Furqan v. Aviva General Insurance Company, 2023 CanLII 30771

Licence Appeal Tribunal

Citation: Furqan v. Aviva General Insurance Company, 2023 ONLAT 20-012272/AABS

Licence Appeal Tribunal File Number: 20-012272/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:

Aysha Furqan

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

Kameliya Stancheva, Paralegal

For the Respondent:

April C. Snow, Counsel

Heard by way of written submissions

OVERVIEW

1Aysha Furqan (the “applicant”) was involved in a motor vehicle accident on December 1, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva General Insurance Company (the “respondent”) denied certain benefits. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant submits that she sought medical treatment following the accident for injuries listed on a Disability Certificate/OCF-3 completed by Resham Shetty, physiotherapist, dated December 13, 2018. These injuries include whiplash associated disorder, sprain and strain of the neck, sprain and strain of the cervical and thoracic spine, sprain and strain of the shoulder joint, sprain and strain of unspecified parts of the shoulder girdle, pain in the lower abdomen, headache, nausea, acute stress reaction, anxiety, nervousness, sleep disorder, and malaise and fatigue. She claims entitlement to five treatment plans/OCF-18s, on the basis that they are reasonable and necessary, along with interest.

3Aviva argues firstly that the applicant cannot meet her burden of demonstrating that the treatment plans are reasonable and necessary because she has not presented the actual OCF-18s as part of her submissions. Second, Aviva argues that the applicant has not presented enough medical evidence to support her claim that the treatment plans are reasonable and necessary, and as a result she is not entitled to these plans, or interest.

ISSUES IN DISPUTE

4The following issues are in dispute:

1. Is the applicant entitled to $3,245.94 for physiotherapy services in a treatment plan/OCF-18 denied April 15, 2019?

2. Is the applicant entitled to $2,200.00 for a chronic pain assessment in a treatment plan/OCF-18 denied February 5, 2020?

3. Is the applicant entitled to $1,700.00 for a bio-psychological assessment in a treatment plan/OCF-18 denied June 19, 2020?

4. Is the applicant entitled to $1,197.51 for a cognitive assessment in a treatment plan/OCF-18 denied June 25, 2020?

5. Is the applicant entitled to $1,464.92 for assistive devices in a treatment plan/OCF-18 denied June 25, 2020?

6. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

RESULT

5I find that the applicant has not met her onus to prove that the medical benefits in dispute are reasonable and necessary. As no benefits are owing or overdue, it follows that she is also not entitled to interest.

ANALYSIS

Has the applicant proven the treatment plans to be reasonable and necessary?

6To receive payment for treatment and assessment plans under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefits are 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.

7In regard to the OCF-18s in dispute for physiotherapy, three assessments, and assistive devices, the applicant relies on: the clinical notes and records (“CNRs”) of Dr. Diana Thompson and Dr. Afshan Rafay, her family physicians; the CNRs of Dr. Shahab Qureshi, internist; records from Brampton Civic Care Centre, where she was treated; a chronic pain report completed by Dr. Igor Wilderman, family physician, dated March 18, 2020; a psychological assessment report completed by Dr. Sadet Yilmaz and Dr. Rick Lindal, psychologists, dated January 17, 2020; and psychological progress reports of Dr. Konstantinos Papazoglu and Dr. Harinder Mrahar, psychologists, dated October 19, 2020 and March 30, 2021. The applicant does not rely on any of the OCF-18s in dispute, and does not, in fact, include these OCF-18s in her initial or reply submissions.

8The respondent contends that the applicant’s failure to include the OCF-18s in dispute is fatal to her application, as this prevents an adjudicator from assessing if the treatment plans in dispute are reasonable and necessary. Aviva further submits that the applicant has at any rate not met her burden and has not proven that the plans are reasonable and necessary. The respondent relies upon insurer examinations (“IE”) of Dr. Hashmat Khan, general practitioner, and Dr. Pravesh Jugnundan, general practitioner, ordered pursuant to s. 44 of the Schedule with regard to the physiotherapy OCF-18 denied on April 15, 2019, the assistive devices OCF-18 denied May 15, 2020, and the chronic pain assessment OCF-18 denied February 5, 2020. The respondent relies on an IE of Dr. Mohammad Nikkhou, neuropsychologist, concerning the bio-psychological OCF-18 denied June 19, 2019, and on the IE of Dr. Jonathan Siegel, psychologist, concerning the cognitive assessment OCF-18 denied on June 25, 2020, with the support of the aforementioned IE provided by Dr. Jugnundan.

9For the following reasons, I agree with both of the respondent’s arguments.

10I am persuaded by Aviva’s contention—bolstered by reference to a previous decision of this Tribunal, namely K.R. v Aviva Insurance Canada 2019 CanLII 22218 (ON LAT)—that the applicant’s failure to submit the treatment plans with her submissions makes it impossible for me to assess whether they are reasonable and necessary. Without these plans, I cannot review the specifics of the treatment that they recommend or their goals and costs, let alone assess them alongside the submitted medical evidence to decide if they are reasonable and necessary. Also, I note that the applicant had the opportunity to respond to these omissions in reply submissions, but chose not to do so. Although the applicant did submit a reply, she did not mention this issue at all, or attempt to submit the treatment plans in question, choosing instead to focus on refuting the respondent’s submissions regarding the chronic pain and psychological assessments. Consequently, I concur with the respondent and find that the omission of the treatment plans is fatal to this application, as I cannot determine that plans that I do not have are reasonable and necessary.

11Regardless, I am not persuaded that the applicant’s medical evidence is sufficient to back up any claim that she requires additional treatment. There are no supporting medical reports or referrals that would necessitate additional physiotherapy treatment or the use of assistive devices. While the chronic pain assessment of Dr. Wilderman diagnoses the applicant with a chronic pain condition, there are few indications in the submitted CNRs to indicate symptoms that would warrant such an investigation. As the respondent points out, the applicant does not complain of pain symptoms to her primary family physicians from January 2019 to February 2021, and does not visit her family physician Dr. Rafay at all during this period of time. Dr. Rafay does note the applicant’s complaint of ongoing pain from the accident and a “backache acting up,” but this is not until an appointment on February 22, 2021, almost a year after the writing of the Dr. Wilderman report on March 18, 2020. Also, Dr. Wilderman bases much of his report on the self-reported complaints of the applicant and ventures outside of his area of expertise as a family physician into psychological analysis. As a result, I do not find his report convincing. I assign greater importance to the medical evidence around the applicant’s psychological issues, as the applicant discusses these concerns with Dr. Rafay, and the assessment and follow-up progress reports of Dr. Yilmaz, Dr. Lindal, Dr. Papazoglu, and Dr. Mrahar are quite detailed. Still, these reports focus on recommendations for treatment outside of the OCF-18s in dispute here, making them of limited value to this decision.

12I prefer the medical evidence presented by the respondent, at any rate, as it is thorough and features IEs specifically addressing each of the treatment plans in dispute. Dr. Khan, in his IE dated July 16, 2019, and Dr. Jugnundan, in his IE dated October 20, 2020, find that the applicant suffered only soft-tissue injuries in the accident and had reached maximum medical improvement. They found both the physiotherapy and assistive devices OCF-18s to not be reasonable and necessary and that, furthermore, no physical treatment or devices would be of assistance to the applicant in her current state of recovery. Dr. Jugnundan also commented on the chronic pain assessment, again noting his opinion that the applicant had reached maximum medical improvement and that he saw no evidence that she was suffering from a chronic pain condition. Dr. Jugnundan also opined that he saw no evidence of chronic pain in Dr. Rafay’s CNRs that he reviewed.

13Dr. Nikkhou offered similar opinions about the OCF-18 for a bio-psychological assessment, writing that the applicant had been receiving psychological treatment since February 2020 and that no such assessment had been recommended by the treating psychologist. As a result, Dr. Nikkhou found this plan to not be reasonable and necessary, and that it would represent possible duplication of services as there was no explanation of how this assessment would be different or complementary to ongoing psychological therapy.

14Lastly, I agree with the respondent’s submissions that the cognitive assessment OCF-18 is not reasonable and necessary, as there is no evidence of the applicant sustaining a head injury or reporting any such cognitive functioning complaints to her family doctors or other treating physicians. Aviva cites the IE of Dr. Siegel, dated July 16, 2019 as additional support for this view. Although this IE did not specifically address the OCF-18 in dispute, Dr. Siegel recorded the applicant as saying she is not having significant problems with her memory.

15Taken in totality, these reports form a strong and consistent evidentiary chain on their own—even without considering the fatal problem presented by the applicant failing to provide the OCF-18s in dispute as part of her submissions.

16For the reasons reviewed above, I find that the applicant has not met her burden. As a result of the applicant failing to provide the OCF-18s in dispute and a preponderance of the medical evidence submitted by the respondent, I find that the treatment plans have not been demonstrated to be reasonable and necessary. No benefits are owing, nor interest.

ORDER

17The application is dismissed. I find that the applicant has not demonstrated that the treatment plans in dispute are reasonable and necessary. As there are no benefits owing or overdue, interest is not applicable.