Licence Appeal Tribunal File Number: 20-015264/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:
Mark Goldman (Formerly Seyed Hadi Hashemzadeh)
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
VICE-CHAIR: Brett Todd
APPEARANCES:
For the Applicant: Ahmadreza Bazyar, Paralegal
For the Respondent: Michelle Mainprize, Counsel
HEARD BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1Mark Goldman (formerly Seyed Hadi Hashemzadeh) (the “applicant”) was involved in a motor vehicle accident on February 12, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The Dominion of Canada 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 he sustained a jaw injury in the subject accident that exacerbated prior damage to a tooth. As a result, he required more extensive treatment for this damaged tooth in the form of a dental implant or bridge. He seeks entitlement for this dental treatment, plus interest for any amount incurred.
3The respondent counters that the applicant did not properly submit this dental procedure as a treatment plan and that he also has not demonstrated this dental work to be reasonable and necessary. As Dominion holds that the applicant is not entitled to this treatment, it also maintains that interest is not applicable.
4At the request of the respondent, the name of the respondent has been changed in this decision to The Dominion of Canada General Insurance Company instead of the previously named Travelers Insurance. The name of the applicant has also been changed to reflect his name change.
ISSUES IN DISPUTE
5The following issues are in dispute:
Is the applicant entitled to $5,056.15 for dental services proposed by Dr. Fereidoun Jazayeri that, according to the applicant, was submitted on an OCF-6 expense claim form dated December 1, 2020 by email on December 23, 2020, and not denied by the respondent?
Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
RESULT
6I find that the applicant is not entitled to the dental treatment in dispute, as he has not proven it to be reasonable and necessary. It follows that as no payment is overdue, interest is not applicable.
ANALYSIS
7To receive payment for a treatment and 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.
8Here, the dispute hinges on two factors. The first is whether the applicant submitted this claim for dental expenses properly. The second is whether the applicant has proven that the exacerbation of his tooth injury and the resulting treatment plan would not have been necessary but for the accident, and as a result is reasonable and necessary.
Did the applicant properly submit his claim for dental expenses?
9I find that the applicant has submitted his claim for dental expenses in accordance with s. 38 of the Schedule.
10Section 38(3) of the Schedule contains provisions about what constitutes a treatment and assessment plan. Section 38(4) adds that “a claim for dental goods or services completed and signed by a dentist and in the form approved by the Ontario Dental Association is deemed to be a treatment plan that satisfies the requirements of subsection (3).”
11I do not agree with the respondent’s implication in submissions that the applicant did not submit his claim properly. Even though the applicant originally submitted his claim for dental services on December 23, 2020 in the form of an Application for Expenses/OCF-6 that did not include an invoice or a quote, he submitted a Standard Dental Claim Form completed by Dr. Fereidoun Jazayeri, dentist, on May 26, 2021 for the amount as listed in this dispute.
12As a result, I accept that the applicant corrected the initial submission of the dental expense form and has submitted this claim in compliance with s. 38(4) of the Schedule.
Has the applicant demonstrated that the dental expenses are reasonable and necessary?
13I find that the applicant has not demonstrated on a balance of probabilities that the dental treatment plan is reasonable and necessary. He has failed to show that this dental procedure would not been required but for the accident. Consequently, he is not entitled to this treatment plan, or interest.
14The applicant claims that he suffered an injury due to clenching his jaw together when he lost control of his vehicle on black ice during the accident. This resulted in the exacerbation of prior damage to a tooth (number 37) requiring additional dental work in the form of tooth extraction and the installation of an implant or bridge. He claims that the extraction and implant/bridge would not have been needed but for the accident. He relies on a dental treatment record and written statement provided by Dr. Jazayeri, along with x-ray imaging and the Standard Dental Claim Form outlining the treatment in dispute.
15In addition, the applicant submitted an affidavit that I have not considered in the process of rendering this decision. There is no mention of an affidavit in the motion order dated December 20, 2021 that converted this matter from a videoconference hearing to a written hearing at the consent of both parties. Email correspondence between the Tribunal and both parties in June-July 2022 indicates that the addition of the affidavit was opposed by the respondent. Rather than file a motion seeking to add the affidavit, the applicant agreed that the Tribunal can disregard it and instead submitted a document brief containing the medical evidence that had been attached to the affidavit. Both parties agreed to this approach in their final email correspondence to the Tribunal on this issue dated July 14, 2022.
16Dominion submits that the applicant has not sufficiently explained the nature of the dental expenses or the particulars of how the tooth was damaged during the accident, and that he has also not provided any evidence showing the condition of the tooth pre- and post-accident. As a result, the insurer questions causation, noting that the tooth was already significantly fractured before the accident. The respondent relies on an s. 44 paper review dated December 17, 2021 and a paper review addendum dated March 22, 2022, both of which were completed by Dr. Earl Magder, dentist. Accordingly, Dominion argues that the applicant has not met his burden and proven this dental treatment to be reasonable and necessary.
17For the reasons set out below, I agree with the respondent.
18Most notably, I find that the applicant’s medical submissions are lacking in key information to demonstrate how the accident impacted on his pre-existing tooth damage. Dr. Jazayeri’s treatment record seems quite extensive (although it is also hand-written, and often difficult to read) in its recounting of the history of the applicant’s tooth damage, which include a root canal done on June 6, 2014 and fractures to the tooth on April 11, 2017 and December 18, 2018. X-ray imaging of the applicant’s jaw has been submitted from the December 18, 2018 fracture, as well, showing the extensive nature of the damage to the tooth in question at that time. But the applicant has not submitted any such evidence showing tooth damage following the accident. The only x-ray evidence provided post-accident comes from February 26, 2019, exactly 10 days after the tooth had been removed by Dr. Jazayeri. As a result, there is no diagnostic “before and after” evidence with which to assess how the accident affected this previously damaged tooth.
19What medical evidence I do have, however, indicates that the tooth in question was damaged before the accident to the point of being irreparable. In his IE report reviewing the applicant’s dental records, Dr. Magder concluded that the tooth needed to be extracted and replaced by an implant or a bridge well before the accident. He found that this was primarily due to the fracture that was treated on December 18, 2018 (roughly six weeks before the accident), which resulted in him missing the buccal, mesial, occlusal, and distal surfaces of the tooth in question. In his addendum report, Dr. Magder further clarified his opinion, writing that this December 18, 2018 injury involved a Class III fracture exposing the nerve area. He concluded that the dental treatment plan was not reasonable and necessary as a direct result of the accident, as all of the records that he reviewed demonstrated that the tooth was already damaged so extensively before the accident that it needed to be removed and replaced.
20I have no evidence from the applicant that would cause me to doubt Dr. Magder’s conclusions. Dr. Jazayeri wrote in an undated letter (although respondent submissions refer to this document being submitted on August 11, 2021) that he diagnosed the applicant with a Class III fracture of the tooth in question during an emergency examination on February 16, 2019. Applicant submissions claim that Dr. Jazayeri diagnosed this damage due to the accident, but this is not in the dentist’s letter or in his treatment records. The letter actually states that the applicant had been in an accident on February 12, 2019 and that he attended Dr. Jazayeri for an emergency examination on February 16, 2019 having “expressed he had sustained trauma to his oral cavity.” Dr. Jazayeri then documented that the Class III fracture and damage to the tooth were so extensive that extraction and placement of an implant or bridge were the only treatment options. But Dr. Jazayeri does not ascribe this damage to the accident or indicate that the tooth has worsened since the December 18, 2018 fracture. He details the extent of the tooth damage and a recommended treatment process to best address this injury, without making any observations about the cause of the injury or how it had been exacerbated by the accident. He is completely non-committal on causation. To sum up, Dr. Jazayeri does not support the applicant’s contention that the accident directly caused and/or worsened his tooth damage.
21In addition, the submitted Standard Dental Claim Form and the records of Dr. Jazayeri are vague. The claim form lists procedure and tooth codes along with dentist fees, so it is impossible to determine what the treatment specifically involves. The letter of Dr. Jazayeri mentioned above provides added context, as does the treatment record of the applicant, but there is no explanation of the procedure codes. Treatment is also noted for both the well-documented tooth 37 as well as tooth 06, which seems otherwise to go unmentioned the applicant’s submissions.
22For the above reasons, I find that the applicant has not met his burden and demonstrated on a balance of probabilities that the dental treatment plan is reasonable and necessary. Without a medical opinion or diagnostic imagining connecting his tooth damage to the accident, he has failed to prove that the dental treatment would not have been required but for the accident. Correspondingly, the applicant is not entitled to this treatment plan or interest.
ORDER
23I find that the applicant is not entitled to the dental treatment plan in dispute or interest.
24The application is dismissed.
Released: May 4, 2023
Brett Todd
Vice-Chair