Shamoon v. Aviva Insurance Company, 2023 CanLII 15058

Licence Appeal Tribunal

Citation: Shamoon v. Aviva Insurance Company, 2023 ONLAT 21-000386/AABS

Licence Appeal Tribunal File Number: 20-000386/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:

Marseel Shamoon

Applicant

and

Aviva Insurance Company

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Maziar Mortezaei, Counsel

For the Respondent: Shivani Mehta, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Marseel Shamoon (the "applicant") was involved in an automobile accident on January 21, 2019 and sought benefits from Aviva Insurance Company (the "respondent") pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule").

2The respondent determined that the applicant had sustained a minor injury in the accident, subjected him to the Minor Injury Guideline (the "MIG"), and denied him entitlement to a number of medical treatment plans/OCF-18s and assessments. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute. All issues in dispute, with the exception of one treatment plan plus a request for interest, were resolved or withdrawn before the written hearing.

ISSUES IN DISPUTE

3The following issues are in dispute:

1. Is the applicant entitled to a medical benefit in the amount of $2,195.00 for a temporomandibular joint ("TMJ") assessment recommended by Ontario Independent Assessment Centre in a treatment plan dated June 27, 2019?
2. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find that:

i. The applicant is entitled to $2,195.00 for the amount of the TMJ assessment, plus interest in accordance with s. 51 of the Schedule.

BACKGROUND

5The applicant was the driver of a vehicle that was rear-ended by a transport truck when stopped at a red light on Queen Street East in Brampton. Emergency services attended the scene and transported the applicant to hospital with complaints of numerous injuries. Medical assessments following the accident diagnosed him with sprain/strain of the cervical, thoracic, and lumbar spine, whiplash associated disorder 2 with neck pain, nervousness, symptoms of emotional shock and stress, and other accident-related injuries. The applicant also complained of jaw and facial pain as a result of the accident, which resulted in the TMJ dental assessment treatment plan in dispute here.

6The applicant takes the position that the TMJ assessment treatment plan is reasonable and necessary. He relies on clinical notes and records ("CNRs") from his family dentist, diagnostic imaging, and both the treatment plan in dispute and the assessment itself, completed by a dentist who specializes in TMJ disorders

7The respondent argues that the TMJ assessment treatment plan has not been proven to be reasonable and necessary. It relies mainly on an insurer's examination ("IE") conducted by a dental surgeon. The respondent points out inconsistencies in the applicant's dental records, as well as the possible involvement of a second motor vehicle accident that the applicant sustained during the same month as the subject accident.

ANALYSIS

8I am persuaded that the TMJ assessment is reasonable and necessary.

9To receive payment for an assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden 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.

10The applicant has submitted persuasive medical evidence indicating that he sustained injuries to his head and jaw in the subject accident, that this was a complaint made immediately after this accident, and that he sought appropriate treatment to deal with these concerns.

11The Application for Accident Benefits/OCF-1 dated February 13, 2019 contains a notation by the applicant that he "struck [his] teeth against the steering wheel." Additionally, the Peel Regional Paramedic Services Report of the accident notes that the applicant claimed to have hit his head and chest off the steering wheel and the back of his head multiple times.

12No dental injuries are noted in the initial Disability Certificate/OCF-3 dated January 26, 2019 or an updated OCF-3 dated September 25, 2019, although they do contain notations referring to the injuries listed in the OCF-1. Both OCF-3s were also completed by chiropractors, who are not experts in dental matters. Still, it is noteworthy that the second OCF-3 notes headache and tension-type headache, both issues that recur throughout the medical evidence and play a role in the eventual recommendation for the TMJ assessment treatment plan in dispute.

13Dr. Haitham Petros, dentist, saw the applicant on May 28, 2019 and diagnosed him with two broken front upper teeth as a result of "an accident." X-rays taken at the time show the broken teeth.

14The denied OCF-18, dated June 27, 2019, and completed by Dr. Leon Treger, dentist, indicates that the TMJ assessment is being sought due to the above complaints of facial trauma experienced during the accident. The applicant reported to Dr. Treger that he was experiencing ongoing neck pain, jaw pain, clicking and popping sounds from his jaw joint, tinnitus, difficulty chewing food, and other symptoms as a result of the accident, specifically citing the broken teeth as a primary cause.

15Dr. Treger also notes that such temporomandibular disorders ("TMD") can be connected to whiplash-associated disorders, and that they can take weeks to develop following a motor-vehicle accident. He further refers to the applicant's complaints of neck pain to the emergency services personnel that attended the scene of the accident, as well as to the CNRs of Dr. Sarmad Atto, family physician, who noted on May 28, 2019 that the applicant was experiencing neck pain on both sides, headache, and other issues that could be related to a TMD condition.

16Similar observations are made in the actual TMJ assessment, which was performed on September 25, 2019 by Dr. Treger, and the results compiled in a report dated October 14, 2019. Dr. Treger notes the applicant's complaints to be identical to those listed in the OCF-18, along with a number of more specific complaints of tightness and pain in his jaw joints. Dr. Treger concludes from a palpitation of the jaw, head, and neck muscles of the applicant that he is experiencing pain and uncomfortable sensations in all areas. He diagnoses the applicant with "at least fifty percent impairment in function of the cranio-mandibular complex" and recommends five laser and low intensity sound wave therapy muscle/TMJ stimulation sessions, restoration of two teeth, and the insertion of upper and lower oral appliances.

17I am unpersuaded by the respondent's arguments that the TMJ assessment is not reasonable and necessary. The respondent relies on three main points of contention here, which I address in turn below.

18First, the respondent raises the possibility of a second motor vehicle accident that took place January 30, 2019 contributing to or causing the applicant's head and jaw injuries. The respondent provides no evidence that this second accident involved any sort of head or jaw trauma, however, other than citing that the applicant presented himself to Dr. Atto with complaints of headache, blurry vision, and photophobia. As a result, I assign limited weight to this argument.

19Second, the respondent contends that the applicant's dental reports are conflicting. The respondent notes that Dr. Petros does not diagnose the applicant with TMJ disorder or recommend a TMJ assessment, and that Dr. Treger's TMJ assessment is the only medical evidence concluding that the applicant sustained "a severe blow to the face and head, and to the jaw in the MVA." While I concur with the comments about Dr. Petros and the absence of specific TMJ recommendations, I give this argument limited weight. Dr. Petros diagnosed the applicant with significant dental trauma in the form of two broken front teeth. If anything, the Dr. Petros report and x-rays make a strong case for a TMJ or other form of follow-up dental assessment.

20Third, the respondent submits the IE report of Dr. Aviv Ouanounou, dentist, dated August 21, 2019. I do not assign this report the same weight as I do the OCF-18 and the TMJ assessment of Dr. Treger, due to key omissions in the evidence reviewed and brief notations that summarize the applicant's answers to questions in single sentences. Dr. Ouanounou does not note that the applicant had recently broken two front teeth. He seems to miss this entirely, writing at one point in his report that his review of the OCF-18 in dispute (which notes the broken teeth) shows that the applicant sustained only soft-tissue injuries. Instead, he focuses on the applicant telling him that he had chipped a tooth. This chipped tooth may or may not be the result of the subject accident, as Dr. Ouanounou does not record following up with additional questions on what injuries the applicant claims to have sustained in the accident.

21Dr. Ouanounou's report is also light on information, particularly regarding the applicant's answers to questions. The applicant reports frequent headaches, along with constant aching pain in his neck and left shoulder. But this is recorded in single sentences simply noting that the applicant made these comments. Dr. Ouanounou does not seem to have asked any additional questions on the source of this pain to learn more about what the applicant claimed to be experiencing. In contrast, Dr. Treger's TMJ assessment is far more thorough, featuring the analysis and recommendations described in more detail above.

22With that said, Dr. Ouanounou notes that the applicant did not report experiencing any jaw pain or impairments. Dr. Ouanounou also palpated the applicant's mastication muscles, and noted no pain or tenderness. He concludes that the applicant is not suffering from any TMJ disorder and that the TMJ assessment recommendation is not reasonable and necessary. I view these conclusions as outliers, however. They stand in opposition to Dr. Treger's OCF-18 and TMJ assessment, as well as to the preponderance of the rest of the medical evidence, which is consistent and also supported by x-rays showing the applicant's broken teeth. Dr. Ouanounou's overall assessment seems, at the very least, to be incomplete.

CONCLUSION AND ORDER

23In all, I prefer the applicant's evidence. It is clear that the applicant sustained facial and dental trauma in the subject accident. There is a consistent chain in the medical evidence, from the applicant reporting hitting his head and teeth against the steering wheel in the accident report and OCF-1 to his diagnosis of two broken front teeth and seeking treatment for a possible TMJ disorder.

24As a result, I find that the TMJ assessment is reasonable and necessary.

25The application is allowed, and I find that:

i. The applicant is entitled to $2,195.00 for the amount of the TMJ assessment, plus interest in accordance with s. 51 of the Schedule.