Citation: Ahmed v. The Co-operators, 2023 ONLAT 21-007753/AABS

Licence Appeal Tribunal File Number: 21-007753/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:

Youssouf Ahmed

Applicant

and

The Co-operators

Respondent

DECISION

ADJUDICATOR:

Harry Adamidis

APPEARANCES:

For the Applicant:

Youssouf Ahmed, Applicant Ryan Naimark, Counsel

For the Respondent:

Peter Durant, J.D., Counsel

HEARD:

By way of written submissions

OVERVIEW

1Youssouf Ahmed, the applicant, was involved in an automobile accident on February 14, 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, the Co-operators, 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 chiropractic treatment proposed by Ottawa Health Performance and Rehabilitation, as follows:

a) $548.08 ($1,618.96 less $1,070.88 approved) for chiropractic services, in a treatment plan, submitted on May 22, 2020, denied on May 26, 2020;

b) $926.44 ($2,490.58 less $1,564.14 approved) for chiropractic services, in a treatment plan, submitted on August 28, 2020, denied on September 1, 2020;

c) $364.76 ($3,874.79 less $3,510.03 approved) for chiropractic services, in a plan, submitted on December 2, 2020, denied on December 9, 2020; and

d) $2,527.80 for chiropractic services, in a plan, submitted on March 2, 2021, denied on March 4, 2021.

ii. Is the applicant entitled to $1,616.63 less $1,015.9 approved) for occupational therapy services, in a treatment plan/OCF-18 (“plan”), submitted on January 11, 2021, denied on January 14, 2021?

iii. Is the applicant entitled to $2,215.56 ($3,231.46 less $1,015.90 approved) for social work services, proposed by Functionability, in a treatment plan, submitted on December 15, 2020, denied on December 21, 2020?

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

RESULT

3This application is dismissed.

ANALYSIS

4To 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.

Chiropractic services

5The applicant is not entitled to the denied expenses of the first three partially approved treatment plans, nor the denied fourth treatment plan for chiropractic services.

6The applicant submits that he was healthy and working in construction before the accident. He sustained serious injuries in the accident, including rib and sternal fractures. As a result, he spent a week in the hospital. Upon discharge from the hospital, the applicant was prescribed a hospital bed for home use and a cane. A month later, the applicant visited his family doctor with complaints of pain and was prescribed the painkiller Hydromorphone. Around the same time, he was also prescribed the pain killer Pregabalin. According to the applicant, this evidence establishes that he was seriously injured in the accident.

7The applicant further submits that the insurer’s examination (IE) used to deny these plans is seriously flawed. Dr. Richar Raigoza, the applicant’s chiropractor, reviewed the IE and notes that the respondent’s assessor failed to consider any internal damage. Dr. Raigoza also states that the conclusions found in the IE cannot be made without orthopaedic testing, a neurological assessment, consideration of the psychological impacts, or “any of the essential components of a medical examination.” For these reasons, the applicant submits that he was seriously hurt in the accident and that the IE is unreliable. As such, all four treatment plans for chiropractic treatments are reasonable and necessary.

8The respondent submits that the first three treatment plans are partially approved. The denied amounts in all three plans exceeded the maximum allowable benefit under section 15(2)(b) of the Schedule. As well, a nutritional assessment in the first treatment plan listed above was also denied on the ground of not being reasonable and necessary because there is no evidence of weight gain related to the accident. The applicant made no submissions on these points. The respondent submits that it is not liable to pay the disputed amounts of the first three treatment plans.

9I agree with the respondent. The applicant makes no submissions on the unpaid portions of these treatment plans. Consequently, the applicant provides no basis for me to find that the denied amounts are payable. As such, I find that he is not entitled to the disputed portions of these three treatment plans.

10The respondent submits that the fourth treatment plan for chiropractic services was denied based on the IE of Dr. Raymond Zabieliauskas, physiatrist, dated February 12, 2021. He concluded that the applicant has no accident-related impairments. Moreover, that there is no other contemporaneous medical evidence that supports this treatment plan.

11The applicant’s hospital records from the time of the accident and two clinical notes, one from March 10 and the other from March 20, 2020, show that he was experiencing pain and that he was prescribed pain killers. I agree that these documents show that the applicant sustained serious injuries in the accident. However, these documents only relate to the first month or so after the accident. They do not show that the applicant has ongoing pain and functional limitations that require treatment.

12The IE of Dr. Zabieliauskas opines that further formal rehabilitation or treatment is not reasonable and necessary. The applicant disputes the validity of this assessment. However, he has not pointed to any evidence showing that he has an ongoing need for chiropractic services. As such, I find that the applicant has not met his onus to prove, on a balance of probabilities, that chiropractic treatment is reasonable and necessary. I further find that he is not entitled to the fourth treatment plan for chiropractic services.

Occupational therapy

13The applicant is not entitled to this plan.

14The IE report of Dr. Randy Silverman, psychologist, documents the applicant’s statement that he is unable to live on his own because of his accident related injuries and need for assistance and that he moved in with his wife in order to have assistance with self care and housekeeping. The applicant relies on his statements to establish that he has functional impairments. The applicant also submits that the IE of Dr. Zabieliauskas, which the respondent used to deny this treatment plan, is incomplete. If Dr. Zabieliauskas had asked the necessary questions, then the applicant’s need for a cane to ambulate and the need for assistance with self-care and housekeeping would have come to light. The applicant submits that no weight should be given to the IE of Dr. Zabieliauskas and this treatment plan should be found to be reasonable and necessary based on the statements he made to Dr. Silverman.

15The respondent submits that there are no contemporaneous medical records that support the need for occupational therapy services. In particular, the respondent points out that the Tribunal’s Case Conference Report and Order required the applicant to disclose his GP records, treatment records, and prescription summaries. The applicant has not complied with this order. The respondent submits that a negative inference should be made. The respondent also submits that the IE of Dr. Zabieliauskas does not contain errors and should be relied upon to make a finding that the applicant is not entitled to this treatment plan.

16I note that the applicant told Dr. Silverman that he returned home to live with his wife because of his need for assistance. The same report states that the applicant reported having “functional limitations” but provides no further detail.

17I agree that reporting the need for assistance in a psychological assessment is an indication of functional limitations. However, the applicant did not disclose his GP records, treatment records, and prescription summaries to the respondent despite being ordered to do so by the Tribunal. He has given no explanation for his non-compliance of the Tribunal’s order. In my view, this undermines his case and the premise that he has accident related limitations.

18I further note that the comments in Dr. Silverman’s report on the applicant’s functional limitations are quite brief. They provide no understanding of the specific types of impairments the applicant may have or the extent of those impairments. As such, this document provides limited insight and, for this reason, I give it little weight.

19Dr. Zabieliauskas completed two IE reports from his January 11, 2021 assessment of the applicant. The IE related to the income replacement benefit shows, contrary to the applicant’s submission, that the applicant told Dr. Zabieliauskas that he ambulates with a cane outside the home.

20The physical examination during the virtual assessment consisted of range of motion testing and a visual examination of the applicant. The applicant demonstrated good range of motion in the neck and shoulder, with pain. The applicant also demonstrated fairly good range of motion in the lumbar spine, again with pain. The applicant reported that most of his pain is over the right knee, just below the patella.

21Dr. Zabieliauskas acknowledges the applicant’s ongoing pain complaints but opines that the applicant has no accident related impairments. The pain in his lower back and knees is caused by excessive weight. The applicant is 125 pounds overweight. The IE also notes that the applicant’s minimal use of pain medication which is limited to using Tylenol, usually for headaches, 3 to 4 times per week. Dr. Zabieliauskas opines that the applicant has no limitation that would make him unable to resume his previous work as a part-time handyman.

22I give more weight to the IE of Dr. Zabieliauskas because he physically examined the applicant, tested range of motion, and considered other factors, such as the modest use of pain medication, before concluding that the applicant does not have functional limitations. In my view, this analysis is more comprehensive and detailed and, therefore, more reliable than the applicant’s brief comments in the IE of Dr. Silverman.

23For these reasons I find, on a balance of probabilities, that the applicant has not established that the treatment plan for occupational therapy is reasonable and necessary.

Social worker services

24The applicant is not entitled to this treatment plan.

25The applicant bundled the social worker services and occupational therapy treatment plans into one submission. The circumstances of the two plans are different and my analysis of the plan for social worker services must be dealt with separately.

26In brief, the applicant submits that the accident caused functional limitations which required him to move in with his wife for assistance with self care and housekeeping. This was not captured by the report of Dr. Zabieliauskas. As such, the applicant is entitled to this treatment plan.

27According to the respondent, this plan was partially approved based on the IE of Dr. Silverman. The respondent submits that the applicant has not proffered any evidence as to why the denied amounts are reasonable and necessary.

28The respondent’s letter dated February 24, 2021 is confusing because it states that document fee in line 1 of the treatment plan is both approved and denied. In any event, the applicant provided no basis to establish that the remaining amounts of this treatment plan are payable. As such, I find that he is not entitled to the disputed portions of this plan.

Interest

29As there are no overdue benefits, no interest is owing pursuant to s. 51 of the Schedule.

Award

30Both parties made submissions on the issue of an award under s. 10 of Reg. 664. However, an award is not listed as an issue in the CCRO nor in the application. I further note that the applicant has not asked for this issue to be added to this proceeding since the issuance of the CCRO.

31Even so, no benefits are payable. Thus, there is no reason to assess whether the respondent unreasonably withheld or delayed the payment of benefits, as there are no overdue or withheld benefits on which to base an award.

ORDER

32The applicant is not entitled to the six treatment plans, nor interest.