Citation: Shah v. Aviva Insurance Canada, 2023 ONLAT 21-011383/AABS

Licence Appeal Tribunal File Number: 21-011383/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:

Zahoor Shah

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Nikolai Singh, Paralegal

For the Respondent:

Leanne Zabudsky, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Zahoor Shah, (the “applicant”), was involved in an automobile accident on March 29, 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 Aviva Insurance Canada (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:

1. Is the applicant entitled to $2,010.10 for a chronic pain assessment provided by Dr. Igor Wilderman in a treatment plan (“OCF-18”) dated October 4, 2019, and denied on August 24, 2021?

2. Is the applicant entitled to $2,632.90 for a physiatry assessment (incorrectly listed as for occupational therapy services in the Case Conference Order (“Order”), released on July 29, 2022) provided by Medex Assessments in an OCF-18 dated May 28, 2021, and denied on August 24, 2021?

3. Is the applicant entitled to $1,086.00 for chiropractic services provided by St. Joseph’s Rehabilitation and Wellness Clinic in an OCF-18 dated May 6, 2022, and denied on May 18, 2022?

4. Is the applicant entitled to $1,855.05 for physiotherapy services provided by St. Joseph’s Rehabilitation and Wellness Clinic in an OCF-18 dated May 3, 2022 (incorrectly listed as May 9, 2022 in the Order) and denied on May 18, 2022?

5. Is the applicant entitled to $1,086.00 for chiropractic services provided by St. Joseph’s Rehabilitation and Wellness Clinic in an OCF-18 dated May 11, 2022, and denied on May 18, 2022?

6. Is the respondent liable to pay an award pursuant to s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3I find that the chronic pain assessment is not payable pursuant to s.47(2) of the Schedule as it has already been funded by OHIP.

4Further, I find the applicant has not met his onus to establish that the remaining OCF-18s in dispute are reasonable and necessary. As such, the applicant is not entitled to an award, costs, or interest.

ANALYSIS

S.47(2) of the Schedule

5I find that the OCF-18 proposing a chronic pain assessment to be completed by Dr. Igor Wilderman, physician, is not payable pursuant to s.47(2) of the Schedule, as OHIP has already covered the expenses with the assessment.

6The applicant submits that this OCF-18 is reasonable and necessary as his pre-existing conditions has been exacerbated by this accident and as such, he requires intervention strategies to return to his pre-accident employment. The applicant further submits that he has developed a chronic pain condition.

7The respondent submits that it is not liable to pay this OCF-18 pursuant to s.47(2) of the Schedule as the chronic pain assessment completed by Dr. Wilderman was already funded through OHIP.

8Pursuant to s. 47(2) of the Schedule, the onus is on the respondent to advance submissions or some evidence that establishes the chronic pain assessment was reasonably available to the insured under OHIP.

9I find that the respondent has provided sufficient evidence that this assessment was funded by OHIP for the following reasons. In the report of Dr. Wilderman, dated December 20, 2019, it is noted that Dr. Yim, the applicant’s family physician referred the applicant to Dr. Wilderman and Dr. Wilderman noted the applicant’s OHIP number on the face of his report. Secondly, the OHIP summary confirms that the applicant was seen by Dr. Wilderman on December 20, 2019 on consultation, and this was funded through OHIP. Lastly, Dr. Wilderman’s chronic pain clinic in an email dated March 2, 2022, confirmed that there was no outstanding account for the applicant at the clinic, which demonstrates that the assessment costs were covered by OHIP.

10As the respondent has provided sufficient evidence, the burden now shifts to the applicant to demonstrate that the chronic pain assessment was not reasonably available or funded by OHIP. In reply, the applicant did not contest that the chronic pain assessment conducted by Dr. Wilderman was funded through OHIP. Instead, the applicant submits that the fact it was funded through OHIP demonstrates that the applicant is suffering from the chronic pain injuries and the respondent would be liable to pay for the reasonable expenses pertaining to treatment required. I am not persuaded by these submissions, as the OCF-18 in dispute is for a chronic pain assessment and not for chronic pain treatment. I find that the applicant has failed to meet his burden that the chronic pain assessment completed by Dr. Wilderman was not funded through OHIP.

11Accordingly, I find that there is sufficient evidence to demonstrate that the chronic pain assessment completed by Dr. Wilderman was funded through OHIP and the applicant does not contest that the assessment was already funded through OHIP. As such, I find that the assessment is not payable pursuant to s.47(2) of the Schedule.

Reasonable and Necessary

12To 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. In order to do so, an applicant must establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall costs of achieving the goals is reasonable.

13The applicant submits that he is entitled to all the OCF-18s in dispute as he has established that the expenses are reasonable and necessary because he reported ongoing symptomology to all his medical providers. Further, the applicant continues to access any therapy that is available to him in order to return to his pre-accident function. Additionally, the applicant submits that he has reduced his employment tasks following the accident. However, the applicant’s submissions were silent on whether the treatment goals are reasonable, whether the goals are being met to a reasonable degree and whether the overall cost of achieving the goals is reasonable.

14The respondent submits that the applicant must also prove that the treatment is reasonable and necessary by providing sufficient detail explaining why the specific treatment requested is reasonable and necessary for the applicant’s specific condition. To support this proposition, the respondent relies on the authority of 16-000940 v. Certas Direct Insurance Company, 2016 CanLII 96161.

The applicant has failed to demonstrate that the OCF-18 for a physiatry assessment is reasonable and necessary.

15The onus is on the applicant to demonstrate that he is entitled to the OCF-18 for a physiatry assessment. The applicant has failed to meet his onus as he has failed to refer to any evidence on why the OCF-18 is reasonable and necessary.

16The applicant’s initial submissions noted incorrectly that this OCF-18 was for occupational therapy services, but he did not provide any submissions on either why occupational therapy services or a physiatry assessment would be reasonable and necessary.

17The respondent submits that the OCF-18 in dispute is over a physiatry assessment and not occupational therapy services. Further, the respondent submits that the applicant has made no submissions with respect to the reasonableness and necessity of such an assessment and as such, his claim ought to be dismissed.

18In reply for the first time, the applicant submitted that he is entitled to this OCF-18 for a physiatry assessment as a result of his accident-related injuries from a physical perspective but referred to no evidence to support this submission. It is well settled that submissions are not medical evidence. Moreover, the applicant must direct the Tribunal to the relevant evidence in support of his case and explain why he is entitled to the OCF-18 in dispute. The applicant cannot submit evidence and leave it up to the Tribunal to connect the dots and make his case. As the applicant has failed to refer to any evidence to support that the proposed assessment is reasonable and necessary, I find that he has not met his onus.

19Accordingly, the applicant has failed to meet his evidentiary onus as he failed to refer to any evidence to demonstrate that this OCF-18 is reasonable and necessary.

The applicant has failed to demonstrate that the OCF-18s for chiropractic and physiotherapy services are reasonable and necessary

20The OCF-18 dated May 3, 2022 was submitted by Dr. Suresh Kamalavalli, physiotherapist, for 10 sessions of physiotherapy treatment. The OCF-18s dated May 6, 2022, and May 11, 2022, both proposed 10 sessions of chiropractic treatment.

21While I acknowledge the applicant reports ongoing pain symptomatology, he has failed to demonstrate that physiotherapy treatment is reasonable and necessary to address his pain complaints from this accident. On December 23, 2021, the applicant advised Dr. Perelman, a pain consultant with Orthopedic Rehabilitation Institute that his pain was improving well. Further, the applicant advised Dr. Perelman that physical therapy did not provide much relief and he found better relief using a Vibromassager and doing daily exercise routines. As such, Dr. Perelman recommended that the applicant continue to do his exercises. As such, while I acknowledge that the goal of pain reduction can be reasonable, the applicant has self-reported that he does not find relief with physical therapy, and as such, the OCF-18 for physiotherapy is not reasonable and necessary.

22Further, while I acknowledge that Dr. Yim recommended physiotherapy treatment on November 16, 2019, February 22, 2020, May 26, 2021, June 15, 2021, March 24, 2022, and July 12, 2022, he did not address whether the applicant found pain relief with this treatment. Lastly, the applicant has not referred me to any evidence that demonstrates that he finds pain relief from physiotherapy at the time of the submission of this OCF-18.

23The applicant has failed to refer to any corroborating medical evidence that supports that chiropractic treatment is reasonable and necessary in May of 2022. All of the above-referenced recommendations made by Dr. Yim was for physiotherapy and not for chiropractic treatment. The applicant has failed to refer me to any evidence that demonstrates that chiropractic treatment was recommended by Dr. Yim. Further Dr. Hein Ta, anesthesiologist, in her chronic pain assessment report, dated December 9, 2022, did not make any recommendations for chiropractic treatment. The applicant has not referred me to any treatment providers that recommend chiropractic treatment in or around May 2022.

24Lastly, despite the applicant’s submissions that he be removed from the MIG from a physical perspective, the respondent has already submitted that the applicant has been removed from the MIG and the test for entitlement is whether the benefits being sought are reasonable and necessary. I agree with the respondent and find that the applicant has failed to demonstrate that the OCF-18s for chiropractic or physiotherapy services are reasonable and necessary.

25Accordingly, and for the reasons outlined above, I find that the applicant has failed to demonstrate that the OCF-18s for chiropractic or physiotherapy treatment is reasonable and necessary.

Interest

26Pursuant to section 51 of the Schedule, interest is payable on the overdue payment of benefits. As there are no benefits owing, no interest is payable.

The Applicant is Not Entitled to Costs

27The applicant’s submissions appear to allege that he is entitled to the expenses associated with the arbitration of this matter.

28Costs are a discretionary remedy imposed when a party has acted unreasonably, frivolously, vexatiously, or in bad faith pursuant to Rule 19.1 of the Tribunal’s Common Rules of Practice and Procedure. The threshold for costs is high. The applicant has failed to provide any reasons why costs should be imposed, nor has he referenced any of the potential cost criteria set out in Rule 19.5 in relation to this matter. I am not persuaded the threshold for costs has been met at this juncture. Thus, no costs shall be awarded.

The Applicant is Not Entitled to an Award Pursuant to Regulation 664

29Despite being listed as an issue in dispute in the Order, the applicant made no submissions on why he was entitled to an award. As this was listed as an issue in dispute in the Order, I will be making a determination whether the respondent is liable to pay an award pursuant to s. 10 of O. Reg. 664.

30Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled. As the applicant has been found to not be entitled to the benefits in dispute, it follows that no benefits were unreasonably withheld or delayed. Thus, the applicant is not entitled to an award.

ORDER

31For the reasons outlined above, I find that:

i. The chronic pain assessment is not payable pursuant to s.47(2) of the Schedule;

ii. The applicant has not met his onus to demonstrate that the remaining OCF-18s in dispute are reasonable and necessary;

iii. The applicant is not entitled to an award, costs or interest; and

iv. The application is dismissed.