Licence Appeal Tribunal File Number: 22-002439/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:
Syed Laraib
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Tanjoyt Deol
APPEARANCES:
For the Applicant:
Doina Marinescu, Paralegal
For the Respondent:
Jonathan White, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Syed Laraib, (the “applicant”) was involved in an automobile accident on October 9, 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 Company of 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:
Is the applicant entitled to attendant care benefits (“ACBs”) from the period of October 21, 2021, to date and ongoing? And if he is entitled to a benefit what amounts is he entitled to?
Is the applicant entitled to $2,260.00 for the cost of an ergonomic assessment, recommended by Q Medical, denied on December 22, 2021?
Is the applicant entitled to $2,569.08 for chiropractic services, recommended by Mediwise Health Care, denied on October 22, 2020?
Is the applicant entitled to $850.00 for a nutritional assessment, recommended by Mediwise Health Care, denied on April 7, 2022?
Is the applicant entitled to $4,643.96 for occupational therapy treatment, recommended by Mediwise Health Care, denied on June 9, 2022?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant is not entitled to ACBs.
ii. The applicant is not entitled to any of the treatment plans in dispute, as he has not demonstrated that they are reasonable and necessary. As there are no benefits due, interest is not payable.
iii. The application is dismissed.
PROCEDURAL ISSUE
Missing Treatment Plans (“OCF-18s”)
4The parties did not file the OCF-18s in dispute with their materials. On September 23, 2024, the Tribunal emailed the parties requesting a copy of all the OCF-18s in dispute for this hearing. On September 24, 2024, the respondent advised that it disagreed that the OCF-18s and a Form 1 should be admitted into evidence as it argues that the applicant chose not to include this with his initial submissions. As such, the respondent argues that it is impermissible new evidence and it did not have a chance to respond to this evidence.
5The applicant filed five OCF-18s with the Tribunal on September 24, 2024. Four of these OCF-18s were for the issues in dispute, and one was for a cost of an attendant care assessment, in the amount of $2,486.00, dated August 26, 2021.
6To begin, the applicant did not file a Form 1, and neither was this requested by the Tribunal, therefore the issue of whether the Form 1 can be admitted is not in dispute.
7However, the applicant did improperly file an OCF-18 for the cost of an attendant care assessment, which is not an issue in dispute for this hearing and will not be admitted into the record. Both the Case Conference Report and Order (“CCRO”) and the parties’ submissions did not identify the cost of an attendant care assessment as an issue in dispute. Therefore, if this OCF-18 was admitted into the record, it would result in prejudice to the respondent who has not had the opportunity to respond.
8I find that the remaining OCF-18s are admissible. I acknowledge that the applicant has the evidentiary onus to present his case, and as part of that obligation must adduce all evidence upon which he intends to rely upon. The Tribunal will not satisfy his evidentiary onus for him, however that does not mean the Tribunal is bound in all cases to remain silent pending its decision.
9Under Rule 9.1 of the Common Rules of Practice and Procedure (October 2017) (the “Common Rules”) provides that the Tribunal may, at any stage in a proceeding, order any party to provide such further particulars or disclosure as it considers necessary for a full and satisfactory understanding of the issues in the proceeding. As the OCF-18s set out the services in dispute, they are necessary for the Tribunal to have a full and satisfactory understanding of the issues in this case.
10I am also not persuaded by the respondent’s position that the OCF-18s are new evidence, and that it did not have a chance to respond to them. The respondent denied the OCF-18s, which form the basis of this dispute and as such, it was aware of the case against it. Indeed, the respondent conceded that it provided a copy of the OCF-18s to the applicant on February 28, 2023, which was prior to the deadline for the submissions. Thus, it is unclear how it is prejudiced by these OCF-18s because it knows they are the foundation of the claim for medical benefits. Therefore, I will admit the OCF-18s that were submitted on September 24, 2024 (with the exception of the OCF-18 for an attendant care assessment) into the record.
ANALYSIS
The applicant has not established entitlement to ACBs
11I find that the applicant has not met his burden to prove his entitlement to ACBs.
12Section 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.
13Problematically, despite ACBs being listed as a live issue in dispute in the CCRO, the applicant’s submissions were silent with respect to why he would be entitled to ACBs, nor did he point me to evidence that supports his entitlement to this claim.
14In response, the respondent argues that the applicant has made no submissions in support of his entitlement to ACBs.
15The applicant had a further opportunity to address this in his reply submissions, but he chose not to do so.
16It is up to the applicant to provide submissions on entitlement to ACBs and cite evidence capable of supporting entitlement to ACBs. Consequently, I find that the applicant is not entitled to ACBs for the period of October 21, 2021, to date and ongoing.
17To 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. 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.
The applicant is not entitled to the OCF-18 for the cost of an ergonomic assessment, in the amount of $2,260.00
18Based on the totality of the medical evidence, I find that the applicant has not proven on a balance of probabilities that the proposed OCF-18 is reasonable and necessary.
19In determining whether an assessment is reasonable and necessary, I note that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing that there are grounds to suspect he has the condition for which he seeks the assessment.
20The applicant did not provide specific submissions about why an ergonomic assessment is reasonable and necessary. For example, the applicant did not address what the assessment is, what is it for, why is it required, what condition is being investigated, who recommended the assessment, and why. Instead, the applicant provided a summary of diagnoses listed in the assessor’s medical reports, and clinical notes and records of various treating practitioners. The applicant further vaguely submitted that the s. 44 assessor, Ms. Veena Mehta, occupational therapist (“OT”) in her report, dated April 18, 2022, overlooked the “potential long-term benefits such an assessment could offer.”
21Meanwhile, the respondent argues that the ergonomic assessment was denied based on the s. 44 assessment of Ms. Mehta, because the costs of the services are available through the applicant’s employer. Further, it argues that the applicant has not produced a copy of the employment file which would shed light on the workplace modifications available through his employer. As such, the respondent argues that the applicant has not met his onus to establish entitlement to the proposed assessment.
22The applicant has fallen very short of meeting his onus in proving that the proposed ergonomic assessment in dispute is reasonable and necessary. As noted above, the applicant made no specific submissions about the proposed ergonomic assessment. While the applicant’s submissions provided a summary of his diagnoses, critically, he did not link these diagnoses to the assessment being sought or explain which practitioner recommended the assessment and why. This alone makes it challenging for the applicant to meet his burden.
23The applicant also self-reported to Ms. Mehta that his employer was supportive and would provide recommendations regarding an ergonomic home office set-up. Despite this self-reporting to Ms. Mehta, the applicant has neither addressed in his submissions or provided any evidence on why this assessment is reasonable and necessary when it is available through his employer.
24Indeed, Ms. Mehta in her report noted that the applicant had ongoing pain symptoms and would benefit from the proposed assessment, however the costs were not supported as the applicant had access to such services through his employer. Moreover, the applicant during the assessment agreed that he would contact his employer regarding a proper ergonomic home-office set up, yet he has produced no evidence of whether this was done.
25The respondent also requested that I draw an adverse inference from the applicant’s failure to produce his employment file. The applicant did not address why these records were not provided. Although I am not prepared to make an adverse inference, the lack of evidence goes to the overall sufficiency of the evidence presented. As noted above, the applicant has not established that the proposed assessment is reasonable and necessary.
26Finally, I am alive to the applicant’s position that a ergonomic assessment would significantly aid in his pain management and that the respondent should take a holistic approach. However, as noted above, Ms. Mehta agreed that an ergonomic assessment would be beneficial, but that it was available through the applicant’s employer. Without any specific submissions on why this assessment is reasonable and necessary, when the applicant himself has reported that he has access to the same services through his employer, I find that the applicant has not established that the ergonomic assessment is reasonable and necessary.
The applicant is not entitled to the OCF-18 for chiropractic services, in the amount of $2,569.08
27The applicant has not proven on a balance of probabilities that the disputed OCF-18 is reasonable and necessary.
28The applicant argues that there is medical evidence supporting that chiropractic services, should be considered beyond the MIG limits.
29The respondent argues that the MIG is not an issue in this matter. Rather, it argues that the applicant has not proven that he sustained chronic pain from this accident, or that he is entitled to the OCF-18.
30As the respondent has conceded that the MIG is not an issue in this matter, it is unclear to me why the applicant’s submissions pertain to the MIG limits. The crux of the dispute before me is not whether the applicant requires treatment beyond the MIG limits, but rather if the proposed treatment is reasonable and necessary. I find that it is not.
31Again, the applicant’s submissions provided a summary of diagnoses, but did not address the goals of this OCF-18, how the goals will be met or the cost of same. Moreover, the applicant’s submissions did not link the diagnoses to the treatment being sought or explain which practitioners recommended the treatment and why.
32Lastly, I note that to establish the reasonableness and necessity of proposed treatment, it is not sufficient to simply lead evidence of a physical impairment or ongoing pain. Rather, there must be sufficient evidence that the goals of treatment are being met to a reasonable degree and that the overall costs of achieving them are reasonable. Here, the applicant has not identified what the goals of treatment are, which alone makes it difficult to determine whether the goals of treatment are reasonable.
33In short, where the applicant has not made specific submissions identifying the goals of the proposed treatment and has not referred me to evidence on how the goals will be met. It follows that the applicant has not met his burden.
The applicant is not entitled to the cost of the OCF-18 for a nutritional assessment, in the amount of $850.00
34On the balance, the applicant has not demonstrated that the proposed nutritional assessment is reasonable and necessary.
35The applicant argues that nutritional counseling is required for his condition and that considering his changes in physical activity and lifestyle, this assessment could be a critical component of a comprehensive treatment plan. The applicant relies on the s. 25 chronic pain assessment report by Dr. Gurjit Bajwa, family physician, a s. 25 psychological assessment by Dr. Bruce Cook, psychologist, and a s. 25 psychologist assessment by Dr. Rakesh Ratti, psychologist, dated January 18, 2022, May 26, 2021, and April 23, 2021.
36The respondent argues that the applicant has not produced any evidence to support his submission that he would receive a potential holistic benefit from the proposed assessment. Further, it argues that the applicant’s family physician, Dr. M. Halperin has not noted an eating disorder or nutritional deficiency from the accident.
37I agree with the respondent. First, where it is the applicant’s burden to prove that the assessment he seeks is reasonable and necessary as a result of the accident, the minimum requirement is to address why the assessment is reasonable and necessary. Here, the applicant provided no specific submissions on the purpose of the assessment, which condition is being investigated, who recommended the assessment, and why, nor the costs. Where the applicant has failed to meet this minimal requirement of providing specific submissions on why the assessment is reasonable and necessary, it follows that he has fallen well short of meeting his burden of proof.
38Second, the applicant has not referred me to evidence to support his position that the nutritional assessment is a critical component of his treatment or that it may provide potential holistic benefits. It is well-settled that submissions are not evidence.
39Next, I acknowledge that the applicant relies upon his reporting to Dr. Bajwa that he gained weight following the accident, and that he was using food as a coping mechanism. However, the applicant has not referred me to a medical opinion that supports the need for a nutritional assessment as a result. Nor has the applicant provided a link between the weight gain and the proposed assessment. Notably, Dr. Bajwa in his report despite noting the applicant’s weight gain, did not recommend a nutritional assessment. I also concur with the respondent that Dr. Halperin has also not diagnosed the applicant with a eating disorder, nutritional deficiency, nor has the applicant reported these issues to him.
40In a similar vein, I acknowledge that the applicant summarized his psychological diagnoses by Drs. Cook and Ratti, however he did not elaborate on the link between these diagnoses and the proposed assessment. The assessors also did not recommend a nutritional assessment as a result of the applicant’s psychological impairments.
41Lastly, the applicant argues that the s. 44 physician assessment conducted by Dr. Sangita Sharma, physician dated March 28, 2022, should be given less weight because it overlooked the potential holistic benefits for a nutritional assessment. However, the onus rests on the applicant to prove the reasonableness and necessity of the plan, not on the respondent to disprove it. The applicant has not provided medical evidence to refute Dr. Sharma’s opinion or referred me to evidence to support any holistic benefits that may be received from this assessment. Thus, the applicant is not entitled to the cost of a nutritional assessment.
The applicant is not entitled to the OCF-18 for OT treatment in the amount of $4,643.96
42I find that the applicant has not established that the proposed OCF-18 is reasonable and necessary.
43The disputed services in the OCF-18 pertain to: OT treatment (including additional costs pertaining to that), and a number of assistive devices, such as a: cervical pillow, office chair, home computer desk, wireless keyboard/mouse, and OBUS Forme low back support, and a computer monitor.
44The goals of the OT treatment are for the applicant to be able to engage in a home workout exercise three times a week and in a social outing once a week.
45The applicant argues that he has significant neck, back, shoulder and knee pain, which impact his sitting, walking, bending, and sleeping. Primarily, the applicant argues that Mr. Justin Gilmour, an OT has recommended the continued OT sessions on a bi-weekly basis, and the use of a cervical pillow, ergonomic chair, and lumbar support pillow.
46The respondent argues that the applicant has failed to prove entitlement to this OCF-18 and relies upon the s. 44 reports of Ms. Mehta, dated April 18, 2022 and June 20, 2022.
47The applicant has fallen short of meeting his onus to establish entitlement to the proposed OCF-18. I acknowledge that the applicant reports ongoing pain symptomology and that Mr. Gilmour recommended the proposed OT treatment and assistive devices. 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 these goals is reasonable. Likewise, he provided no submissions on why the assistive devices are reasonable and necessary.
48I am aware that a large part of the applicant’s case rests on the progress report by Mr. Gilmour, dated May 30, 2022, who he argues recommended the proposed services. However, I find this progress report to be of limited evidentiary value for the following reasons.
49First, there are no clinical notes and records from United Healing, the clinic that provided the previous eight OT sessions. To provide context, it is undisputed that the applicant received eight previous OT sessions, that were approved by the respondent. Despite receiving this treatment, the applicant has not produced these records. Rather, the applicant has produced a progress report of Mr. Gilmour where he summarizes the eight treatment sessions.
50Conversely, these summaries of the treatment sessions by Mr. Gilmour lack clarity. For instance, Mr. Gilmour summarized an entry, dated January 13, 2022, and noted that the session provided support with physical exercise and social outings. In my view, this summarization is vague, and does not address what specific physical exercise and social outings, the applicant will receive assistance with, whether it was helpful or his progress with same. The remaining entries from January 31 to May 20, 2022, do not shed any further light on this.
51At other portions of the report, Mr. Gilmour referred to the applicant as “Ms. Barker”, which raises uncertainty of whether that entry is in relation to the applicant or someone else.
52Second, Mr. Gilmour did not address how the goals of the OCF-18 will be met with the proposed OT treatment. As an example, Mr. Gilmour noted that following the eight OT sessions, the applicant was now working out two times a week, instead of zero, and that the goal was to increase his exercise to three times a week. Crucially, Mr. Gilmour provided no rationale on how this goal would be met with the proposed treatment. Significantly, the eight sessions that were summarized in Mr. Gilmour’s report are silent with respect to the applicant’s workouts and how the previous OT treatment assisted this.
53Likewise, Mr. Gilmour noted that the applicant was slowly reengaging in social opportunities with friends and family, and that continued practice of energy conservation principles, pain management, and relaxation strategies will increase endurance.
54However, upon review of the sessions that were summarized by Mr. Gilmour, I note that only one session pertained to social outings which was January 13, 2022.
55Particularly, this entry does not provide any information on what social outings the proposed treatment is assisting with and how. The remaining sessions, from January 31 to May 20, 2022, do not discuss how the treatment is assisting the applicant with social outings or even what outings he is having difficulty with. Rather, those sessions pertain to the applicant receiving assistance with: dressing, bathing, cooking, cleaning, laundry, work, walking, bending, twisting, reaching, sleep, cognitive brain games, and organizing his routine, scheduling, and daily planning of family obligations/daily activities.
56Significantly, there are no CNRs from United Healing to accompany the progress report, thus, there is no further context in which to assess whether the goals of the OT treatment will be met. Without such information, I am unable to assess how the stated goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit. Thus, I have no reason to interfere with Ms. Metra’s conclusion that the applicant has received sufficient OT intervention and the additional sessions are not supported.
57Third, the assistive devices recommended by Mr. Gilmour have largely already been approved by the respondent or are available through his employer. Similarly, I am not persuaded that the applicant has established that the proposed assistive devices are reasonable and necessary.
58As noted by Ms. Metra in her report, a cervical pillow, and a Obus Forme have already been approved by the respondent. Mr. Gilmour in his report did not address why the same assistive devices are required for the applicant’s neck and lower back pain, when they have already been approved.
59Correspondingly, the applicant reported to Ms. Metra that his employer would provide a supportive office chair, but he preferred to work in his bed. The applicant has not provided any evidence on whether he has contacted his employer for an office chair, or whether he continues to work in bed. In any event, where an office chair is available through his employer, I find that the applicant has not demonstrated an office chair is reasonable and necessary.
60Mr. Gilmour also did not address why a wireless keyboard and mouse is reasonable and necessary, when the applicant has reported to Ms. Metra that he had no difficulty using his laptop computer for work. Additionally, Mr. Gilmour provided no rationale on why a home office computer desk was required because the current one was broken. The applicant reported to Ms. Metra on March 31, 2022, that he was not using his office desk, and instead his brother was. Subsequently, on May 30, 2022, he reported to Mr. Gilmour that he now used his desk and bed, and that the desk was broken.
61Nevertheless, neither the applicant nor Mr. Gilmour have addressed why the current desk would not allow a proper workspace setup, or the extent of damage to the desk.
62Finally, Mr. Gilmour recommended a 22’ inch computer monitor because the applicant reported pain and discomfort in his neck while using his work laptop. However, on March 31, 2022, the applicant reported no difficulty with using his laptop computer for work to Ms. Metra. Neither the applicant nor Mr. Gilmour have addressed why the applicant has pain/discomfort in his neck on May 30, 2022, when two months earlier, he reported no difficulties to Ms. Metra.
63In conclusion, I find that the applicant has not met his evidentiary onus to establish that the proposed OCF-18 is reasonable and necessary.
Interest is not payable
64As there are no overdue payments of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
65For the reasons outlined above, I find that:
i. The applicant is not entitled to ACBs.
ii. The applicant is not entitled to any of the treatment plans in dispute, as he has not demonstrated that they are reasonable and necessary. As there are no benefits due, interest is not payable.
iii. The application is dismissed.
Released: October 25, 2024
Tanjoyt Deol
Adjudicator