Citation: Morris v. Allstate Insurance Company of Canada, 2024 ONLAT 22-002011/AABS

Licence Appeal Tribunal File Number: 22-002011/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:

Michael MORRIS

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Applicant:

Nikolai Singh, Paralegal

For the Respondent:

Thulasi Kandiah, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Michael Morris (the “applicant”) was involved in an automobile accident on July 17, 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 Allstate 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:

i. Is the applicant entitled to physiotherapy recommended by North Toronto Rehab as follows:

(a) $1,553.72 in a treatment plan (“OCF-18”) submitted January 7, 2020;

(b) $1,497.98 in an OCF-18 submitted July 16, 2020;

(c) $1,242.36 in an OCF-18 submitted August 25, 2020;

(d) $986.74 in an OCF-18 submitted October 15, 2020;

(e) $873.93 in an OCF-18 submitted November 14, 2020; and

(f) $1,189.55 in an OCF-18 submitted December 23, 2020?

ii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is not entitled to the disputed OCF-18s, nor interest.

ANALYSIS

4I find the applicant had failed to demonstrate the disputed OCF-18s are reasonable and necessary.

5To 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.

6The applicant submits he has shown the disputed OCF-18s to be reasonable and necessary by diligently attending the treatment he requires despite insurer denials. He maintains he communicated ongoing symptomology to his medical providers, and that the diagnoses and treatment recommendations documented in the medical evidence have been consistent throughout the claim. The applicant says he was diagnosed with chronic pain syndrome in 2020, which is supported by his injuries being “heavily documented” by various medical professionals in the five years since the accident. The applicant asserts his condition was improving while attending treatment on a regular basis. The applicant relies on the evidence of Dr. Larry Bacher (family physician), Dr. Pezhman Mehrabian (physician), and Dr. Dima Rozen (physician).

7The applicant also relies on several authorities, including: (1) Tran v TD General Insurance Company, 2021 CanLII 96939 ON LAT (“Tran”) to show that continued reporting of ongoing injuries in a family physician’s records should be preferred over the reports of section 44 Insurer’s Examination (“IE”) assessors; (2) 16-003997 v Aviva Insurance Canada, 2017 CanLII 87152 ON LAT (“16-003997”) to show that section 3(8) of the Schedule applies to this case; and (3) 17-001146 v Aviva Insurance Canada, 2017 CanLII 69449 ON LAT (“17-001146”). I did not find 17-001146 to be helpful because the applicant did not make submissions on how this authority applies to his case.

8The respondent argues there is no evidence that the applicant has sustained accident-related chronic pain and relies on the chronic pain criteria set out in the sixth edition of the American Medical Association’s Guide to the Evaluation of Permanent Impairment (“Guides”) to show the applicant has not established a diagnosis of chronic pain syndrome. The respondent submits that Dr. Rozen’s diagnoses are irreconcilable with the medical records she reviewed, as well as the applicant’s return to a job where he was required to frequently lift, push, install, and assemble heavy machinery. The respondent contends that Dr. Bacher only diagnosed the applicant with soft-tissue injuries over three documented visits during the claim period and did not attribute the applicant’s degenerative changes to the accident. The respondent relies on the section 44 Insurer’s Examination (“IE”) by Dr. Ida Cavaliere (physiatrist) on February 13, 2020.

9For context, each of the six disputed OCF-18s are completed by the same health practitioner, namely Dr. Ian Kai (chiropractor). The physical injuries listed at Part 6 of each OCF-18 are identical and consist of lumbar and other intervertebral disc disorders with radiculopathy; gluteal tendonitis; chronic post-traumatic headache; cervicalgia (i.e., neck pain); chest pain on breathing; shoulder lesions (i.e., damage or abnormalities in the structures of the shoulder joint); and sprain and strain of ribs and sternum. Similarly, the treatment goals set out at Part 9 of each OCF-18 are the same and include pain reduction, an increase in strength, and increased range of motion to return the applicant to activities of normal living, pre-accident work activities, and modified work activities. Each OCF-18 proposes chiropractic treatment and most also propose massage therapy and physiotherapy. Collectively, all six of the disputed OCF-18s propose 48 sessions of chiropractic treatment, 16 sessions of massage therapy, and five sessions of physiotherapy in addition to a $200.00 completion fee for each OCF-18.

10While the applicant did not point me to evidence of gluteal tendonitis, chest pain, or strain and sprain of his sternum up to the end of 2020 when the last of the six disputed OCF-18s was submitted, I otherwise find the injuries specified in the OCF-18s are consistent with the medical records since the time of the accident.

11In terms of applying the medical evidence in this case, I preferred evidence from the time of the accident to the end of 2020 when the last of the disputed OCF-18s was submitted. In my view, this contemporaneous evidence best informs the reasonableness and necessity of the disputed OCF-18s because it provides insight into the applicant’s condition at the time the OCF-18s were proposed and subsequently denied. Accordingly, I give less weight to the entries in Dr. Bacher’s clinical records of November 11, 2022 and April 28, 2023, as well as the MRI completed on May 5, 2023, which serve to confirm complaints of ongoing back pain and the degenerative processes in his lumber spine addressed later in this decision.

Applicability of chronic pain to the reasonableness and necessity of the disputed OCF-18s

12I find the applicant has not established he has a chronic pain condition.

13The thrust of the dispute over the applicant’s chronic pain condition centres on the reports of Dr. Rozen for the applicant, and Dr. Cavaliere for the respondent. The applicant’s case is hampered because his submissions do not pinpoint the evidence in Dr. Rozen’s 17-page report that supports his claim. The applicant submits that Dr. Rozen confirmed he met three of the six chronic pain criteria set out in the Guides, but does not refer me to where this evidence is located in Dr. Rozen’s report, or even identify which of the six criteria she determined were met. The applicant also submits that Dr. Rozen offered a diagnosis of chronic pain syndrome, but again does not refer me to where this is made out in Dr. Rozen’s report. The Tribunal cannot be expected to comb through reports looking for the evidence that the parties rely on to make their cases. This principle is supported in the May 2023 motion order for this matter, which instructs the parties to make specific reference to the evidence by tab and page number in their submissions and indicates that evidence not so referenced may not be reviewed.

14This is not to say I disagree that the applicant is experiencing pain. On the contrary, throughout this decision, I accept the applicant has produced evidence that substantiates he experiences post-accident pain in his lower back, shoulder, neck, and head. In my view, this establishes that pain reduction—regardless of whether the pain is chronic in nature—is a reasonable goal of treatment as proposed in the disputed OCF-18s.

The accident was not a necessary cause of the applicant’s back pain

15I find the applicant failed to establish that his lower back pain is an accident-related injury.

16Per the applicant’s submissions, complaints and assessments that relate to the applicant’s lumbar-related injuries (i.e., low back) during the contemporaneous period appear in the clinical notes and records of Dr. Bacher on July 23, 2018 (i.e., five days after the accident) and two weeks later on August 2, 2018. Dr. Mehrabian’s January 2020 report also supports the applicant’s claim of low back pain, and Dr. Bacher referred the applicant to Dr. Rozen because of “chronic lumbar facet irritation” that same month. Dr. Rozen concurred with Dr. Mehrabian’s opinion about the applicant’s lower back when she examined the applicant in August 2020. In my view, this evidence establishes that the OCF-18s’ goal of pain reduction—as it pertains to the applicant’s lower back—is reasonable.

17However, I am not persuaded that the accident was a necessary cause of the applicant’s back pain by the start of 2020 when the first of the disputed OCF-18s were submitted. The respondent asserts the applicant’s back pain is owing to age-related degenerative changes and not the accident. I find this position is supported by the applicant’s own assessors, including Dr. Mehrabian’s January 2020 opinion that the applicant’s low back pain was due to a ligamentous injury on the basis of lumbar spondylosis (i.e., age-related degenerative change of the vertebrae bones and discs of the spine) and accompanied with bilateral sacroiliac dysfunction. I also put weight on Dr. Rozen arriving at the same conclusion seven months later in August 2020. As well, I am persuaded by the x-ray of the applicant’s lumbosacral spine completed in January 2019 (i.e., six months after the accident) at the request of Dr. Kai, which determined:

“The vertebral and disc spaces are well maintained and in normal alignment. No arthritic changes are seen. There is no spondylolysis and no evidence of bony destruction. The sacroiliac joints are grossly normal.”

Given that the applicant did not point me to evidence of pain complaints or medical consultations about his lower back in the 17 months that separate his August 2018 visit with Dr. Bacher and his January 2020 consultation with Dr. Mehrabian, I find this diagnostic evidence does not support the applicant’s position that his degenerative spine changes are accident-related when taken together with the medical opinions of the applicant’s assessors who attribute his pain to age-related spinal degeneration. I did not place weight on the applicant’s reply argument about the pandemic interfering with his ability to regularly report his ongoing injuries because, as the applicant submits, the pandemic period forms the greater part of 2020 to 2021 and does not address the absence of medical records between August 2018 and January 2020.

18I therefore find that the OCF-18s are not reasonable and necessary to treat the applicant’s back pain because the accident was not a necessary cause of that pain.

The pain reduction goal for the applicant’s shoulders cannot reasonably be met by the proposed treatments

19I find the applicant has not established that the proposed treatments will achieve the treatment goal of reducing pain in the applicant’s shoulders.

20Per the applicant’s submissions, complaints and assessments that relate to the applicant’s shoulders during the contemporaneous period appear in the clinical notes and records of Dr. Bacher on July 23, 2018 (i.e., left shoulder pain) and August 2, 2018 (i.e., right shoulder pain). In addition, Dr. Rozen’s August 2020 report offers the following diagnosis: “aggravation of pre-existing degenerative change and osteoarthritis in the right shoulder.” While the applicant did not point me to evidence of strength or range of motion issues pertaining to either shoulder, I accept these medical reports support pain reduction as a reasonable treatment goal.

21However, I am not persuaded that the recommended treatments can reasonably achieve this treatment goal. The applicant did not direct me to medical evidence that substantiates his condition (i.e., pain) was improving, even for short durations, while attending treatment on a regular basis. The applicant claims he continued with ongoing physical treatment through Dr. Kai after the OCF-18s were denied by the respondent, and that he incurred an outstanding account for this treatment. But the applicant did not point to any treatment records in his submissions, whether from Dr. Kai or otherwise, nor did he refer me to invoices or receipts that substantiate this treatment.

22I find that 16-003997 does not assist the applicant’s case. Section 3(8) of the Schedule provides that the Tribunal may, for the purpose of determining an insured person’s entitlement to a benefit, deem an expense incurred if that expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit. In my view, 16-003997 does not address whether the payment of the OCF-18 was unreasonably withheld or delayed at paragraph 46 where the application of section 3(8) of the Schedule is addressed. And in any event, 16-003997 is distinguished from this matter because an order was made that entitled the applicant to two OCF-18s. Further, in this case, the applicant’s reply does not make persuasive arguments pertaining to section 3(8). The applicant argues only that the Toronto North Rehabilitation Centre has incurred $16,127.55, and that the Tribunal should find these expenses payable pursuant to section 3(8) of the Schedule without offering a clear rationale for why section 3(8) should apply.

23While the applicant submits that Dr. Bacher consistently recommended the applicant continue with physiotherapy treatment, he pointed me to only one such occurrence (i.e., July 2018) up to the end of 2020 when the last disputed treatment plan was submitted. Dr. Mehrabian’s physiotherapy recommendation, as referenced in the applicant’s submissions, does not contemplate the applicant’s shoulders. The applicant did not point to any treatment recommendations made by Dr. Rozen. Similarly, the applicant did not direct me to any recommendation for massage therapy or chiropractic treatment to address his shoulder injuries outside of the OCF-18s submitted on behalf of the applicant by Dr. Kai. While I recognize that Dr. Kai proposes chiropractic intervention, massage therapy, and physiotherapy, I find this is insufficient to meet the applicant’s onus without corroborating evidence that shows these treatments can reasonably achieve the goal of pain reduction.

24I find, therefore, that the treatment proposed in the OCF-18s to treat the applicant’s shoulder pain is not reasonable and necessary because the applicant failed to establish that the treatment goal of pain reduction could reasonably be met by the proposed treatments.

The pain reduction goal for the applicant’s neck and headaches cannot reasonably be met by the proposed treatments

25I find the applicant has not established that the proposed treatments will achieve the treatment goal of reducing pain in the applicant’s head and neck.

26Dr. Bacher notes that the applicant reported neck pain and headaches in his clinical record entries of July 23, 2018 and August 2, 2018. While Dr. Mehrabian diagnosis neck pain, I find his treatment recommendations of physiotherapy with an emphasis on cores and muscle strengthening techniques—along with sacroiliac joint steroid injections and lumbar medial branch block—do not speak to the applicant’s neck. Dr. Rozen documented the applicant’s complaints of neck aches and headaches, diagnosing the former as chronic myofascial cervical pain, and noting that the latter required further assessment for diagnosis. The applicant’s submissions do not direct me to any treatment recommendations by Dr. Rozen for either of these conditions.

27I apply the same findings from my analysis of the applicant’s shoulder pain here, and specifically those relating to the unsubstantiated claims of the applicant deriving benefit from continuing to receive regular treatment with Dr. Kai from 2020 onwards.

28Further, the applicant did not direct me to any recommendation for massage therapy or chiropractic treatment to address his neck pain or headaches outside of the OCF-18s submitted on behalf of the applicant by Dr. Kai. While I recognize that Dr. Kai proposes chiropractic intervention, massage therapy, and physiotherapy, I find this is insufficient to meet the applicant’ onus without corroborating evidence that shows these treatments can reasonably achieve the goal of pain reduction.

Interest

29Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. The May 2023 motion order for this matter indicates that the parties did not discuss the inclusion of interest as an issue in dispute, despite reference to this issue in the applicant’s application. Neither party filed a motion in advance of the hearing to request that interest be added as an issue. The applicant’s submissions nevertheless include a claim for interest. The respondent is silent on adding interest as a disputed issue in its submissions, offering only that it requests an order that the applicant is not entitled to interest.

30Given that interest was raised in the application and that the parties do not dispute adding interest as an issue in this hearing, I have considered it as part of the dispute. However, as there are no overdue benefits in this case, no interest is payable.

Costs

31I find the applicant is not entitled to costs.

32The applicant’s submissions seek an order that the applicant is entitled to its expenses of the “arbitration.” The respondent submits that costs are not listed as an issue in dispute in the May 2023 motion order for this matter and adds that the applicant failed to advance submissions that support his request for costs or identify any expenses.

33I decline to award costs to the applicant in this case. Rule 19.3 of the Licence Appeal Tribunal Rules (the “Rules”) specifies a submission on costs shall set out the amount being requested. This was not done. Rule 19.4 specifies that a submission on costs shall set out the reasons for the request and the particulars of the other party’s conduct alleged to be unreasonable, frivolous, vexatious, or in bad faith. The applicant failed to do this as well. As such, I see no basis on which to conclude the applicant should be awarded costs.

ORDER

34The applicant is not entitled to the disputed OCF-18s, nor interest. No costs are payable to the applicant. The application is dismissed.