Citation: Adjetey v. Intact Insurance Company, 2023 ONLAT 20-015445/AABS

Licence Appeal Tribunal File Number: 20-015445/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:

Albert Adjetey

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Agal Lankeswaran, Paralegal

For the Respondent:

Samara Maharaj, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Albert Adjetey (“A.A.”), the applicant, was involved in an automobile accident on December 7, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). A.A. was denied benefits by the respondent, Intact, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is A.A. entitled to medical benefits for physiotherapy recommended by Alexmuir Wellness Centre as follows:

(1) $2,260.30 submitted January 18, 2019 and denied January 29, 2019?

(2) $2,230.58 submitted January 9, 2020 and denied January 29, 2020?

(3) $2,086.92 submitted April 26, 2019 and denied May 21, 2019?

(4) $1,848.24 submitted July 25, 2019 and denied August 9, 2019?

(5) $2,945.49 submitted October 24, 2018 and denied November 6, 2018?

(6) $3,481.16 submitted July 27, 2018 and denied August 2, 2018?

ii. Is A.A. entitled to interest on any overdue payment of benefits?

3In its submissions, Intact advised that it has approved the OCF018s indicated at 2(b) and (d). A.A. does not dispute this, therefore the decision will address the remaining OCF-18s in dispute.

RESULT

4A.A. has failed to demonstrate that the disputed OCF-18s are reasonable and necessary. Accordingly, no interest is payable.

PROCEDURAL ISSUE

Section 33 non-compliance and adverse inference

5As per the Tribunal Order dated August 23, 2021, the parties agreed to exchange productions on November 1, 2021.

6Intact submits that to date, A.A. has failed to produce the updated OHIP Summary and the complete accident benefits file pertaining to a subsequent accident on October 3, 2019, including any medical records related to the October 2019 accident.

7Despite extensions (a November 15, 2021 production deadline) and an adjournment request for failure to meet the production deadline extension, a new written hearing date was scheduled for July 29, 2022. A.A.’s productions were due on January 17, 2022. A.A. again failed to meet the production deadline.

8On January 24, 2022, A.A. provided the clinical notes and records of Dr. Louli, family physician, however the OHIP Summary was not provided. Review of Dr. Louli’s records revealed that A.A. was involved in a subsequent accident in October 2019. Intact requested further records pertaining to the subsequent accident.

9Around February 2022, A.A. provided the partial accident benefits file from the October 2019 accident; however, the complete file was not produced, and again, no OHIP summary was provided. The partial accident benefits file confirmed that A.A. sought treatment from the October 2019 accident, however, no records of the treatment providers were given to Intact.

10As a result of A.A.’s failure to produce key medical records in a timely manner, Intact submits that an adverse inference be drawn against A.A. I agree and draw an adverse inference as a result of A.A.’s failure to produce key medical records as it pertains to the subject and subsequent accidents. In the absence of such records, I conclude that any such documents would not support A.A.’s claims of entitlement to the disputed OCF-18s or that his injuries are as significant as he claims them to be. Lastly, I find that A.A.’s ongoing disregard of the Tribunal’s Orders to produce records, further weakens his credibility.

ANALYSIS

The disputed OCF-18s are not reasonable and necessary

11Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for reasonable and necessary medical expenses incurred as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that the claimed medical benefits are reasonable and necessary. In order to do so, an 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.

12I find that A.A. has not demonstrated on a balance of probabilities that the disputed OCF-18s are reasonable and necessary.

13A.A. first visited Dr. Louli on January 30, 2018, over a month after the accident, reporting pain in his lower back and right shoulder. Dr. Louli’s clinical notes and records (“CNRs”) note that the right shoulder had full range of motion, and the lower back had good range of motion. No subsequent visits to Dr. Louli mention accident-related pain. Specifically, at a May 10, 2018 visit, A.A. sought treatment for a workplace injury. On August 26, 2019, A.A. sought treatment for a workplace injury after a large box fell on his right shoulder, injuring his chest and right shoulder.

14A.A. submits that Dr. Louli’s CNRs establish that he has not reached maximum medical recovery and due to ongoing pain, the OCF-18s are reasonable and necessary. I disagree.

15The medical records reveal that A.A. suffered sprain and strain type physical injuries, and there is no evidence that his alleged ongoing pain has caused functional impairment. There is no evidence in the medical record of a referral to a specialist or any recommendations for treatment. In addition, A.A. does not direct me to any objective evidence in support of his claims that his ongoing pain requires further facility-based treatment.

October 3, 2019 accident

16As discussed earlier, A.A. was involved in a subsequent accident on October 3, 2019.

17Intact points me to several issues based on the partial records provided that pertain to the October 2019 accident:

i. At a December 14, 2021 Examination Under Oath, A.A. reported that his claim for accident benefits for the October 2019 accident was late because “this was his first accident benefits claim”. This is refuted by the subject proceeding in which A.A. is clearly involved in an accident benefit claim;

ii. In an August 23, 2021 Disability Certificate (OCF-3), Branko Milen, chiropractor, notes that A.A. sustained various injuries including injuries to his lumbar spine, low back and sacroiliac joint. I note that these are similar to the injuries that Branko Milen noted in the OCF-3 related to the subject accident. Notable about the August 2021 OCF-3 is that it indicates that these symptoms first began on October 3, 2019, and there were no pre-existing conditions or injuries. This claim is contradictory to A.A.’s submissions that he continues to deal with ongoing accident-related pain;

iii. OCF-18s dated August 23, 2021 and November 3, 2021 confirm that A.A. suffers from no previous injuries that would impact his response to treatment for the injuries sustained in the October 2019 accident; and

iv. In an August 25, 2021 client responsibilities contract with his legal representative, the contract recommended that A.A. visit his family physician at a “preferred rate of two times a month and not less than once a month”. I find that the suggestion here is that the visits were for the purpose of supporting the accident benefits claim, and not solely for the purposes of receiving treatment.

18I agree with Intact that these inconsistencies bring in to further question the credibility of A.A.’s claims. Accordingly, for all the reasons set out above, I place little weight on A.A.’s submissions, which are not evidence, as they are heavily based on self-reporting, his legal representative’s opinion, and are glaringly absent of supportive objective evidence.

19Despite A.A.’s claims that the OCF-18s are reasonable and necessary because they would contribute towards his recovery, he has failed to direct me to any evidence that supports his position.

20The Tribunal has been very clear that reliance on OCF-18s alone may not be enough to establish that the claimed treatment is reasonable and necessary. Objective evidence is required to demonstrate that the treatment is reasonable, that the treatment goals are met to a reasonable degree and the cost of the treatment is reasonable. A.A.’s submissions, and lack of such objective evidence falls well short of meeting his burden.

21I see no reason to interfere with Intact’s determination that A.A. is not entitled to any of the OCF-18s in dispute and that he is not entitled to interest.

ORDER

22A.A. has failed to demonstrate that the disputed OCF-18s are reasonable and necessary on a balance of probabilities.

23The application is dismissed.