Citation and Parties
Licence Appeal Tribunal File Number: 21-003553/AABS
In the matter of an application per subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Deqo Ali Wehelie
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Michael Beauchesne
APPEARANCES:
For the Applicant:
Mike Pryce, Paralegal
For the Respondent:
Karanveer Padda, Counsel
HEARD:
By way of written hearing
OVERVIEW
1Ms. Deqo Ali Wehelie, the applicant, was involved in an automobile accident on February 21, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule—Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Aviva General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY MATTER
2The respondent claims the applicant’s submission relies on evidence that was never shared with the respondent. As such, the respondent seeks to exclude this evidence, which consists of the clinical notes and records of Dr. Asmal Mohamed (family physician), the Releva Chronic Pain Centre, and a prescription summary from Central Weston Pharmacy. The respondent argues that the case conference report and order (released July 19, 2022), obligated the parties to exchange additional items (i.e., disclosures) no later than 45 days prior to the hearing date set by the Tribunal, and that the clinical notes and records in particular, were twice requested from the applicant—once in the respondent’s case conference summary (dated October 28, 2021) and then again on December 15, 2022.
3The applicant did not provide a submission on the respondent’s request to exclude evidence.
4For the reasons which follow, I find the respondent’s arguments are not persuasive, and that the applicant’s evidence should not be excluded.
5I disagree with the respondent’s claim that it was “never provided with these records despite numerous requests.” The records at issue were sent by the applicant to the respondent via email on February 24, 2023. Rule 9.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended (the “Rules”), requires the parties to, at least 10 days before the hearing or at any other time ordered by the Tribunal, “disclose to the other parties, the existence of every document and anything else the party intends to present as evidence at the hearing.”
6The Notice of Written Hearing—sent via email to the parties on July 22, 2022—established March 24, 2023, as the hearing date. The case conference report and order established that the applicant’s submissions and evidence were due to be served on the respondent and filed with the Tribunal no later than 30 calendar days prior to the scheduled hearing (i.e., February 22, 2023). As such, the applicant’s disclosures were two days late, and considering the respondent still had 13 calendar days to meet its submission deadline—and did not ask the Tribunal for a brief adjournment to consider the applicant’s evidence—I cannot conclude this constitutes a “breach of procedural fairness” or results “in prejudice towards the respondent” to such a degree that excluding the evidence would be a proportionate remedy.
7Further, the case conference report and order indicates both parties declined to seek production orders from the Tribunal. They were content to send each other a list and share their agreed-upon disclosures no later than 90 days from the date of the case conference. The respondent did not point me to any evidence that demonstrates the records at issue were, in fact, requested as such.
8As well, the 45-day production deadline in the case conference report and order is for responsive items. That is to say, items like addendums and updates that respond to evidence that has already been produced. I do not agree the respondent was seeking updated records from Dr. Mohamed because the respondent’s case conference summary requests records from this physician that pre-date the accident by three years and continue up to “present.” This does not strike me as a request for updated records, but rather, the entire file. As such, the 45-day timeline is not relevant to these records.
9I therefore dismiss the respondent’s exclusion request and order that the applicant may rely on her evidence as submitted.
ISSUES
10The issues in dispute are:
i. Is the applicant entitled to chiropractic services in the amount of $4,655.00, proposed by Kneed Wellness in a treatment plan (the “OCF-18”) submitted on February 26, 2019, and denied on April 30, 2019?
ii. Is the applicant entitled to assistive devices in the amount of $4,530.89, proposed by Kneed Wellness in an OCF-18 submitted on September 12, 2019, and denied on November 20, 2019?
iii. Is the applicant entitled to a chronic pain assessment in the amount of $2,460.00, proposed by Kneed Wellness in an OCF-18 submitted on December 20, 2019, and denied on January 6, 2020?
iv. Is the applicant entitled to a neurological assessment in the amount of $2,130.00, proposed by Kneed Wellness in an OCF-18 submitted on September 23, 2019, and denied on November 20, 2019?
v. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
11The applicant is not entitled to any of the medical benefits in dispute.
12Since there are no benefits payable, there is no interest or award that is payable.
ANALYSIS
The treatment plans are not reasonable and necessary
13I find that the applicant has failed to show the treatment plans in dispute are reasonable and necessary.
14Section 14 of the Schedule compels an insurer to pay medical benefits to—or on behalf of—an insured person who sustains an impairment resulting from an accident. Section 15(1) of the Schedule further explains that these medical benefits shall pay for all reasonable and necessary expenses resulting from the accident. The applicant bears the onus of proving on a balance of probabilities that the claimed medical benefits are reasonable and necessary. In order to do so, an applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.
15The applicant did not provide submissions on each of the OCF-18 in dispute. She instead made a global argument to support her entitlement to all the OCF-18s. The applicant submits she has, on a balance of probabilities, met the burden of proof for entitlement to all the benefits in dispute based on the medical evidence of Releva Chronic Pain Clinic, Kneed Wellness, MCI The Doctors Office, Ms. Mandeep Singh (no particulars provided), and supporting documents.
16The applicant’s submissions point to a disability certificate (the “OCF-3”) to confirm her injuries and impairments, which include whiplash associated disorder with complaints of neck pain and musculoskeletal signs, superficial injury of neck, cervicalgia, sprain and strain of the thoracic and lumbar spine areas as well as sacroiliac and shoulder joints, dorsalgia, sciatica, lumbago with sciatica, low back pain, injury and contusion to multiple structures of her knee (not specified which knee), injury to rotator cuff muscles and tendons (not specified which shoulder), superficial injury of shoulder and upper arm (not specified which shoulder or arm), pain in joint (unspecified as to which joint of which body part), myalgia nonorganic sleep disorders, nervousness, restlessness and agitation, irritability and anger, acute pain, malaise and fatigue, dizziness and giddiness, and tension type headache. The applicant’s submissions do not indicate who completed the OCF-3, when it was completed, or what medical evidence was relied upon to arrive at this list of injuries and impairments.
17The applicant’s submissions provide a list of self-reported pain complaints made to Releva Chronic Pain Centre, MCI The Doctors Office, and Ms. Singh. These complaints include generalized pain all over her body and specifically intermittent upper and lower back pain, constant neck and shoulder pain, intermittent pain in her knee and waist, and migraine headaches. The applicant says she received several diagnoses at the Releva Chronic Pain Centre, including myofascial pain syndrome in her neck and shoulders, neuropathic pain in her back, legs, and left ankle, and mechanical back pain. The applicant lists medication she continues to take, which consist of Tylenol-3, Lyrica, Diclofenac, Adalat, Omempic, and a variety of nerve blocks.
18As well, the applicant submits Ms. Singh offered diagnoses of adjustment disorder (with mixed anxiety and depressed mood, persistent) and a specific phobia (situational type—travelling in a motor vehicle) in the clinical notes and records.
Chiropractic services
19I am not convinced this OCF-18 is reasonable and necessary.
20I find the applicant’s evidence is insufficient to meet her onus. Her submissions do not point to medical evidence that supports the injuries and impairments in the OCF-3. The applicant broadly references the medical reports of Releva Chronic Pain Clinic, Kneed Wellness, MCI The Doctors Office, and Ms. Singh, but does not tell me what evidence she relies on from Kneed Wellness or MCI The Doctors Office to support her case. Similarly, the applicant did not point me to who made the diagnoses at Releva Chronic Pain Clinic, or the supporting medical evidence for these diagnoses. The applicant does not explain how the diagnoses offered by Ms. Singh are relevant to this OCF-18.
21The applicant does not make submissions on how the treatment in this OCF-18 is relevant to her accident-related injuries. The applicant does not provide a submission on the reasonableness of the OCF-18’s goals or whether they can reasonably be met. The applicant does not adequately address the reasonableness of the costs.
22I prefer the respondent’s evidence, which points to an insurer’s examination (dated June 24, 2019) by Dr. Jacqueline Auguste (orthopaedic surgeon), who physically examined the applicant and found the OCF-18 to not be reasonable and necessary owing to diagnostic tests of the applicant’s left rotator cuff and knees that produced normal findings, and a determination that the applicant has a full range of motion in her neck, middle and lower back, and legs with no tenderness or pain symptoms. On a balance of probabilities, I find this evidence does not support the need for chiropractic treatment.
23I therefore conclude the OCF-18 for chiropractic services is not reasonable and necessary.
Assistive devices
24I am not persuaded that this OCF-18 is reasonable and necessary.
25The applicant is silent on assistive devices in her submission. She does not identify any devices or explain how they are relevant to her accident-related injuries. The applicant does not provide a submission on the reasonableness of the OCF-18’s goals or whether they can reasonably be met. The applicant does not adequately address the reasonableness of the costs.
26I prefer the respondent’s evidence, which relies on a multidisciplinary report (dated November 13, 2019) by Mr. Robert Campos (occupational therapist) and Dr. Auguste. Mr. Campos performed an in-home assessment, during which the applicant demonstrated normal active range of motion in her shoulders, hips, elbows, knees, wrists and hands, and feet and ankles. The applicant also demonstrated greater than two-thirds range of motion in her neck and lower back, and was observed to have no difficulties moving around her home safely and independently, including on stairs and in moving from a sitting to a standing position. Mr. Campos did not believe assistive devices were medically reasonable and necessary to address the applicant’s accident-related injuries. I find this evidence, on a balance of probabilities, does not support the need for assistive devices.
27I therefore conclude the OCF-18 for assistive devices is not reasonable and necessary.
Chronic pain assessment
28I am not convinced this OCF-18 is reasonable and necessary.
29The applicant points to a previous Tribunal decision (file no. 19-005819/AABS) where the applicant was found to be entitled to a chronic pain assessment because there was consensus the applicant had chronic pain as well as medical evidence that established chronic pain and/or chronic pain syndrome. The applicant submits that she too has met her onus based on the medical evidence of Releva Chronic Pain Clinic, Kneed Wellness, MCI The Doctors Office, Ms. Singh, and other unspecified supporting documents.
30I disagree. The evidence offered in the applicant’s submission is largely self-reports of pain made to Releva Chronic Pain Centre and MCI The Doctors Office. The only objective medical evidence offered by the applicant are the earlier-mentioned diagnoses from the Releva Chronic Pain Clinic and Ms. Singh, and the applicant’s submissions do not point me to any evidence that substantiates Ms. Singh is qualified to offer these diagnoses, what information Ms. Singh relied on to form these diagnoses, or how these diagnoses are relevant to a chronic pain assessment. The applicant does not provide a submission on the reasonableness of the OCF-18’s goals or whether they can reasonably be met through a chronic pain assessment. The applicant does not adequately address the reasonableness of the costs.
31I prefer the respondent’s evidence, which consists of an insurer’s examination report dated March 9, 2020, by Dr. Pravesh Jugnundan (family physician), an insurer’s examination report dated January 20, 2022, by Ms. Nicole Azizli (psychologist), and an insurer’s examination report dated September 13, 2022, by Dr. Pankaj Bansal (family physician). I find these reports persuasive because there is consensus among three different practitioners sustained over a 30-month period that the OCF-18 is not reasonable and necessary based on objective medical evidence. Each of these examinations involved clinical investigations and objective testing to assess the applicant’s complaints of pain—two from a physical perspective and the other from a psychological perspective. The respondent also produced diagnostic imaging reports that show normal results for the applicant’s rotator cuffs in both shoulders, her cervical spine, and her pelvis. I find this evidence, on a balance of probabilities, does not support the need for a chronic pain assessment.
32I therefore conclude the OCF-18 for a chronic pain assessment is not reasonable and necessary.
Neurological assessment
33I am not persuaded that this OCF-18 is reasonable and necessary.
34The applicant’s submissions make two references to diagnoses of neuropathic pain by the Releva Chronic Pain Centre—one in her left ankle and the other in her back and legs. The applicant’s submissions do not point me to where I can substantiate these diagnoses in Releva’s records, who made these diagnoses, or the medical evidence relied upon to arrive at these diagnoses. The applicant does not provide a submission on the reasonableness of the OCF-18’s goals or whether they can reasonably be met through a neurological assessment. The applicant does not adequately address the reasonableness of the costs.
35I prefer the respondent’s evidence, which consists of an insurer’s examination conducted by Dr. Robert Yufe (neurologist) on November 5, 2019. Dr. Yufe conducted a neurological examination of the applicant, and his impression was that there were no objective signs of cervical radiculopathy, peripheral neuropathy, or entrapment neurology as a direct result of the accident. To me, on a balance of probabilities, this evidence does not support the need for a neurological assessment.
36I therefore conclude the OCF-18 for a neurological assessment is not reasonable and necessary.
Interest
37There are no benefits payable, therefore no interest is owing.
Award
38Since there are no benefits found to be owing, the applicant’s claim for an award must fail.
ORDER
39The application is dismissed.
Released: October 31, 2023
Michael Beauchesne
Adjudicator