Citation: Hassan v. Wawanesa Mutual Insurance Company, 2023 ONLAT 19-014256/AABS – A

Licence Appeal Tribunal File Number: 19-014256/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:

Abdiaziz Hassan

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Michelle Velvet, Paralegal Counsel

For the Respondent:

Amanda Lennox, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Abdiaziz Hassan (“the Applicant”) was involved in an automobile accident on April 12, 2017 and sought benefits from Wawanesa Mutual 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 benefits by the Respondent 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 the Applicant entitled to a medical benefit in the amount of $2,972.49 for a chiropractic treatment plan proposed by HealthMax – Etobicoke, dated May 14, 2018?

ii. Is the Applicant entitled to medical benefits for assessments proposed by HAL Disability Management Inc. as follows:

a) $2,200.00 for an attendant care assessment plan dated October 18, 2017;

b) $2,200.00 for a chronic pain assessment plan dated December 9, 2017;

c) $2,200.00 for a social work assessment plan dated April 23, 2020; and

d) $2,200.00 for a neurological assessment plan dated November 27, 2019?

iii. Is the Applicant entitled to interest on the overdue payment of benefits?

RESULT

3I find that the Applicant is not entitled to the benefits claimed, nor interest.

BACKGROUND

4The Applicant was the driver of a vehicle which was struck from behind by another vehicle while stopped at a red light at an urban intersection. Following the accident, the Applicant was driven to a collision reporting centre by a tow-truck driver and his father drove him to the hospital after that. At the hospital the Applicant complained of headaches and back pain. X-rays taken at the hospital showed no fractures and the Applicant was diagnosed with a soft tissue injury and discharged.

5The Applicant developed symptoms of a psychological injury following the accident. As a result, the Respondent approved funding for a psychological assessment and, subsequently, a treatment plan for psychological treatment. The Respondent approved two additional plans for psychological treatment and the Applicant has incurred one of them.

6To-date, the Applicant has incurred approximately 70 sessions of various treatments including; physiotherapy, massage therapy, and chiropractic treatment.

ANALYSIS

Are the treatment and assessment plans reasonable and necessary?

7The onus is on the Applicant to demonstrate on a balance of probabilities that the treatment plans in dispute are reasonable and necessary as a result of the accident.

The treatment plan dated May 14, 2018 is not reasonable and necessary

8This plan proposes 42 sessions of therapy involving either chiropractic services, massage therapy, and physiotherapy. The plan aims to relieve pain, increase strength and range of motion, and return the Applicant to activities of normal living.

9The Applicant submits that this plan is reasonable and necessary because he made ongoing complaints of pain to his family physician, and the treatments such as physiotherapy, massage therapy, chiropractic services, and acupuncture therapy provide temporary pain relief. He further submits that he tried at-home exercises but found them to be unhelpful. Lastly, he submits that his family physician, Dr. A. Egbert, and Dr. T. Getahun, orthopaedic surgeon, recommend ongoing multidisciplinary treatment.

10The Respondent submits that pain relief may be a legitimate treatment goal, but such a goal remains unreasonable if it is not met to a reasonable degree. The Respondent submits that, instead, the Applicant should engage in a self-directed exercise program as recommended by Dr. R. Williams, physiatrist, in a report dated March 21, 2018. The Respondent further submits that it is not the case that the Applicant found home exercises unhelpful, it is that the Applicant failed to keep up with recommended home exercises. Additionally, the Respondent highlights that the Applicant reported improvement in his pain symptoms with the use of prescription medication.

11I agree with the Respondent and find that the treatment plan dated May 10, 2018 is not reasonable and necessary as a result of the accident.

12Contrary to the Applicant’s submissions, I am not persuaded that Dr. Egbert recommended ongoing physiotherapy at the time the treatment plan was proposed. In fact, the Applicant never visited Dr. Egbert, for the period from July 27, 2017 to May 14, 2018, when he complained of back pain on and off secondary to allergy issues and an interest in gaining weight and muscle. I find no recommendation for ongoing facility-based treatment in the clinical notes and records (“CNRs”) from the visit with Dr. Egbert on May 14, 2018. Instead, I find that Dr. Egbert recommended ongoing exercise – though I recognize that the recommendation may be related to weight gain rather than treating soft-tissue injuries.

13Similarly, Dr. Getahun recommended ongoing physiotherapy in the report dated January 12, 2018, but the Applicant was already approved for further physiotherapy. By May 14, 2018, the Applicant completed only 22 of 45 sessions from the treatment plan dated December 27, 2017, which the Respondent funded. It is unreasonable to fund 42 additional treatment sessions during a time where the Applicant sill has 23 treatment sessions approved, but unconsumed.

14The Applicant’s range of motion (“ROM”) is within functional limits throughout his body and requires no additional facility-based treatment. Dr. Egbert assessed the Applicant on May 14, and October 18, 2018 and concluded that he had good and full ROM, respectively. It was only on November 15, 2018 that Dr. Egbert observed decreased ROM, but never recommended further facility-based treatment and noted in February 2019 that the Applicant’s ROM was full again. Similarly, the Applicant was referred to a pain clinic and was examined by Dr. S. Sakian, physician, who observed mostly full or normal ROM throughout the Applicant’s body, but for some slight reduction in the cervical and lumbar spine.

15It appears that the Applicant is able to complete his activities of normal living. The Applicant returned to full-time studies following the accident and there is no evidence that suggests he required any accommodation for his return to school. At the time of the accident, the Applicant lived at home with his parents and was not responsible for many of the household chores or duties and there appears to be no change in this arrangement after the accident. At most, the Applicant reports that he socializes less than prior to the accident and is no longer able to go to the gym. Yet, there is no evidence that suggests the Applicant is unable to exercise independently at the gym. In fact, engaging in at-home exercises is recommended by Dr. Egbert, Dr. Williams, and Dr. Sakian. From this I conclude that the Applicant has been provided with an adequate amount of facility-based treatment and should engage in a self-directed exercise program. Thus, the I find the treatment plan dated May 14, 2018 to be not reasonable and necessary.

$2,200.00 for an attendant care assessment plan dated October 18, 2017

16I find that this treatment plan, proposing an attendant care assessment, is not reasonable and necessary as a result of the accident.

17The Applicant submits that this assessment is reasonable and necessary given his limitations with household chores following the accident. He submits that the assessment is supported by Dr. Getahun, who recommended an assessment with an occupational therapist to determine what assistive devices would benefit the Applicant. The Respondent submits that this assessment is not reasonable and necessary because the Applicant consistently reported independence with all of his self-care tasks following the accident. In summary, the Respondent submits that the Applicant reported and exhibited functionality that negates any need for an in-home occupational therapy assessment. I agree with the Respondent.

18The Applicant exhibits functionality which negates the need for an attendant care assessment. The Report dated July 18, 2017, by S. Mills, occupational therapist, notes that the Applicant reported independence with personal care activities and some household chores such as preparing food for himself, making the bed, changing linens, and doing his laundry. Occupational therapist Mills concluded that the Applicant demonstrated the functional ability to complete all of his personal care tasks and all of his pre-accident household chores. He reported similar functionality, and also reported that he is returning to school on a fulltime basis, to Dr. P. Kelly, psychologist, in the report dated September 27, 2017. The IE report dated July 31, 2017, by Dr. Bentley, noted that the Applicant reported independence with all his personal care and Dr. Bentley concluded that the Applicant exhibited no ROM impairment, normal neurological signs, and should not be imposed with any restrictions. Similarly, Dr. Egbert’s CNRs make no indication that the Applicant is functionally impaired and would require an assessment to determine what his attendant care needs are.

19I reject the Applicant’s argument that the assessment is partly proposed to determine whether assistive devices are warranted. The assessment plan is proposed predominantly to assess the Applicant’s attendant care needs and to identify occupational therapy needs. Assistive devices are never mentioned in the assessment plan. Further, the assessment plan states that the assessment will be conducted by a registered nurse, not an occupational therapist. I fail to see how a registered nurse is qualified to opine on the Applicant’s occupational therapy needs.

20I find that Dr. Getahun’s recommendation is unsupportive of this treatment and assessment plan. Dr. Getahun recommended “in-home occupational therapy assessment for assistive devices”. Yet, the treatment plan proposed will be completed by a registered nurse and makes no mention of assistive devices. Further, Dr. Getahun provides inadequate medical rationale for the assessment, leaving me to infer that the assessment is proposed a result of the limitations reported by the Applicant. However, as explained earlier, the dysfunction reported by the Applicant to Dr. Getahun is much greater than what was reported to the IE assessors. Thus, I find Dr. Getahun’s recommendations are compromised and hold less weight and the evidence discussed above is preferred.

$2,200.00 for a chronic pain assessment plan dated December 9, 2017;

21I find that this plan, proposing a chronic pain assessment, is not reasonable and necessary as a result of the accident.

22The Applicant submits that the chronic pain assessment is reasonable and necessary because he has been diagnosed with chronic pain as a result of the accident and because imaging later identified objective evidence demonstrating an impairment. The Respondent submits that this assessment plan is a duplication of services as it approved funding for an orthopaedic assessment by the same provider, to assess the identical criteria. I agree.

23This assessment is a duplication of services because it proposes to do the same assessment as the approved orthopaedic assessment plan, dated November 9, 2017. The orthopaedic assessment and the chronic pain assessments were both to be conducted by Dr. Getahun. Furthermore, the Applicant incurred the orthopaedic assessment on January 12, 2018, about two months after it was approved and a month after the chronic pain assessment plan was proposed. In hindsight, a comparison of Dr. Getahun’s orthopaedic assessment report dated January 12, 2018 and the chronic pain assessment report dated March 1, 2019 leads me to conclude that they are essentially the same assessment.

24The report by Dr. R. Harris, psychologist, demonstrates that a chronic pain assessment is not reasonable and necessary in light of the approval of an orthopaedic assessment. Dr. Harris diagnosed the Applicant with somatic symptom disorder and recommended an assessment with either an orthopaedic surgeon or a chronic pain specialist. The Respondent followed this recommendation and approved an assessment with an orthopaedic surgeon. It is unreasonable to approve another, similar assessment, in light of this approval. While I agree that the Applicant later complained in 2018 that his pain is impacting his physical and psychological functioning, I find that it would be premature to address it in a chronic pain assessment without engaging in psychological treatment, as recommended by Dr. Harris.

$2,200.00 for a social work assessment plan dated April 23, 2020

25I find no evidence demonstrating that the social work assessment is reasonable and necessary as a result of the accident.

26The Applicant claims entitlement to this assessment on the basis that he suffers from limitations in social functioning and interactions. However, he provided no example of such deficits. He suggests that the Respondent’s reason for denying the plan is insufficient and submits that the plan was not responded to in accordance with section 38(8) of the Schedule, activating the remedy in section 38(11). The Respondent submits that there is no medical rationale for this assessment plan and that the services it proposes to introduce to the Applicant are not available to him. It suggests that the assessment is not reasonable and necessary because it approved additional psychological treatment on September 16, 2019, but the Applicant never incurred any of the sessions by the time of this hearing.

27I agree with the Respondent and find no medical rationale for the social work assessment plan. The plan aims to help the Applicant emotionally re-integrate into and strengthen his familial, social, and community networks. However, neither the plan, nor the Applicant’s submissions, direct me to any evidence that demonstrates a need to re-integrate and strengthen these networks. In contrast, the fact that the Applicant has declined to engage in approved psychological treatment indicates that any social, emotional, and mental well-being limitations were minimal and required no assessment from a biopsychosocial perspective.

28Lastly, I find no entitlement to payment of the social work assessment plan pursuant to the Schedule. While the Applicant claims entitlement due to a tardy and insufficient response, he has not demonstrated that he incurred the goods and services proposed in the assessment plan. The Applicant fails to appreciate that section 38(11) entitles him to payment only for the goods and services incurred during the period of non-compliance. Having failed to incur any goods and services during the period of non-compliance, the assessment plan is subject to the standard reasonable and necessary test, which he has failed to meet his onus.

$2,200.00 for a neurological assessment plan dated November 27, 2019?

29I find that the neurological assessment plan is not reasonable and necessary as a result of the accident because there is no compelling medical evidence to support it.

30The Applicant submits that the neurological assessment plan is reasonable and necessary because he reported to assessors that he suffers from radiating pain from his back up to his shoulder and arms. Much like the social work assessment, the Applicant also submits that he is entitled to the neurological assessment plan because the Respondent failed to issue a timely reply with sufficient medical and other reasons. The Respondent submits that the plan lists no neurological injuries to investigate, and that the Applicant lacks any neurological deficits that would warrant an assessment.

31I agree with the Respondent and find that this plan provides no rationale for the assessment. There is no information in the assessment plan that indicates the Applicant suffers from any neurological issues. As noted previously, the Applicant’s neurological assessments were regularly normal. While on May 10, 2019 , the Applicant reported to Dr. Sakian that his pain radiated to his shoulders and arms, and he was referred for an MRI. The Applicant followed up with Dr. Sakian on November 4, 2019 and reviewed the MIR results which noted a disc bulge at C4/C5 associated with facet disease. Dr. Sakian never mentioned any neurological deficit or disorder and made no recommendation for a neurological assessment. Instead, Dr. Sakian advised the Applicant to continue with physiotherapy exercises daily and return to the clinic if the pain increases. A neurological assessment is not reasonable and necessary in light of this evidence.

32Similar to the social work assessment plan, the Applicant is not entitled to the neurological assessment plan because he never incurred it during a period of non-compliance. The Applicant’s complaints regarding the sufficiency of the Respondent’s denials need not be considered because he never incurred the goods and services proposed in the plan. Thus, it is weighed on the basis of whether it is reasonable and necessary – which I have found it is not.

INTEREST

33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found that the Applicant is not entitled to the treatment and assessment plans in dispute, it follows that he is not entitled to interest.

CONCLUSION AND ORDER

34The Applicant has not met his onus to demonstrate that the treatment and assessment plans in dispute are reasonable and necessary as a result of the accident. As a result, he is not entitled to the treatment and assessment plans in dispute, nor interest.

35The Application is dismissed.