Citation: Aiyenimelo v. Coseco Insurance, 2023 ONLAT 21-004365/AABS

Licence Appeal Tribunal File Number: 21-004365/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:

Olugbenga Aiyenimelo

Applicant

And

Coseco Insurance

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Albert Wong, Counsel

For the Respondent:

Kathleen O’Hara, Counsel

HEARD:

By way of written hearing

OVERVIEW

1Olugbenga Aiyenimelo (“O.A.”), the applicant, was involved in an automobile accident on August 29, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). O.A. was denied benefits by the respondent, Coseco, 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 O.A. entitled to $1,700.00 for an attendant care assessment, proposed by All Health Medical Centre in a treatment plan (OCF-18) dated July 12, 2019?

ii. Is O.A. entitled to $2,520.00 for a physiatry assessment, proposed by All Health Medical Centre in an OCF-18 dated June 21, 2019?

iii. Is O.A. entitled to $3,257.16 for chiropractic services, proposed by Malton Spine Clinic & Chronic Pain Clinic in an OCF-18 dated August 7, 2019?

iv. Is O.A. entitled to $2,520.00 for an orthopaedic assessment, proposed by Malton Spine Clinic & Chronic Pain Clinic in an OCF-18 dated October 1, 2019?

v. Is O.A. entitled to $4,356.00 for chiropractic services, proposed by Malton Spine Clinic & Chronic Pain Clinic in an OCF-18 dated December 6, 2019?

vi. Is O.A. entitled to $3,861.85 for chiropractic services, proposed by Malton Spine Clinic & Chronic Pain Clinic in an OCF-18 dated July 6, 2020?

vii. Is O.A. entitled to $2,260.00 for a chronic pain assessment, proposed by All Health Medical Centre in an OCF-18 dated March 2, 2021?

viii. Is O.A. entitled to an attendant care benefit in the amount of $18,730.36 for the period of November 2018 to September 2019?

ix. Is Coseco liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to O.A.?

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

RESULT

3O.A. is not entitled to the OCF-18s in dispute.

4O.A. is not entitled to an attendant care benefit for the period of November 2018 to September 2019.

5O.A. is not entitled to an award or interest.

BACKGROUND

Pre-accident health

6Prior to the subject accident, O.A. was involved in several other accidents as follows:

i. 2009 – suffering neck and back injuries;

ii. September 2015 –suffering back and neck pain;

iii. October 6, 2016 - sustaining a sprain and strain of his neck, mid and low back; headache; dislocation, sprain and strain of joints and ligaments of the shoulder girdle; and

iv. November 16, 2020 – subsequent accident, claim is ongoing, reinjuring his shoulder and back.

7During the period between the 2016 accident and the subject accident, O.A. has been treated by his family physician, Dr. Ajisafe.

8Prior to the 2018 accident, O.A. was suffering from ongoing left wrist pain, back and bilateral shoulder discomfort as a result of the 2016 accident. At the time of the subject accident, O.A. was still suffering from left thumb and wrist, lower back and bilateral shoulder and psychological impairments from the 2016 accident.

9A March 19, 2018 OCF-3, completed by Dr. Ajisafe, noted a WAD II injury; left thumb pain with ulna collateral ligament damage; rotator cuff syndrome; lumbar/pelvic strain/sprain; and chest pain. I note the March 2018 OCF-3 was the result of the 2016 accident.

Post-accident health

10Coseco removed O.A. from the Minor Injury Guideline (the “MIG”) on February 12, 2020, on the basis of psychological impairments sustained in the subject collision.

ANALYSIS

Disability Certificates (OCF-3s)

11O.A. relies on an August 7, 2019 OCF-3, completed by Dr. Babaloui, chiropractor, who noted that O.A. sustained the following injuries―WAD II, with complaint of neck pain with musculoskeletal signs; sprain and strain of thoracic and lumbar spine; sprain and strain of shoulder joint; pain in throat and chest; other headache syndromes; dislocation, sprain and strain of joints and ligaments at wrist and hand level; other anxiety disorders; and non-organic sleep disorders. Dr. Babaloui maintained the same findings in subsequent OCF-3s dated October 2, 2019 and August 14, 2020.

Does O.A. have pre-existing injuries that prevent recovery under the MIG?

12O.A. submits that according to the March 19, 2018 OCF-3, he still suffered from a whiplash injury, left thumb pain (with ulna collateral ligament damage), rotator cuff syndrome, lumbar/pelvic sprain/strain, and chest pain at the time of the subject accident. The clinical notes and records of the treating physicians (Dr. Ajisafe and Dr. Townley) note diagnoses of left thumb and back pain.

13O.A. relies on additional clinical records from Dr. Ajisafe, specifically referring to post-accident entries that note ongoing injuries to his left hand/thumb and rotator cuff syndrome, originating from the 2016 car accident. O.A.’s position is that this is compelling medical evidence that he suffers from pre-existing medical issues that prevent him from achieving maximum medical recovery under the MIG limits.

14In response, Coseco submits that O.A. failed to establish he suffered more than soft tissue injuries as a result of the subject accident. In support of its determination, it points to the initial post-accident record of Dr. Ajisafe, where O.A. presented with neck and shoulder pain and no other symptoms. Dr. Ajisafe diagnosed soft tissue injuries. I note that Dr. Ajisafe’s records contain no other accident-related pain complaints.

15Coseco relies on the medical documentation and records that note that shortly after the subject accident O.A. returned to two part-time hospital positions, O.A. saw Dr. Ajisafe as a result of straining his back while transferring a patient. At a subsequent visit on May 9, 2019, O.A. reported to Dr. Ajisafe that a medical assessor hurt him, causing right shoulder pain. Approximately two weeks later, O.A. submitted his application for accident benefits. Coseco also submits that the documentation shows that the prior accident benefits provider had recently stopped funding physical treatment in relation to the 2016 accident.

16In support of its determination, Coseco relies on the s. 44 reports of its insurer examination (“IE”) assessors. After assessing O.A. on January 10, 2020, Dr. Rabinovich, physiatrist, diagnosed mechanical neck and low back pain; possible right shoulder soft tissue injury; mild left supraspinatus tendinosis; and an unspecified left wrist/forearm complaint. Dr. Rabinovich concluded there were no objective accident-related impairments and further maintained her position in subsequent addendums.

17Coseco also relied on the report of Dr. Sekyi-Otu, orthopaedic surgeon, who assessed O.A. on December 15, 2021. Dr. Sekyi-Otu concluded that O.A. sustained uncomplicated strains of the cervical, thoracic and lumbar spine; left shoulder and left wrist. Dr. Sekyi-Otu opined that O.A. was self-limiting and pain-focused. Dr. Sekyi-Otu did not find any signs of objective impairment.

18Coseco position is that the injuries caused by the 2018 accident, were minor; caused a temporary exacerbation of O.A.’s pre-existing pain, which resolved within the time limit recognized for predominantly minor injuries. It submits that the lack of medical records from Dr. Ajisafe are indicative that ongoing follow-up was not required, nor was treatment beyond the MIG limits.

19Although O.A. was removed from the MIG based on a psychological diagnosis, he has not established that the physical treatment and assessments are reasonable and necessary. My finding is based on the following evidence:

i. O.A.’s rotator cuff syndrome was confirmed by MRI to be degenerative and not as a result of the subject accident. The May 22, 2019 consult note from Dr. Ojisafe was solely for the purpose of counselling/health education regarding rotator cuff syndrome;

ii. In a February 17, 2021 consultation note from Dr. Townley, it is noted that O.A. had pain and limited range of motion (following the subject accident). Notably, Dr. Townley indicates that the November 16, 2020 accident “resulted in a significant setback in terms of pain and function.”; and

iii. Additional clinical notes and records from Dr. Ajisafe attribute ongoing left hand, shoulder issues and back pain are attributed to the 2016 accident.

20My findings are further supported by the s. 44 report of Dr. Sekyi-Otu, who found no evidence that the subject accident exacerbated any pre-existing injuries to the extent that O.A. required additional physical treatment.

Attendant Care Benefits (ACBs)

21Sections 42(1) and (2) of the Schedule set out the requirements to apply for an ACB and identify the documents required to apply for the ACB. Section 42(1) states the application for an ACB must be in the form of and contain the information required to be provided in a document called an Assessment of Attendant Care Needs (Form 1). The Form 1 must be prepared and submitted to the respondent by an occupational therapist or a registered nurse. Section 19(2) states that the amount of an attendant care benefit is determined in accordance with the version of the Form 1 that is required to be submitted under s. 42. In all cases, the onus on O.A. to establish entitlement to ACBs on a balance of probabilities.

22O.A. submits that the OCF-3s (August 7, 2019, October 2, 2019 and August 14, 2020) support that he suffered a disability as a result of the accident. His position is that the OCF-18s note that he is unable to engage in all of the pre-accident activities of daily living due to his injuries. He further relies on a September 23, 2019 clinical record from Dr. Ajisafe, where it is noted that due to his injuries, he is having difficulties completing his employment and housekeeping tasks, such as the inability to wear a lead gown, which worsens his back pain and arm pain; in addition, the thumb pain limits his ability to perform household tasks.

23In response, Coseco argues that there is no support for the ACB claim. Its position is that there is no evidence that establishes ACB services are required, and that the evidence that is relied on, is from the previous 2016 accident. In this regard it points to the following:

i. No Form 1, pursuant to s. 42 of the Schedule has been submitted;

ii. The September 23, 2019 entry from Dr. Ajisafe does not address O.A.’s ability to perform personal care tasks, and more importantly, the injuries noted are attributed to the 2016 accident, with no connection made to the subject accident;

iii. At an Examination Under Oath (Respondent’s Book of Documents, Tab 7, pgs. 31-39), O.A. swore that he obtained ACB services as a result of the 2016 accident and this continued for a few months following the 2018 accident; and

iv. O.A. reported to the physiatry assessor that he hired someone after the 2016 accident to help with dressing and grooming, but was otherwise independent in personal care, and this had not changed after the 2018 accident.

24I agree with Coseco, that O.A. has not demonstrated that he requires ACB services as a result of the subject accident. First, the lack of a Form 1 means that the proper process to apply for ACBs has not been undertaken, and the insurer is not required to pay until it is in receipt of a Form 1. Second, O.A. returned to work in October 2018, which further supports that he would likely not have required attendant care services, given the physical nature of his employment. Lastly, the invoices and receipts, do not contain the required information―specific days; start/end times; particulars of services provided; or payment due dates).

25For the reasons set out above, I find that O.A. has not met his onus on a balance of probabilities, that ACB services are reasonable and necessary.

Are the OCF-18s reasonable and necessary?

26Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

27O.A. essentially relies on the medical records of Dr. Ajisafe (frequency of visits, and specifically, a September 23, 2019 entry that notes that the left thumb, shoulders and back injuries are “permanent and are chronic now”) and the consult letter from Dr. Townley, both of which have been addressed above. He further relies on the OCF-18s in support of his claims for funding for the disputed OCF-18s.

28Coseco submits that O.A. has not adduced any medical opinion in support of physical treatment. In support of its determination, it relies on the s. 44 report of Dr. Rabinovich, physiatrist, who concluded that no further physical treatment was needed, therefore the assessments were not reasonable and necessary.

29In considering whether the OCF-18s are reasonable and necessary, O.A. must establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that overall cost of achieving the goals is reasonable. I find that he has not done so.

30Although he directs me to the medical records that he relies on, O.A. has not pointed me to any analysis or objective evidence or opinion that demonstrates that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall costs associated with achieving the goals are reasonable. While his treatment providers have opined on his various injuries, this is not enough to establish that the reasonable and necessary test is met. It must be clearly demonstrated, and referring to the treatment plans themselves, are not sufficient in meeting the reasonable and necessary threshold.

31Further, despite the mention from Dr. Ajisafe that O.A.’s injuries are “chronic now”, there is a lack of analysis engaging the six criteria used to determine whether an individual suffers from chronic pain syndrome, under the American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th ed. (the “AMA Guides”). By its very nature, chronic pain syndrome is distinctly different from ongoing pain, as it is considered pain that debilitates and severely limits one’s engagement in activities. O.A.’s self-reporting and documentation does not support that he has suffered significant functional limitations as a result of chronic pain syndrome.

32I am not persuaded by Dr. Ajisafe’s records, because it is clearly noted in several entries that the pain complaints are connected to the 2016 accident. Dr. Townley’s letter is similarly unpersuasive, as it is more information correspondence than objective evidence of the impact of the subject accident. In addition, more is required than a reference to the OCF-18s in support of claims for treatment. There is a lack of objective evidence in the OCF-18 that support the recommendations, and while O.A.’s subjective reporting can be helpful, there is a necessary objective component that is required which provides the medical reasons why recommended assessments or treatment are reasonable and necessary. Lastly, O.S. does not rely on any objective reporting that refutes any of the findings of the s. 44 assessors.

33For the reasons set out above, I see no reason to interfere with Coseco determination that the OCF-18s in dispute are not reasonable and necessary.

Award

34O.A. sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

35Having found that O.A. is not entitled to the benefits in dispute, Coseco cannot have unreasonably withheld or delayed payment of benefits. Accordingly, an award is not payable.

Interest

36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

37As there are no outstanding payments of benefits, no interest is payable.

ORDER

38O.A. has not demonstrated that the disputed OCF-18s are reasonable and necessary.

39O.A. is not entitled to ACBs for the period of November 2018 to September 2019.

40O.A. is not entitled to an award, no interest is payable.