Citation: Hammoud v. Cooperators General Insurance Co., 2023 ONLAT 21-010919/AABS

Licence Appeal Tribunal File Number: 21-010919/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:

Hassan Hammoud

Applicant

and

Cooperators General Insurance Co.

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Applicant:

Mark Stoiko, Counsel

For the Respondent:

Julianne Brimfield, Counsel

HEARD:

By way of written hearing

OVERVIEW

1Hassan Hammoud, the 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) (the “Schedule”). The applicant was denied benefits by the respondent, Cooperators General Insurance Co., and applied to the Licence Appeal Tribunal—Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to $21,800.00 for a catastrophic determination examination as proposed by Meditecs Independent Medical Examinations, in a treatment plan (the “OCF-18”) submitted on August 8, 2021, and denied on August 18, 2021?

ii. Is the respondent liable to pay an award pursuant to Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3The applicant is not entitled to the assessments, form fees, or travel expenses proposed in the disputed OCF-18.

4The respondent is not liable to pay an award.

ANALYSIS

Is the applicant entitled to an examination to determine catastrophic impairment?

5No. The applicant is not entitled to the examination he seeks to determine if he is catastrophically impaired.

6Section 25(1)5 of the Schedule requires the respondent to pay reasonable fees charged for preparing an application under section 45 of the Schedule to determine whether the applicant has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose. This is to be read in combination with section 25(5)(a), which limits the cost of any one assessment or examination to $2,000.00.

7The applicant has not yet undertaken any assessments for catastrophic impairment determination to make an application under Section 45(1) of the Schedule. Therefore, the onus is on the applicant to show that each assessment proposed in the OCF-18 is reasonable and necessary to determine whether he is catastrophically impaired.

8The reasonableness and necessity of treatment must be held to an established standard which requires:

i. The treatment goals as identified must be reasonable;

ii. The treatment goals can be met to a reasonable degree; and

iii. The overall costs of achieving those goals are reasonable.

9Before examining each of the assessments that combine to form the disputed OCF-18, I would like to address two ancillary matters raised by the applicant. The first pertains to a discrepancy in the cost and number of assessments put before me, and the second relates to a position on causation taken by the applicant on a previous Tribunal decision involving the applicant’s claim, as well as a seemingly contradictory position on causation in an authority relied upon by the applicant.

OCF-18 discrepancies

10The OCF-18, completed by Dr. Joseph Paton (chiropractor) on August 4, 2021, lists 13 services in Part 12 that total $21,800.00.

11But these services, as described by Dr. Paton in the additional comments section of the OCF-18, total only 12 at a cost of $19,800.00, and include a psychiatric assessment, three occupational therapy assessments (in-home, situational, and functional cognitive), an orthopaedic assessment, a neurological assessment of the applicant’s legs, and a functional abilities assessment. Each of these assessments cost $2,000.00. Also included in these 12 services are a $2,000 fee proposed for a medical file review, a $2,000 fee to produce an executive summary report of the final impairment rating, two $200.00 fees to complete forms (a different OCF-18 and an OCF-19), and a $1,400.00 transportation fee.

12There is an unexplained $2,000.00 discrepancy between the total cost for assessments listed in Part 12 of the OCF-18 and the total cost I calculate for the assessments described by Dr. Paton in the additional comments section. I do not know what the additional $2,000.00 is for because neither party provided a clear explanation for this discrepancy—both offering only that there appears to be a duplication.

13As such, in my decision, I have addressed only the assessments described in the additional comments section because Part 12 of the treatment plan does not clearly describe the purpose of each assessment.

Previous Tribunal decisions

14In his submissions, the applicant explains he earlier had a separate appeal on this same claim before the Tribunal, and that the appeal involved treatment plans that were not found to be reasonable and necessary. The applicant’s submissions go on to say the Tribunal nevertheless found the accident was a necessary cause of his current pain complaints, and that I should be guided by that finding when considering the merits of this appeal.

15I am also alive to the authority presented by the applicant—Z.J. v Aviva Insurance Company of Canada, 2020 CanLII 37597 (ONLAT)—which reasons it is unfair to require him to prove causation to access funding because this is what the assessments at issue are intended to determine.

16This approach strikes me as the applicant trying to have it both ways. On one hand, the applicant advocates that I should find the accident was a necessary cause of his pain in this hearing because the Tribunal arrived at this finding in an earlier hearing that dealt with his claim. On the other hand, the applicant argues that I should put weight on a separate Tribunal decision that found causation is a matter to be determined in the context of a potential future hearing on the issue of whether the applicant meets the threshold for catastrophic impairment.

17I disagree that I should place weight on the Tribunal’s earlier finding that the accident was a necessary cause of the applicant’s pain. The matter before me is de novo, meaning I am deciding the issues anew. I find that to do otherwise as the applicant suggests would be an error of law. Therefore, I have proceeded on this matter with the understanding that the applicant continues to bear the onus of proof for all aspects of his case, including causation.

18It follows then, that I also disagree with the authority put before me by the applicant. Section 25(1)5 of the Schedule pertains to an application made under section 45 of the Schedule. And section 45 of the Schedule restricts an application for catastrophic determination to an insured person who sustains an impairment as a result of an accident. Therefore, the applicant must show that the assessments proposed to determine catastrophic impairment relate to injuries caused by the accident in order to be reasonable and necessary.

19I now move on to analyze each of the assessments proposed as part of the disputed OCF-18.

Psychiatry assessment

20I find the psychiatric assessment is not reasonable and necessary.

21To show the psychiatric assessment proposed by Dr. Paton is reasonable and necessary, the applicant relies on a psychological report (dated March 15, 2021) by Dr. Judith Pilowsky (psychologist) that offered diagnoses of persistent moderate somatic symptom disorder with predominant pain and post-traumatic stress disorder. However, I am not persuaded by these diagnoses because, in his submissions, the applicant did not specify evidence that substantiates these mental health conditions resulted from the accident.

22The applicant also argues that his reluctance to pursue physical treatment for his injuries is attributable to his “diagnosis,” but he does not specify which of the two diagnoses offered by Dr. Pilowsky he means. The applicant then points to a report (dated February 11, 2022) by Dr. Scott Cook (physiatrist) that notes the applicant’s continuing struggles with “kinesiophobia” and lack of exercise due to pain. This evidence is unclear. There is no elaboration as to what kinesiophobia is, its relationship with the accident or the applicant’s exercise difficulties, who made the diagnosis, or if a physiatrist is even qualified to diagnose a psychiatric disorder like a phobia. As such, I do not find this argument to be convincing.

23The applicant also relies on the clinical notes and records of his family physician and the specialists he has seen in the “interim” to show the proposed psychiatric assessment is reasonable and necessary. But I could not consider this evidence in my analysis because the applicant did not point to any specifics in his evidence brief. Further, I cannot interpret what period is meant by “interim” or which specialists the applicant refers to other than Dr. Scott Cook (physiatrist), whose evidence I have already addressed.

24Given this evidence, I find the proposed physiatry assessment is not reasonable or necessary to determine if the applicant is catastrophically impaired. There is insufficient compelling medical evidence to establish the applicant sustained any mental health impairments from the accident that cause functional limitations. The applicant’s submissions did not directly and coherently speak to how the treatment goal of catastrophic determination can be met to a reasonable degree through this assessment, or to the reasonableness of the costs.

Occupational therapy assessments

25I find the occupational therapy assessments are not reasonable and necessary.

26The applicant’s submission refers to three occupational treatment plans. The applicant articulates that the purpose of the in-home assessment is to evaluate his current level of functioning in his daily life activities, as well as his concentration, persistence, and pace. He says the situational assessment aims to evaluate the same things as the in-home assessment, but in a community setting. The applicant explains that the cognitive assessment will be conducted to address any cognitive changes resulting from the accident.

27I am not convinced as to the reasonableness and necessity of these plans because the applicant’s sole rationale for all three examinations is to inform the psychiatry treatment plan, such that the physician can assign a WPI rating and assess the severity of the applicant’s impairment in the applicable domains of functioning. Since I have determined the psychiatry assessment is not reasonable or necessary, it logically follows that the reasonableness and necessity of the occupational therapy assessments diminishes considerably.

28Further, the applicant’s submissions do not point to medical evidence that shows he is struggling in any of the areas to be measured by these assessments, or that he sustained functional limitations caused by injuries related to the accident. On the contrary, the respondent produced an August 2020 report by Dr. Nancy Abram (family physician) that indicates the applicant reported returning to work on a full time-basis nearly every day after the accident, resuming driving, and being independent with self-care. To me, this evidence is more indicative of in-home, community and cognitive functioning that does not require an assessment to determine catastrophic impairment.

29Given this evidence, I find none of the occupational therapy assessments are reasonable and necessary to determine if the applicant is catastrophically impaired. The reason provided for the assessments is no longer relevant, and there is insufficient compelling medical evidence to establish the applicant sustained functional impairments in his daily living or cognitive activities. The applicant’s submissions did not directly and coherently speak to how the treatment goal of catastrophic determination can be met to a reasonable degree through this assessment, or to the reasonableness of the costs.

Orthopaedic assessment

30I find the orthopaedic assessment is not reasonable and necessary.

31The applicant submits his pain complaints are clearly ongoing and having a substantially debilitating effect on his functioning. He notes he was reassessed by Dr. Paton in July 2021, and that this examination produced diagnoses of pain pertaining to the applicant’s lower, middle, and upper back as well as cervical-genic headaches and suspected mild persistent post-concussion syndrome.

32While I agree the applicant is suffering pain, this evidence does not establish the pain is accident related. The applicant attempts to rely on the Tribunal’s earlier finding of causation here, but as I indicated at the outset of this decision, this is a de novo matter, and the applicant is required to prove his pain complaints directly resulted from the accident. Further, I am not convinced the applicant’s pain results in functional impairment that makes out the reasonableness and necessity of an orthopaedic examination for catastrophic impairment. This is because the applicant’s submission did not provide compelling medical evidence of functional limitation arising from his injuries or his pain.

33The applicant also claims to be heavily dependant on opiate medication to function. He pointed to a series of clinical notes and records from several different physicians to prove he is on an unstainable treatment trajectory that poses a serious threat of further medical complications in the long-term. I do not accept that this evidence supports the applicant’s claim. None of the records shared by the applicant indicate that physicians involved in his care (i.e., family physician Dr. Satir Singh, Dr. Muhsin, and Dr. Cook) believe the applicant’s use of opiate medication is unsustainable. In fact, the evidence shows the applicant’s physicians have continued to prescribe opiate medication because the applicant reports it enables him to do his job, drive and finish his work. As pointed out by the applicant, Dr. Singh notes the applicant has high ALT possibly caused by Oxycocet in February 2022. But I did not find this persuasive evidence of a serious long-term health concern owing to his opioid use because Dr. Singh believed the applicant’s high ALT is likely caused by a fatty liver. Further, the applicant provided no evidence to show this was followed up on or otherwise treated as a serious threat or medical complication by Dr. Singh.

34Given this evidence, I find the orthopaedic assessment is not reasonable and necessary to determine if the applicant is catastrophically impaired. There is insufficient compelling medical evidence to establish the applicant’s pain is accident-related or is causing functional limitations. His claim of an unsustainable treatment trajectory is not supported by the medical evidence he provided. The applicant’s submissions did not directly and coherently speak to how the treatment goal of catastrophic determination can be met to a reasonable degree through this assessment, or to the reasonableness of the costs.

Neurology Examination

35I find the neurology examination is not reasonable and necessary.

36The applicant submits he has continued to exhibit symptoms of radicular pain and numbness in his legs and feet since May 2022. However, the applicant presents no medical evidence of these symptoms past February 2022 in his submission.

37The applicant’s references to pre-2022 symptoms all relate to the clinical notes and records of Dr. Singh, and confirm the applicant had been experiencing daily headaches for two months up to end-August 2021, cold feet in January 2022, and worsening back pain in February 2022. The applicant also experienced left-sided leg pain and headaches since at least before August 2020, and claims he sustained a concussion in the accident.

38I accept the applicant is experiencing pain. But his evidence is insufficient to convince me the neurology examination is reasonable and necessary. This is because there is insufficient medical evidence of impairment, and, again, no medical evidence was offered to prove his symptoms are related to injuries caused by the accident. Specifically, the applicant failed to show me medical evidence that supports that his claims of lower back pain and headaches interfering moderately with his mood, normal work, relations with other people, sleep, and his enjoyment of life as alleged in his submissions.

39I also am not convinced the applicant sustained a concussion in the accident as reported by Dr. Singh. This is because I could not locate Dr. Singh’s reference to the chronic pain clinic finding of Dr. Mushin, owing to incorrect evidence brief coordinates in the applicant’s submission. But even if I could validate Dr. Singh’s concussion note, this evidence would little weight because it was not Dr. Singh who made the diagnosis, and the applicant did not point me directly to the report of Dr. Mushin to confirm the details of his concussion diagnosis, such as what information was relied upon to arrive at this findings and how he came to the opinion that the concussion was sustained in the accident.

40Given this evidence, I find the neurology assessment is not reasonable and necessary to determine if the applicant is catastrophically impaired. There is insufficient compelling medical evidence to establish the applicant sustained any neurological impairments from the accident that cause functional limitations. The applicant’s submissions did not directly and coherently speak to how the treatment goal of catastrophic determination can be met to a reasonable degree through this assessment, or to the reasonableness of the costs.

Functional abilities assessment

41I find the functional abilities assessment is not reasonable and necessary.

42The applicant refers to Dr. Paton’s comments about the functional abilities assessment, and specifically that it is an important step in catastrophic impairment determination because it can provide objective measures with respect to the applicant’s physical abilities or lack thereof. The applicant goes on to say to Dr. Paton asserts this assessment can validate, in a qualitative manner, the presence of an impairment within the backdrop of his somatic disorder, and is particularly important given the applicant has exhibited worrying signs of somatic symptomology and pain avoidance behaviours.

43I am not persuaded by the applicant’s submissions on this assessment because there is insufficient medical evidence of functional impairment relating to the accident to warrant an examination of the applicant’s functional abilities in the context of catastrophic determination. As mentioned earlier, there is no evidence that proves his somatic disorder was caused by the accident. The applicant did not show me what functions would be assessed or how those functions relate to accident-related symptomology and injuries. The applicant offers no medical proof that his “pain avoidance behaviours” constitute or contribute to a functional impairment.

44Given this evidence, I find the functional abilities assessment is not reasonable and necessary to determine if the applicant is catastrophically impaired. There is insufficient compelling medical evidence of functional impairment relating to his accident and no indication as to what functions this assessment would investigate. The applicant’s submissions did not directly and coherently speak to how the treatment goal of catastrophic determination can be met to a reasonable degree through this assessment, or to the reasonableness of the costs.

Associated fees

45In addition to the assessment expenses, the OCF-18 proposes fees for an executive summary, a review of the medical file, transportation costs, and the completion of two forms. The applicant did not address these items or their fees in his submission, and therefore failed to meet his onus of proving these associated costs to be reasonable and necessary.

Award

46I find no award is owing because there are no benefits payable.

ORDER

47The application is dismissed.