Dolly Khelawan v. Unifund Assurance Company, 2023 CanLII 72641

Citation: Khelawan v. Unifund Assurance Company, 2023 ONLAT 21-009896/AABS

Licence Appeal Tribunal File Number: 21-009896/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:

Dolly Khelawan

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Maria Papadopoulos, Paralegal

For the Respondent: Thusha Mayuran, Counsel

HEARD: BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Dolly Khelawan, the applicant, was involved in an automobile accident on July 31, 2019, and sought benefits 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, Unifund Assurance Company, 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 $1,995.33 for a psychological assessment proposed by Brampton Civic Care in a treatment plan which was denied on July 29, 2020?

ii. Is the applicant entitled to $2,164.33 for chiropractic treatment proposed by Brampton Civic Care in a treatment plan which was denied on July 29, 2020?

iii. Is the applicant entitled to $1,997.48 for chiropractic treatment proposed by Brampton Civic Care in a treatment plan which was denied on July 29, 2020?

iv. Is the applicant entitled to $1,843.69 for chiropractic treatment proposed by Brampton Civic Care in a treatment plan which was denied on December 9, 2020?

v. Is the applicant entitled to $1,652.31 for chiropractic treatment proposed by Brampton Civic Care in a treatment plan which was denied on December 15, 2020?

vi. Is the applicant entitled to $2,737.69 for chiropractic treatment proposed by Brampton Civic Care in a treatment plan which was denied on April 9, 2021?

vii. Is the applicant entitled to $2,200.00 for a neurological assessment proposed by O.I.A.C. in a treatment plan which was denied on December 9, 2020?

viii. Is the applicant entitled to $2,200.00 for a chronic pain assessment proposed by O.I.A.C. in a treatment plan which was denied on December 9, 2020?

ix. Is the applicant entitled to $1,197.51 for a cognitive assessment proposed by O.I.A.C. in a treatment plan which was denied on December 9, 2020?

x. Is the applicant entitled to $1,046.08 for a FAE assessment proposed by O.I.A.C. in a treatment plan which was denied on April 9, 2020?

xi. Is the applicant entitled to $627.70 for assistive devices proposed by O.I.A.C. in a treatment plan which was denied on June 15, 2021?

xii. Is the applicant entitled to $2,200.00 for an in-home and attendant care assessment proposed by O.I.A.C. in a treatment plan which was denied on June 15, 2021?

xiii. Is the applicant entitled to interest on any overdue payment of benefits?

3The applicant withdrew the issue of the treatment plan for social work counselling in the amount of $2,830.00, proposed by O.I.A.C. in a treatment plan denied on July 21, 2021.

RESULT

4I find that the applicant is not entitled to the disputed treatment plans, as she has not met her onus to prove that they are reasonable and necessary. As no benefits are owing, no interest is payable.

ANALYSIS

Causation

5In its submissions, the respondent raises the issue of causation. It contends that a number of the applicant’s reported symptoms were not caused by the subject accident, but by a subsequent accident on August 22, 2019. The applicant disputes this argument and submits that the respondent itself had decided during the course of the claim that since the accident dates were so close together (less than a month apart), it could not differentiate injuries between the dates of loss. She submits that the respondent cannot raise the issue of causation as it had specifically barred the applicant from submitting treatment on the second claim and chose to combine the claims.

6I agree with the applicant. The applicant submitted correspondence from the respondent indicating that it had approved the full Minor Injury Guideline limit for the subsequent August 22, 2019 accident and stating that it would continue to use the first date of loss being July 31, 2019. The respondent has not provided any correspondence to dispute the fact that it had agreed to combine the two accident dates. As such, I do not find the respondent’s argument that the applicant’s impairments were caused by the subsequent accident, to be persuasive.

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.

The applicant has not established entitlement to the OCF-18s for chiropractic services

8The applicant submitted five treatment plans (OCF-18s) for chiropractic and physiotherapy services. She argues that all of the proposed treatment is reasonable and necessary to address her ongoing pain in her lower back, left shoulder and neck. The applicant submits invoices from Brampton Civic Care Centre Inc., indicating that she incurred all of the denied treatment plans and submits that she has consistently reported that her physical treatment has been helpful in temporarily relieving her pain.

9The respondent disputes that further chiropractic/physiotherapy treatment is reasonable and necessary. It submits that it denied the OCF-18s on the basis of two insurer’s examination (“IE”) assessments. The respondent argues that it has already funded $17,224.11 in treatment and that further passive, facility-based treatment is not warranted.

10I find that the applicant has not led sufficient medical evidence to establish that the proposed chiropractic treatment plans are reasonable and necessary.

11The applicant argues that the proposed treatment is needed to address her ongoing physical impairments to her shoulder, neck and lower back. She argues that the clinical notes and records (“CNRs”) of her family physician Dr. Ghadirian establish her physical injuries and ongoing pain. The applicant further submits diagnostic imaging of her back and shoulder, indicating that she suffered from mild degenerative disc disease and spondylosis in the back, and supraspinatus tendonitis in the shoulder. However, I note that the applicant has not provided any medical opinion linking the degenerative disc disease or spondylosis to the accident, as opposed to being degenerative changes. Further, the CNRs of Dr. Ghadirian show infrequent pain reports. For example, in 2020, the applicant only reported accident-related pain at one visit.

12Moreover, to establish the reasonableness and necessity of proposed treatment, it is not sufficient to simply lead evidence of a physical impairment. Rather, particularly in the case of ongoing, multiple treatment plans, there must be sufficient evidence that the goals of treatment are being met to a reasonable degree and that the overall costs of achieving them are reasonable.

13In the present case, the applicant has submitted essentially five identical treatment plans. I agree with the respondent’s submissions and cited caselaw that when identical treatment plans are submitted by a clinic, it calls into question whether the treatment goals are being met to a reasonable degree and whether the overall costs of achieving them are reasonable. The applicant has confirmed that despite being denied, all of the treatment plans have been incurred and that she has attended for the physical treatment. And yet, the OCF-18s do not indicate any progress or how any of the treatment goals have been met by the ongoing treatment.

14Most importantly, no treatment records have been provided by the chiropractic clinic, no progress reports from the treating practitioner were submitted and the OCF-18s themselves do not provide any additional detail or comments as to the applicant’s treatment progress. The respondent directly raised the issue of the lack of clinic treatment records in its submissions. Despite providing reply submissions, the applicant did not provide such records or explain why they have not been provided. The applicant relies in large part on her self-reports to various assessors that she has found such treatment to be helpful in temporarily reducing her pain. However such self-reports alone are not compelling evidence, without additional objective evidence.

15The respondent conducted two IE assessments, both of which found that the OCF-18s were not reasonable and necessary. Dr. Czok, in a physiatry IE report dated July 21, 2020, found that while the applicant continued to report intermittent pain symptoms, the physical examination did not demonstrate musculoskeletal impairment and that she had sustained only a sprain/strain of the cervical spine and left shoulder. Dr. Dessouki, in an IE report dated November 27, 2020 found that from a physical perspective, there was no objective residual accident-related musculoskeletal impairment and that further facility-based treatment was not warranted. The applicant has failed to lead sufficient medical evidence to rebut the IE assessors’ findings.

16As such, I find that the applicant has not met her burden to prove that the OCF-18s for chiropractic treatment are reasonable and necessary.

Payment of submitted OCF-6s

17As part of her submissions, the applicant has included various OCF-6 Expenses Claim Forms. She submits that after the respondent denied the OCF-18s in dispute, she subsequently attended a different clinic for additional physiotherapy treatment, which she paid out of pocket. The applicant submits that the respondent did not respond, deny or approve the OCF-6s. The respondent argues that these Claim Forms are not issues in dispute in this hearing.

18I agree with the respondent’s submissions that the various OCF-6 forms are not issues in dispute in this hearing.

19These Claim Forms were not listed as issues in dispute in the Case Conference Report and Order dated April 19, 2022. I note that the case conference was conducted on April 7, 2022, and all of the OCF-6s were dated September/October 2021. Given that the expenses pre-date the case conference, the applicant has not provided any submissions as to why these Claim Forms were not raised as issues in dispute at the case conference. Nor has the applicant attempted to add these Claim Forms to this written hearing by way of subsequent motion. The applicant did not specifically request to add the OCF-6s as issues in dispute in her submissions, but simply included them as evidence. No explanation was provided by the applicant as to why they were not added as issues in dispute at any point prior to this written hearing.

20I find that the OCF-6 Claim Forms are not issues in dispute in this hearing and as such, will not be addressed as part of these proceedings.

The applicant has not established that the OCF-18 for a psychological assessment is reasonable and necessary

21The applicant submitted an OCF-18 for a psychological assessment in the amount of $1,995.33. The respondent submits that it partially approved the OCF-18 and that only $299.23 remains in dispute. It contends that it denied the remaining balance, as its psychological IE assessor Dr. McCutcheon had found the cost of the proposed goods and services to be excessive and that 10 hours of clinical time was sufficient to conduct the assessment.

22The applicant has not provided any specific submissions on this treatment plan, but rather, summarizes her psychological impairments. Despite providing reply submissions, the applicant did not address the respondent’s submissions on the remaining $299.23 balance of the OCF-18. The onus rests with the applicant to lead sufficient evidence that the additional time proposed by her assessor is reasonable and necessary. Without any specific submissions or evidence on this issue, I am unable to find that she has met her onus to prove entitlement to the remainder of the OCF-18.

The applicant has not established that the OCF-18s for a neurological assessment and a cognitive assessment are reasonable and necessary

23The applicant submits that the neurological assessment is warranted, given that she struck her head in the impact, complains of constant headaches and numbness. She further submits that a cognitive assessment is reasonable and necessary to address her post-accident cognitive deficiencies.

24I find that the proposed assessments are not reasonable and necessary.

25Although the applicant submits that they are required, as she struck her head in the impact, I find that this is not supported by the medical record. The applicant points to her self-reports to various assessors of headaches, that she hit her head in the accident and may have lost consciousness. However, I note that the CNRs of Dr. Ghadirian, the applicant’s family physician, specifically noted in an August 23, 2019 entry that there was no head injury or loss of consciousness with either the July 31, 2019 or the August 22, 2019 accidents. The applicant has not provided any other medical evidence contemporaneous with the accident to indicate that she suffered from a head injury from the accident.

26Further, the CNRs of Dr. Ghadirian do not indicate any reports of headaches or cognitive difficulties post-accident. There is no reference to a concussion, concussion-related symptoms or discussions of a referrals to a neurologist. The applicant submits that she should not be expected to raise all her impairments with her family physician as they only have a 15-minute window for appointments. I do not find the applicant’s argument to be persuasive. She attended at Dr. Ghadirian’s office numerous times in the years post-accident and discussed a wide variety of medical conditions. However, despite the multiple impairments addressed, there are no references to concussion-related symptoms, headaches or serious cognitive impairments.

27The respondent’s psychological IE assessor Dr. McCutcheon reported that there was no evidence of difficulties with attention or poor memory. The applicant further reported to Dr. McCutcheon that there has been no decline in her ability to focus, attend and concentrate and that any reduction in memory was due to “age”. As such, I find that the applicant has not established the reasonableness and necessity of the proposed assessments.

The applicant has not established that the OCF-18 for a chronic pain assessment is reasonable and necessary

28I am not satisfied that the proposed chronic pain assessment is reasonable and necessary pursuant to the Schedule.

29The applicant has not been diagnosed with chronic pain by her family physician Dr. Ghadirian, nor is there any reference to chronic pain in his CNRs. Further there are limited reports of accident-related pain in the years post-accident. The applicant attended Dr. Ghadirian’s office a few times in the months immediately after the accident, complaining of low back, left shoulder and neck pain. However, she does not direct me to any accident-related pain complaints for over a year afterward, until December 2020. Similarly, there were only a few visits for pain related complaints in 2021.

30If the applicant had been experiencing ongoing chronic pain from the date of the accident, I would have expected to be directed to consistent reports of pain in the period post-accident. The applicant similarly has not provided any evidence that she was referred to a pain specialist by Dr. Ghadirian, or regularly prescribed prescription pain medication. Although the applicant refers to her self-reports of ongoing pain to various assessors, I do not find such self-reports to be compelling evidence in the absence of ongoing pain reports in the medical file.

31Although the applicant submits that she meets all of the six AMA Guides criteria for chronic pain, I find that with the exception of development of psychosocial sequelae, the applicant relies solely on her self-reports of functional limitations and medication use. For example, she asserts that she suffers from overdependence on prescription pain medication, citing the fact that she obtained Tylenol 3 from her husband. However, no explanation was provided as to why prescription pain medication was not obtained from Dr. Ghadirian. Given the lack of objective medical evidence of severe ongoing pain or functional limitations in the medical record, I find that the applicant has not established that the chronic pain assessment is reasonable and necessary.

The OCF-18s for a FAE assessment, assistive devices and an in-home attendant care assessment are not reasonable and necessary

32The applicant submits that the assistive devices (bath chair and grab bars), FAE and attendant care assessments are all reasonable and necessary, as she continues to struggle with completing her activities of daily living (ADLs) and self-care tasks. She contends that even years post-accident, she continues to struggle with functional impairments. The applicant relies on an occupational therapy (OT) in-home safety assessment dated May 19, 2021 in support of her claim.

33I find that the applicant has not adduced sufficient evidence to establish the reasonableness and necessity of the assessments and assistive devices.

34The applicant relies in large part on the OT assessment of Vivek Malhotra, however, I find the assessment to be of limited persuasive value given its lack of detail. Mr. Malhotra based his recommendations for assistive devices, on the applicant’s diagnoses of arthritis and a “fall risk” due to the motor vehicle accident. However, no medical evidence has been provided to establish that the applicant’s arthritis is accident-related. Further, I do not see any reference to a “fall risk” in any of the CNRs of Dr. Ghadirian. The OT assessment further states that the applicant has been struggling with her ADLs due to “weakness and multiple medical conditions”. However, these medical conditions are not specified, and no explanation is provided as to the applicant’s “weakness”. Similarly, no details were provided as to what physical examinations or testing was conducted. Finally, the OT assessment states that the assessment was completed following an LHIN referral. However, the applicant does not direct me to any such referral form or additional information as to the details of the referral request.

35Further, I agree with the respondent’s submissions that the applicant’s submissions on restrictions to her ADLs and functional limitations are based solely on her self-reports to various assessors. I do not find that the CNRs of Dr. Ghadirian note any restrictions to ADLs. With respect to physical limitations, the applicant points to one CNR entry from Dr. Ghadirian on March 15, 2021 where he noted limited rotation in the left shoulder. However, in prior and subsequent examinations, functional restrictions were not found.

36Dr. Ghadirian found in October 2019 that while the applicant reported pain in her left shoulder, she had normal range of motion. In December 2020, Dr. Ghadirian found that despite the applicant’s low back pain, she had normal range of motion in her cervical and lumbar spine. Both of the respondent’s physiatry IE assessors also found normal range of motion in the spine and shoulders. Further, subsequent to the March 15, 2021 visit with Dr. Ghadirian, the applicant reported to her rheumatologist in December 2021 that her shoulder pain had resolved, and in March 2022 she stated that she was feeling well and that she had complete resolution of her joint pain.

37As such, I find that the applicant has failed to establish that she suffers from ongoing functional impairments and physical restrictions, to warrant the proposed assistive devices and assessments.

Interest

38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable under s. 51.

ORDER

39I find that the applicant is not entitled to the treatment plans in dispute, or interest. The application is dismissed.