Boluwaji v. Aviva General Insurance, 2023 CanLII 15056

Citation: Boluwaji v. Aviva General Insurance, 2023 ONLAT 21-000079/AABS

Licence Appeal Tribunal File Number: 21-000079/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:

Adebayo Boluwaji Applicant

and

Aviva General Insurance Respondent

DECISION [AND ORDER]

ADJUDICATOR: Janet Rowsell

APPEARANCES:

For the Applicant: Jordan Kirlik, Counsel Matthew Hyland, Counsel

For the Respondent: Nabila Majidzadeh, Counsel

HEARD: In Writing By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on December 21, 2018 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 certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to a medical benefit in the amount of $1,395.72 for chiropractic services?¹

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

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

ANALYSIS

3On December 21, 2018, at the time of the accident, the applicant was wearing a seatbelt and the air bags deployed in his vehicle. The applicant was able to independently exit the vehicle through the driver’s door. Police and ambulance services arrived on the scene, however, following the paramedics’ assessment, the applicant was not taken to hospital. The following day, the applicant visited his family physician Dr. Olaniyi Ajisafe where he was evaluated and diagnosed with a concussion.²

4The applicant attended his family physician, Dr. O. Ajisafe again on January 18, 2019, twenty-eight days after the motor vehicle accident. He self-reported pain to the neck, lumbar spine, chest and lower limbs.³ The applicant was prescribed Tylenol 3 medication, Advil and a muscle relaxant, Lioresal.⁴

5The applicant returned to his family physician, reporting pain in his neck, shoulder joint, thoracic spine, lumbar spine and right leg and knee on February 1, 2019, March 1, 2019, March 29, 2019, and April 26, 2019. He reported experiencing tenderness and restriction in his range of motion in his thoracic spine and lumbar spine as well as in his lower limbs. By April 26, 2019, Dr. O. Ajisafe reported the applicant was not experiencing tenderness in his spine and back and that the applicant had normal extension of his back and spine.⁵

6By the time that the applicant attended appointments with Dr. Ajisafe on May 22, 2019, and on June 7, 2019,⁶ the applicant reported gradual improvement and planned on returning to his employment. In the clinical notes and records of the family physician on May 22, 2019, the applicant reported that he was physically exercising without restriction.⁷

7The applicant underwent an x-ray⁸ of his cervical and lumbar spine on July 3, 2019. The findings of the x-ray, as dictated by the radiologist, were that the applicant’s cervical spine alignment and prevertebral soft tissues were found to be within normal limits. The applicant’s disc spaces were well-preserved, with vertebral bodies, alignment and disc spaces within normal limits. There was no evidence of significant degenerative change or destructive lesion.

8Two and a half months later, the applicant returned to his family physician on August 12, 2019, reporting that the accident-related pain had returned.⁹ The applicant’s self-reporting return of pain symptoms on August 12, 2019, is incongruous with the described results of the July 3, 2019, x-ray ¹⁰ and with the improvement of symptoms of pain. I find that the self-reported pain described by the applicant in August 2019, is not objectively credible, given that at later appointments on September 15, 2020, and on October 20, 2020, the applicant did not report accident-related physical symptoms, but rather, confirmed to his physician that the benefits of personal exercise were improving his recovery and his concerns were focused on his mental health and anxiety.¹¹ Further, both appointments with the family doctor on September 15, 2020, and on October 20, 2020, were proximate in time to the submission to the respondent of the OCF-18 from West Queensway Health Centre dated November 9, 2020.¹²

9The respondent relies on the Insurance Examination (“IE”) report provided by Dr. Shariff Dessouki, a Specialist in Physical Medicine and Rehabilitation, responsible for the preparation of an assessment of the applicant in relation to an earlier treatment plan (OCF-18) dated January 24, 2020.¹³ Dr. Dessouki’s assessment of the applicant occurred on February 24, 2020, approximately nine months before the OCF-18 in dispute was submitted to the respondent company. Dr. Dessouki’s assessment dated March 5, 2020, is relevant for the purpose considering the reasonableness and necessity of the disputed OCF-18 denied by the respondent company on November 24, 2020.¹⁴ Dr. Dessouki opines that from a physical perspective, in his assessment dated March 5, 2020, there was no objective accident-related musculoskeletal impairment noted in the applicant.¹⁵ Dr. Dessouki opines that the applicant would benefit from a self-directed home exercise program, consisting of stretching and strengthening exercises for general conditioning and maintenance.¹⁶

10Dr. Dessouki diagnosed the applicant with sprain and strains of the cervical spine, thoracic spine, and lumbar spine. From a physical perspective, Dr. Dessouki believed the applicant had reached maximum medical improvement and the proposed treatment in the OCF-18, dated January 24, 2020, was not reasonable and necessary. As of May 14, 2020, the family physician’s recommendation following the applicant’s self-reported ongoing pain from the accident, was for the applicant to initiate self-directed physical exercises,¹⁷ which was notably the same recommendation as the section 44 examination report of Dr. Dessouki, dated March 5, 2020.

11Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the motor vehicle accident. The applicant bears the onus of proving, on a balance of probabilities, that any proposed treatment or assessment plan is reasonable and necessary.

12The insured person has the burden of proving and establishing entitlement to benefits under the Schedule. There has to be objective medical evidence to substantiate the reasonableness and necessity of the proposed treatment plan. Treatment and Assessment Plans by themselves do not prove that the treatment, which is proposed, is reasonable or necessary. The applicant should identify the goals of the proposed treatment, how the goals would be met to a reasonable degree, and that the overall time and costs to achieve those goals are reasonable.

13The subject OCF-18 proposed by Dr. Marissa Gelinas, Chiropractor at West Queensway Health Centre, has as its goals pain reduction, increasing strength and range of motion, and a return to normal life activities and pre-accident work activities. The OCF-18 proposes five weeks of hyper therapy, IFC/TENS/electrotherapy, and manipulation of the spine, in addition to sessions of active therapy.

14As described, the objective medical evidence consisting of the diagnostic x-ray taken of the applicant’s cervical and lumbar spine on July 3, 2019, and the March 5, 2020, IE assessment by Dr. Dessouki, provide evidence that the applicant had reached maximum medical improvement by February 2020. None of the medical physicians recommended chiropractic services for the applicant at the time when the disputed OCF-18 was issued, and the applicant had not reported accident-related pain to his family physician in the six months prior to the OCF-18’s issuance, since May 14, 2020. The applicant’s family physician Dr. Ajisafen, as stated, recommended self-directed exercise contemporaneous with the period when the disputed OCF-18 was issued, as had Dr. Dessouki in his March 2020 assessment.

15Therefore, on review of the evidence, I find the applicant has not met the burden of proof, by demonstrating, on a balance of probabilities, that the treatment plan (OCF-18) of $1,395.72 for chiropractic services recommended by West Queensway Health Centre, is reasonable and necessary pursuant to the Schedule.

CONCLUSION

16The proposed treatment plan (OCF-18 for $1,395.72 for chiropractic services) recommended by West Queensway Health Centre is not reasonable and necessary pursuant to the Schedule.

17It follows that the respondent cannot be found to have unreasonably withheld or delayed payment of the benefits pursuant to section 10 of Regulation 664. Thus, no award is payable.

18Finally, given that there is no overdue payment of benefits, the applicant is not entitled to any interest pursuant to s. 51 of the Schedule.

19The application is dismissed.

Footnotes

1. 1Respondent’s Submissions, OCF-18 submitted to the Respondent on November 9, 2020, at page 33 to 41.
2. 2Respondent’s Submissions, Tab 3: Section 44 Examination report of Dr Sharrif Dessouki, dated March 5, 2020, pp. 23 to 30.
3. 3Applicant’s Brief, Clinical Notes and Records of Family Physician Dr. Olaniyi Ajisafe.
4. 4Applicant’s Brief, Clinical Notes and Records of Family Physician Dr. Olaniyi Ajisafe.
5. 5Applicant’s Brief, Clinical Notes and Records of Family Physician Dr. Olaniyi Ajisafe, indexed 2nd attachment.
6. 6Applicant’s Brief, Clinical Notes and Records of Family Physician Dr. Olaniyi Ajisafe, indexed 3^rd attachment.
7. 7Ibid.
8. 8Applicant’s Brief, Clinical Notes and Records of Family Physician Dr. Olaniyi Ajisafe, Finch Weston X-ray & Ultrasound, indexed 3^rd attachment.
9. 9Applicant’s Brief, Clinical Notes and Records of Family Physician Dr. Olaniyi Ajisafe, indexed 3^rd attachment.
10. 10Applicant’s Brief, Clinical Notes and Records of Family Physician Dr. Olaniyi Ajisafe, Finch Weston X-ray & Ultrasound, indexed 3^rd attachment.
11. 11Applicant’s Brief, Clinical Notes and Records of Family Physician Dr. Olaniyi Ajisafe, 5^th attachment.
12. 12Applicant’s Brief, Letter dated November 24, 2020 from Aviva re: OCF-18 of West Queensway Health Centre & Dr. Gelinas, Chiropractor, 9^th attachment.
13. 13Respondent’s Submissions, Tab 3: Section 44 Examination report of Dr. Sharriff Dessouki, dated March 5, 2020, pp. 23 to 30.
14. 14Respondent’s Submissions, Tab 4: OCF-18, dated November 9, 2020.
15. 15Respondent’s Submissions, Tab 3: Section 44 Examination report of Dr.Sharriff Dessouki, dated March 5, 2020, pp. 23 to 30.
16. 16Respondent’s Submissions, Tab 3: Section 44 Examination report of Dr Sharrif Dessouki, dated March 5, 2020, pp. 23 to 30.
17. 17Respondent’s Submissions, Tab 9: Dr. Ajisafe (family physician) – CNRs excerpt, dated May 14, 2020, at page 12.