Citation: Tumbek v. Aviva General Insurance, 2024 ONLAT 22-013616/AABS

Licence Appeal Tribunal File Number: 22-013616/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:

Ahmet Tumbek

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Renee Reynolds, Counsel

For the Respondent:

Leanne Zabudsky, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Ahmet Tumbek, the applicant, was involved in an automobile accident on January 4, 2018, 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 General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to $3,487.55 for occupational therapy services, proposed by DeSantis Occupational Therapy Services, in a treatment plan, submitted on April 9, 2021?

ii. Is the applicant entitled to $813.60 for a driving assessment, proposed by Hustler Driving, in a treatment plan, submitted on October 31, 2022?

iii. Is the applicant entitled to $3,399.50 for an occupational therapy assessment, proposed by DeSantis Occupational Therapy Services, in a treatment plan, submitted on November 4, 2022?

iv. Is the applicant entitled to $2,941.57 for a chronic pain assessment, proposed by Michael DeGroote Pain Clinic, in a treatment plan, submitted November 23, 2022?

v. Is the applicant entitled to $6,160.09 for physiotherapy services, proposed by Niagara Orthopaedic Institute, in a treatment plan, submitted on November 16, 2022?

vi. Is the applicant entitled to $318.83 ($1,715.71 less $1,396.88 approved) for psychological services, proposed by Catherine Milner, in a treatment plan, submitted on August 21, 2022?

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

viii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

4The applicant is not entitled to the treatment plans in dispute, interest or an award.

ANALYSIS

Entitlement to medical and rehabilitation benefits

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. 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.

6The applicant did not provide the Tribunal with any of the treatment plans in dispute in his submissions. Despite the respondent pointing this out in its responding submissions, the applicant has failed to provide any reply submissions to address this argument or bring a Notice of Motion seeking to introduce the evidence.

7As a result, I am unable to assess the goals of the treatment plans or even confirm what is being sought in each of the treatment plans in dispute, as the applicant has not provided the necessary evidence to undertake this analysis even after the respondent pointed out the deficiencies in the applicant’s evidence. Therefore, I find that the applicant has not proven on a balance of probabilities that the treatment plans are reasonable and necessary and, as such, is not entitled to the treatment plans in dispute.

8Even if I were to accept that the treatment plans were seeking the goods and services as stated in the issues in dispute, and I was not required to undergo an analysis of the goals, I would still find that the applicant is not entitled to the treatment plans in dispute based on the submissions filed.

The applicant would not be entitled to the treatment plan for occupational therapy services

9I would find that the applicant has not proven on a balance of probabilities that he is entitled to the treatment plan for occupational therapy services.

10The applicant claims entitlement to $3,487.55 for occupational therapy services, proposed by DeSantis Occupational Therapy Services in a treatment plan submitted on April 9, 2021. The submissions indicate that the treatment plan proposes an exercise bike and three occupational therapy sessions.

11The applicant submits that he is entitled to the treatment plan in dispute and relies on the Orthopaedic Insurer Examination report of Dr. Alexander Rabinovich, orthopaedic surgeon, dated November 6, 2019. In his report, Dr. Rabinovich noted that the applicant, “would benefit more from an active, self-directed cardiovascular exercise program that focuses on range of motion of the axial spine and core strength training as well as limb strength training.”

12I find that the report of Dr. Rabinovich is not persuasive as it addresses a completely different treatment plan and there are no specific recommendations for the purchase of an exercise bike.

13The respondent submits that the treatment plan in dispute was denied based on an Occupational Therapy Assessment Insurer’s Examination report, prepared by Himadri Kaul, occupational therapist, dated July 13, 2021. In this report, Mr. Kaul noted that the applicant demonstrated functional range of motion and adequate strength to perform his activities of daily living. The applicant was noted as being able to kneel, squat and bend without difficulty. Mr. Kaul found no objective evidence of functional impairment and noted that there was a lack of medical evidence to support the need for a recumbent bike. The respondent submits that Mr. Kaul’s findings are consistent with Dr. Rabinovich’s conclusions that the applicant had reached near maximal recovery, that facility-based treatment was not reasonable and necessary, and that the applicant would benefit from a self-directed cardiovascular exercise program. The respondent further submits that the applicant has made no submissions as to the reasonableness of the cost of the bike.

14Despite the applicant’s position that Mr. Kaul’s report is deficient, as it “does not provide an opinion as to an existing accident-related impairment, a diagnosis of the applicant’s injuries and its relationship to the accident or whether the applicant had reached maximum medical improvement,” I find the report of Mr. Kaur persuasive because his assessment provided both a physical examination of the applicant and an opinion on the specific goods set out in the treatment plan. His findings were in line with the rest of the medical evidence relied upon in his report. A complete analysis was conducted by Mr. Kaul in respect of the treatment plan in dispute following which he opined that the treatment plan was not reasonable or necessary.

15For the reasons set out above, I would place greater weight on Mr. Kaul’s report than on Dr. Rabinovich’s report, and I find that the applicant has not met his onus of proving on a balance of probabilities that he is entitled to the treatment plan for occupational services.

The applicant would not be entitled to the treatment plans for a driving assessment, an occupational therapy assessment, a chronic pain assessment, or physiotherapy treatment

16I would find that the applicant has not proven on a balance of probabilities that he is entitled to the treatment plans for a driving assessment, an occupational therapy assessment, a chronic pain assessment or physiotherapy treatment.

a. Section 20(1) of the Schedule

17I find that the applicant is not barred from proceeding to a hearing for the treatment plans in dispute, pursuant to s. 20(1) of the Schedule.

18Pursuant to s. 20(1) of the Schedule and subject to subsection (2), no medical and rehabilitation and attendant care benefit is payable for expenses incurred,

(a) more than 260 weeks after the accident, in the case of an insured person who was at least 18 years of age at the time of the accident; or

(b) after the insured person’s 28th birthday, in the case of an insured person who was under 18 years of age at the time of the accident.

19Subsection 20(2) of the Schedule states that the time limits set out in subsection (1) do not apply in respect of an insured person,

(a) who sustains a catastrophic impairment as a result of the accident; or

(b) who is entitled to optional medical, rehabilitation and attendant care benefits under paragraph 4 of subsection 28(1) or catastrophic impairments benefits under paragraph 5 of subsection 28(1)

20The respondent submits that pursuant to s. 20(1) of the Schedule, the period for which the applicant is entitled to claim and receive accident benefits expired on December 28, 2022. The respondent submits that the applicant is barred from proceeding to a hearing for the treatment plans in dispute, as no medical or rehabilitation benefits are payable for expenses incurred more than 260 weeks after the accident, as per s. 20(1) of the Schedule. The respondent submits that 260 weeks have passed since the date of the accident and these treatment plans have not been incurred. Furthermore, the respondent’s position is that none of the exceptions outlined in s. 20(2) of the Schedule apply.

21The applicant submits that the respondent refused to fund the treatment plans in dispute pending assessments which it then cancelled once the 5-year mark had passed. He submits that the respondent had updated and sufficient information to approve the treatment plans without insurer examinations at the time that the plans were submitted. In the alternative, the applicant submits that had the respondent gone ahead with the assessments, it is the applicant’s position that the treatment plans would have been approved given the deterioration in his condition.

22The applicant submits that only a Paper Review dated December 16, 2022, regarding the treatment plan for a driving assessment, was conducted by the respondent. The respondent arranged an insurer’s examination for an updated Occupational Therapy assessment on January 11, 2023 and an Orthopaedic examination on February 1, 2023, which were subsequently cancelled by letter dated January 6, 2023. The respondent advised that the assessments were cancelled as the applicant had reached the 5-year limit for medical, rehabilitation and accident benefits and therefore no further funding would be considered for these benefits. The applicant submits that the respondent should have arranged for these assessments within the 5-year time period.

23It is undisputed that the accident took place on January 4, 2018 and, at that time, the applicant was over 18 years old. There has been neither a determination that the applicant sustained a catastrophic impairment, nor evidence that he purchased optional benefits. Therefore, the exceptions under s. 20(2) do not apply.

24The treatment plans in dispute are dated as follows:

i. Driving assessment – October 31, 2022

ii. Occupational therapy assessment – November 4, 2022

iii. Chronic pain assessment – November 23, 2022

iv. Physiotherapy treatment – November 16, 2022

25I find that the applicant’s right to payment of the proposed treatment plans did not expire with the lapse of the 260 weeks. I find that requiring an insured person to pre-pay for treatment before proceeding to the Tribunal would disadvantage the impecunious (see Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200). I find that the applicant had five years from the date of the accident to seek treatment. That treatment was denied, so he had two years to appeal to this Tribunal. His right to payment for that treatment did not expire with the lapse of 260 weeks. Therefore, I will consider whether the disputed treatment plans would be reasonable and necessary.

b. The treatment plans in dispute would not be reasonable or necessary

26I would find that the applicant has not proven on a balance of probabilities that he is entitled to the treatment plans for a driving assessment, an occupational therapy assessment, a chronic pain assessment or physiotherapy treatment.

27The applicant submits that he is entitled to the three assessments and to the proposed physiotherapy treatment because there has been a significant deterioration in his condition. He relies on the Psychological Assessment report of Dr. Catherine Milner, psychologist, dated August 21, 2022 and the Updated Orthopaedic Medical Evaluation report of Dr. R. Timothy Deakon, orthopaedic surgeon, dated July 5, 2023.

28The applicant submits that had the occupational therapy assessment been approved by the respondent, it would have recommended social rehabilitation counselling for strategies to help the applicant become reinvolved with friends and increase his social connections. The assessment would have addressed “home devices” which would enable the applicant to resume his home maintenance activities.

29The applicant further submits that had the insurer examination for physiotherapy and the chronic pain assessment proceeded, he would not have been found to have reached maximal medical improvement of his physical injuries.

30The applicant relies on the Psychological Assessment report, prepared by Dr. Catherine Milner, psychologist, dated August 21, 2022, that recommended psychological treatment and a referral for occupational therapy involvement, driving therapy and treatment at a pain management clinic. She also recommended resumption of physiotherapy to provide the applicant with some pain relief and to prevent a flare up of pain. The applicant submits that Dr. Milner’s report clearly indicates that the applicant had a limited social life.

31The respondent submits that while the applicant relies on Dr. Milner’s report as evidence of physical impairment and treatment needs, this is outside the scope of her expertise and is not supported by the findings of the physical assessors who are qualified to provide such an opinion. The respondent further submits that while the applicant reported some limitations in his activities due to his physical injuries at the time of the assessment by Dr. Milner, he did not report any deterioration over time to previous assessors. The respondent submits that with respect to the applicant’s report of an initial anxiety response to driving which had become more widespread over time, it approved the psychological treatment requested.

32I find that the report of Dr. Milner is not persuasive because the applicant has not provided any clinical notes or assessments leading up to the referral to Dr. Milner that show any psychological complaints following the accident or the need for a psychological assessment. Dr. Milner specifically states that the referral to her office was the first time that the applicant asked for help regarding his mental health. I find that the applicant’s lack of reporting any psychological complaints following the accident up until he was assessed by Dr. Milner, over four and a half years post-accident, undermines his claim that the accident caused his psychological impairments and warrants treatment.

33I further find that as Dr. Milner is a psychologist, she is only qualified to provide a professional opinion on the applicant’s mental health condition. I find that she is not qualified to comment on the applicant’s physical condition. Her recommendations for ongoing physiotherapy are outside of the realm of her expertise.

34The applicant submits that Dr. Deakon’s orthopaedic report, dated July 5, 2023, notes continuing and increased pain in the applicant’s left knee which has caused the applicant to bear more weight on his right knee, which caused him pain in both knees.

35The respondent submits that Dr. Deakon’s initial report, dated January 6, 2021, notes that the applicant reported that he had been able to return to the gym, that he could play basketball, and that his injuries did not interfere with his ability to perform his work duties. The respondent submits that the clinical evaluation was largely normal with Dr. Deakon identifying a click in the patellofemoral joint with some movements. Dr. Deakon specifically stated that the applicant’s injuries as a result of the accident at that time did not affect his ability to care for himself and he did not require assistance with his personal care. Dr. Deakon provided no recommendations for treatment at the time of the 2021 assessment.

36The respondent submits that in the updated report of Dr. Deakon, dated July 5, 2023, the only change in the applicant’s condition since Dr. Deakon’s previous assessment on January 6, 2021, was that the applicant was experiencing more pain in his right knee and a slight increase in his level of pain in his left knee. Dr. Deakon recommended physiotherapy to build the left thigh muscle which was one centimetre smaller than the right, which was not a change over his prior exam. A gym membership was recommended but the respondent submits that the applicant reported that he was already continuing to attend the gym post-accident.

37I find that Dr. Deakon in his report dated July 5, 2023 noted that the applicant complained of more right knee pain than he had at the previous examination. He denied any other new musculoskeletal injuries or problems. Dr. Deakon recommended a follow-up MRI, physiotherapy and a gym membership. I agree with the respondent that this report was not contemporaneous with the treatment plan submitted. The respondent had the right to rely on the previous report of Dr. Deakon dated January 6, 2021, which made no recommendations for further treatment at the time of the assessment. I note that the applicant did not refer to the report of Dr. Deakon dated January 6, 2021 in his submissions.

38The applicant has submitted a copy of the Insurer Examination Psychological Assessment report of Dr. Rakesh Ratti, psychologist, dated December 15, 2022, which was prepared in relation to the treatment plan for the driving assessment. While the applicant disagrees with the findings of Dr. Ratti, I find the report persuasive. The applicant reported that his driving-related anxiety has been decreasing due to treatment with Dr. Milner and he is currently able to manage the anxiety while driving. Dr. Ratti concluded that there was no evidence for any diagnosis related to driving. I do not accept the applicant’s submission that Dr. Ratti’s diagnosis of the applicant with an Adjustment Disorder with Anxiety, would support the reasonableness and necessity of a chronic pain assessment. The report can be relied upon by the applicant for corroborative reasons, but it has no value on the treatment plan for a chronic pain assessment that was not addressed in the report.

39I find that other than the report of Dr. Milner, which I have found unpersuasive, the applicant did not provide any updated CNRs or assessments in his submissions, leading up to the report of Dr. Milner, to support that the treatment plans in dispute are reasonable and necessary. While the applicant submits that the treatment plans are reasonable and necessary because he suffered a deterioration in his condition, there are no CNRs from his treating practitioners to support this deterioration. While the applicant relied on the updated report of Dr. Deakon, dated July 5, 2023, this report was submitted over 8 months after the treatment plans in dispute. At the time that the treatment plans were submitted, the respondent relied on the medical evidence in its possession to support the denial of the treatment plans in dispute.

40For the reasons set out above, I find that the applicant has not met his onus of proving on a balance of probabilities that he is entitled to the treatment plans for a driving evaluation, an occupational therapy assessment, a chronic pain assessment or physiotherapy.

The applicant is not entitled to the unapproved balance of the treatment plan for psychological services

41I find that the applicant has not proven on a balance of probabilities that the balance of the treatment plan for psychological services is reasonable and necessary.

42The applicant claims entitlement to $318.83 ($1,715.71 less $1,396.88 approved) for psychological services, proposed by Dr. Catherine Milner, psychologist, in a treatment plan, submitted August 21, 2022.

43I find that the applicant has not provided any submissions or directed me to any supporting evidence on his entitlement to the balance of the treatment plan for psychological services. Therefore, I find that the applicant has not met his onus of proving on a balance of probabilities that he is entitled to the unapproved balance of the treatment plan for psychological treatment.

Interest

44Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is not entitled to the disputed treatment plans, no payments are overdue, and thus no interest is payable.

Award

45The 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 as there are no benefits payable.

ORDER

46For the reasons outlined above, I find that the applicant is not entitled to the treatment plans in dispute, interest or an award. The application is dismissed.