Jahlani Malcolm-Joseph v. Aviva General Insurance Company, 2022 CanLII 49948

Citation: Joseph v. Aviva General Insurance Company, 2022 ONLAT 20-003264/AABS

Licence Appeal Tribunal File Number: 20-003264/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:

Jahlani Malcolm-Joseph

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

VICE-CHAIR:

Monica Ciriello

APPEARANCES:

For the Applicant:

Lisa Holland, Counsel

For the Respondent:

Nabila Majidzadeh, Counsel

HEARD:

By Way of Written Submissions

BACKGROUND

1The applicant was injured in an automobile accident when he was hit by a vehicle while skateboarding on March 17, 2019. The applicant indicated that he was hit on his left side but did not lose consciousness.

2Lakeridge Hospital records provide that there was no report of head injury, no loss of consciousness, no obvious or reported injuries. From March until July 2019 the applicant attended the walk-in clinic at Appletree Medical Group due to neck, back, shoulder and left knee pain. The clinic also reviewed the ultrasound results of the applicant’s left shoulder, and left knee, the medical records indicate they were normal and unremarkable.

3The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”)¹ from Aviva Insurance Company, the respondent. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

4The respondent agreed to remove the applicant from the Minor Injury Guideline (“MIG”) due to severe anxiety, post-traumatic stress and difficulty coping with pain. The applicant submitted treatment plans for various services that proposed funding outside the MIG. The respondent denied the treatment plans on the basis that the requested treatment plans were not reasonable or necessary pursuant to the Schedule.

5A case conference was held on January 28, 2021, and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

6The following issues are to be decided:

(i) Is the applicant entitled to a medical benefit in the amount of $3,977.76 for chiropractic services, recommended by MedEx Health Services in a treatment plan (“OCF-18”) submitted January 27, 2020?

(ii) Is the applicant entitled to a medical benefit in the amount of $3,399.00 for chiropractic services, recommended by MedEx Health Services in an OCF-18 submitted on September 28, 2020?

(iii) Is the applicant entitled to a medical benefit in the amount of $690.00 for assistive devices, recommended by MedEx Health in an OCF-18 submitted on June 12, 2020?

(iv) Is the applicant entitled to a medical benefit in the amount of $947.34 for psychological services recommended by MedEx Health Services in an OCF-18 submitted September 16, 2020?

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

RESULT

7I find the applicant is not entitled to:

i. $3,977.76 for chiropractic services;

ii. $3,399.00 for chiropractic services;

iii. $690.00 for assistive devices; and

iv. $947.34 for psychological services;

v. Interest on any overdue payment of benefits.

ANALYSIS

Are the Treatment Plans Reasonable or Necessary?

8Sections 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.

9The applicant bears the onus of proving entitlement to the proposed treatment by proving both OCF-18s are reasonable and necessary for the injuries he sustained in the accident on a balance of probabilities.²

$3,977.76 For Chiropractic Services Submitted January 27, 2020

10I do not find that the applicant is entitled to the treatment plan in the amount of $3,977.76.

11The applicant submitted that the treatment plan in dispute is reasonable and necessary to gradually reduce the pain in his left shoulder, back and knee, and assist in his return to regular activities.

12The applicant relied on J.T. v Aviva General Insurance ³ which provides that treatment plans for physical rehabilitation were reasonable and necessary for chronic pain with psychological overlay. The respondent acknowledges that the applicant suffered psychologically as a result of the accident, but disputes that the applicant provided evidence of chronic pain or injury.

13The respondent submitted that no physician that assessed the applicant has diagnosed him with a chronic pain disorder. The respondent submits that no weight should be given to claims of alleged chronic pain. The respondent provided that “no testing to assess chronic pain, or description of the reasons for this diagnosis was provided by the family physician or any other source […] That is, no practitioner prepared any evidence contemporaneously with the treatment plans that assesses the applicant for chronic pain.”⁴

14The respondent relied on the IE reports of Dr. Abuzgaya, an Orthopedic Surgeon and Dr. Yahmad, a Neurologist, both concluded that that the applicant has reached maximal medical recovery for his injuries. Therefore, the treatment plans were not reasonable or necessary.

15I find that the applicant failed to submit medical evidence to support the need for the proposed treatment the OCF-18 submitted. A treatment plan without more, is not enough to establish treatment.⁵ The presence of objective supporting evidence to justify treatment is key to determining whether the medical benefit is reasonable and necessary. In the present case, the applicant does not provide the Tribunal evidence in support of the treatment plan, there is no evidence of chronic pain, or musculoskeletal impairment.

16I find the medical opinion evidence, of Dr. Abuzgaya, an Orthopedic Surgeon and Dr. Yahmad, a Neurologist, compelling. I find on a balance of probabilities that the applicant has reached maximal medical recovery for his physical injuries. If the applicant were to continue treatment, any improvement would be negligible at best. Given these findings, I am not persuaded that this treatment plan is reasonable and necessary.

$3,399.00 For Chiropractic Services, Submitted September 28, 2020

17I do not find that the applicant is entitled to the treatment plan in the amount of $3,399.00.

18The applicant submitted that the treatment plan in dispute is reasonable and necessary as he continues to experience headaches, and pain in his neck, back, left shoulder and left hip. This prevents him from returning to his pre-accident level of functioning, including employment. The applicant submitted records from a physician visit in April 2021, these records were not provided by the production deadline as set out by the Tribunal.

19The applicant relied on 16-002278 v. Certas Home and Auto Insurance⁶ suggesting that an applicant with physical symptoms requires physical support to assist the applicant’s return to work. The applicant attempted to return to modified work in a reduced capacity and reduced hours following the accident but was unable to continue working.

20The respondent submitted that there is no medical evidence provided by the applicant to support the need for the proposed treatment plan. The applicant has not visited a physician relating to the alleged injuries sustained in the accident since July 27, 2019, and there is a large gap in the medical records and the submissions of the treatment plan in 2020. The respondent again relied on the IE reports of Dr. Abuzgaya, and Dr. Yahmad. Dr. Yahmad concluded that the applicant did not sustain an impairment as a direct result of the accident. Both concluded that the treatment plans were not reasonable or necessary.

21I again find that the applicant failed to submit medical evidence to support the need for the proposed treatment in this OCF-18. Instead, the applicant solely relied upon the submitted treatment plan itself. I have concerns about the gap in time between a treatment plan prepared in 2020, and the last visit to a physician relating to the applicant’s injuries in July 2019.

22As a result, I am not persuaded that the applicant has met his burden to prove on a balance of probabilities that this treatment plan is reasonable and necessary.

$690.00 For Assistive Devices Submitted on June 12, 2020

23I do not find that the applicant is entitled to the treatment plan in the amount of $690.00.

24The applicant stated he incurred the cost of the assistive devices for his personal use at home, including an aqua pillow, bio freeze gel, exercise ball, exercise equipment, TENS and head thumper.

25In support of its denial, the respondent stated that there is no evidence that the applicant incurred any expenses. The respondent submitted email correspondence that was sent to the applicant on January 21, 2021, requesting confirmation that the “treatment plan in the amount of $690 for assistive devices has been incurred.”⁷ The applicant did not respond to the initial request, eventually the applicant responded on May 4, 2021, stating that he paid out of pocket for the assistive devices. On June 14, 2021, the respondent sought clarification on what the applicant received, the amount paid and any receipts. The applicant did not respond, and no further evidence was submitted by the applicant to the Tribunal.

26I find no evidence that the applicant incurred any expenses for the assistive devices. Further the treatment plan is not referenced in any physician notes and fails to identify how the assistive devices will reduce pain, increase range of motion and strength to assist the applicant’s return to pre-accident activities. As a result, I find that the applicant has not met his burden to prove on a balance of probabilities that this treatment plan is reasonable and necessary.

$947.34 For Psychological Services, Submitted September 16, 2020

27I do not find that the applicant is entitled to the treatment plan in the amount of 947.34.

28The treatment plan recommended 16 psychotherapy treatment sessions over 12 weeks for a total of $3,042.59, the respondent paid $2,095.25.

29The provider, Zahra Kolahdouz is a registered psychotherapist not listed in the Financial Services Commission of Ontario, Professional Services Guideline. Upon review of Zahra Kolahdouz’s curriculum vitae the respondent agreed to pay a higher hourly rate of $99.75. The applicant failed to provide or offer a different rate. Further, the applicant did not address the hourly rate in his written submissions.

30The respondent relied on J.A. and Aviva, which provides that the Guidelines expressly state, “the amounts payable by an insurer related to services not covered by the guideline are to be determined by the parties involved.”⁸

31It is clear that services proposed which are not covered by the Guideline are subject to negotiation. On its own accord the respondent did agree to pay a higher hourly rate of $99.75. I agree with the respondent that the applicant’s failure to disagree or offer a different rate is implied consent.

32I find the applicant agreed to this higher rate and is only entitled to the hourly rate for an unregulated professional, which is $99.75 per hour.

Interest

33Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments. There being no overdue benefits payments, no interest is payable.

ORDER

34The application is dismissed, and I find the applicant is not entitled to:

(i) $3,977.76 for chiropractic services;

(ii) $3,399.00 for chiropractic services;

(iii) $690.00 for assistive devices;

(iv) $947.34 for psychological services;

(v) Interest on any overdue payment of benefits.

Released: June 3, 2022

__________________________

Monica Ciriello

Vice-Chair

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.
3. 3J.T. v Aviva General Insurance, 2019 CanLII 122730 (ON LAT)
4. 4A.G. v Aviva Insurance Canada, 2020 CanLII 35478 (ON LAT)
5. 5See: 17-002689 and Aviva Insurance, 2018 CanLII 2311 at para. 15.
6. 616-002278 v Certas Home and Auto Insurance, 2017 CanLII 77359 (ON LAT).
7. 7Tab 12 Respondent submissions: Emails between Applicant’s and Respondent’s Counsel, dated January 21, 2021.
8. 8J.A. vs. Aviva Insurance Company, 2020 CanLII 12726 (ON LAT).