Licence Appeal Tribunal File Number: 19-014085/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:
Saqib Meer
Applicant
and
Aviva General Insurance Insurance
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Joshua Meshack, Counsel
For the Respondent:
Joe Kositsky, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Saqib Meer (“the Applicant”) was involved in an automobile accident on July 20, 20178, and sought benefits from Aviva General Insurance Company (“the Respondent”) 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 (“Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
2The issues in dispute before me are:
i. Is the Applicant entitled to attendant care benefits (“ACBs”) in the amount of $600.89 per month for the period from July 21, 2017 to July 20, 2019?
ii. Is the Applicant entitled $2,822.55 for the cost of an accounting report dated May 15, 2018?
iii. Is the Applicant entitled to medical benefits proposed as follows:
a) $1,977.05 for a chiropractic treatment plan dated November 24, 2017;
b) $1,384.70 for a chiropractic treatment plan dated January 3, 2018;
c) $3,696.50 for a chiropractic treatment plan dated July 29, 2017;
d) $2,892.53 for a psychological treatment plan dated April 1, 2019;
e) $3,484.68 for a chiropractic treatment plan dated August 19, 2019; and
f) $2,419.88 for a chiropractic treatment plan dated November 27, 2019?
iv. Is the Applicant entitled to prescription cannabis, submitted via OCF-6s dated April 4, 2019, July 3, 2019, and July 16, 2019, totaling $1,976.38?
v. Is the Applicant entitled to an award pursuant to Regulation 664 because the Respondent unreasonably withheld or delayed the payment of benefits?
vi. Is the Applicant entitled to interest on the overdue payment of benefits?
RESULT
3The Respondent agreed to fund the treatment plan dated August 19, 2019, in the amount of $3,484.68. Thus, the issue is resolved.
4The Respondent also agreed to pay for the Applicant’s prescription cannabis expenses totalling $880.28.
5The Applicant is not entitled the remaining benefits claimed. No interest or award is payable.
BACKGROUND
6The Applicant was the driver of a vehicle which was struck in the aftermath of another two-care collision on a busy urban avenue. He sought no immediate medical attention following the accident but started physiotherapy and chiropractic treatment approximately four weeks later, on July 29, 2017. He met with his family physician, Dr. S. Rahl, later that day with complaints of neck, bilateral shoulder, and low back pain. Dr. Rahl noted that the Applicant was involved in a motor vehicle accident, never missed time from work and diagnosed him with soft tissue injuries.
ANALYSIS
The Applicant is not entitled to ACBs because he never incurred the benefit
7The Respondent is liable to pay reasonable and necessary expenses incurred by or on behalf of the Applicant, for services provided by an aide or attendant.
8Pursuant to section 3(7)e of the Schedule, an expense in respect of goods or services referred to in the Schedule is not incurred by an insured person unless the insured person has received the goods and services to which the expense relates, the insured person paid the expense or promised to pay the expense, and the person who provides the goods or services did so in the course of their employment, occupation, or profession, or incurred an economic loss as a result of providing the goods or services.
9The Applicant is not entitled to ACBs because he has presented no evidence to demonstrate that he incurred the benefit. At no point in his submissions or evidence has he identified a service provider or directed me to any invoices or receipts demonstrating that the services were incurred, or an economic loss was sustained. As a result, the Applicant has not met his burden to demonstrate entitlement to ACBs.
10The Applicant provided no reason to deem the expenses incurred pursuant to section 3(8) of the Schedule. Section 3(8) permits me to deem the expense incurred if I find that the Respondent unreasonably withheld or delayed the payment of benefits. Here, the Applicant has provided no rationale as to why he never incurred the benefit.
An accounting report is not reasonably required to calculate IRBs
11Pursuant to section 7(4) of the Schedule, the Respondent is liable to pay an expense incurred by or on behalf of an insured person for the preparation of a report for the purpose of calculating the person’s income from employment or self-employment. However, pursuant to section 7(4)3, the expense must be reasonable and necessary for the purpose of determining the insured person’s entitlement to IRBs.
12The Applicant claims entitlement to the report on the basis that it was required to perform a thorough calculation of his post-accident earnings. The Respondent submits that this is not a reasonable and necessary expense because the Applicant missed no time from work, continued to earn more than 70% of his pre-accident income, and that calculating the Applicant’s IRBs is a straightforward exercise. I agree with the Respondent.
13The Applicant is a regular employee and has demonstrated no unusual employment compensation which would require the assistance of an accountant to make the determination. The quantum of his IRBs, should he be entitled to any, can be determined by either the Applicant’s income for the 4 weeks preceding the accident, or the 52 weeks preceding the accident, pursuant to section 4(2)1 of the Schedule and is subject to a 70 per cent deduction of any gross post-accident employment. Thus, calculating the Applicant’s potential IRB entitlement is a basic mathematic equation that requires no professional assistance. It is not reasonable to require the services of an accountant to calculate the IRB of a regular employee in the absence of a complicated compensation scheme.
The disputed treatment and assessment plans
14Section 15 of the Schedule entitles the Applicant to all reasonable and necessary medical expenses incurred as a result of the accident, subject to the monetary restrictions in section 18. The onus is on the Applicant to demonstrate that the treatment and assessment plans in dispute are reasonable and necessary.
The plan dated July 29, 2017 in the amount of $3,696.50 is not subject to review
15This treatment plan proposes chiropractic and massage therapy treatment to improve the Applicant’s ROM, reduce pain, and return him to his activities of daily living. I find that it was properly denied pursuant to section 38(5) of the Schedule and is not subject to review pursuant to section 38(6).
16The Applicant presented with a predominantly minor injury and was initially subject to the Minor Injury Guideline (“the MIG”). The Applicant’s initial complaints were sprain and strain injuries to the neck, shoulders, and low back. He provided no compelling evidence of a pre-existing medical condition which would preclude his recovery if subject to the MIG. Further, at that time, he provided no evidence demonstrating that he sustained an injury that is not captured in the minor injury definition. It was incumbent on him to engage in treatment pursuant to the MIG and submit a treatment confirmation form instead of a treatment and assessment plan.
17Section 38(5) provides that the Respondent may refuse to accept a treatment plan that proposes goods and services outside of the MIG when an insured is entitled to goods and services within the MIG. Here, the Respondent refused to accept the treatment and assessment plan and, instead, advised the Applicant to submit a treatment confirmation form, pursuant to the MIG. The Respondent also advised that treatment pursuant to the MIG is pre-approved for up to $2,200.00 in treatment.
18Section 38(6) provides that such a refusal under section 38(5) is not subject to review. Thus, I see no reason to interfere with this denial.
The treatment plans dated November 24, 2017 and January 3, 2018, in the amount of $1,977.05 and $1,384.70, are not reasonable and necessary
19These treatment plans propose chiropractic and massage therapy treatment to reduce the Applicant’s pain, increase his strength, improve range of motion (“ROM”), and return him to activities of normal living and modified work. The Applicant submits that the plans are reasonable and necessary because of stiffness, pain, and limited ROM demonstrated in his treatment records. However, the Applicant does not direct me to any specific reference of stiffness, pain, or limited ROM. He also submits that the plan is reasonable and necessary because he later developed chronic pain. The Respondent submits that the plans are not reasonable and necessary based on the opinion of Dr. M. A. Boucher, who in reports dated November 27 and December 19, 2017, concluded that further facility-based treatment was not medically supported.
20I agree with the Respondent and find these plans to be not reasonable and necessary.
21I find no evidence contrary to the findings of Dr. Boucher. Dr. Boucher’s assessment included a physical examination and review of Dr. Rahl’s clinical notes and records. The report notes that the Applicant presented with complaints of neck pain, low back pain, and headaches. The Applicant reported independence with personal care tasks and had resumed driving. However, he reported experiencing symptoms of anxiety while driving, as well as and neck and back pain during trips longer than 20 minutes. A physical examination revealed normal ROM throughout but noted pain during lumbar extension. Dr Boucher concluded that any impairment experienced by the Applicant is due to discomfort rather than a physical limitation and diagnosed predominantly soft tissue injuries. Dr. Boucher’s opinion remained unchanged in the paper review report dated December 19, 2017. Upon examination Dr. Boucher reiterated that the Applicant demonstrated functional ROM in the cervical and lumbosacral spine, had normal extremities with no evidence of crepitation or instability in any extremity joints, had a normal neurological exam, and exhibited no objective evidence of ongoing musculoskeletal, neurological, or orthopaedic accident-related injury or impairment. In the end, Dr. Boucher concluded that the Applicant had appropriate treatment to-date, and further facility-based treatment is not medically supported. Having found no evidence contrary to Dr. Boucher’s findings, I consider the reports to be persuasive.
22In addition to Dr. Boucher’s reports, the Applicant’s family physician’s CNRs make no indication that the Applicant suffers from an accident-related injury. The Applicant met with Dr. Rahl on December 16, and 30, 2017, and January 13, and 21, 2018. Yet, CNRs from those appointments never mention the accident, accident-related injuries, nor a functional impairment. In fact, on December 30, 2017 and January 21, 2018, Dr. Rahl noted the Applicant as being “physically healthy”. I find this contemporaneous evidence in keeping with Dr. Boucher’s assessment and conclusion.
23Lastly, the treatment plan goals are inconsequential in light of the other evidence. The Applicant demonstrated normal range of motion, returned to work, and continued to carry out his activities of daily living at the time these treatment plans were proposed. For the most part, the Applicant had achieved the goals of the treatment plan by the time the plans were proposed. Further facility-based treatment to achieve inconsequential goals is not reasonable and necessary. This is in line with Dr. Boucher’s opinion that further facility-based treatment is not medically supported.
The plan dated April 1, 2019, in the amount of $2,892.53 is not reasonable and necessary
24This treatment plan was proposed by M. Singh, psychological associate, in order to help the Applicant reduce his pain, return to his pre-accident level of psychological function, and return to his normal activities of living and work. I find that this treatment plan is not reasonable and necessary as a result of the accident.
25The Applicant was diagnosed with an Adjustment Disorder with Mixed Anxiety and Depressed Mood by Dr. R. Day, in an Insurer’s Examination (“IE”) report dated March 19, 2018. The Applicant’s primary issues appeared to be irritability, developing skills to better manage pain symptoms, and driving anxiety. At no point does the Applicant or Dr. Day report that the Applicant has any difficulty with his activities of daily living or his activities at work, as a result of accident-related psychological impairments.
26The Applicant has received little benefit from psychological treatment. The update by psychological associate Singh, dated August 8, 2018, states that, following the completion of the first psychological treatment plan, the Applicant has demonstrated little improvement in his ability to cope with his chronic pain symptoms, depression, anxiety, and stress. The Respondent approved a second psychological treatment plan following this report, which the Applicant completed. Psychological associate Singh issued another progress report dated March 26, 2019, however that report is not before me, despite its potential relevance.
27The report of Dr. R. P. Weinstein, psychiatrist, is uncontroverted by any other evidence. Dr. Weinstein assessed the Applicant and issued an IE report dated October 15, 2019. The conclusion of Dr. Weinstein’s report is that the Applicant suffers from post-traumatic stress disorder and driving anxiety, but that no further therapy was recommended because it historically provided no lasting benefit. Instead, Dr. Weinstein suggest that the Applicant engage in a psychiatric evaluation and consider a trial of prescription psychotropic medication. I find no evidence that interferes with Dr. Weinstein’s findings and conclusion and agree that no further psychological treatment is reasonable and necessary.
The plan dated August 19, 2019, in the amount of $3,484.68 is resolved
28The Respondent advised that it approved this treatment and assessment plan in full. Thus, the issue is no longer in dispute.
The plan dated November 27, 2019, in the amount of $2,419.88 is not reasonable and necessary
29This treatment plan proposed chiropractic treatment to help the Applicant reduce pain, increase strength and ROM, and return to activities of normal living and pre-accident work. I find it is not reasonable and necessary as a result of the accident.
30The Applicant submits that this treatment plan is reasonable and necessary because his treating physician, Dr. H. Chaudry, recommended ongoing treatment during a visit on July 16, 2019. He submits that the insurer’s examination reports by Dr. M. Khan, physician, dated October 15, 2019 and January 7, 2020, are inconsistent because Dr. Khan endorsed ongoing injection therapy, but also found that the Applicant reached maximum medical recovery. The Respondent disagrees and submits that Dr. Khan’s findings and conclusions are uncontroverted and consistent with the medical evidence provided to-date.
31I find Dr. Chaudry’s recommendation for ongoing treatment to be unpersuasive. The July 16, 2019 visit to Dr. Chaudry was as a result of right knee issues and, in my review, it is not connected to the accident. Imaging demonstrated that the Applicant is experiencing osteoarthritic changes to his knee and Dr. Chaudry made no causal connection between the Applicant’s knee injury and the subject accident. Instead, I find that it is more likely that the Applicant’s degenerative knee changes are the natural progression from anterior collateral ligament damage, which the Applicant had repaired in 2006. I find no reasonable link between the subject accident and the Applicant’s knee issues considering that the Applicant reported no knee injury immediately following the accident, and no knee pain, or issues for more than a year following the accident.
32I find Dr. Khan’s conclusions and reports to be consistent. Dr. Khan assessed the Applicant and in the October 15, 2019 report stated that the examination was normal, but for slightly reduced lumbar extension demonstrated by the Applicant. Dr. Khan noted that the Applicant reported a temporary benefit from treatment and was receiving regular trigger point injections to address pain. Dr. Khan concluded that the treatment plan was not reasonable and necessary, and that the Applicant was approaching maximal medical recovery. Dr. Khan suggested that the Applicant try prescription pain medication in addition to the trigger point injections. I find Dr. Khan’s findings and recommendations to be reasonable in light of lack of a causal connection between the Applicant’s right knee issues and the subject accident, as noted in Dr. Chaudry’s CNRs.
The Applicant is entitled medicinal cannabis incurred
33The Applicant claims entitlement to medicinal cannabis in the amount of $1,976.38, as set out in the Case Conference Report and Order. However, the Applicant did not address the expenses for medical cannabis individually, and the expenses submitted total $880.28, which is short of the amount claimed.
34In any event, the Respondent has agreed to pay for the expenses submitted by the Applicant. I see no reason to order any additional payments considering that the Applicant provided no submissions or evidence to indicate he is entitled to anything beyond the $880.28 he incurred.
The Applicant is not entitled to an award
35The Applicant may be entitled to an award if it is determined that the Respondent unreasonably withheld or delayed the payment of benefits. He claims that the Respondent relied on sharp and generic findings of the insurer examination assessors and ignored other medical information. The Respondent submits that it relied on the examiner’s opinions and that the Applicant is unable to provide any specific example of anything the Respondent did to warrant an award.
36I agree with the Respondent and find no evidence demonstrating that it unreasonably withheld and delayed the payment of benefits. I find that the Applicant’s complaints about the insurer’s examination reports and adjusting of his claim are without merit as he is unable to direct me to a specific incidence where the Respondent acted unreasonably. Thus, no award is payable.
CONCLUSION
37The Respondent agreed to fund the treatment plan dated August 19, 2019, in the amount of $3,484.68 and to pay for the Applicant’s prescription cannabis expenses totalling $880.28.
38Otherwise, the Applicant is not entitled to the benefits claimed. No interest and no award are payable.
Released: April 18, 2023
Brian Norris
Adjudicator