Citation: Al-Mosawi v. TD Insurance Meloche Monnex, 2022 ONLAT 20-004916/AABS

Licence Appeal Tribunal File Number: 20-004916/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:

Mustafa Al-Mosawi

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION AND ORDER

VICE-CHAIR:

Monica Ciriello

APPEARANCES:

For the Applicant:

Shahzad Ayub, Counsel

For the Respondent:

Naguena Alingary, Counsel

HEARD:

By Way of Written Submissions

1Mustafa Al-Mosawi, the applicant, was involved in an automobile accident on June 21, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). The applicant was denied certain benefits by TD Insurance Meloche Monnex, the respondent, and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The applicant was driving a motor vehicle when another vehicle collided with the rear of the applicant’s vehicle. The airbags did not deploy. The applicant did not lose consciousness. Neither police nor ambulance attended the scene of the accident. The applicant was assessed by his family physician, Dr. A. Hussain the following day with complaints of back pain, headaches, and pain in the leg, knee and right hip.

3The respondent submits that the treatment plans are neither reasonable nor necessary.

4The respondent removed the applicant from the Minor Injury Guideline (“MIG”) due to a pre-existing condition on August 17, 2017.

ISSUES

5The following issues are to be decided:

a. Is the applicant entitled to receive medical benefits in the amount of $4,135.39 for medical services - acupuncture recommended by Renew Integrative Health in a treatment plan submitted May 3, 2018?

b. Is the applicant entitled to receive medical benefits in the amount of $2,565.99 for medical services – acupuncture, recommended by Renew Integrative Health in a treatment plan submitted July 9, 2018?

c. Is the applicant entitled to receive medical benefits in the amount of $27,602.50, (less $18,023.50 approved by the respondent) for catastrophic determination assessments recommended by Omega Medical Associates in a treatment plan submitted September 4, 2019?

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

RESULT

6I find that the applicant is not entitled to:

a. $4,135. 39 for medical services;

b. $2,565.99 for medical services;

c. $9,579 for catastrophic determination assessments; and

d. Interest on any overdue payment of benefits.

ANALYSIS

Are the Treatment Plans Reasonable or Necessary?

7I find that the treatment plans are not reasonable or necessary for the reasons that will be discussed below.

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 that the OCF-18s are reasonable and necessary on a balance of probabilities.¹

$4,135.39 for Medical Services Submitted May 3, 2018 and $2,565.99 for Medical Services Submitted July 9, 2018

10I find that the applicant is not entitled to the treatment plans in the amount of $4,135.39 and $2,565.99.

11The applicant provides that these acupuncture treatment plans are specifically tailored to meet the applicant’s individual goals and treat his physical and psychological ailments, which will allow him to return to pre-accident work activities and activities of daily normal living. According to the applicant, he would be trapped in a cycle of physical pain without such treatment the applicant.

12The applicant provides little in terms of submissions in support of the treatment plans. Instead, citing the medical care provided by Dr. Hussain, as well as numerous specialists, including an Optometrist, Neurologist, Chronic Pain Specialist, Psychologist and Therapist. In reviewing the medical reports provided by the applicant, some of the conditions or symptoms treated by the physicians were unrelated to the motor vehicle accident.

13The respondent relies on an insurer’s examination assessment report completed by Dr. J Guerra, Orthopaedic Surgeon dated May 29, 2018.

14Dr. Guerra noted that the applicant suffered largely soft tissue injuries as a result of the accident. Dr. Guerra found no evidence of on ongoing musculoskeletal impairment that would necessitate further facility-based treatment as sought under the treatment plans.² Furthermore, the applicant reported to Dr. Guerra that he was able to complete household tasks, work and drive without issue. Dr. Guerra concluded that the treatment plan was neither reasonable nor necessary.³

15The respondent relied on 17-004357 v. Aviva General Insurance, “treatment plans by themselves do not prove that proposed treatment plans are reasonable and necessary. There should be corroborating contemporaneous and objective medical evidence to substantiate the necessity and reasonableness of the proposed treatment.”⁴

16In reviewing the medical reports, I find that acupuncture treatment is not mentioned by a physician and there lacks sufficient objective evidence to justify the treatment plans in dispute.

17The respondent submits that there is insufficient objective medical evidence to indicate that the applicant requires ongoing treatment. The applicant has already undertaken years’ worth of facility-based therapy and there is no evidence before the Tribunal that it has had a significant improvement to his symptoms. I am persuaded by the respondent’s argument that the applicant has achieved maximum therapeutic benefit and there would be no further significant clinical gains.

18I also find that the applicant has already achieved the goals set out in the treatment plan, to return to pre-accident work activities and activities of daily living. I find that the applicant has already resumed working, driving, and travelling following the motor vehicle accident, furthermore the applicant continues to live alone and cares for himself daily. Thus, these acupuncture treatment plans are not reasonable and necessary because the Applicant achieved the goals proposed in them, prior to their submission.

$9,579.00 for Catastrophic Determination Assessments, Submitted September 4, 2019

19I find that the applicant is not entitled to the unapproved balance of the catastrophic determination assessments in the amount of $9,579.00.

20The treatment plan was submitted in the amount of $27,602.50. The respondent partially approved this in the amount of $18,023.50 on September 11, 2019. The applicant sought the remainder.

21I note that the applicant did not make submissions on this treatment plan.

22The 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 assessment is reasonable and necessary.

Interest

23Section 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

24The application is dismissed, and I find the applicant is not entitled to: