Licence Appeal Tribunal File Number: 20-012673/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:
Ayaya Worenwu
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Bruce Stanton, Member
APPEARANCES:
For the Applicant: Harvey Katz, Counsel
For the Respondent: Nabila Majidzadeh, Counsel
HEARD: By way of written submissions
OVERVIEW
1The applicant was injured in a motor vehicle accident on April 4, 2018 and attended at Hamilton General Hospital, in Ontario, that same evening. He visited his family physician in Alberta two weeks later, and his physician in Hamilton, four weeks after the appointment in Alberta.
2The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule, - effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) that were denied by the respondent. He applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for a resolution of the dispute.
3The applicant claimed dental treatments (TMJ treatments, root canal and medications) and physiotherapy, chiropractic, and massage therapy treatments to address his accident-related injuries.
4I must determine, on a balance of probabilities, whether the treatments described in the two disputed treatment plans, and the services described on an OCF-6 expense claim, are reasonable and necessary.
ISSUES IN DISPUTE
5The issues in dispute are as follows:
Is the applicant entitled to $3,008.00 for dental services, recommended by Galib Shariff in a treatment plan, denied on January 9, 2019?
Is the applicant entitled to $525.38 for dental services and medication, submitted on a claim form OCF-6, dated October 9, 2018 and denied on November 13, 2018?
Is the applicant entitled to $7,731.45 for physiotherapy services, recommended by Stargate Physical Therapy in a treatment plan, denied on February 4, 2020?
Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6The applicant has not met his onus of establishing that the treatment plans and expenses in dispute are reasonable and necessary. Therefore, the applicant is not entitled to the disputed payments, the s. 10 award, or interest.
Analysis
Are the treatment plans and OCF-6 expense claim reasonable and necessary?
7Section 15(1)(a) and 15(1)(b) of the Schedule obliges the insurer to pay for any reasonable and necessary dental, physiotherapy, or chiropractic service expenses that were caused by the motor vehicle accident of April 4, 2018.
8It is the applicant’s onus to demonstrate that the disputed treatment plans and expenses are reasonable and necessary and that the impairments these treatments are intended to address were caused by the accident.
9To begin, the applicant failed to provide any medical evidence to support his claim that the disputed treatments and services are reasonable and necessary. In his submissions, he described the events of the accident and provided a general description of the injuries arising from it. The applicant claims he needs continuing physical therapy to help with neck pain, low back pain, and dental care. However, submissions are not evidence, and the applicant did not provide me with any documentary medical evidence (for example, clinical notes and records of physicians or clinics, assessments or reports by physicians, clinics, or experts) to support his claims.
10Indeed, the only documentary evidence that accompanied the applicant’s submissions was a copy of the Explanation of Benefits (EOB) that the insurer provided for each of the disputed treatments and services. An EOB does not constitute medical evidence.
11The respondent submits that the disputed treatment plans and medical services are intended to treat injuries, ailments, or pain symptoms that are not accident-related, and are therefore not reasonable and necessary. In fact, the respondent’s submissions note the applicant had pre-accident impairments including lower back pain and mouth sores. The applicant’s MRI exam of May 15, 2021 reports an indication of “Low back pain for more than ten years and getting worse over the last few months.” Dr. Ashesh Pabbies, the applicant’s family physician in Alberta, notes in his clinical record of March 9, 2017 that the applicant has “rec canker sores on tongue – 10-15 yrs”.
12The respondent supports its submission with reports of IE assessors and clinical notes and records of physicians who treated or assessed the applicant. In the absence of any evidence to the contrary, I have no reason to doubt the respondent’s submissions.
13With no medical evidence to support the applicant’s entitlement to these treatments and services and no evidence to suggest his injuries were caused by the accident, I find that the applicant has failed to meet his onus of proving, on a balance of probabilities, that the claimed treatments and services are reasonable and necessary.
Is the applicant entitled to an award for the respondent unreasonably withholding or delaying payment?
14Since I have concluded that the disputed treatment plans and expenses claims are not reasonable and necessary, the applicant is not entitled to an award pursuant to s. 10 of O. Reg 664.
Is the applicant entitled to interest on any overdue payment of benefits?
15Since I have concluded that the disputed treatment plans are not reasonable and necessary, the applicant is not entitled interest.
ORDER
16The disputed treatment plans and OCF-6 expense claim are not reasonable and necessary and are therefore not payable.
17The applicant is not entitled to an award pursuant to s. 10 O. Reg 664.
18The applicant is not entitled to interest on any overdue payment.
19The applicant’s claim is dismissed.
Released: February 10, 2023
Bruce Stanton
Adjudicator