Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-002036/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:
Brian McGrath
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Melanie Malach
APPEARANCES:
For the Applicant: Sarah Brown, Paralegal
For the Respondent: Meredith Harper, Counsel
HEARD: By way of written submissions
OVERVIEW
1Brian McGrath, was involved in an automobile accident on October 1, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The 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.
ISSUES
[3] The issues in dispute are: i. Is the applicant entitled to a non-earner benefit of $185.00 per week from October 1, 2019 to October 1, 2021? ii. Is the applicant entitled to $1,339.56 ($5,239.56 less $3,900.00 approved) for psychological services proposed by Dr. Kenneth Keeling, Psychologist, at Marigold Medical Assessment Centre, in a treatment plan, dated November 19, 2019? iii. Is the applicant entitled to chiropractic services, proposed by Dr. Mary Rasmi-Wakileh, as follows: i. $4,006.33 in a treatment plan, dated August 12, 2020; and ii. $4,347.32 in a treatment plan, dated April 19, 2021 iv. Is the applicant entitled to dental services in the amount of $247.00, submitted on an expense claim form (OCF-6) dated July 20, 2020? v. Is the applicant entitled to interest on any overdue payment of benefits? vi. Is the respondent liable to pay an award under s.10 of Reg. 664?
4The issues in dispute listed in the Case Conference Report and Order (“CCRO”), dated May 30, 2023, are not the same as the issues in dispute raised by the applicant in his submissions. The applicant is claiming a different time period for NEB than noted in the CCRO and there are different treatment plan dates noted. The respondent has not commented on the discrepancy. As the time period for NEB and the treatment plan dates in the applicant’s submissions seem to be the correct dates based on a review of the medical evidence provided, I will rely upon the applicant’s submissions for the issues in this hearing.
New issue in dispute raised in applicant’s submissions
5In his submissions, the applicant included submissions on the issue of whether the respondent is liable to pay an award under s. 10 of Reg. 664. This issue was not listed in the CCRO, dated May 30, 2023, and the applicant has not brought a motion to add this issue. The respondent provided a response to this issue in its submissions.
6Although this issue was not included in the CCRO, in light of the fact that the respondent has provided responding submissions, I find that there is no prejudice or breach of procedural fairness in considering this issue in this hearing.
RESULT
7I find that the applicant is not entitled to payment of the benefits in dispute, interest or an award.
PROCEDURAL ISSUE
Failure to meet document exchange deadline
8I admit into evidence the clinical notes and records (“CNRs”) of Sunnybrook Hospital File served on January 19, 2024 and the records of Dr. Elliot Canter served on December 11, 2023, pursuant to Rule 9.4 of the Common Rules of Practice and Procedure (“Common Rules”).
9The respondent submits that it is prejudiced by the late service of these documents which were not submitted by the deadlines in the CCRO which provided that all documents were to be exchanged by August 28, 2023. The Sunnybrook Hospital File was served on January 19, 2024, and the records of Dr. Elliot Canter were served on December 11, 2023. The respondent submits that it had limited time to schedule an assessment, obtain a report and/or prepare its submission in response to the late filing. The respondent further submits that most of the applicant’s submissions and arguments are based on the late-served records and the respondent has not been able to respond to the new documents in a timely fashion within the confines of the hearing deadlines.
10I deny the respondent’s request to exclude this evidence. I agree with the respondent that the applicant did not meet the document exchange deadlines as listed in the CCRO. However, I do not find that the respondent has demonstrated how it has been prejudiced by the late production of these documents. The respondent states that the late submission prevented it the opportunity to review the medical records from the parties and was not given the opportunity to adequately respond. However, the respondent has not provided any evidence that the late records included new information that would have necessitated changes to how this file was being adjusted or that it was prevented from providing a defense in this hearing.
ANALYSIS
The applicant is not entitled to a non-earner benefit (“NEB”)
11I find that the applicant has not met his evidentiary onus to establish entitlement to a NEB from October 1, 2019 to October 1, 2021.
12Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) of the Schedule defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (“Heath”), which, generally focuses on a comparison of the applicant’s pre- and post-accident activities.
13The applicant relies on the Disability Certificate (“OCF-3”), prepared by Dr. Rebecca Lima, chiropractor, dated October 8, 2019, which states that the applicant has a complete inability to carry on a normal life based on severe pain that is preventing him from carrying out most activities of daily living (“ADLs”), household duties, social activities etc., and psychological factors identified. He further relies on the records of Dr. Shahran Emami, from Renew Medical Clinic, who diagnosed the applicant with an injury of DSM-V criteria for substance use disorder as a result of the accident. He submits that the diagnosis of DSM-5-TR and subsequent recovery has caused him to suffer a complete inability to carry on a normal life. He further points to the records of Dr. Elliott Canter, Family Physician, in support of his position. The applicant submits that the s. 44 assessment reports fail to address the applicant’s pre- and post-accident normal life and rely on inaccurate facts.
14In his reply submissions, the applicant relies on the Psychological Report, dated November 11, 2019, prepared by Dr. Kenneth Keeling, psychologist, where Dr. Keeling notes that “his psychological problems ultimately serve to undermine his ability to engage in recreational and social activities with his social group”.
15The respondent relies on the Multidisciplinary Assessment Report, prepared by Dr. Esmat Dessouki, orthopaedic surgeon, dated August 21, 2020, Dr. Gary Challis, psychologist, and Rodney Pritchett, occupational therapist. The assessors concluded that the applicant did not suffer a complete inability to carry on a normal life as a result of the accident.
16I find that the applicant has not proven on a balance of probabilities that he suffers from a complete inability to carry on a normal life for the following reasons.
17I find that the applicant has not provided sufficient evidence to allow me to assess any potential changes to his pre- and post-accident activity levels. When I review the records cited by the applicant, I find that there is little information about his pre-accident life to assess what, if any, effect the accident had. I find that it is difficult to discern what exactly the applicant was able to do before the 2019 accident, and what activities were impacted afterwards. As it pertains to the applicant’s ability to function, there is a lack of evidence provided as to whether the applicant’s reported difficulties are as a result of the accident or his pre-existing difficulties.
18At the time the OCF-3 was completed on October 8, 2019, there is a lack of evidence regarding the applicant’s functional status. In the OCF-3 itself, there is no further detail with respect to the tasks the applicant was not able to complete, and no comparison with his abilities before the accident. There have been no CNRs provided by Harwood Health & Wellness and therefore no information provided from the applicant’s treating physicians regarding his activities of daily life. A checked box and a blanket statement that he is “prevented from carrying out most ADLs, household duties, social activities etc, psychological factors identified” is not sufficient evidence to establish the applicant’s entitlement to this benefit.
19The applicant submits that the records of Dr. Emami supports his claim for a NEB but does not include a specific reference to the clinical note that he is relying on. Upon review of Dr. Emami’s CNRs, I find that the CNR dated December 2, 2019, states that the applicant is “repeatedly unable to carry out major obligations at work, school, or home due to opioid use”. However, there are no specifics provided with respect to the activities that he is unable to participate in. In addition, the remainder of the CNRs consistently note that he is functioning well and has no medical or social issues going on. The applicant also submits that he did not have a pre-accident medical history with Dr. Emami. While he may not have been under the care of Dr. Emami prior to the accident, I find the records show support that he suffered and was treated for a substance abuse problem pre-accident.
20In addition, while the applicant relies on the psychological report prepared by Dr. Keeling, dated November 11, 2019, the applicant has not provided the Tribunal with a copy of this report.
21I find that the applicant has not made submissions or provided evidence on the particulars of his pre- and post-accident activities as required by Heath. Without details regarding the activities that he valued, or evidence of the frequency and time commitments of his pre-accident activities, I cannot compare his pre- and post-accident ability to engage in activities he ordinarily engaged in or valued.
22The onus is on the applicant to prove entitlement to a NEB. While I acknowledge that the applicant states that the s.44 assessments are deficient, the applicant must still point me towards his own evidence and argument to make his case. Relying on alleged weaknesses in the respondent’s evidence is insufficient.
23I find that the applicant has not provided sufficient evidence to allow me to assess any potential changes to his pre- and post-accident activity levels. Therefore, despite the applicant’s submission that he continues to suffer from impairments which interfere with his activities of daily living, I find that the applicant has not established on a balance of probabilities that he is entitled to a NEB.
24For the reasons stated above, I find that the applicant is not entitled to a NEB.
Entitlement to Medical and Rehabilitation Benefits
25To receive payment for a treatment 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 that the goals of treatment are reasonable, 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 unapproved balance of the psychological treatment plan, dated November 19, 2019
26I find that the applicant has not met his evidentiary burden to establish entitlement to the balance of the psychological treatment plan.
27The applicant claims entitlement to psychological services in the amount of $5,239.56, proposed by Marigold Medical Assessment Centre, in a treatment plan, dated November 19, 2019 and denied on November 21, 2019. As the respondent partially approved this treatment plan in the amount of $3,900.00, the amount in dispute is $1,339.56.
28The unapproved balance of the treatment plan in dispute relates to the hourly rate payable for the social work services provided by Owen Giddens, who is identified as a social worker in the applicable treatment plan. The applicant claims that the hourly rate should be $149.61 per hour and the respondent claims that the hourly rate should be $100.00 per hour.
29The fee for services provided through the Schedule is governed by the Professional Services Guideline issued as Superintendent’s Guideline No. 03/14 (the “Guideline”). The Guideline establishes the maximum expenses payable for a range of health care services, medical benefits and case management services. The maximum hourly rate for psychologists and psychological associates is $149.61 per hour. The rate provided for unregulated professionals is $58.19 per hour. The amounts payable by an insurer related to professional services not covered by the Guideline are to be determined by the parties involved.
30The Guideline does not specify a rate for social workers. Rather, the rate stipulated for unregulated providers such as counsellors and psychometrists, is $58.19 per hour. Given the Guideline is silent on the maximum hourly rate for a social worker, it is left to the parties to determine what the acceptable hourly rate would be. However, this does not automatically entitle the applicant to the higher hourly rate. Rather, he must still prove that it is reasonable on a balance of probabilities.
31The applicant claims that he is entitled to the rate of $149.61 for the services claimed because there is a need for dual assessors and Dr. Keeling, psychologist, and the social worker are working together to provide the treatment. He states that the Psychological Assessment Report, dated November 2, 2019 gives a further explanation as to the rationale for dual providers and the value to the applicant.
32The respondent submits that the 18 sessions of treatment with a social worker was approved, which is what is recommended by Dr. Keeling in the treatment plan.
33I find that the applicant has not met his onus of establishing entitlement to the balance of the psychological treatment plan for the following reasons.
34Firstly, the applicant has not provided the Tribunal with the Psychological Assessment Report dated November 2, 2019 nor does it set out the actual explanations it refers to in his submissions for the rationale for “dual assessors”. There has been no evidence provided to support the applicant’s claim that the social worker and Dr. Keeling are working as “dual assessors”. There is no description of how the sessions would proceed with the two assessors or what each assessor’s role would be in the sessions. Without such evidence, I am unable to assess who is actually providing the treatment.
35Secondly, the treatment plan sets out that the treatment sessions will be provided by the social worker and the assessment and test would be provided by Dr. Keeling. Under the additional comments section of Part 12 it states that “HCAI does not allow for the provision of two providers on an application, therefore for purposes of clarification, we are providing the following additional information”. However, it is not clear from this description who will be providing the services or the breakdown of the services to be provided.
36Finally, I do not have sufficient evidence before me to consider whether the social worker’s qualifications and experience warrant the higher hourly rate proposed by the applicant. In addition, the applicant has not cited any decisions where a rate higher than $100.00 per hour has been approved for a social worker. Therefore, the applicant has not met his onus in this regard.
37For the reasons set out above, I find that the applicant has not met his onus of demonstrating that the higher hourly rate proposed by the applicant is payable. I find that the $100.00 per hour proposed by the respondent to be reasonable. Therefore, I find on a balance of probabilities that the applicant is not entitled to the unapproved balance of the treatment plan in the amount of $1,339.56.
The applicant is not entitled to the treatment plans, recommending chiropractic treatment, physiotherapy and assistive devices, dated August 12, 2020 and April 19, 2021
38I find that the applicant has not met his evidentiary burden to establish that the proposed treatment plans dated August 12, 2020 and April 19, 2021 are reasonable and necessary.
39The applicant claims entitlement to the treatment plan, dated August 12, 2020, prepared by Dr. Mary Rasmi-Wakileh, chiropractor, of Harwood Health & Wellness Clinic, recommending 17 sessions of chiropractic treatment, 17 sessions of physiotherapy treatment, and assistive devices in the amount of $4,006.33.
40The respondent denied this treatment plan in the explanation of benefits (“EOB”) correspondence dated September 17, 2020 based on the opinion of Dr. Esmat Dessouki, orthopaedic surgeon, in his Paper Review Report dated September 10, 2020. The denial was maintained in an EOB correspondence dated February 12, 2021, where the respondent relied on the Addendum Report of Dr. Dessouki, dated February 21, 2021.
41The applicant also claims entitlement to the treatment plan, dated April 19, 2021, recommending 21 sessions of chiropractic treatment and 18 sessions of physiotherapy, in the total amount of $4,347.32. The respondent denied this treatment plan in the EOB correspondence dated July 16, 2021, based on the report of Dr. Dessouki, dated July 5, 2021.
42The applicant submits that the main goal of the treatment plans in dispute is to increase overall functionality and assist the applicant in returning to his ADL’s in order to reach pre-accident status. He refers to the records of Dr. Elliott Canters, family physician, and imaging performed through MRI’s and Ultrasounds which show various injuries. He notes that the Sunnybrook physician recommended cortisone injections on January 6, 2022. He further submits that pertinent information was overlooked by the s. 44 assessors and that the reports are erroneous as they fail to address relevant medical information and the goals and barriers of the treatment plans.
43The respondent submits that the treatment plans are not reasonable and necessary and relies on the reports of Dr. Dessouki, including the Paper Review Report, dated September 10, 2020, the Addendum Report dated February 9, 2021 and the second In-Person Assessment Report, dated April 19, 2021. Dr. Dessouki relied on his observations from his in-person assessment of the applicant as well as the medical documentation available at the time. He reiterated his conclusion that there was no objective evidence of a residual musculoskeletal impairment attributable to the accident and therefore the treatment plans in dispute were not reasonable or necessary.
44I find that the applicant has not met his onus of establishing entitlement to the proposed treatment plans for the following reasons.
45Firstly, submissions of the applicant in support of the reasonableness and necessity of the treatment plans in dispute are not clear. The applicant has provided 1,187 pages of submissions without numbering the pages of the submissions or making reference to what page he is referring to in his document brief. In his submissions, the applicant makes blanket reference to the records of Dr. Elliott Canter, and there is no indication as to the date of the record being referred to or where in the document brief the comment is noted. Similarly, there are references to imaging performed through MRI’s and Ultrasounds, without reference to the dates of such investigations or where these reports are found in the document brief. This made it difficult for the Tribunal to ascertain exactly what the applicant was referring to.
46Secondly, the applicant states that he has consistent records of his request for treatment following the accident, but he has not directed me to these records or other corroborating medical evidence that supports or recommends the treatment proposed. In his reply written submissions, he quotes the clinical notes from Dr. Cantor, dated October 19, 2020 and October 29, 2020. However, there are no recommendations for any treatment made in these notes which would support the reasonableness and necessity of the treatment plans.
47Thirdly, while I accept that an increase in overall functionality is a legitimate goal of therapy, the applicant has not provided sufficient evidence that this treatment goal is being met to a reasonable degree with the proposed services. The applicant has not provided me with any treatment records from Harwood Health & Wellness Clinic where the applicant received treatment. Therefore, I do not have the records setting out what treatment the applicant received, the dates of treatment or the progress made. There are limited records documenting the applicant’s level of recovery in order to assess the reasonableness and necessity of the treatment plans.
48Fourthly, the onus is on the applicant to prove that the disputed treatment plan is reasonable and necessary on a balance of probabilities and not on the respondent to disprove. While I acknowledge that the applicant states that the s.44 assessments completed by Dr. Dessouki are deficient, the applicant must still point me to his own evidence and argument to make his case. Relying on alleged weakness in the respondent’s evidence alone is insufficient.
49Finally, the reports of Dr. Dessouki provide an independent and thorough review of the applicant’s presentation and the medical evidence provided. Dr. Dessouki concluded that the treatment plans were not reasonable and necessary as the applicant had no objective evidence of a residual musculoskeletal impairment attributable to the accident. I do not find that Dr. Dessouki has failed to address and review relevant medical information in respect to this matter.
50As noted above, the applicant must direct the Tribunal to the relevant evidence in support of his case and explain why it establishes that the proposed treatment is reasonable and necessary. In this case, I find that he has not done so, and therefore has not met his burden.
51For the reasons set out above, I find that the applicant has not met his onus of demonstrating that the treatment plans in dispute are reasonable and necessary. He has not established that the treatment goals, as identified in the treatment plans are reasonable, were being met to a reasonable degree and that the overall costs of achieving these goals was reasonable. Therefore, I find on a balance of probabilities that the applicant is not entitled to the treatment plans dated August 12, 2020 and April 19, 2021.
The applicant is not entitled to the OCF-6 for dental services dated July 20, 2020
52I find that the applicant has not met his evidentiary burden to establish that the OCF-6 for dental services, dated July 20, 2020 in the amount of $247.00, is reasonable and necessary.
53The applicant claims entitlement to an invoice for dental services, provided by Westney Heights Dental Care, dated July 20, 2020. The applicant claims that his teeth were affected as a direct result of the accident and therefore the dental services were reasonable and necessary. The applicant submits that he did not submit a treatment plan for the services due to the erroneous handling of the claim by the respondent. He attended the facility and paid out of pocket for this treatment. The applicant further claims that the dental treatment was not assessed by a s.44 assessor and therefore there is no objective medical evidence to prove it is not reasonable or necessary.
54In the applicant’s reply written submissions at paragraph 18, he notes “Dental expense: Dr. Elliot Cantor, when asked about his injuries, Brian responded “I got my tooth chipped…or filling popped out whatever when it hit me...from the side that he hit me.” The applicant has not provided me with a reference or date as to where to find this excerpt from Dr. Cantor’s records in his reply written submissions.
55The respondent denied the dental services in the amount of $247.00 by EOB correspondence dated January 5, 2021. The respondent requested that the applicant submit a dental note explaining how the invoices were a result of the accident, pursuant to s.33 of the Schedule. The applicant did not comply with the request. The respondent submits that it has no evidence to support that the teeth were affected by the accident as the applicant had not reported any accident-related issues with his mouth or teeth to any doctor or assessor. The respondent relies on the OCF-3, dated October 9, 2019, which is devoid of any mention of a head, face or dental injury. In addition, it relies on the pre-accident records of Westney Heights Dental Centre which indicate that the applicant had experienced numerous issues with his teeth, including a fracture to his molar that was diagnosed on April 8, 2019. The respondent also submits that the applicant’s tooth removal occurred in July, 2020, almost an entire year after the accident.
56I find that the applicant is not entitled to the invoice for dental services for the following reasons.
57I have no supporting evidence before me to determine whether this invoice is payable. There are no post-accident records in the CNRs of Westney Heights Dental Centre. I find that the only document provided by the applicant in support of the treatment claimed is the invoice dated April 21, 2021. The invoice lists that the applicant’s tooth was removed but provides no other specifics. Despite the respondent requesting a dental note providing an explanation of the services being claimed, nothing was provided.
58For the reasons set out above, I find that the applicant has not met his onus of demonstrating that he is entitled to the dental services in dispute. Therefore, I find on a balance of probabilities that the applicant is not entitled to the OCF-6, for dental services, dated July 20, 2020.
Interest
59Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I find that the applicant is not entitled to a NEB or the treatment plans in dispute, no interest is payable by the respondent.
S.10 Award
60The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. I find that an award is not appropriate. There is no evidence before me of the respondent unreasonably withholding or delaying the payment of benefits.
ORDER
[61] For the reasons outlined above, I find: i. The applicant is not entitled to payment of the benefits in dispute, interest, or an award; ii. The application is dismissed.
Released: November 4, 2024
Melanie Malach Adjudicator