicant continuously met with Dr. Singh and complained about his ongoing back pain from 2019 to 2020. I place significant weight on the records of Dr. Singh as they demonstrate that although he had pre-existing chronic back pain, it was aggravated by this accident. I also note that the applicant was referred to a spinal surgeon and two chronic pain clinics, where he received nerve block injections. The applicant advised the Canadian Cannabis Clinic that his back pain had worsened as a result of this accident.⁸ The applicant further advised Dr. Kamawi, an OHIP chronic pain specialist, that his back pain had worsened since the accident.⁹

21On August 21, 2020, the applicant advised Dr. Mohapatra that an accident in 2017 worsened his pre-existing back pain. I agree with the applicant that this was likely a typographic error. The respondent’s submissions were silent with respect to whether the applicant was involved in an accident in 2017. Dr. Mohapatra diagnosed him with myofascial pain, back pain due to degenerative lumbosacral spondylosis and small disc osteophyte protrusion, and chronic pain syndrome.¹⁰ I acknowledge the respondent’s position that these were all pre-existing impairments, however the applicant has repeatably advised numerous physicians that his pre-existing conditions were exacerbated by this accident. I place significant weight on the report of s.44 assessor, Dr. Abram, dated August 24, 2020.¹¹ Dr. Abram reviewed several documents and acknowledged that the applicant had chronic back pain predating this accident. She further opined that the applicant’s pre-existing conditions would have been exacerbated by this accident. I acknowledge that Dr. Abram states that this exacerbation would have resolved at this time, however the records of Dr. Singh, Dr. Kamawi, and Dr. Mohapatra do not support this opinion. As such, I find that the accident is a necessary cause of the applicant’s current pain complaints.

22The accident is not required to have been the cause, meaning it need not be the sole cause of the impairments at issue, but rather the accident needs to have been a necessary cause.¹²

23The respondent also submits that there is no evidence from any expert or physician which establishes why the disputed OCF-18s are reasonable and necessary. The respondent relies on the records of Dr. Kamawi, Dr. Mohapatra, and Dr. Singh. The applicant advised Dr. Kamawi that he had tried physiotherapy, acupuncture, chiropractic, and massage therapy which provided some benefit, but it was not enough.¹³ He further advised Dr. Mohapatra that he had tried the above-referenced physical modalities, but this had provided a poor response.¹⁴ On September 25, 2020, the applicant advised his family physician Dr. Singh that he had no improvement in his condition.¹⁵

24The respondent further submits that the applicant has not made any submissions about the goals of the treatment plans. The applicant’s submissions also did not address how these goals would be met, in light of his own evidence that he is not interested in the proposed treatment and given the physical treatment has not been helpful to date. The respondent’s position is that since the applicant experienced no improvement with the therapy received to date, he has not met his evidentiary burden to demonstrate entitlement to any of the disputed OCF-18s.

25The applicant’s initial submissions were silent on the goals of the OCF-18s, whether they would be met to a reasonable degree and whether the costs were reasonable. I note that the applicant’s reply submissions addressed the goals of the OCF-18s and why they were reasonable and necessary. However, the applicant failed to address whether they would be met to a reasonable degree since he is not interested in the proposed treatment, and he has not responded well to treatment to date.

OCF-18 for Acupuncture- remaining balance of $1,104.00

26Overall, I find that the applicant has failed to prove on a balance of probabilities that this OCF-18 is reasonable and necessary. The treatment goals were reasonable for the following reasons: the applicant does have significant back pain; reduced range of motion in the back; and it has had an effect on his sleep and employment. However, the applicant has failed to provide sufficient evidence of how these treatment goals will be met when he finds acupuncture treatment to cause more harm than improvement. Also, the applicant has failed to address how the overall costs are reasonable.

27The Case Conference Order incorrectly listed issue 1 as an OCF-18 for chiropractic treatment. The total costs of the OCF-18 which included: completion of the OCF-18; initial assessment chiro; chiropractic treatment; initial assessment physio; physiotherapy; exercise, multiple regions; and acupuncture was in the amount of $4720.24. The respondent approved the OCF-18 in the amount of $3,616.24 and maintained their denial with respect to the acupuncture treatment in the amount of $1,104.00 for 12 hours of treatment. The goals of the OCF-18 were: pain reduction; increased strength; increased range of motion; improved endurance; improved flexibility; and for the applicant to return to his activities of normal living.¹⁶

28The respondent relies on an s.44 assessment report completed by physician, Dr. Abram, dated August 24, 2020.¹⁷ The applicant advised Dr. Abram that he did not want any acupuncture treatment as he found it painful. The applicant also reported no improvement with the treatment he received to date, which is consistent with the records of Dr. Singh, Dr. Kamawi and Dr. Mohapatra. Dr. Abram concluded that the OCF-18’s remaining balance with respect to acupuncture treatment was not reasonable or necessary.¹⁸ It was not reasonable or necessary as the applicant himself advised it was painful. I also agree with the respondent that the records from Spinetec only show that he attended twice for acupuncture treatment in September 2019, and then never returned.¹⁹ I place significant weight on this as it would make sense that he would have stopped acupuncture treatment as he advised Dr. Abram, Dr. Kamawi, and Dr. Mohapatra that it was unhelpful.

29The applicant failed to provide any evidence that contradicts his statements to Dr. Abram. In fact, the applicant’s self-reporting with respect to acupuncture treatment was consistent with what he also advised Dr. Kamawi, and Dr. Mohapatra. I also note that the applicant has not produced any records from Dr. Singh, Dr. Kamawi, and Dr. Mohapatra wherein they recommended acupuncture treatment, despite the applicant finding it painful.

30The applicant’s submissions rely on the OCF-18 as evidence that it is reasonable and necessary. It is well-settled that an OCF-18 alone is insufficient evidence to prove that the treatment is reasonable and necessary. There has to be contemporaneous medical evidence to support that the OCF-18 is reasonable and necessary. The applicant had an opportunity in his reply to refer to any evidence beyond the OCF-18 itself but failed to do so. For all the reasons outlined above, the applicant is not entitled to the cost of the acupuncture treatment listed in this OCF-18.

31Next, I will consider whether the OCF-18 for physiotherapy is reasonable and necessary.

OCF-18 for physiotherapy in the amount of $4,134.72

32I find that on a balance of probabilities, the applicant is not entitled to this OCF-18. The treatment goals are reasonable as the applicant has reduced range of motion, significant pain complaints and this has affected his employment. However, the applicant has failed to address how the treatment goals will be met to a reasonable degree as he has advised Dr. Singh and Dr. Abram that physiotherapy, and acupuncture treatment aggravate his condition. The applicant also has not addressed the overall costs of the treatment and whether it is reasonable.

33The total cost of the OCF-18 was for $4,134.72 which consisted of: the completion of the OCF-18; chiropractic treatment; physiotherapy; acupuncture; and thumper self massage. The applicant in his reply withdrew the thumper self-massage as it was a duplication of services. The goals of the OCF-18 were: pain reduction; increased strength; improved endurance; improved flexibility, increased range of motion; and for him to return to his activities of normal living.²⁰

34I acknowledge that Dr. Kamawi discussed conservative treatment such as active physical therapy with the applicant.²¹ Dr. Moammer, a spinal surgeon at Grand River Hospital also noted that they had decided to proceed with non operative approaches including physiotherapy and home exercise program.²² I do further note that the applicant did advise Dr. Singh on May 4, 2020, that he was staying at home and does not want to do physiotherapy. He further advised that he does not do any exercises or physiotherapy as this aggravates his condition.²³ On August 21, 2020, Dr. Mohapatra recommended physical conditioning with emphasis on core strength.²⁴ I place significant weight on Dr. Singh’s record of May 4, 2020, as the applicant himself advised that physiotherapy aggravated his condition, and as such, the treatment that is being proposed is unreasonable as it aggravates his condition, rather than improving it.

35Dr. Abram found this OCF-18 not to be reasonable and necessary as there was no indication for ongoing passive treatment; the applicant did not want any acupuncture; and the thumper was a duplication of services.²⁵ I have already determined that the acupuncture treatment is not reasonable and necessary and I do not need to address the thumper as this has been withdrawn. I also do not find the chiropractic treatment to be reasonable and necessary as the applicant advised Dr. Singh on May 14, 2019, that this treatment worsened his back pain and as such, Dr. Singh advised him to avoid this treatment.²⁶ For all the reasons outlined above, the applicant is not entitled to this OCF-18.

36Next, I will consider whether the OCF-18 in the amount of $3,959.56 is reasonable and necessary.

OCF-18 for Hydrotherapy in the amount of $3,959.56.

37The applicant has failed to prove on a balance of probabilities that he is entitled to this OCF-18 for the reasons outlined below.

38The OCF-18 in the amount of $3,959.56 consisted of: $200.00 for completion of OCF-18; $1,795.56 for 12 hours of Hydrotherapy; $294.00 for documentation; $230.00 for progress report; and $1,440.00 for 12 hours of hydro-exercises, multiple body sites. The goals of the OCF-18 were: pain reduction; increased range of motion; to return to his activities of normal living; improved flexibility; endurance; improved body awareness; core stability; balance; and strength.²⁷

39The applicant has provided insufficient evidence to demonstrate that the goals of this OCF-18 can be met to a reasonable degree. I note that on August 21, 2020, Dr. Mohapatra recommended aqua therapy.²⁸ This is the only evidence that the applicant referred me to other than the OCF-18 to support that this is reasonable and necessary. I prefer the report of Dr. Abram as the applicant advised her that he was not interested in any exercise program including pool exercises. The applicant has also not addressed how the costs of this treatment are reasonable.

40Next, I will consider whether the OCF-18 for personal training is reasonable and necessary.

OCF-18 for personal training in the amount of $2,680.00

41The applicant is not entitled to this OCF-18. I agree with the respondent, that the applicant has failed to prove on a balance of probabilities that this OCF-18 is reasonable and necessary. Although I recognize the goals of the OCF-18 may be reasonable, the applicant has failed to address how these goals will be met and whether the costs are reasonable. In particular, the applicant himself advised Dr. Abram that he was not interested in any exercise activities whatsoever.

42The OCF-18 in the amount of $2,680.00 consisted of: $200.00 for completion of OCF-18; $200.00 for assessment; $1,920.00 for exercise, multiple body sites; and $360.00 for documentation. The goals of the OCF-18 were: increased strength; increased range of motion; strengthen and improve endurance/flexibility; return to his modified work activities; return to his pre-accident work activities; improve quality of life; and provide coping mechanisms for pain.²⁹

43On April 29, 2019, Dr. Singh recommended that the applicant complete exercises as tolerated.³⁰ On March 3, 2020, Dr. Kamawi, recommended exercises for the applicant.³¹ On May 4, 2020, Dr. Singh advised the applicant to exercise.³²

44Dr. Abram concluded that the OCF-18 was not reasonable and necessary as the applicant advised he was not interested in any exercise program. The applicant further advised that despite being given an exercise ball, he does not do this exercise because it caused him pain. The applicant also advised he was not motivated to do any walking and was not interested in any type of exercise activity. I place significant weight on this evidence as the applicant was advised by Dr. Singh and Dr. Kamawi prior to this assessment that he should engage in physical exercises, and he still decided not to do so.³³ As such, this demonstrates to me that even though Dr. Singh and Dr. Kamawi may have recommended this treatment, the applicant is not interested in it.

45It is well-settled that submissions are not evidence. The applicant has failed to provide any evidence that the goals of this treatment will be met to a reasonable degree and that the costs are reasonable.

46The applicant has alleged that the respondent was non-compliant with s.38(8) of the Schedule, and as such the consequences under s.38(11) are triggered. I will address this next.

The Respondent was compliant with s.38(8) of the Schedule

47The respondent was compliant with s. 38(8) of the Schedule for the reasons outlined below.

48Sections 38(8), (9), and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not. An insurer must also provide notice regarding the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary. Section 38(11)1 sets out that if the insurer fails to comply with subsection (8), it is prohibited from taking the position that the MIG applies. Section 38(11)2 states the insurer must pay for any incurred treatment expenses starting on the 11th business day after the day the insurer received the treatment plan and ending on the day the insurer gives a proper notice.

49The applicant submits that the denial letter of May 30, 2019, with respect to issue 1 is deficient and relies on the authority of Hedley v. Aviva³⁴. I find that this letter was compliant with s.38(8) and (9) of the Schedule. The letter advised the applicant that the insurer reviewed the treating practitioner’s list of injury and sequelae information listed in part 6 of the OCF-18 and there was insufficient evidence to confirm that his impairments were not predominately a minor injury. Further, the letter advised the applicant if he disagreed with this determination, he should provide compelling medical evidence that support his injuries are not minor and do not meet the MIG definition.³⁵

Interest

50Pursuant to section 51 of the Schedule, interest is payable on the overdue payment of benefits. As there are no benefits owing, no interest is payable.

The applicant is not entitled to an award under Regulation 664.

51Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 percent of the amount in which the person was entitled.

52As I have found that there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.

ORDER

53For the reasons set out above, the application is dismissed, and the applicant is not entitled to: