Ommani v. Aviva Insurance Canada, 2024 CanLII 121080

Citation and Parties

Citation: Ommani v. Aviva Insurance Canada, 2024 CanLII 121080 Licence Appeal Tribunal File Number: 22-004767/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:

Abbas Ommani

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Robert Rock

APPEARANCES:

For the Applicant:

Joseph Sidiropoulos, Counsel

For the Respondent:

Michael Silver, Counsel

HEARD:

By way of written hearing

OVERVIEW

1Mr. Abbas Ommani (the applicant), was involved in an automobile accident on June 15, 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 the respondent, Aviva Insurance, 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 chiropractic Treatment from Dr. Raffi of Synergy Rehabilitation:

a. Chiropractor treatment plan in the amount of $3,824.23 submitted on November 5, 2021, and denied on November 25, 2021?

b. Chiropractic treatment plan in the amount of $3,611.01 submitted on November 22, 2021, and denied on February 2, 2022?

c. Chiropractic treatment plan in the amount of $4,655.80 submitted on August 20, 2020, and denied on August 28, 2020?

RESULT

3I find that the applicant has not met his onus to prove on a balance of probabilities that the treatment plans in question are reasonable or necessary.

ANALYSIS

4To 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.

5There must be objective medical evidence demonstrating a causal connection between the accident and injuries giving rise to a claim for benefits. A treatment plan on its own does not prove that the benefits sought are reasonable and necessary.

Chiropractic treatment plans are not reasonable and necessary.

6The applicant has not established that the three treatment plans in dispute are reasonable and necessary.

7The goals of all three treatment plans in question are pain reduction, increase in strength and increased range of motion, return to her activities of normal living, and pre-accident work activities.

8The applicant submits that all three of the disputed treatment plans are reasonable and necessary. The applicant relies on the emergency room notes and records from McKenzie Health Hospital, clinical notes and records (CNRs) of Dr. Rahmdel, the applicant’s family doctor, CNRs of Dr. Chen, clinical neurophysiologist, OCF-19 CAT report, and a chronic pain report by Dr. Mula.

9The CNRs of Dr. Rahmdel, show only one reference to the accident when the applicant visited five days after. At that visit the doctor recommended physiotherapy.

10Dr. Mula completed a chronic pain medical assessment report on March 15, 2023. This was an in-person examination consisting of a clinical interview and physical examination. Dr. Mula provided an opinion that a multi disciplinary pain program be undertaken including manipulative therapy, physiotherapy, chiropractic therapy, massage therapy, ultrasound therapy, laser therapy, IFC, TENS, exercise therapy, aqua therapy, and psychotherapy. The doctor also stated that this type of interdisciplinary pain rehabilitation program functions on the conceptual basis that patients with complex pain problems are effectively treated by a collaborative effort of a team of specialists. During the examination, the applicant described his rehabilitation and indicated that attending physiotherapy twice a week, with treatments including exercise therapy, massage therapy, and chiropractic treatment, provides 60% relief lasting one day. In his opinion, Dr. Mula recommended, “further, I believe that the client would also benefit from relaxation therapy and aqua therapy, and stretching, and help him exercise at home.” Dr. Mula confirmed that the applicant continued to need ongoing therapy, but the doctor endorses other forms of therapy.

11Dr. Chen, clinical neurophysiologist, saw the applicant on January 18, 2021, as a follow up and review of a completed nerve study report. Dr. Chen reported that the nerve study results identified carpal tunnel syndrome in the applicant’s left hand, but the study did not detect acute denervation or cervical radiculopathy. The doctor also noted that the applicant described myofascial pain at the left shoulder, and Dr. Chen advised that the applicant speak with his orthopedic clinic for further musculoskeletal management.

12The respondent argues that the treatment plans at issue are not reasonable or necessary. It bases its position on five separate assessment reports completed by Dr. Oshidari, physical medicine and rehabilitation specialist.

13Dr. Oshidari completed a physical medicine and rehabilitation specialist assessment report on January 27, 2020. This was an in-person examination that included a clinical interview, medical documentation review, and a physical examination. At the conclusion of the visit, the doctor determined that an EMG nerve conduction study should be completed and deferred a diagnosis of the applicant until that was completed.

14Dr. Oshidari completed a physical medicine and rehabilitation specialist assessment report on September 30, 2020. This was an in-person examination that included a clinical interview, medical documentation review, and a physical examination. During this visit, the doctor did addition testing and he could not detect any sign of peripheral nerve entrapment or ulnar nerve entrapment. In addition, thoracic outlet syndrome and cervical neural tension tests were unremarkable. The applicant had not had the recommended EMG nerve conduction study completed, and the doctor once again deferred a diagnosis until seeing the results from that test.

15Dr. Oshidari completed a paper review on December 29, 2020. During this paper review, the doctor reviewed additional medical evidence provided to him. Of note, the appendix of evidence reviewed include the CNRs of McKenzie Health Hospital and the CNRs of Dr. Rahmdel that the applicant claimed Dr. Oshidari had not reviewed. Dr. Oshidari, still did not provide a diagnosis as he maintained his belief that he would need to see the results of an EMG nerve conduction study prior to being able to do so. Dr. Oshidari noted he did not believe that the November 2020 OCF-18 was reasonable or necessary. His opinion was that the applicant has received extensive treatment from the facility and has not improved dramatically. He noted “I found no relation to the physical intervention received by the rehab centre, he has reached maximum medical improvement”. In addition, the doctor noted, “repeating the same treatment that he has received for one year which did not assist him, the chance of further improvements with the treatment are poor”.

16Dr. Oshidari completed an assessment report on January 20, 2022. This was an in-person examination that include a clinical interview, medical documentation review, and a physical examination. The doctor reviewed additional information including Dr. Chen’s EMG study. Based on the components of this assessment, it was still Dr. Oshidari’s opinion that the applicant would receive no further improvements from the submitted OCF-18. The doctor again shared his opinion that for more than two years, the treatment outlined in the OCF-18 for chiropractic services had not been able to assist the applicant to increase his function, decrease his pain or limitations of activity. It was Dr. Oshidari’s opinion that repeating these same treatments would not have any rehabilitation benefits.

17Dr. Oshidari completed an assessment report on October 27, 2023. This was an in-person examination that included a clinical interview, medical documentation review, and a physical examination. Based on his assessment, the doctor again provided an opinion that the OCF-18 treatment plan proposed by Dr. Raffi, Chiropractor on August 24, 2023, wasn’t reasonable or necessary. His opinion is that having physical treatment or any modality or any intervention at home does not have any rehabilitation benefit in this case. The applicant informed Dr. Oshidari, that pain improvement was 30% to 40% for a short period of time. It is also Dr. Oshidari’s opinion that there was no structural or physiological abnormality required to have treatment. Dr. Oshidari provided his opinion that other forms of treatment such as a gym membership, aquatic exercises, and sessions with a kinesiologist, would be more appropriate.

18In reviewing the totality of the evidence, the applicant has not proven on a balance of probabilities that subject treatment plans are reasonable and necessary. The evidence the applicant relies on outlines treatment that has not achieved the stated goals of the treatment plans over several years of receiving treatment. The applicant also reports that the treatment plans provide 60% pain reduction for one day. In his report, Dr. Mula endorsed other therapy modalities such as relaxation and aqua therapy. This was corroborated by Dr. Oshidari who also endorsed other therapy modalities for the applicant including aqua exercises. The applicant has not substantiated that continued chiropractic therapy will meet the goals of the treatment plan to a reasonable degree.

Conclusion

19For the reasons noted above, the applicant has not proven on a balance of probabilities that the treatment plans in dispute are reasonable or necessary.

ORDER

20I find that:

I. The applicant is not entitled to payment for any treatment plans.

II. The application is dismissed.