Licence Appeal Tribunal File Number: 22-012138/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:
Mohibun Noor
Applicant
and
Aviva General Insurance Company*
Respondent
DECISION
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Tal Eshel, Counsel
For the Respondent:
Morgan MacDonald, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Mohibun Noor, the applicant, was involved in an automobile accident on August 14, 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 General Insurance Company, 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 $1,915.00 for chiropractic services proposed by Dr. Majid Arabkhari, chiropractor of Scarborough Rehab Clinic in a treatment plan (“plan”) submitted May 19, 2021?
ii. Is the applicant entitled to $3,250.00 for platelet-rich plasma (“PRP”) injections proposed by Dr. Jacky Chen of JSJ Medical in a plan submitted January 24, 2022?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
3The parties agreed in their written hearing submissions that the applicant’s injuries are not within the Minor Injury Guideline (“MIG”). Therefore, I do not need to determine this issue as part of this hearing as it is no longer in dispute.
RESULT
4The applicant is not entitled to the disputed treatment plans as the applicant has not proven on a balance of probabilities that they are reasonable and necessary or that the denials were not compliant with s.38(8) of the Schedule. The applicant is also not entitled to interest.
ANALYSIS
5To receive payment for a treatment 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. 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.
6Section 38(8) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 business days of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide medical and all other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.
7If an insurer fails to comply with s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer who fails to provide the insured with adequate notice of the reasons for its denial is prohibited by s. 38(11) 1 from taking the position that the insured person has an impairment to which the MIG applies. Second, s. 38(11)2 provides that is an insurer fails to provide proper notice of the reasons for its denial it must pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11^th^ business day after the day the insurer received the application and ending on the day the insurer gives notice as described in s. 38(8).
8The Tribunal has recognized medical reasons for denial as specific details about the insured’s condition forming the basis for the insurer’s decision or identifying information about the insured’s condition that the insurer still requires. In addition, the insurer should refer to the specific benefit or determination at issue with the relevant section of the Schedule.
The applicant is not entitled to the proposed chiropractic services
9I find that the applicant has not demonstrated that the plan in dispute for chiropractic services is reasonable and necessary as a result of his accident-related impairments.
10The applicant argues that since his injuries fall outside the MIG and he has not reached maximum medical recovery, the proposed treatment is reasonable and necessary. In the plan dated May 15, 2021, Dr. Arabkhari, chiropractor proposes 10 sessions of exercise to accomplish the goals of pain reduction, increase range of motion, strength, functional capacity, functional endurance and compensatory strategies and education.
11The applicant relies on a chronic pain report dated January 11, 2020 by Dr. Michael Goeld which indicates that the applicant returned to his regular duties as an apprentice at All Thermal Insulation less than two months after the accident. Despite returning to a physically demanding job, the applicant reported difficulties with housekeeping and recreational activities. On review of the records of Dr. Leung from 2016 to March 2019, Dr. Goeld concluded the applicant has pre-existing back pain. Dr. Goeld recommends botox injections by a pain specialist, medications for migraines and a back brace for exercises.
12Although the applicant submits that he relies on medical evidence from his family physician, Dr. Terence Leung, Dr. Jacky Chen of JSJ Medical and Dr. Arabkhari of Scarborough Rehabilitation Clinic, he has not provided any clinical notes and records (“CNRs”) from these doctors.
13In support of its position that the applicant is not entitled to the treatment plan, the respondent points to the reports of Dr. Howard Platnick, general practitioner and Dr. Farooq Ismail, physiatrist. In report dated July 22, 2021, Dr. Platnick indicates that although the applicant returned to his construction job after the accident, he stopped working in April 2021. Dr. Platnick found that the fracture of the applicant’s finger and soft tissue injuries to his neck, back and right knee as a result of the accident have resolved. In a subsequent report dated June 27, 2022, Dr. Platnick did not change his opinion after reviewing the clinical notes and records of Dr. Leung for 2020-2021 and Dr. Chen for 2021-2022.
14I find the applicant has not met his burden of establishing entitlement to the plan for chiropractic services submitted May 19, 2021. There is insufficient medical information provided by the applicant in support of the proposed treatment for chiropractic services.
Was the respondent’s denial of the disputed treatment plan proper under Section 38(8) of the Schedule?
a) The respondent’s denial of the May 15, 2021 plan
15The first plan is dated May 15, 2021 for chiropractic services by Scarborough Rehabilitation Clinic. The respondent wrote to the applicant by letter dated May 31, 2021, denying the benefits within 10 business days of receiving the plan on May 19, 2021. The respondent’s denial stated that the findings of the IE report dated January 7, 2020 by Dr. Farooq Ismail found that the applicant had reached maximum medical improvement and the applicant reported no improvement from the treatment. The respondent further stated that in light of new medical evidence from Dr. Arif, they scheduled an IE to determine whether the treatment is reasonable and necessary. In a subsequent letter dated July 23, 2021, the respondent enclosed a copy of the IE report of Dr. Platnick which concluded the plan is not reasonable and necessary for the applicant’s accident-related injuries.
16The applicant submits that the respondent’s denial was improper because it did not provide specific reasons for the denial. I find that the May 31, 2021 was compliant with s.38(8) of the Schedule. The respondent provided clear medical and other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision.
17Given that the respondent provided a compliant denial, I find that the applicant has not met his burden to establish entitlement to this plan.
The applicant is not entitled to PRP injections
18I find that the applicant has not demonstrated that PRP injections to the left knee are reasonable and necessary for his accident-related injuries.
19The January 24, 2022 treatment plan sought $3,250.00 for a series of 8 PRP injections to the left knee and was completed by Dr. Chen, chronic pain physician. The goals of the treatment plan are for pain reduction and to increase range of motion and strength.
20The applicant submits that the plan for PRP injections is reasonable and necessary based on the medical evidence of his treating medical practitioners. The applicant relies on the report of Dr. Goeld which does not mention PRP injections or an injury to the applicant’s left knee as a result of the accident.
21The applicant submits that he sustained injuries to his right fifth finger and sprain and strain injuries to his neck, shoulder, back, wrist, hand and right knee, headaches, stress, adjustment disorder, irritability, anger and phobia as a result of the accident. The applicant relies solely on the report of Dr. Goeld in finding the applicant’s accident-related injuries are headaches, neck, left wrist, low back and right knee. The applicant makes no submissions regarding an accident-related injury to his left knee and Dr. Goeld’s report does not mention PRP injections, or an injury to the applicant’s left knee as a result of the accident.
22The respondent relies on the plan in dispute dated January 22, 2022 completed by Dr. Chen. Dr. Chen proposes PRP injections of the applicant’s left knee for a strain and strain type injury of the knee with tear of the meniscus. The respondent also relies on the IE reports of Dr. Platnick dated June 16, 2022 and July 22, 2021, in which Dr. Platnick concluded that the applicant had reached maximum medical improvement in the absence of any accident-related injury or impairment.
23The respondent submits that the applicant makes no submissions regarding an injury to his left knee. The respondent further submits that the report of Dr. Goeld is outdated by two years before the proposed treatment and does not mention an injury to the left knee. The respondent submits that the applicant has not produced any medical evidence in support of PRP injections. In addition, the respondent argues that the applicant has not identified the goals of the proposed treatment.
24I find that the applicant has not demonstrated on a balance of probabilities that the proposed plan for PRP injections of the left knee is reasonable and necessary as a result of the accident. The applicant makes no submissions to explain the therapeutic goals of the PRP injections or whether the treatment is reasonable and necessary as a result of the accident.
Was the respondent’s denial of disputed treatment plan proper under Section 38(8) of the Schedule?
b) The respondent’s denial of the January 22, 2022 plan
25The applicant submitted a plan dated January 22, 2022 for platelet-rich plasma (“PRP”) injections by Dr. Jacky Chen of JSJ Medical. The respondent denied the treatment plan within 10 business days by way of letter dated February 1, 2022. The respondent’s denial letter stated that the IE reports of Dr. Platnick and Dr. Ismail indicate that since the applicant has reached maximum medical improvement, the proposed plan is not reasonable or necessary. The respondent further stated that Dr. Platnick indicates in his report dated July 15, 2021 that the applicant reported that he has returned to riding his bicycle, driving and he is independent with self-care. Dr. Platnick further indicated that his physical examination revealed no signs of residual musculoskeletal, neurological or orthopedic impairment.
26The applicant submits that the respondent’s denial was improper because it did not consider the CNRs submitted to the insurer on various dates. The applicant makes no submissions regarding the language used in the respondent’s denial letter of February 1, 2022. I find that the February 1, 2022 was compliant with s.38(8) of the Schedule. The respondent provided clear medical and other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision.
27I find the applicant has not met his burden to establish entitlement to this plan. I find there was a compliant denial of the plan dated January 22, 2022.
Interest
28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since, I have found that the applicant is not entitled to the disputed treatment plans, no benefits are owing and interest does not apply.
ORDER
29For the reasons set out above, I find that:
i. The applicant is not entitled to the treatment plans in dispute or interest;
ii. The respondent’s denials of the disputed treatment plans complied with section 38(8) of the Schedule, and;
iii. The application is dismissed.
Released: November 21, 2024
__________________________
Lisa Holland
Adjudicator