Citation: Al Maleki v. Aviva Insurance Company of Canada, 2023 ONLAT 21-011904/AABS

Licence Appeal Tribunal File Number: 21-011904/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:

Ibrahim Al Maleki

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Camille Narine-Ramrattan, Paralegal

For the Respondent:

Natalie Spinelli, Paralegal

HEARD:

By way of written submissions

OVERVIEW

1Ibrahim Al Maleki, the applicant, was involved in an automobile accident on November 12, 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, Aviva Insurance Company of Canada, 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 the treatment plans (“OCF-18s”) proposed by Alexmuir Wellness, as follows:

i. $3,099.92 for physiotherapy services dated June 1, 2019;

ii. $2,190.00 for a chronic pain assessment dated December 18, 2021;

iii. $2,200.00 for an orthopedic assessment dated December 18, 2021; and

iv. $3,297.82 for chiropractic and physiotherapy treatment dated December 18, 2021.

ii. Is the applicant entitled to attendant care benefits as proposed by Alexmuir Wellness in the amount of $2,008.03 per month from January 7, 2022 to date and ongoing?

RESULT

3I find that:

i. The applicant is entitled to the OCF-18 dated June 1, 2019 for physiotherapy services, plus interest;

ii. The applicant is not entitled to the remaining treatment plans in dispute;

iii. The applicant is not entitled to attendant care benefits.

ANALYSIS

4To receive payment for a treatment and assessment plan under sections 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.

OCF-18 dated June 1, 2019 for physiotherapy services is reasonable and necessary

5The applicant submitted an OCF-18 for $3,099.92 of physiotherapy and chiropractic treatment. He contends that the proposed treatment is needed to address his ongoing accident-related neck, shoulder, and back pain. In support of his claim, he relies on the clinical notes and records (“CNRs”) of his family physician, Dr. Oda, records from his physiotherapy clinic indicating that he sought treatment from November 2018 to August 2019, and diagnostic imaging dated December 3, 2018, which found a cervical spine block vertebra, mild disc space loss with endplate sclerosis and facet sclerosis.

6The respondent submits that the proposed treatment is not reasonable and necessary. It argues that the diagnostic imaging results reflect degenerative changes rather than accident-related impairments. The respondent further relies on the s. 44 insurer’s examination (“IE”) assessment of Dr. Ahmad Belfon. In a report dated March 1, 2022, Dr. Belfon found that the applicant’s injuries were consistent with sprain/strain of the trapezius, cervical and lumbar spine. Dr. Belfon found that despite the myofascial strain, further facility-based treatment would not be reasonable and necessary three years post-accident, and that the applicant should rather engage in a regular stretching routine, coupled with appropriate pharmacology.

7I agree with the applicant that the proposed physiotherapy is reasonable and necessary. Although I note Dr. Belfon’s findings that facility-based treatment would not be effective in reducing the applicant’s symptoms, Dr. Belfon made this determination two and a half years after the treatment plan was submitted and more than three years after the accident. In its submissions, the respondent conceded that the IE assessment was conducted years after the plan was submitted, as it had been awaiting medical records.

8As such, I place greater weight on the contemporaneous medical record. Although the respondent submits that there is no evidence that at the time the plan was submitted further physical treatment was recommended, I find that this is not corroborated by the medical record. Rather, in a CNR entry dated August 13, 2019, relatively contemporaneous with the OCF-18, Dr. Oda noted that the applicant was no longer attending physiotherapy and recommended such physical treatment. As the applicant’s primary care physician, I place significant weight on Dr. Oda’s recommendations. I further note that the treatment records of Alexmuir Wellness indicate that at the time the OCF-18 was submitted, the applicant continued to receive ongoing treatment for his neck, shoulder and low back pain.

9The OCF-18 in dispute proposed a continuation of treatment to address the stated goals of pain reduction, increase of strength, and increased range of motion. Given that at the time of plan submission the applicant continued to report ongoing symptoms, Dr. Oda recommended such treatment and that the plan was submitted only seven months post-accident, I find that the proposed treatment is reasonable and necessary.

The applicant has not established entitlement to the OCF-18 dated December 18, 2021 for further physiotherapy and chiropractic treatment

10The applicant submitted another treatment plan for chiropractic and physiotherapy treatment on December 18, 2021, in the amount of $3,297.82. He argues that such additional treatment is needed, as he continued to report ongoing neck and back pain, as evidenced by his referral to a chronic pain specialist on October 28, 2021. The applicant further relies on the Attendant Care Needs Report of Pawan Chopra dated January 7, 2022, who had recommended physiotherapy and massage treatment as part of the occupational therapy (“OT”) assessment.

11I agree with the respondent that the applicant has not met his burden to prove that the proposed chiropractic and physiotherapy treatment is reasonable and necessary.

12The OCF-18 was submitted more than three years post-accident, and two and a half years after the previous OCF-18 for physical treatment. However, in the intervening years there is limited evidence that the applicant continued to report any accident-related symptoms to Dr. Oda. He does not direct me to any CNR entry indicating that pain complaints were made from August 2019 to October 2021. On October 31, 2021, Dr. Oda made a referral to a chronic pain specialist; however, it is not stated in the entry that the applicant’s pain was accident-related. I further note that at this time, Dr. Oda did not make a recommendation for physiotherapy treatment, unlike in August of 2019.

13Further, the applicant’s chronic pain specialist Dr. Praveen Ganty, in a December 4, 2021 report, also did not recommend any facility-based treatment. In his report, Dr. Ganty noted that the applicant had previously attended at physiotherapy, but that he reported that it did not help. Both of the respondent’s IE assessors, Dr. Belfon and Dr. Jacqueline Auguste (orthopedic surgeon), found that further facility-based treatment was not reasonable and necessary. The applicant has not provided any evidence from a treating medical practitioner to rebut these assessments or to establish that further chiropractic and physiotherapy treatment would be beneficial for any accident-related impairments more than three years post-accident.

The OCF-18s for a chronic pain assessment and orthopedic assessment are not reasonable and necessary

14The applicant submitted two OCF-18s dated December 18, 2021 for a chronic pain assessment and an orthopedic assessment. The respondent denied both assessments on the basis of Dr. Auguste’s orthopedic IE report dated April 5, 2022.

15With respect to the chronic pain assessment, I agree with the respondent that the proposed assessment is duplicative. The applicant had already been referred to Dr. Ganty, an intervention pain specialist, by his family physician. Dr. Ganty provided a report dated December 4, 2021 where he assessed the applicant’s pain reports, reviewed the diagnostic imaging and provided treatment recommendations of lumbar medial branch blocks and radiofrequency neurotomy. There is no evidence that the applicant pursued either of these recommendations. In his report, Dr. Ganty did not recommend any further assessments. The applicant has not provided any evidence or submissions as to why an additional chronic pain assessment was required only three weeks after Dr. Ganty’s report.

16Further, the applicant has provided limited evidence of ongoing pain reports to substantiate the need for a chronic pain assessment. From a review of the CNR entries of Dr. Oda, it does not appear that the applicant reported ongoing pain complaints for over two years, from August 13, 2019 to October 28, 2021.

17I further find that the applicant has not established that an orthopedic assessment is reasonable and necessary. The applicant appears to be relying in large part of the results of his diagnostic imaging to establish his claim for an orthopedic assessment. However, I agree with the respondent that the applicant has not provided any opinion from a treating physician that the cervical spine block vertebra, mild disc space loss with endplate sclerosis and facet sclerosis were accident-related, rather than degenerative changes. Further, neither Dr. Oda nor Dr. Ganty appeared to suggest any orthopedic investigation.

18As such, I find that the applicant has not met his burden to prove that either the chronic pain assessment or the orthopedic assessment is reasonable and necessary.

Unexecuted treatment plans – s. 38(3) of the Schedule

19The respondent submits that it is not liable to pay any treatment plan in dispute because they were not signed by the insured or a regulated health practitioner as required by s. 38(3) of the Schedule.

20In his reply submissions, the applicant argues that all treatment plans must be submitted via Health Claims for Auto Insurance (HCAI) for approval, and that the clinic must receive consent from the applicant in order to submit a treatment plan.

21Electronic submissions of treatment plans through HCAI require the provider to indicate that the treatment provider’s electronic signature is on file and that the treatment plan has been reviewed by the provider. The HCAI system does not allow for signed forms to be submitted to insurers at first instance. In its hearing submissions, the respondent did not provide any submissions or evidence as to whether it had previously raised the issue of the OCF-18s not being signed by the applicant. Nor did the respondent submit its applicable denial letters, to indicate whether it has raised the issue of unsigned OCF-18s when denying the plans.

22I find that if the respondent did not consent to an unsigned copy of the OCF-18s being received through HCAI, it was incumbent upon it to request a copy of the executed OCF-18s upon receipt of the electronic versions through HCAI. The respondent has not led any evidence that it raised this issue prior to providing its written submissions for this hearing. As such, I find that the respondent’s raising the issue of the OCF-18s being unsigned at this late stage of the proceeding is inappropriate, see e.g.: Bhullar v TD Insurance Meloche Monnex, 2020 CanLII 94801 (ON LAT) at para 12. C.B. v. Aviva Insurance Canada, 2019 CanLII 63375 (ON LAT) at para. 32, S.J. v Aviva Insurance Canada, 2019 CanLII 76996 (ON LAT) at para. 33.

23As such, based on the totality of evidence, I find that the applicant did not breach s. 38(3) of the Schedule.

Attendant Care Benefits

24I find that the applicant has not established entitlement to attendant care benefits (“ACBs”).

25Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident, for ACB services provided by an aide or attendant.

26Section 3(7)(e) of the Schedule defines when an expense is incurred: (i) the insured person has received the goods or services to which the expense relates, (ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and (iii) the person who provided the goods or services, (A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or (B) sustained an economic loss as a result of providing the goods or services to the insured person. The applicant bears the burden of proving entitlement to ACBs on a balance of probabilities.

27The applicant claims ACBs from January 7, 2022 to date and ongoing, but has not provided any submissions or evidence as to whether these benefits were incurred under any of the prongs of s. 3(7)(e). Rather, the applicant’s submissions on the issue relate solely as to whether the ACBs are reasonable and necessary. The applicant has not provided details of any attendant care assistance, names of any service providers, dates attended, what type of assistance was provided, time spent, remuneration for providing assistance, receipts or invoices, indicating proof of incurred expenses.

28Moreover, if the person who provided ACBs is a family member, as opposed to a professional service provider, any ACBs payable are limited to the economic loss incurred by the family member. In his submissions, the applicant appears to concede that an aide was not hired, but rather, that his wife had assisted with ACB tasks. However, no submissions, evidence or details of any economic loss sustained by his wife, were provided by the applicant.

29Section 19 of the Schedule is explicit in stating that ACB expenses must be incurred to be payable. Without any submissions or evidence as to whether the ACB expenses were incurred, I am unable to find that the applicant has established entitlement to ACBs. Further, the applicant has not offered analysis on why s. 3(8) may apply to deem the expenses incurred.

Interest

30The applicant is entitled to interest pursuant to s. 51 of the Schedule, for the OCF-18 dated June 1, 2019 for physiotherapy services.

ORDER

31For the reasons set out above I find that:

i. The applicant is entitled to the OCF-18 dated June 1, 2019 for physiotherapy services, plus interest in accordance with s. 51 of the Schedule;

ii. The applicant is not entitled to the remaining treatment plans in dispute; and

iii. The applicant is not entitled to attendant care benefits.