Licence Appeal Tribunal

Citation: Fayoda v. Economical Insurance Company, 2023 ONLAT 21-001616/AABS

Licence Appeal Tribunal File Number: 21-001616/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:

Tolulope Fayoda

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Annie Detchantala, Counsel

For the Respondent: Evan Argentino, Counsel

HEARD: By way of written submissions

OVERVIEW

1Tolulope Fayoda ("T.F."), the applicant, was involved in an automobile accident on October 23, 2018, 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, Insurer, 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. Are T.F's injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline (the "MIG")?

ii. Is T.F. entitled to medical benefits proposed by York Medical Centre, as follows:

a) $1,250.00 for physiotherapy treatment, in a treatment plan (OCF-18) submitted February 20, 2019;

b) $2,000.00 for physiotherapy treatment, in an OCF-18 submitted September 17, 2019;

c) $2,000.48 for physiotherapy treatment, in an OCF-18 submitted June 16, 2020;

d) $2,000.48 for physiotherapy treatment, in an OCF-18 submitted September 28, 2020; and

e) $2,600.64 for physiotherapy treatment, in an OCF-18 submitted December 15, 2020?

iii. Is T.F. entitled to a cost of examination expense in the amount of $2,350.00 for a Social Work Assessment, proposed by York Medical Centre in an OCF-18 submitted September 8, 2020?

iv. Is T.F. entitled to interest on any overdue payment of benefits?

RESULT

3T.F. is removed from the MIG due to his pre-existing injuries.

4T.F. is entitled to funding for the five OCF-18s for physiotherapy. Interest is payable.

5T.F. is not entitled to the OCF-18 for a social work assessment, no interest is payable.

BACKGROUND

Previous accident and injuries

6T.F. was involved in a prior accident on April 15, 2016. As a result of that accident, he experienced headaches, whiplash, thoracic and lumbar spine pain. He was diagnosed with sprain/strain injuries and kept within the MIG.

ANALYSIS

Applicability of the MIG

7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly a minor injury in accordance with the MIG. Section 3(1) defines a "minor injury" as "one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury."

8An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. Alternatively, removal from the MIG can occur under s. 18(2), if an insured person has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment may warrant removal from the MIG. In all cases, the onus is on the insured person to demonstrate on a balance of probabilities that the injuries fall outside of the MIG.

T.F. suffers from pre-existing injuries that remove him from the MIG

9On May 10, 2018, T.F. suffered a head injury, in an attack, he was also hit on the left arm and left leg. As a result, T.F. claims to suffer from pre-existing headaches, neck pain, shoulder pain and psychological impairments.

10In the clinical records of Dr. Dwosh, family physician, its noted that T.F. had ongoing concussive symptoms from the attack in Nigeria. T.F. further submits that Economical was also aware of his pre-existing conditions, pointing to the following adjuster's log note entries:

i. March 27, 2019 – chronic headache, cervical spine sprain/strain, and bilateral shoulder pain – objective; further, all noted injuries are pre-existing conditions exacerbated as a result of the subject accident;

ii. November 16, 2020 – physiatry assessment completed with Dr. Hosseini who documented a 30% improvement since the accident. All the conditions were pre-existing but exacerbated in the subject accident.

11In response, Economical argues that T.F. has not provided any medical evidence to support that his pre-existing condition will prevent maximal recovery if he is kept within the MIG limits. It relies on the s. 44 insurer examination reports of Dr. Oshidari, physiatrist and Dr. Hosseini, physiatrist.

12In his August 1, 2019 report, Dr. Oshidari noted that T.F.'s family physician did not refer him for any investigations or to any specialists. Based on T.F.'s self-reporting, that he was independent with his activities of daily living, household duties, and continued working full-time, Dr. Oshidari concluded that T.F. sustained a sprain/strain injury to the shoulder, and that further physical intervention will not have any rehabilitative benefit. In his March 20, 2019 report, Dr. Hosseini diagnosed T.F. with chronic headaches, cervical spine sprain/strain and bilateral shoulder complaint with no objective finding. Dr. Hosseini noted that T.F. presented with pre-existing injuries that were exacerbated by the subject accident. Despite this, Dr. Hosseini opined that the full range of movement and no significant, objective, neuromuscular impairments identified, meant that no pre-existing medical conditions or other factors would prevent maximum medical recovery. Dr. Hosseini concluded that T.F. sustained predominantly uncomplicated soft tissue injuries.

13I agree with T.F. On the evidence, I find that his pre-existing injuries, which were documented by his family physician, were consistently noted to be exacerbated, including in comments from Dr. Hosseini. I am persuaded by Dr. Hosseini's comments, because his prognosis for T.F.'s recovery, as a result of the exacerbated pre-existing injuries, is guarded. In my view, this supports that, T.F.'s pre-existing injuries have been made worse as a result of the subject accident and would therefore prevent T.F. from reaching maximum medical recovery should he remain within the MIG limits.

14Accordingly, I find that T.F. is removed from the MIG as a result of the exacerbation of his pre-existing injuries.

15Having determined that T.F.'s pre-existing physical injuries remove him from the MIG, it is not necessary to consider whether he suffered psychological impairments or chronic pain as a result of the accident, that would require treatment beyond the MIG limits.

16I now turn to the analysis of whether the disputed OCF-18s are reasonable and necessary.

T.F. is entitled to the five OCF-18s for physiotherapy

17Sections 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.

18In order to be entitled to payment for a treatment and assessment plan under the Schedule, the onus is on an applicant to demonstrate that it is reasonable and necessary as a result of the accident. To be successful, an applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.

19T.F. has met his burden to demonstrate that his accident-related impairments, those being: sprain and strain of the cervical and thoracic spine and exacerbation of pre-existing injuries, require treatment beyond the MIG. He relies on clinical notes and treatment records and diagnostic imaging as evidence that his impairments are not "minor injuries". T.F. submits that his injuries have not resolved, he continues to experience pain, which is now chronic, that has prevented him from reaching maximum medical recovery.

20In addition to Dr. Hosseini's report, T.F. relies on the clinical records of Dr. Dwosh. In particular, the references to the recommendations for physiotherapy on August 14, 2019, September 26, 2019, October 20, 2019, and February 5, 2020. Dr. Dwosh also referred T.F. to Dr. Gyenes, who is a physical medicine and rehabilitation specialist.

21I am further persuaded by T.F.'s subjective reporting of his functional limitations as a result of his accident-related injuries. He reports that he has difficulty playing with his children, performing intimacy activities, performing heavy household tasks, playing sports and working out. I note that same was reported to Dr. Hosseini and Dr. Khan, general physician.

22It is well-settled that pain reduction is a reasonable goal of recommended treatment. Each of the OCF-18s for physiotherapy note pain reduction as a goal of treatment. There is no debate that the goals of the treatment would be met to a reasonable degree, or that the cost of achieving the goals is reasonable. The medical records are consistent in noting T.F.'s subjective reporting and objective opinion about the impact of the accident regarding his ongoing pain complaints; the impact on his functional ability; and the recommendations from Dr. Dwosh for the same type of treatment for which he seeks a determination that same is reasonable and necessary.

23The physiotherapy treatment is intended to increase range of motion, increase strength and facilitate a return to activities of normal living. Therefore, I conclude that any such treatment that relieves or reduces T.F.'s pain is reasonable and necessary.

T.F. is not entitled to the OCF-18 for a social work assessment

24As referenced in paragraphs 17 and 18, ss. 14 and 15 provide that the insurer shall pay all reasonable and necessary incurred expenses. The burden remains on T.F. to establish that the claimed treatment and assessment plan is reasonable and necessary.

25The purpose of an assessment is to determine if a condition exists. To establish whether an OCF-18 for an assessment is reasonable and necessary, T.F. must point to objective evidence that there are grounds to support that the condition exists for which he seeks the assessment. I find that T.F. has not demonstrated that this OCF-18 is reasonable and necessary.

26T.F. submits that the OCF-18 is reasonable and necessary to address his psycho-social conditions that developed (and have continued) as a result of the accident. The September 8, 2020 OCF-18 noted problems related to social environment; problems related to certain psycho-social circumstances, problems in relationship with spouse/partner; problems related to employment and unemployment; and problems related to housing an economic circumstances.

27In a September 28, 2020 biopsychosocial pre-screen report from Ms. Resko, social worker, T.F. provided a subjective report of his limitations. He indicated worries regarding health, finances, family, future, relationship, and work. He reported that his relationships with his spouse and children have been compromised as a direct result of the accident and has affected his responsibilities as a father and a husband.

28The plan to achieve the goals of the OCF-18 was through the facilitation of the rehabilitation process to assist T.F. in maximizing independence in various areas of functioning; to assist him in moving from a situation of uncertainty, anxiety and dependency to one of increased confidence.

29Economical argues that T.F. has failed to meet his onus, that the evidence he relies on does not demonstrate that he requires the OCF-18. It points to the evidence of his report to Dr. Oshidari and Dr. Hosseini that he is independent with his personal care tasks, that he participates in most household chores and social activities and works full-time. While I note that T.F. reported that he jogs less frequently (1x per week vs. 3x per week pre-accident), he is still able to go jogging; and he does most household tasks, except to hire someone to cut the grass and/or shovel snow.

30I agree with Economical. T.F. has demonstrated that he does have ongoing pain issues, however, I find this OCF-18 is not reasonable and necessary. First, T.F. has returned to actively engaging in most of his pre-accident activities. I am of the view that his challenges are pain-based, and with my finding that the five OCF-18s for physiotherapy are reasonable, his pain issues should be addressed. I find that this relief will positively impact other areas where pain has been reported to be a factor. In addition, I note that Ms. Resko's hourly rate indicated in the OCF-18 was $112.81 per hour. In accordance with the Financial Services Regulatory Authority of Ontario Professional Services Guideline, rates for a social worker are $100.00 per hour.

31Based on the evidence, T.F. has not demonstrated that the goals of this OCF-18 are reasonable or that the cost of achieving the goals are reasonable. Failing to meet two of the three criteria for establishing that a treatment plan is reasonable and necessary, is not enough to meet the required threshold.

32Accordingly, I find the September 8, 2020 OCF-18 is not reasonable and necessary.

Interest

33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

34Having found that the five OCF-18s for physiotherapy are reasonable and necessary, it follows that interest is payable in accordance with s. 51 of the Schedule.

ORDER

35T.F. is removed from the MIG due to the exacerbation of his pre-existing injuries.

36T.F. is entitled to payment for the five OCF-18s for physiotherapy. Interest is payable.

37T.F. is not entitled to the OCF-18 for a social work assessment. No interest is payable.