Nosheen v. Unifund Assurance Company, 2022 CanLII 70283

Citation: Nosheen v. Unifund Assurance Company, 2022 CanLII 70283

Licence Appeal Tribunal File Number: 20-006590/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:

Fozia Nosheen

Applicant

and

Unifund Assurance Company

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Muhammad Alam, Counsel

For the Respondent: Jonathan Tatner, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1Fozia Nosheen, "the applicant", was injured in an automobile accident on March 31, 2018. The applicant's vehicle was t-boned by a left turning motor vehicle as she was passing through an intersection on a green light. The applicant's airbags deployed causing her body to jolt back and forth. The applicant claimed that she suffered injuries to her neck, ribs, sternum, wrist, elbow, lower and upper back, knees and legs as a result of the automobile accident.

2The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 ("Schedule")¹ from Unifund Assurance Company, "the respondent". The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service ("Tribunal"). The applicant sought a finding that the disputed treatment plans are reasonable and necessary for her accident-related injuries.

3The applicant was involved in a separate automobile accident one month prior on February 27, 2018.

4The respondent removed the applicant from the Minor Injury Guideline ("MIG") on about July 29, 2019 due to psychological symptoms.

PRELIMINARY ISSUE

5All parties participating in a Tribunal proceeding are expected to adhere to the Case Conference Report and Order governing the timeliness and efficiency of the proceedings. Should there be a delay, or a foreseeable reason for a delay, the parties have a duty to ensure the timeliness and efficiency of the proceeding is maintained, by notifying the other party.

6The parties agreed that by January 15, 2021, the parties would disclose any other documents that have not been previously disclosed, but which they intend to present as evidence at the hearing.

7Tab 7 of the applicant's written submissions, being the updated clinical notes and records of the applicant's family physician were produced for the first time to the respondent on March 11, 2021 after the exchange deadline.

8The applicant offered no explanation as to the reasons for the delay of not meeting the deadlines set out in the Case Conference Report and Order and failed to notify the respondent.

9The respondent sought to have the Tribunal disregard the submissions in Tab 7 in its entirety. The respondent argues that the delay was prejudicial and deprived it of its ability to review the records and have the applicant do a potential insurer's examination on these records.

10While parties must adhere to the Tribunal Orders, there is discretion afforded to what an Adjudicator considers to a reasonable level of recourse. I find that although the applicant missed the deadline, the respondent failed to provide any evidence of specific prejudice. As a result, I will admit the evidence in Tab 7, however, I will consider the non-compliance with a previous Order when assessing the weight of the evidence.

11I would be remiss if I did not caution the parties that any time there is non-compliance with a previous Order, parties risk exclusion of the submissions.

ISSUES

12The following issues are outstanding and to be decided:

a. Is the applicant entitled to $1,553.72 for chiropractor services at Total Care Management recommended by Dr. T. Dhotar, chiropractor, in a treatment plan ("OCF-18") dated June 22, 2019?

b. Is the applicant entitled to $1,553.72 for chiropractor services at Total Care Management recommended by Dr. Dhotar, chiropractor, in an OCF-18 dated October 2, 2019?

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

RESULT

13I find that the applicant is not entitled to:

a. $1,553.72 for Chiropractor Services;

b. $1,553.72 for Chiropractor Services; and

c. Interest on any overdue payment of benefits.

ANALYSIS

Are the Treatment Plans Reasonable and Necessary?

14Sections 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.

15The applicant bears the onus of proving entitlement to the proposed treatment by proving both OCF-18s are reasonable and necessary on a balance of probabilities.²

$1,553.72 for Chiropractor Services Submitted June 22, 2019

16I find that the applicant is not entitled to the treatment plan in the amount of $1,553.72, as the benefits are not reasonable and necessary.

17The treatment plan is for chiropractor services. The applicant provides that this service is reasonable and necessary for her accident-related injuries. The applicant claims that since the accident, her pain has progressed to chronic status, and she experiences various physical and psychological impairments to complete her activities of daily living. The goal of the treatment plan is pain reduction, increased range of motion and increase in strength.

18The applicant's family physician referred her to a pain specialist stating the reason for consultation as lower back pain, interfering her with her daily activities.³

19The applicant relies on 17-004828 v. Aviva Insurance Canada⁴ in its decision the tribunal held that "pain relief can be a legitimate treatment goal, and therefore reasonable and necessary even if it does not promote recovery".

20The respondent submits that the applicant has not satisfied the onus that the treatment plan is reasonable or necessary. The respondent relies on the medical x-ray information from the date of the accident, that found no fractures or abnormalities to the applicant's cervical spine, left hand and left wrist.⁵

21The respondent's assessor, Dr. R. Saplys an orthopaedic surgeon, completed an in-person assessment on the applicant and a documentary review on October 30, 2018. Dr. Saplys found the "claimant sustained uncomplicated soft tissue injuries, that being, musculoligamentous strains of the paracervical and paralumbar structures as well as bilateral shoulder strains and a left hand or finger strain."⁶ Dr. Saplys concluded that the applicant suffered from no functional limitations or restrictions, and no neurological deficits.

22The respondent also highlights errors and or omissions within the applicant's submissions, notably that the applicant failed to mention her motor vehicle accident of February 27, 2018, approximately a month prior to the subject accident in her pre-accident health history. In addition, the respondent submits that the applicant failed to produce the ambulance call report and the records from the hospital visit from the date of the accident.

23The onus is on the applicant to prove entitlement and I have not been persuaded on a balance of probabilities that the applicant's evidence demonstrated that this treatment plan is reasonable and necessary. I find that the applicant failed to submit medical evidence to support the need for the proposed treatment the OCF-18 submitted. A treatment plan alone is insufficient to establish entitlement. 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.

$1,553.72 for Chiropractor Services Submitted October 2, 2019

24I find that the applicant is not entitled to the treatment plan in the amount of $1,553.72 as the applicant has not met her burden to prove on a balance of probabilities that this treatment plan is reasonable and necessary.

25The treatment plan is for chiropractic services. The applicant provides that this service is reasonable and necessary for her accident-related injuries. The goal of the treatment plan is pain reduction, increased range of motion and increase in strength.

26The applicant included the findings of Dr. G. Karmy, a chronic pain specialist. Dr. Karmy completed a review of the applicants' pre-accident medical history, reviewed the accident details, corresponding injuries and asked the applicant questions about her activities and functional limitations. Dr. Karmy concluded that the applicant "suffers from chronic pain in neck, right shoulder, left shoulder, upper back, lower back, sacroiliac dysfunction, chronic pain syndrome, and sleep disorder caused by the accident."⁷ Dr. Karmy recommends a multidisciplinary approach which would include a combination of active rehabilitation passive physical modalities.⁸

27The applicant further submits that the respondent failed to review the updated paper review report and relied on its original findings of July 24, 2019 to deny the October 2, 2019 treatment plan.

28The applicant relies on Cowan and Motors Insurance Company⁹ and errs in its interpretation that the insurer has an ongoing duty to assess and re-assess a claim as and when new information is available. Therefore, according to the applicant the denial of the treatment plan by the respondent is deficient as the respondent did not obtain any updated medical records. While I agree that the respondent has an ongoing obligation to adjust the claim its refusal to review new information does not invalidate a denial.

29The respondent denied the October 2, 2019 treatment plan based on the insurer's examination of Dr. Saplys dated July 24, 2019. Dr. Saplys found that the applicant has not satisfied the onus that the treatment plan is reasonable or necessary as a result of this motor vehicle accident.

30The respondent submits that the applicant's updated medical records between the June 22, 2019 treatment plan and the October 2, 2019 treatment plan did not pertain to accident-related impairments.

31The respondent submits that the report of Dr. Karmy is not persuasive as the widespread finding of "chronic pain" across the applicant's body was not supported by medical evidence, no reference to medical records, no weight placed on medical documentation and/or results of Dr. Saplys assessment. Instead, it was based on the applicant's subjective accounts. The respondent relies on Thomas v. Aviva General Insurance where the adjudicator concluded that Dr. Karmy's report was not persuasive because it was based on the applicant's self-reports and the insurer's examination reports because the latter reports were more consistent with the medical evidence.¹⁰

32Furthermore, the respondent argues that the second treatment plan is duplicative and excessive as it is for the same amount, for the same clinic and filled out by the same chiropractor as the first treatment plan.

33I find the medical opinion of Dr. Saplys to be persuasive. The conclusions of Dr. Karmy are based on subjective self-reports from the applicant during an assessment that took place approximately 1 year and 7 months after the accident. Further, I question why Dr. Karmy did not place any weight on the results of Dr. Saplys findings.

34I accept that much of the treatment plan is redundant or a duplication of service, and there is no evidence before the Tribunal as to why a second treatment plan of the same is needed, such as to increase frequency of appointments.

Interest

35Section 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.

Costs

36The respondent submits that the applicant acted unreasonably and in bad faith given that she failed to comply with the Case Conference Report and Order and sought costs in the amount of $5,000.

37Costs are payable only when a party during a proceeding exhibits conduct that is characterized as unreasonable, frivolous, vexatious, or in bad faith. I see no evidence of conduct which meets any of these criteria. Therefore, I find no costs are payable.

ORDER

38The application is dismissed, and I find the applicant is not entitled to:

a. $1,553.72 for Chiropractor Services;

b. $1,553.72 for Chiropractor Services; and

c. Interest on any overdue payment of benefits.

39The respondent's request for costs is denied.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.
3. 3Page 6 of the applicants submissions.
4. 42018 CanLII 81908 (ON LAT).
5. 5Page 70 of the respondent submissions.
6. 6Para. 36 of the respondent submissions.
7. 7Tab 4 of the applicants submissions.
8. 8Tab 4 of the applicants submissions.
9. 9(FSCO A09-003237, October 15, 2010).
10. 102021 CanLII 19428 (ON LAT). Para. 25.