Licence Appeal Tribunal File Number: 22-007485/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:
Sara Hakimi
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Patrick Molloy
APPEARANCES:
For the Applicant:
Saloumeh Baghbani, Counsel
For the Respondent:
Thulasi Kandiah, Counsel
HEARD:
In Writing
OVERVIEW
1Sarah Hakimi, the applicant, was involved in an automobile accident on November 21, 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 Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2On November 21, 2018, the applicant was the seat belted driver travelling near the intersection of Rutherford Road and Queen Street East when her vehicle was suddenly rear ended by another vehicle. The airbags did not deploy, and she did not lose consciousness. She was able to exit the vehicle independently. Ms. Hakimi did not seek immediate medical attention after the accident, and instead drove home. Ms. Hakimi experienced immediate shock after the collision and awoke the next day with a severe headache and body pain.
3The issues in dispute are:
i. Is the applicant entitled to $13,336.00 for a chronic pain program, proposed by Healthmax Physiotherapy in a treatment plan/OCF-18(“plan”) submitted September 1, 2020, and denied June 3, 2021?
ii. Is the applicant entitled to $4,372.27 for physiotherapy services, proposed by Healthmax Physiotherapy in a treatment plan submitted September 27, 2021, and denied October 12, 2021?
iii. 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?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
4Resolved Issues: On consent, The applicant withdrew the following issues: 3 and 4 as listed in the application.
RESULT
5Issue #1. The applicant has not tendered compelling evidence nor submissions in support of this OCF-18. The applicant has not shown any need for this treatment as they have not been using any prescribed pain relief other than over the counter products. The lack of treatment for chronic pain since the accident would indicate that treatment is not reasonable or necessary.
6Issue #2. The applicant has not provided the Tribunal with the compelling evidence necessary to grant the approval of the physiotherapy benefit as the assessments provided seem to acknowledge a psychological issue as opposed to a physical impairment.
7Issues #1 and #2 have been denied therefore issues #3 and #4 as listed above are not applicable and denied.
ANALYSIS
8To receive payment for a treatment plan under 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. 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 same are reasonable. There must be a reasonable basis for a request for an assessment.
9The applicant is a 29-year-old female. She was born in Canada. The applicant has a history of pre-accident mental health issues and a history of substance abuse issues.
The applicant has not demonstrated compelling evidence that the chronic pain program is reasonable or necessary.
10There is no evidence of use of prescription drugs beyond the recommended duration, and/or abuse of or dependence on prescription drugs or other substances as a result of the accident.
11The s. 44 report by Dr. McCutcheon (Psychologist). Dr. McCutcheon concluded that while the applicant was experiencing adjustment disorder, she did not meet the criteria for a chronic pain disorder. She concluded that Issue #1 was not reasonable and necessary. Dr. Swaich, the applicants family doctor noted, on October 8, 2020, the applicant had used cocaine four days prior to the examination and referred the applicant to Dr. Dolatshi (neurologist), no records have been produced pertaining to this referral, The. applicant returned to Dr Swaich 8 months later June 22, 2021, and has not attended since.
12Dr. Swaich also noted in a report from a March 14, 2022 telephone conversation with the applicant that Ms Hakimi was complaining of left side upper back muscle pain and concluded it was from 4 days of physical work and began after Ms Hakimi started going to the gym.
13The applicant claims that she self-medicates with substances due to the accident.
14The s. 44 reports by Dr. Jugnundan (General Practitioner), who concluded that she had sustained soft tissue injuries, had reached maximum medical improvement, and that Issue #1 was not reasonable and necessary. Dr. Jugnundan conducted a detailed review of the medical records.
The applicant has not demonstrated compelling evidence that the physiotherapy treatment is reasonable or necessary.
15This treatment plan is not approved as the applicant has required a minimal amount of treatment from any of the treatment service providers since the accident.
16Dr. Swaich and Dr. Lotfalizadeh general practitioners provide opinions on psychological issues. There is little evidence other than the applicant’s self diagnosis to support the necessary or reasonable need for the benefit.
17The lack of evidence and the brief treatment history does not support the necessity for this benefit.
18The burden of proof lies with the applicant. The medical reports do not clearly identify the necessity for this treatment plan. Providing compelling evidence is the responsibility of the applicant. The Tribunal agrees with the respondent’s position based on the evidence provided by Dr Lotfalizadeh who concluded that the applicant had sustained soft tissue injuries and had reached maximum medical improvement
19The respondent also points to the nominal medical treatment the applicant has required as a result of the accident.
Award and Interest
20As issue #1 and #2 have been denied, the issues of award and interest are not applicable and therefore denied.
ORDER
i. "I find the applicant has not demonstrated entitlement to any of the disputed benefits on a balance of probabilities. The application is dismissed.
Released: October 21, 2024
Patrick Molloy
Adjudicator