Samad Mahmoodian v. Aviva Insurance Company of Canada, 2023 CanLII 26944

21-000506/AABS

Licence Appeal Tribunal File Number: 21-000506/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:

Samad Mahmoodian

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Maziar Mortezaei, Counsel

For the Respondent: Jonathan White, Counsel

HEARD: By way of written submissions

OVERVIEW

1Samad Mahmoodian (“S.M.”), the applicant, was involved in an automobile accident on January 24, 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, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The issues in dispute are:

i. Is S.M. entitled to an income replacement benefit (“IRB”) in the amount of $336.93 per week from September 22, 2019 to January 24, 2021, denied on September 22, 2019?

ii. Is S.M. entitled to an attendant care benefit (“ACB”) in the amount of $5,068.73 per month (to a non-catastrophic limit of $3,000.00 per month pursuant to the Schedule), for services provided by Attendance with Care and David Mahmoodian, for the period of October 1, 2019 to January 24, 2021, denied July 17, 2019?

iii. Is the medical benefit in the amount of $4,541.16 for assistive devices, recommended by Imperial Medical Assessments, in an OCF-18 submitted June 25, 2019 and denied July 17, 2019, reasonable and necessary?

iv. Is the medical benefit in the amount of $1,338.08 for psychological services, recommended by Imperial Medical Assessments, in an OCF-18 dated August 22, 2019 and denied August 29, 2019, reasonable and necessary?

v. Is the medical benefit in the amount of $3,980.61 for physiotherapy services, recommended by Newmarket Health and Wellness, in an OCF-18 dated July 18, 2019 and denied September 18, 2019, reasonable and necessary?

vi. Is the medical benefit in the amount of $8,403.82 for chiropractic services, recommended by Newmarket Health and Wellness, in an OCF-18 submitted January 16, 2020 and denied February 5, 2020, reasonable and necessary?

vii. Is the medical benefit in the amount of $20,040.00 for dental services, recommended by Treger Dentistry, in an OCF-18 submitted December 7, 2019 and denied January 28, 2020, reasonable and necessary?

viii. Is the cost of examination expense in the amount of $2,486.00 for a neurology assessment, recommended by Imperial Medical Assessments, in an OCF-18 submitted September 26, 2019 and denied October 8, 2019, reasonable and necessary?

ix. Is the cost of examination expense in the amount of $1,882.06 for an in-home assessment, recommended by Imperial Medical Assessments, in an OCF-18 submitted October 24, 2019 and denied November 7, 2019, reasonable and necessary?

x. Is the cost of examination expense in the amount of $2,486.00 for a chronic pain assessment, recommended by Imperial Medical Assessments, in an OCF-18 submitted October 24, 2019 and denied November 7, 2019, reasonable and necessary?

xi. Is S.M. entitled to interest on any overdue payment of benefits?

RESULT

3S.M. is not entitled to IRBs or an ACB.

4S.M. is entitled to the balance of the OCF-18 for psychological services, less $299.22, which is not reasonable and necessary. S.M. is entitled to the OCF-18 for assistive devices and the in-home assessment. Interest is payable in accordance with s. 51 of the Schedule.

5S.M. is not entitled to the remaining disputed OCF-18s.

6S.M. is not entitled to an award.

BACKGROUND

Pre-Accident Health

7Prior to the accident, S.M. had a number of health issues. According to the clinical notes and records (“CNRs”) of his family physician, Dr. Okhravi, this included a renal transplant (1999), right hemithyroidectomy due to papillary thyroid cancer (2015), high cholesterol, umbilical hernia surgery (2015) and squamous cell carcinoma of the anal canal (diagnosed in 2018). An October 2016 Bone Density Report indicated osteoporosis of the lumbar spine, left femoral neck and left hip with a high 10-year fracture risk. S.M. received chemotherapy and radiation therapy for the thyroid cancer until May 2019.

8In September 2017, Dr. Okhravi noted ongoing left knee pain with osteoporosis. A November 2017 ultrasound of the left knee showed a Baker’s Cyst. In December 2017, Dr. Okhravi noted issues with anemia. A January 2019 Cancer Clinic Report noted a December 2018 colonoscopy and polypectomy with biopsy of the anal lesion and an incisional biopsy in December 2018. Dr. Rana, who authored the Cancer Clinic Report, noted that S.M. worked as an Uber driver, but was not currently working.

ANALYSIS

Income Replacement Benefits

9As a result of the accident, S.M. claims entitlement to an IRB for the period of September 22, 2019 to January 24, 2021 (as confirmed in his submissions). In order to receive an IRB, S.M. must meet a qualifying test, outlined below. I find that S.M. is not entitled to an IRB for the period claimed.

Post-accident IRBS up to 104 weeks

10To be entitled to payment under s. 5(1) of the Schedule for the initial period of time post-accident and up to 104 weeks, S.M. must prove that he was employed and that, as a result of the accident, he suffered a substantial inability to perform the essential tasks of his pre-accident employment. I find that S.M. did not suffer a substantial inability to perform the essential tasks of his pre-accident employment during the period claimed.

11At the time of the accident, S.M. worked full-time as an Uber and Lyft driver. Aviva calculated entitlement to IRBs at $336.93 per week. S.M. submits that he was unable to return to work as a driver due to his significant physical and psychological impairments. In this regard, he points to the following diagnoses: “fatigue symptoms of anxiety and depression, ongoing pain in multiple body parts, insomnia and sleep deficits, as well as significant cognitive deficits, which negatively affect his daily life and employment tasks” (June 24, 2019 Form 1 by Ms. Khramtsova).

12Aviva argues that based on S.M.’s medical evidence, and the determinations of its s. 44 assessors, S.M. has failed to establish entitlement to IRBs. It submits that the records of Dr. Okhravi do not support that S.M. suffers from chronic pain or any ongoing impairment as a result of the accident. The denial of IRBs were based on the opinions of its assessors Dr. Fung (general physician) and Dr. Silverman (psychologist) in a September 9, 2019 report. Aviva’s position is that the insurer examination (“IE”) reports reach the correct conclusion on IRB entitlement because they are consistent with the medical evidence.

13I agree with Aviva.

14While S.M.’s position is that “his continuous chronic pain, physical limitations, and psychological impairments prevent him from returning to work in his capacity as a driver”, I am not persuaded by his medical evidence that he has satisfied the test for IRB entitlement.

15First, in the December 30, 2019 report that S.M. relies on, Dr. Wilderman diagnoses chronic pain as a result of the accident. However, Dr. Wilderman is not a chronic pain specialist, and there is no evidence that he reviewed the family physician records. In addition, Dr. Wilderman’s analysis of the six criteria under the AMA Guides for chronic pain syndrome relied solely on S.M.’s self-reporting. Further, Dr. Wilderman’s conclusion that S.M. suffers from chronic pain is not explained as having a basis related to any medical evidence. Lastly, there is no discussion as to whether S.M. is unable to engage in any type of employment as a result of chronic pain. As such, I place little weight on a pain diagnosis made by a non-specialist in pain, Dr. Wilderman, and which was obtained solely by way of S.M.’s self-reporting.

16Regarding any psychological impairment that S.M. relies on to establish that he is substantially unable to perform the essential tasks of his employment, I find that his evidence falls short in this vein as well. For instance, Dr. Ghadam’s psychological report notes that S.M. struck his chest and head in the collision, however, neither the paramedic nor hospital report supports this claim. In addition, Dr. Ghadam did not address whether S.M. met the requirements for IRB entitlement, despite noting that S.M. had not returned to work due to his self-reporting of driver and passenger phobia. I note that Dr. Ghadam also did not review any medical documents for her report.

17In contrast, Aviva’s assessors, Dr. Fung and Dr. Silverman, provided reports that included all medical documentation that was reviewed for the purpose of completing their respective reports. Further, their conclusions were in line with those of the family physician, noted earlier, that S.M. did not suffer injuries that resulted in a substantial inability to perform the essential tasks of his employment. Lastly, the assessors addressed whether S.M. suffered a substantial inability to perform the essential tasks of his employment based on their objective determinations, concluding that he did not.

18For these reasons, S.M.’s lack of analysis from that he suffered a substantial inability to perform the essential tasks of his employment, along with the corroborating medical documentation from his family physician and the s. 44 assessors, fails to establish entitlement to an IRB. Accordingly, I see no reason to interfere with Aviva’s determination.

Attendant Care Benefits

19I find that S.M. is not entitled to receive an ACB. Section 42(1) of the Schedule sets out that an application for ACBs must be in the form of and contain the information required to be provided in the version of the document entitled “Assessment of Attendant Care Needs” (Form 1). Section 19 of the Schedule provides that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for services provided by an aide or an attendant. The onus is on S.M. to establish entitlement to ACBs on a balance of probabilities.

20S.M. is claiming ACBs in the amount of $5,068.73 per month, however, he acknowledges that the initial amount is not reasonable because it is beyond the non-catastrophic limit imposed by the Schedule. As such, he seeks the maximum statutory limit of $3,000.00 per month. He claims entitlement to the benefit for the period of October 1, 2019 to January 24, 2021 for services provided by his son, D.M.

21S.M. submits that he had pre-accident limitations and was able to carry on with personal care, daily activities despite those limitations prior to the accident. Currently, he submits that he is no longer able to engage in the same pre-accident activities as a result of the accident. In this regard, he submits that prolonged sitting, standing and walking, squatting and bending positions, heavy lifting and repetitive movements aggravate his accident-related symptoms. He relies on the June 24, 2019 attendant care report of Ms. Khramtsova, which notes that S.M. requires assistance with both personal care and housekeeping tasks, including dressing and undressing, grooming, bathing, feeding, sitting, walking and cleaning.

22S.M. further submits that his son initially provided services from January 2019 to September 2019 and again from January 2020 to July 2020. As proof of incurred, he relies on the evidence that D.M. reduced his working hours at ASD Montreal Clinic and requested a leave of absence which led to income loss reported on pre- and post-accident paystubs. Aviva calculated D.M.’s economic loss at $196.88 per week. In relying on Aviva’s calculated rate, S.M. submits that the economic loss total is $4,725.12 ($196.88 for 24 weeks).

23For the remaining period of ACBs claimed, S.M. submits that he received services from Attendants with Care from May to June 2019, totalling $1,980.00. In addition, his daughter F.M. provided services from August 2020 to January 2021, totalling $18,000.00. S.M. argues that he is entitled to ACBs from October 2019 to January 2021 in the amount of $27,480.00, based on the above amounts.

24In response, Aviva relies on the September 9, 2019 reports of its assessors Dr. Fung and occupational therapist, Ms. Kugathasan. Aviva also submits that it paid ACBs for the period of June 22 to September 22, 2019. It advised S.M. on October 23, 2019, it would not fund ACB expenses submitted before June 22, 2019 (when Form 1 was submitted) and not beyond September 22, 2019, as its assessors determined the amount of entitlement to be zero.

25In his report, Dr. Fung opined that the rib fracture had likely healed, with a typical healing time of 2-8 weeks post-injury. Notably, S.M. did not identify any symptoms as it pertained to the rib fracture. Also, of note is that Dr. Fung recommended in-home exercises and daily activities, as inactivity was contributing to increased pain, which is similar to Ms. Ghadam’s psychological report that S.M.’s immobility triggers more physical pain.

26Despite S.M.’s implication that Dr. Fung’s report supports entitlement to ACBs, I disagree with this position. S.M. submits that Dr. Fung “observed that S.M. required multiple assistive devices including a neck collar, left wrist brace, left knee brace and a cane to ambulate and conduct daily tasks.” I question the accuracy of S.M. submission. Dr. Fung’s report notes that S.M. wore the assistive devices to the assessment but was able to doff them for the physical examination. However, Dr. Fung made no observation or comment that confirmed that S.M. required the devices he wore. Further, the left knee pain was documented as early as 2017 and Dr. Fung specifically commented that the devices were more of a hinderance leading to prolonged injuries and pain. While Dr. Fung acknowledged injuries to the neck, left wrist, low back and left knee due to the accident, he concluded that they were soft tissue in nature. Dr. Fung concluded that ACBs were not reasonable and necessary.

27In her report, Ms. Kugathasan found that S.M. demonstrated a functional range of motion, strength, and sitting and standing tolerances for various personal care tasks. Ms. Kugathasan noted that S.M. was pain-focused and self limiting during the assessment but did participate in most of the required aspects of the assessment.

28I place little weight on Ms. Kugathasan’s report, as she relies heavily on Dr. Fung’s finding that S.M. should resume his pre-accident level of activity as this would likely assist and resolve his pain syndromes and that ACBs were therefore not reasonable and necessary. I do note that S.M. complained of pain throughout the in-home assessment during his participation in the daily activities and self-care tasks, however, he was able to do a number of them.

29However, I do find Dr. Fung’s report to be persuasive when considered with Ms. Ghadam’s note that S.M. should engage in more activities and avoid immobility. Both note that this is a likely contributor to the ongoing pain complaints, and there is no evidence that S.M. is not able to engage in at-home exercises due to pain.

30While S.M. submits that he required ACBs during the entire period claimed, I find that beyond the period that Aviva paid for, S.M. is able to engage in various activities of daily living, as reported to Dr. Fung. For example, he is able to participate in grocery shopping and can brush his teeth independently. I also note that subsequent to the period that his son was assisting him, currently, his daughter checks his blood pressure and manages his medications. While this type of care may fall within the realm of attendant care services, S.M. did not provide any explanation or demonstrate as to how this assistance meets the test of entitlement to ACBs. As such, I find it to be of a minimal degree that does not establish entitlement.

31S.M. also relies on the ACB invoices of his son, D.M., Attendants with Care, and his daughter, F.M. as proof of incurred as it relates to the requirements under s. 3(7)(e) of the Schedule. Despite this, I agree with Aviva that S.M. has failed to establish that ACBs are reasonable and necessary. While it paid the benefit during the period of time that S.M. was healing from his rib fracture, I am not pointed to evidence that supports further ACBs are required after the period that Aviva denied the benefit. In addition, while S.M. had the opportunity to refute any of Aviva’s claims by way of reply submissions, he chose not to. Accordingly, I see no reason to change Aviva’s determination that S.M. failed to establish entitlement to ACBs on a balance of probabilities.

Is S.M. entitled to payments of the OCF-18s for medical benefits because they are reasonable and necessary?

32To be eligible for funding for a treatment and assessment plan under the Schedule, the applicant has the onus to demonstrate that it is reasonable and necessary. In order to be successful, the applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall cost of achieving the goals is reasonable.

33S.M. seeks funding for the disputed OCF-18s as follows:

i. OCF-18 for $4,541.16 for assistive devices;

ii. OCF-18 for $1,338.08 for psychological services;

iii. OCF-18 for $3,980.61 for physiotherapy services;

iv. OCF-18 for $8,403.82 for chiropractic services; and

v. OCF-18 for $20,040 for dental services.

OCF-18 for $4,541.16 for assistive devices and s. 38(8)

34I find that the OCF-18 for assistive devices is reasonable and necessary.

35S.M. submits that Aviva provided insufficient explanations in denying the OCF-18 for assistive devices. His position is that the explanation of benefits failed to provide adequate reasons for the denial pursuant to s. 38(8) of the Schedule.

36Section 38(8) of the Schedule requires that the insurer reply to a treatment and assessment plan within 10 business days, identifying the goods and services it will and will not pay for and provide the medical and all other reasons for its decision.

37S.M. argues that Aviva’s denial is contrary to the medical evidence and conclusions of Ms. Khramstova, registered nurse, who conducted an in-home/attendant care assessment, and determined that S.M. required multiple assistive devices, including, but not limited to: analgesic cream, biofreeze gel, hot/cold gel pack, electric heating pad, exercise peddler, cervical and body pillows, orthopaedic mattress, anti-slip mat, raised toilet seat, knee braces, wrist support, and elbow brace.

38In response, Aviva submits that its denial was based on the September 18, 2019 s. 44 insurer examination reports of Dr. Fung, general physician and Ms. Kugathasan, occupational therapist. Dr. Fung concluded that S.M. should return to his pre-accident activities and recommended an in-home exercise program. Ms. Kugathasan essentially echoed Dr. Fung’s conclusions.

39On review of the explanation of benefits, I note that Aviva’s denial references the specific OCF-18, states that the plan is not reasonable and necessary, and that given the amount of time that has passed since the accident (six months), the “amount of devices appear” [sic] to be excessive. The notice goes on to explain that based on the clinical notes and records on file, there is no indication that S.M. requires all the proposed assistive devices as a result of the accident. The notice further advises that a s. 44 assessment is required and provides details of each assessment to be scheduled.

40I disagree with S.M. that the notice failed to comply with the requirements of s. 38(8) for a number of reasons. First, as the initial notice responding to the OCF-18, it references the medical records, as well as the amount of time that has passed since the accident, as grounds for the denial. Second, it goes on to state that Aviva is not satisfied that all the assistive devices are required. Aviva advised that additional assessments are required. Lastly, Aviva advised that with the requests for s. 44 assessments, further, more specific medical (and other) reasons would be provided pending the outcome of the assessments, which S.M. was reminded of his right to dispute the finding(s) of and did so. For these reasons, I find that the notice complied with the requirements of s. 38(8) of the Schedule.

41Accordingly, I find that there is no onus on Aviva to pay for the OCF-18 as a result of non-compliance. Turning to whether S.M. has established that the OCF-18 is reasonable and necessary, I find he has.

42In considering the two reports, I am persuaded by Ms. Khramtsova’s report over Dr. Fung’s. First, Ms. Khramtsova conducted her assessment in S.M.’s residence and was able to see exactly what his level of engagement was with his daily activities. Second, having conducted an objective assessment in the environment that the assistive devices would be used in is persuasive versus Dr. Fung’s in-office assessment where there is no opportunity to see how S.M. functions in his home. Lastly, given the noted restrictions indicated in Ms. Khramtsova’s report, it is reasonable that S.M. would require several types of assistive devices to help him with the goals set out in the OCF-18, being pain reduction, increase in strength, increased range of motion, return to activities of normal living and pre-accident work activities.

43While I agree that the assistive devices may be beneficial for S.M. in his return to his pre-accident function, I do not find that this in turn, justifies that S.M. requires ACBs. The assistive devices are a means to allow S.M. to help himself, not to provide services for him. I find there is a clear distinction between the need for an ACB in order to have individual(s) assist an injured person, versus the need for assistive devices, which will allow the injured person to better solely engage in their pre-accident activities.

44Accordingly, I find that S.M. is entitled to funding for the OCF-18 for assistive devices.

OCF-18 for $1,338.08 for psychological services and s. 38(8)

45I find that S.M. is entitled to the balance of the OCF-18 for psychological services, less the planning and service fee of $299.22., which is not payable.

46Given S.M.’s extensive psychological impairments as a result of the accident, he was removed from the Minor Injury Guideline. The August 22, 2019 OCF-18 proposed 24 1-hour sessions of counselling, two planning sessions, three assessments for mental health and addictions and completion of the OCF-18. The goals of the OCF-18 included a return to pre-accident psychological functioning, activities of normal living and pre-employment duties. Aviva partially approved the OCF-18.

47S.M. submits that Aviva failed to provide any further specific as to the information or documents it required that were needed for a full approval. S.M.’s position is that Aviva failed to comply with the requirements set out in s. 38(8) of the Schedule and provide meaningful and accurate reasons to support the partial denial of the OCF-18.

48Aviva’s submissions essentially reiterate the details of the information that was provided in the notice, which I find falls short of complying with s. 38(8). First, the grounds for partially approving the OCF-18 were that there was insufficient medical information for client related supervision services, and yet the OCF-18 did not specifically indicate that such services were being provided. Second, the notice indicated that the rates for psychologists ($149.61/hour) and psychotherapists ($58.19/hour) would be paid at the hourly rates set out by the Professional Services Guideline. I note that the rate noted in the OCF-18 was the same allowable hourly rate payable for a psychologist; therefore, I find that the hourly rate indicated in the OCF-18 complied with the Professional Services Guideline. Lastly, I find that Aviva’s notice did not contain clear language that would allow an unsophisticated person to fully understand what benefits the insurer will pay for and which benefits it would not pay for. The reference to client related supervision services does not appear to be a part of the recommended services and would therefore confuse an unsophisticated person as to what exactly is being denied in the OCF-18.

49While I agree with Aviva that the planning/services portion of the OCF-18 s not payable ($299.22), the remainder of the OCF-18 is payable, due to Aviva’s failure to comply with the requirements set out in s. 38(8) of the Schedule. I note that S.M. has received at least 50 psychological treatments, with most being approved, which suggests that Aviva agrees that psychological treatment is reasonable and necessary. Further, S.M. reported improvements post-treatment, which supports that the goals of the OCF-18 are being met to a reasonable degree.

50For clarity, the Professional Services Guideline applies by operation of s. 268.3 of the Insurance Act, and it relieves Aviva from paying more than $200.00 for form completion. Further, under the Professional Services Guideline, regarding expenses related to professional services, it states:

“Expenses related to professional services” as referred to in the SABS and the Professional Services Guideline include all administration costs, overhead, and related costs, fees, expenses, charges and surcharges. Insurers are not liable for any administration or other costs, overhead, fees, expenses, charges or surcharges that have the result of increasing the effective hourly rates, or the maximum fees payable for completing forms, beyond what is permitted under the Professional Services Guideline.

51As such, the $299.22 has the effect of increasing the maximum fees payable for completing forms beyond what is permitted under the Professional Services Guideline.

52The evidence discussed above, being the success of the psychological treatment received to date and the shortcomings of Aviva’s partial denial in its notice, supports that S.M. is entitled to the balance of the OCF-18 for psychological services. However, the balance payable is less the $299.22 for planning/services, which I find to be above the allowable $200.00 for planning/preparation/brokerage fees/progress report and form completion (which was already included as part fee total of the OCF-18.

OCF-18 for $3,980.61 for physiotherapy services

OCF-18 for $8,403.82 for chiropractic services

53The OCF-18 for physiotherapy proposed 24 sessions of exercise, therapy and acupuncture with several recommendations for exercise equipment, a total body assessment, form completion, multivitamins and “documentation support activity”.

54The OCF-18 for chiropractic treatment proposed numerous sessions of exercise, counselling, therapy, physical rehabilitation, “documentation support activity”, various other treatments, and multiple body site treatments.

55S.M. has not established that the OCF-18s are reasonable and necessary.

56S.M. submits Aviva’s denial went against persuasive medical evidence. He refers to the post-accident diagnostic imaging which note a bulging medial meniscus, chronic tearing and meniscal degeneration and a Grade 2 MCL sprain of the left knee. He also relies on Dr. Wilderman’s report regarding chronic pain. Further, S.M. points me to the reports of Dr. Ohkravi and Ms. Ghadam in support of his claims for funding.

57In response, Aviva relies on the September 18, 2019, multidisciplinary insurer examination reports of its assessors Dr. Fung and Ms. Kugathasan. It relied on the medical reasons provided that S.M. suffered soft-tissue injuries as a result of the accident, and the OCF-18s were not reasonable and necessary. Ms. Kugathasan also mainly relied on Dr. Fung’s conclusions and similarly opined that the OCF-18s were not reasonable and necessary.

58Of the reports, I find Dr. Wilderman’s the least persuasive. While Dr. Wilderman diagnoses chronic pain syndrome and other chronic pain related injuries, Dr. Wilderman is not a pain specialist and has no expertise in diagnosing chronic pain. Further, Dr. Wilderman did not review any medical history documentation, and yet concludes that S.M. suffers from chronic pain syndrome. Further still, Dr. Wilderman’s assessment is mainly based on S.M.’s subjective reporting. As such, I place little weight on Dr. Wilderman’s report.

59I find Ms. Kugathasan’s report similarly unhelpful in that she repeatedly defers to Dr. Fung’s conclusion throughout her report without providing any significant, objective occupational therapy opinion. I find Dr. Fung’s report to be persuasive, in that he suggests that S.M.’s reliance on assistive devices (such as a cane and various braces) may be contributing to his ongoing pain, and that his immobility is not helping his recovery process. I note that S.M.’s own treatment provider, psychologist, Dr. Ghadam, also agreed that S.M. should be more active.

60The medical documentation that S.M. relies on, outside of the OCF-18s themselves, is not persuasive. Dr. Okhravi does not diagnose chronic pain or any ongoing impairment as a result of the accident, and her records contain no accident-related presentations after 2019. Dr. Ghadam notes subjective complaints of headaches and knee, back and shoulder pain, however, as a psychologist, she is not trained to diagnosis physical injuries, and does not do so in her report.

61For the reasons above, I find that S.M. has failed to establish, on a balance of probabilities, that the OCF-18s for physiotherapy and chiropractic treatment are reasonable and necessary.

OCF-18 for $20,040 for dental services

62The OCF-18 for dental services recommends various dental procedures, including, but not limited to: tooth installation, extraction of three teeth, partial upper denture, diagnostic imaging, implant placement, bone preservation and crowns. The goals of the OCF-18 were to reduce pain, increase range of motion and strength, and to return S.M. to his activities of normal living.

63I find that S.M. is not entitled to funding for the OCF-18 for dental services.

64S.M. submits that as a result of the accident, he suffered chipped and fractured teeth and jaw pain. Dr. Treger, dentist, diagnosed S.M. with bilateral temporal mandibular joint syndrome, left-sided jaw pain and dental trauma as a result of the accident. Dr. Treger concluded that S.M. suffered at least a 30% reduction in functioning as well as ongoing pain affecting the temporal mandibular joint, muscles and ligaments. Dr. Treger noted that these areas were exacerbated by S.M.’s clenching habits stemming from accident-related trauma. Dr. Treger recommended the multi-modality treatment plan, described above.

65In response, Aviva relied on the May 18, 2021 s. 44 insurer examination report, and September 2, 2021 addendum of dental specialist, Dr. Ouanounou. Aviva denied the benefit based on the initial report. In his initial report, Dr. Ouanounou deferred comment on the OCF-18 until he received and reviewed pre- and post-accident dental records. Aviva requested the full pre-accident dental records from January 24, 2016 to the date of the accident, including the medical history, dental exams, charting and diagnostic imaging.

66On September 10, 2021, Aviva confirmed its denial of the OCF-18 based on the addendum of Dr. Ouanounou. The denial was based on Dr. Ouanounou’s review of the documentation provided, a February 8, 2020 letter from Dr. Hoodi, dentist. In his letter, Dr. Hoodi noted that “tooth No. 6 was repaired by 3-surface amalgam and pin in the canal in 2017”. Dr. Ouanounou opined that Dr. Hoodi’s letter did not properly address the request for the full pre-accident file. The full records were again requested in the September 2, 2021 addendum, and Dr. Ouanounou again deferred his opinion, pending receipt of the requested records.

67I agree with Aviva that S.M. has failed to establish that the OCF-18 for dental services is reasonable and necessary based on the following:

i. S.M. suggests the Disability Certificates (OCF-3s) support his claim of suffering dental injuries as a result of the accident. I note that the March 7, 2019 OCF-3 mentions a fractured tooth. Neither the March 2019 nor the September 26, 2019 OCF-3 mention any temporal mandibular joint pain or any type of oral injuries as a result of the accident;

ii. Dr. Treger notes S.M. self-reported that he suffered a blow to the head and 14 broken teeth as result of the accident. There is no verification of any medical or dental records to confirm this allegation. Dr. Treger appears to accept S.M.’s self-reporting and concludes that the injuries are a direct result of the accident, despite the lack of objective documentation to confirm same. I note that S.M. does not direct me to any pre- or post-accident dental records that confirm that these injuries are as a direct result of the accident; and

iii. S.M. has failed to produce the requested full pre- and post-accident dental records.

68I agree with Aviva that an adverse inference should be drawn as a result of S.M.’s failure to produce the full dental records as requested. In the absence of the full dental record, I conclude that any such medical evidence would not support any of S.M.’s claims regarding the significance of his dental injuries.

69Consequently, I find that S.M. has failed to establish that the OCF-18 for dental services is reasonable and necessary on a balance of probabilities.

Is S.M. entitled to payments of the OCF-18s for Assessments of Neurology, Attendant Care, and Chronic Pain?

Neurological Assessment and s. 47(2)

70I find that S.M. is not entitled to a neurological assessment as it is not reasonable and necessary.

71The September 26, 2019 OCF-18 sought funding for a neurological assessment, which noted the barriers to recovery as S.M.’s abilities to pay attention, remember and recall information, process and respond to information quickly, plan and organize, have been affected since the accident. He further points to the diagnosis of post-traumatic chronic headaches with dizziness. The assessment comes on the recommendation of Vincenzo DeLuca, chiropractor, based on the pre-screen neurological examination and OCF-3 completed by Mr. DeLuca.

72In response, Aviva points to the medical evidence in support of its denial to fund the September 2019 assessment. Specifically, it notes the CT head scan which showed no abnormality, and the OHIP summary, which showed no neurological impairment. Aviva also submits that the neurological assessment may be reasonably available through OHIP in accordance with s. 47(2) of the Schedule. Section 47(2) sets out that the insurer is not required to pay a benefit when it is otherwise reasonably available under any other insurance plan or law.

73I agree with Aviva that the neurological assessment is not reasonable and necessary.

74The medical evidence does not support that the neurological assessment is reasonable and necessary. Dr. Okhravi does not make any recommendation to a specialist as a result of any neurological diagnosis. While S.M. relies on the OCF-3 and OCF-18 as support for his claim, I find that Mr. DeLuca, as a chiropractor, is unable to diagnose a neurological impairment. Further, Dr. Fung noted that the cranial nerves were intact, cerebellar signs were negative and there was no rigidity of the upper or lower extremities. Notably, S.M.’s own assessor, Dr. Wilderman, did not diagnose a neurological impairment as a result of the accident.

75Regarding Aviva’s position on the possible availability of funding through OHIP, there is no evidence before me that Aviva took steps to advise S.M. that funding for the assessment may be reasonably available under OHIP. Further, S.M. made no arguments on Aviva’s determination or position as it relates to the reasonable availability of the neurological assessment through OHIP. However, having failed to direct me to such evidence, the burden remains on S.M. to establish that the disputed OCF-18 is reasonable and necessary.

Attendant Care/In-home Assessment

76I find that the attendant care assessment is reasonable and necessary.

77S.M. submits that the follow-up attendant care assessment is reasonable and necessary to determine the extent of limitations on his daily activities of living. His position is that the follow-up attendant care assessment was required to determine ongoing entitlement to ACBs after the period that the benefit was denied by Aviva. He further posits that since the original in-home assessment and Form 1 proposed an amount that was beyond the non-catastrophic limit, a follow-up assessment is required to determine the correct amount of ACBs.

78Aviva relies on the previously discussed s. 44 reports of its assessors, Ms. Kugathasan, Dr. Fung and Dr. Silverman, psychologist. The assessors concluded that from a physical and psychological perspective, S.M. did not require an aide or assistance to help with personal care tasks. As a result, Aviva determined that the OCF-18 was not reasonable and necessary.

79I agree with S.M.

80I note that S.M. incurred the cost of the follow-up assessment and Form 1. While this is not determinative of the reasonableness and necessity of an OCF-18, I find that the OCF-18 is reasonable for several reasons. First, S.M. consistently reports pain and functional limitations to his various assessors, and the s. 44 assessors. Second, S.M. required attendant care services due to the fractured rib, which Aviva acknowledged when it paid the ACB. Third, I note that Aviva relied on reports that were obtained during the period that it was still paying for ACBs. I find that with the healing of the rib fracture, S.M.’s material circumstances changed, and an updated assessment of his in-home needs was reasonable to determine what, if any, level of care he may require on an ongoing basis.

81For these reasons, I find that S.M. has established that the attendant care/in-home assessment is reasonable and necessary.

Chronic Pain Assessment

82I find that S.M. has not demonstrated that the OCF-18 for a chronic pain assessment is reasonable and necessary.

83S.M. submits that as a result of his ongoing pain (longer than six months), the OCF-18 for the chronic pain assessment is reasonable and necessary. His position is that as a direct result of his injuries, he continues to suffer from chronic pain at the neck, back, shoulders, arms, and knees. He relies on the previously discussed report of Dr. Wilderman in support of his claim.

84In response, Aviva relies on Dr. Fung’s report in support of its denial of S.M.’s claim for funding. To reiterate, Dr. Fung concluded that further facility treatments, exercise equipment and associated fees were not reasonable and necessary for treatment of S.M.’s accident-related injuries.

85It points to the medical documentation as further evidence that the OCF-18 is not reasonable and necessary, specifically Dr. Ohkravi’s medical records that do not contain a chronic pain diagnosis or a referral to a pain clinic, and that Dr. Ohkravi’s records contain no entries after April 2019.

86I agree with Aviva that S.M. has not established that the disputed OCF-18 is reasonable and necessary.

87S.M. relies on the six criteria set out in the AMA Guides and submits that he meets at least three of the six criteria as follows:

i. Ongoing pain for more than six months and excessively dependent on health care providers and family members, evidence by the ongoing physical and psychological treatment in the last three years and the period of monthly ACBs provided (Criteria I & II);

ii. Avoidance of rigorous physical activities due to pain (Criterion III);

iii. Suffering from social withdrawal, including withdrawal from activities of daily living, leisure and work (Criterion IV);

iv. Failure to return to pre-accident physical and psychological functioning as noted by consistent complaints of pain and psychological impairment to medical professionals (Criterion V); and

v. Continued psychological impairments, including symptoms of depression, anxiety and non-organic sleep patterns (Criterion VI).

I note that Dr. Wilderman did not identify which of the six criteria S.M. met or did not meet.

88Dr. Wilderman diagnosed chronic pain syndrome, chronic post-traumatic headaches, chronic WAD II and III, chronic mechanical back pain with associated osteoarthritis and bilateral sacroiliac joint dysfunction, derangement of the left knee joint due to meniscal tear and left wrist pain, as a result of the accident. S.M. submits that Dr. Wilderman’s report serves to identify the accident-related injuries further hindering recovery to make recommendations for available treatment options.

89Aviva argues that little weight should be placed on Dr. Wilderman’s report due to the flawed nature of the report as it pertains to his analysis of the AMA Guides for chronic pain. It submits that Dr. Wilderman relies entirely on S.M.’s subjective reporting and failed to consider the medical history. It makes submissions on the six criteria as follows:

i. S.M. reported no use of drugs beyond the recommended duration (Criterion I);

ii. Dr. Wilderman only identified assistance with heavier tasks in housekeeping in support of dependence on healthcare providers, spouse or family (Criterion II);

iii. Dr. Wilderman failed to assess how S.M.’s self-report of avoiding walks and shovelling snow caused any deconditioning (Criterion III);

iv. There was no medical evidence supporting S.M.’s reports of social withdrawal (Criterion IV);

v. Dr. Wilderman failed to consider any of S.M.’s pre-accident medical history when analyzing S.M.’s failure to restore pre-injury function (Criterion V); and

vi. Although Dr. Wilderman identified mild post-traumatic symptoms, S.M. reported that he continued to drive after the accident (Criterion VI).

I note that Dr. Wilderman did not identify which of the six criteria S.M. met or did not meet.

90I disagree with the parties’ positions on relying on the six criteria to determine whether a chronic pain assessment is reasonable and necessary. The intention of the criteria is to determine whether an individual suffers functional impairment as a result of chronic pain. The criteria should not be used as a substitute for the objective determination of a proper assessment. The roles of an assessment and the use of the AMA Guides are not necessarily interchangeable and should not be relied on as such. While the AMA Guides are a useful tool, it should not be seen as the sole resource as it relates to determining whether an individual suffers from chronic pain, but in conjunction with the process of having a medical professional conduct a formal, objective assessment to make the determination. I find the parties here have chosen to put their stock in the AMA Guides alone.

91In light of this, I place little weight on Dr. Wilderman’s report as I find there are significant issues with the report. First, there is no record of review of any medical history documentation that Dr. Wilderman relied on to inform his conclusion. Second, Dr. Wilderman’s diagnosis is not supported by any explanation as to how the conclusion was reached where there is no connection between the self-reporting and the diagnoses. Thirdly, Dr. Wilderman is not a chronic pain specialist, therefore I assign his report little weight. Lastly, despite incurring the expense of the chronic pain assessment from Dr. Wilderman, the shortcomings of the report do not make the assessment reasonable and necessary.

92The appropriate approach is to establish whether the assessment is reasonable and necessary. I find there is little corroborating evidence that S.M. suffers from ongoing pain that would warrant further investigation by way of a chronic pain assessment. While I note the complaints to the various medical professionals, by way of the family physician and assessors, there are no records from the family physician after 2019. Further, despite relying on the report from Dr. Wilderman, and having assigned little weight to that report, there is little by way of persuasive evidence that a chronic pain assessment is reasonable and necessary.

Interest

93Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

94S.M. is entitled to interest on the OCF-18 for psychological services, less the $299.22 that is not payable.

95S.M. is entitled to interest on the OCF-18 for the ACB assessment.

Award

96Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer has “unreasonably” withheld or delayed payments.

97S.M. submits that Aviva failed to provide sufficient medical opinions contrary to recommendations of S.M.’s treatment providers. He further submits that Aviva failed to consider all available medical evidence. In its adjusting of the file, his position is that Aviva unreasonably failed to pay all claimed benefits that were reasonable and necessary, by not considering or ignoring “credible medical reasons”.

98I disagree.

99First, having determined that S.M. is not entitled to a number of the disputed OCF-18s, Aviva cannot have been found to have unreasonably withheld payment for those benefits. Second, while I have found that S.M. is entitled to the balance of the OCF-18 for psychological service and the ACB assessment, I do not find it was a result of Aviva’s unreasonable withholding of payment. On the contrary, Aviva’s notice was found to be deficient (regarding the OCF-18 for psychological services) and S.M. established that the OCF-18 for the ACB assessment was reasonable, not as a result of any fault or shortcoming of Aviva in its handling of the file. Third, S.M. failed to produce key dental records for what was a significant claim for funding for dental services.

100S.M.’s failure to provide supporting medical documentation in support of his claim for benefits cannot be overlooked as it calls in to question the validity of S.M.’s claim. Lastly, Aviva relied on the reports of its assessors, which I found to be persuasive and assigned significant weight accordingly. Having found fault with Dr. Wilderman’s report, which S.M. heavily relied on in support of many of his claims, I find that Aviva’s determinations were largely without fault, in comparison.

101I find no reason to interfere with Aviva’s determinations that it based on the conclusions of its assessors. It was within its right to rely on said reports and did not go against any recommendations that were made (notably, the partial approval of the OCF-18 for psychological services).

102For these reasons, I find that an award is not appropriate.

ORDER

103S.M. is not entitled to IRBs or an ACB.

104S.M. is entitled to the balance of the OCF-18 for psychological services, less $299.22, which is not payable. S.M. is entitled to the OCF-18 for assistive devices and the ACB assessment. Interest is payable pursuant to s. 51 of the Schedule.

105S.M. is not entitled to the remaining disputed OCF-18s, no interest is owing.

106S.M. is not entitled to an award.