Wahab v. Aviva General Insurance, 2023 CanLII 110914

Citation: Wahab v. Aviva General Insurance, 2023 ONLAT 21-012868/AABS

Licence Appeal Tribunal File Number: 21-012868/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:

Abbas Abdel Wahab

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Harry Adamidis

APPEARANCES:

For the Applicant:

Carla Barcelo, Paralegal

For the Respondent:

Joshua Edmunds, Counsel

HEARD:

By written submissions

OVERVIEW

1Abbas Abdel Wahab, the applicant, was involved in an automobile accident on October 16, 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, 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 $3,696.50 for chiropractic treatment, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) denied on November 1, 2019?

ii. Is the applicant entitled to $1,300.00 for chiropractic treatment, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) denied on January 13, 2020?

iii. Is the applicant entitled to $1,977.05 for chiropractic treatment, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) denied on February 21, 2020?

iv. Is the applicant entitled to $1,384.70 for chiropractic treatment, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) denied on September 23, 2020?

v. Is the applicant entitled to $1,417.70 for chiropractic treatment, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) denied on October 29, 2020?

vi. Is the applicant entitled to $2,635.40 for chiropractic treatment, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) denied on December 8, 2020?

vii. Is the applicant entitled to $2,040.00 ($3,963.64 less $1,923.64 approved) for psychological treatment, proposed by Mediwise Health Care Center in a treatment plan/OCF-18 (“plan”) denied on December 24, 2020?

viii. Is the applicant entitled to $149.61 ($1,574.03 less $1,424.42 approved) for psychological services, proposed by Mediwise Health Care Center in a treatment plan/OCF-18 (“plan”) denied on June 21, 2021?

ix. Is the applicant entitled to $4,621.64 for psychotherapy, proposed by Q Medical in a treatment plan/OCF-18 (“plan”) denied on June 22, 2020?

x. Is the applicant entitled to $2,401.25 for a chronic pain assessment, proposed by Q Medical in a treatment plan/OCF-18 (“plan”) denied on November 23, 2020?

xi. Is the applicant entitled to $2,486.02 for an attendant care assessment, proposed by Q Medical in a treatment plan/OCF-18 (“plan”) denied on April 27, 2021?

xii. Is the applicant entitled to $2,486.02 for a cognitive assessment, proposed by Q Medical in a treatment plan/OCF-18 (“plan”) denied on April 27, 2021?

xiii. Is the applicant entitled to $2,034.00 for a social assessment, proposed by Q Medical in a treatment plan/OCF-18 (“plan”) denied on May 25, 2021?

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

3Issue seven above is incorrectly listed as chiropractic treatment in the Case Conference Report and Order (CCRO).

RESULT

4This application is dismissed.

ANALYSIS

5There are 13 treatment plans in dispute. To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the onus of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

Issues 1-6: Chiropractic Treatments

6The applicant is not entitled to these six treatment plans.

7The applicant does not make individual submissions for each of the six treatment plans for chiropractic treatment. Instead, he submits that all the plans are reasonable and necessary.

8The applicant notes that his ongoing pain complaints and functional limitations are documented in the clinical notes and records of Dr. Duarte Adegbite, his family doctor, and in the disputed treatment plans. As well, the treatment goals of pain reduction, increasing strength, and increasing range of motion will aid his recovery. According to the applicant, these factors establish that all six treatment plans are reasonable and necessary.

9The respondent notes that the insurer’s examination (IE) of Dr. Isa Mohammed, family medicine specialist, diagnoses the applicant with soft tissue injuries that are expected to heal within one year of the accident. In his view, the applicant has attained maximum medical improvement. The respondent submits that these plans are not reasonable and necessary.

10The applicant’s family doctor last treated the applicant for accident related injuries on November 14, 2019. This evidence provides insight into the applicant’s accident related injuries, but only up to the first month after the accident.

11The IE of Dr. Mohammed, dated October 27, 2020, confirms that the applicant has ongoing pain. He diagnoses the applicant with uncomplicated soft tissue sprain and strain injuries in the cervical, thoracic, and lumbar spine. The applicant’s range of motion and strength testing resulted in normal findings across all joints, and some movements are noted as being painful. The applicant manages his pain with Advil, yoga, and stretching.

12The applicant told Dr. Mohammed that he experiences some discomfort while performing housekeeping, but is able to perform these tasks. He is independent with personal care tasks. He scaled back his activities at the gym, but also started a daily routine of yoga and stretching to manage pain. Dr. Mohammed opines that the applicant does not have an impairment as a result of the accident. He further opines that it is almost one year since the accident and most soft tissue injuries are expected to have healed. The applicant’s symptoms may “wax and wane over time,” but further overall recovery or deterioration is not anticipated.

13The applicant also relies on the treatment plans for chiropractic services to establish that he continues to have pain and functional limitations caused by accident-related pain. The applicant cites the treatment plan dated November 26, 2020, however the description of functional limitations in the plan is unclear. It states that the applicant is experiencing pain and discomfort bending, lifting, twisting, reaching, prolonged sitting, driving, and during long exercises. It states that these musculoskeletal factors “negatively impact” his ability to perform his activities of daily living (ADL). This wording does not clarify whether or not the applicant can complete his ADLs. Nor does it explain what, if any, functional limitations are caused by pain. As such, the plan does not document functional limitations as suggested by the applicant. Consequently, little weight can be given to this document.

14In my view, the evidence of Dr. Mohammed shows that applicant’s pain symptoms do not prevent him from completing his ADLs. Moreover, the applicant manages his pain with Advil, yoga, and stretching. The applicant has not explained why facility based treatment is needed under these circumstances. As a result, the applicant has not established, on a balance of probabilities, that these treatment plans are reasonable and necessary. Consequently, I find he is not entitled to these plans.

Issue 7: Psychological Treatment

15The applicant is not entitled to this treatment plan.

16This treatment plan consists of 16 psychological treatment sessions, each session being 1.5 hours in duration. This treatment is recommended by Dr. Konstantine Zakzanis, psychologist, in his report dated May 7, 2020. The applicant submits that Dr. Zakzanis’s report and other medical evidence establishes that his pre-existing anxiety and depression disorders were exacerbated by the accident. The goals of the psychological treatment are to restore the applicant to his pre-accident level of functioning. For these reasons, the psychological treatment plans in dispute are reasonable and necessary.

17The respondent approved 12 one hour sessions based on the recommendation of Dr. David Direnfeld, psychologist, in an IE dated November 27, 2020. It submits that the applicant has not provided any rebuttal to Dr. Direnfeld’s recommendation to show that it is not reasonable. According to the respondent, there is an insufficient basis to approve to the remaining portion of this plan.

18I note that Dr. Zakzanis documents a history of anxiety that dates back to the applicant’s childhood. This history contributed to the development of post-accident psychological impairments. Dr. Zakzanis notes that the applicant is unable to complete a number of his ADLs due to accident related psychological impairments. He also notes that the applicant continues to work as an actor and stand-up comic, but in a more limited capacity due to poor concentration and a lack of motivation.

19Dr. Zakzanis diagnoses the applicant with major depressive disorder, adjustment disorder with Anxiety, and specific phobia – driving, which has been caused by the accident. He recommends 16 psychotherapy sessions with a psychologist or social worker to address the applicant’s psychological disorders.

20Dr. Direnfeld notes that the applicant was diagnosed with an anxiety disorder before the accident. Dr. Direnfeld further opines that the applicant’s psychological condition and functioning improved in the six months since the previous assessment by Dr. Zakzanis. In light of the applicant’s improvement, Dr. Direnfeld diagnosed the applicant as having an adjustment disorder with anxiety. He recommends 12 one hour sessions of psychological treatment to substantially reduce or resolve the applicant’s accident related psychological symptoms.

21I give more weight to the assessment of Dr. Direnfeld. His report is the most up to date analysis of the applicant’s psychological condition. It documents a recent improvement in the applicant’s psychological condition and, in my view, this justifies the more modest allotment of treatment.

22For these reasons, I find that the applicant has not established, on a balance of probabilities, that the unpaid portion of this treatment plan is reasonable and necessary. Consequently, I further find that he is not entitled to the remainder of this plan.

Issue 8: Psychological services

23The applicant is not entitled to the disputed portion of this partially approved treatment plan.

24This treatment plan is for psychological services in the amount of $1,574.03. The plan was approved for $1,424.42. According to the respondent, the remaining amount of $149.61 was denied on the basis that this amount is in excess of the $200.00 maximum documentation fee allowable under the Superintendent’s Guideline No. 03/14.

25The applicant made no submissions on the documentation fee.

26The applicant has provided no basis upon which to find that the respondent is liable to pay the disputed document fee. For this reason, I find that the applicant is not entitled to the remaining part of this treatment plan.

Issue 9: Psychotherapy

27The applicant is not entitled to this treatment plan.

28As noted above, the applicant submits his pre-existing mental heath disorders were exacerbated by the accident. The goals of the psychological treatment are to restore the applicant to his pre-accident level of functioning. Consequently, the psychological treatment plans in dispute are reasonable and necessary.

29The respondent notes the concerns raised by Dr. Direnfeld in the IE regarding the statutory non-compliance of the delivery of psychotherapy under this treatment plan. The Controlled Act of Psychotherapy, requires psychological therapy to be performed by a mental health practitioner who assessed the patient and who has identified or diagnosed psychological sequelae. The treatment plan indicates that the psychological services of this plan will be provided by Ms. Revital Shuster, social worker. There is no evidence that Ms. Shuster has assessed the applicant or that she is working under the supervision of someone who has assessed the applicant. Under these circumstances, this treatment plan is not compliant with the Regulated Health Professions Act.

30In the alternative, the respondent submits that applicant has not provided enough medical evidence to show that this plan is reasonable and necessary.

31The applicant completed the 12 sessions of psychotherapy approved by the respondent. The notes from the final session indicate that he continues to suffer from anxiety. Pre-accident, he also reported difficulties with anxiety. The clinical notes and records dated June 6, 2019 from the Garrison Creek Bathurst Clinic contain a GAD-7 test for anxiety. The applicant reports experiencing numerous anxiety symptoms everyday and that these symptoms cause “very difficult” problems for him. The pre-accident clinical notes and records from the applicant’s family doctor, dated June 18, 2019, show that the applicant smokes high CBD cannabis two to three times per day to manage his anxiety. Under these circumstances, there is no means of determining whether the applicant has fully healed from his accident-related psychological injuries and returned to his pre-accident level of functioning or if he continues to have accident related psychological injuries.

32For this reason, the applicant has not satisfied me, on a balance of probabilities, that he continues to have accident related psychological injuries that justify this treatment plan. Consequently, I find that he is not entitled to this plan.

Issue 10: Chronic Pain Assessment

33The applicant is not entitled to this treatment plan.

34The applicant submits that ongoing pain complaints and functional limitations warrant a chronic pain assessment.

35The respondent submits that the applicant does not meet three of the six criteria used to assess chronic pain the American Medical Association Guides, 6th edition. The respondent makes submissions on the following five criteria:

I. There is no evidence of the applicant using prescription pain medication or the abuse of such medication.

II. There is no evidence of the applicant excessively relying on health care providers.

III. There is no evidence of the applicant suffering deconditioning due to avoidance of activity due to pain.

IV. According to the respondent, the applicant developed a mild psychological injury that should have resolved by now.

V. There is no evidence that Mr. Wahab has suffered a withdrawal from social milieu as a result of this accident.

36I note that the Guides provide helpful information to consider the issue of chronic pain. However, the Tribunal is not required to follow or apply this analysis.

37The applicant makes two points regarding his entitlement to this plan. The first point relates to his alleged functional limitations. As noted above in paragraphs 10 and 14, the evidence cited by the applicant is not enough to justify a finding that he has functional limitations.

38The second point made by the applicant is that his ongoing pain also establishes his entitlement to this plan. I agree that applicant has ongoing, accident-related pain. However, he manages this pain with Advil, yoga, and stretching. As such, the severity and extent of the applicant’s ongoing pain issues appear to be relatively minor. Consequently, I am not satisfied that the chronic pain assessment is reasonable and necessary.

Issue 11: Attendant care assessment

39The applicant makes no submissions on this plan.

40The applicant has provided no basis to find that this plan reasonable and necessary. Consequently, I find that he is not entitled to this plan.

Issue 12: Cognitive functioning assessment

41The applicant submits that “considering the significant pre-existing psychological history” the cognitive assessment is reasonable and necessary. The applicant does not explain how his pre-accident mental health disorders are relevant to this assessment.

42The applicant mentions that he “reported difficulties with memory, attention, and language skills” to Dr. Zakzanis. However, he makes no effort to tie this brief statement or any other specific evidence to this treatment plan.

43The applicant cannot leave it up to the adjudicator to connect the dots and make his case. Doing so inappropriately places the Tribunal in the role of his advocate. It is up to the applicant to cite evidence and explain why it supports this treatment plan. Consequently, I find that the applicant has not established, on a balance of probabilities, that this treatment plan is reasonable and necessary.

Issue 13: Social worker assessment

44The applicant submits that “considering the significant pre-existing psychological history” this assessment is reasonable and necessary. Again, the applicant has not explained how his pre-accident mental health disorders are relevant to this assessment.

45In my view, the applicant has provided an insufficient basis to justify that this assessment is reasonable and necessary.

Issue 14: Interest

46As no benefits are outstanding, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

47This application is dismissed.