Licence Appeal Tribunal File Number: 20-011649/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:
Said Mustafa Quraishi
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
David Schell, Counsel
Rizwan Wancho, Paralegal
For the Respondent:
Francine Papadopoulos, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Said Mustafa Quraishi, the applicant, was involved in an automobile accident on January 14, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, TD 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 $3,405.00 for chiropractic and massage services recommended by Scarborough Physio & Rehab Clinic (“SPARC”) in a treatment plan/OCF-18 (“plan”) dated July 13, 2020?
ii. Is the applicant entitled to $2,200.00 for a physiatry assessment recommended by SPARC in a plan dated July 15, 2020?
iii. Is the applicant entitled to $2,200.00 for a chronic pain assessment recommended by SPARC in a plan dated July 13, 2020?
iv. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the plans in dispute, interest, or an award.
ANALYSIS
The applicant is not entitled to the plan for chiropractic and massage services
4I find that the applicant is not entitled to the treatment plan for chiropractic and massage services because he has not demonstrated on a balance of probabilities that it is 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 treatment plan for chiropractic and massage services was proposed by Dr. Andrew Woo, chiropractor. The plan proposes 12 sessions each of physical rehabilitation, “education, promoting health and preventing disease,” mobilization (multiple body sites), therapy (multiple body sites), exercise (multiple body sites), exercise (muscles of the chest and abdomen), exercise (multiple body sites), therapy (multiple body sites), 1 session of stimulation (muscles of the back), 10 sessions of therapy (multiple body sites), documentation, as well as administrative services, PPE and sanitation. The goals of the plan are pain reduction, increased range of motion, increase in strength, return to activities of normal living, return to pre-accident work activities, and return to modified work activities.
7The applicant submits that the medical documents filed provide the perspective, reason, and need for the treatment plan.
8The respondent submits that the records provided from SPARC indicate that the applicant received treatment between January 27, 2015, and December 8, 2016, and that, prior to the stoppage of treatment, he reported lower intensity of pain. These records were not filed into evidence; however, the Billing Statement from SPARC indicates that the applicant’s last physical rehabilitation session was on December 8, 2016, and there was no further activity until a treatment plan was prepared on July 8, 2020.
9I have considered the applicant’s submission that injuries and their sequelae are not static and are known to change with time. However, in this case I find the applicant did not report pain because of the accident to his treating physicians between February 7, 2017, and June 30, 2020.
10The applicant first sought medical attention after the accident with his family physician Dr. Rosemarie Lall on January 16, 2015. He reported neck pain, pain between his shoulders, difficulty falling asleep, flashbacks, irritability, dizziness, fatigue, and headaches. Dr. Lall assessed acute neck/upper back strain and acute stress disorder. She recommended analgesia, heat/cold, massage/physio, and counselling. The applicant made accident-related complaints to Dr. Lall on four occasions between January 30, 2015, and February 7, 2017.
11Dr. Fathi Abuzgaya, orthopedic surgeon, conducted a section 25 Independent Medical Evaluation of the applicant on September 29, 2015. As a result of the accident, he diagnosed the applicant with cervicogenic headaches, cervical and lumbar sprain, soft tissue injury to the left shoulder and knee, and queried a medial meniscal tear of the left knee.
12The applicant filed medical records from his treating physician, Dr. Jegan Jegathesan beginning in January 2019. The applicant made complaints to Dr. Jegathesan with respect to psychological issues. The applicant points to two entries, indicating that they are relevant to the plan for chiropractic and massage services. On June 30, 2020, the applicant reported back pain on and off and requested a referral for his back. Dr. Jegathesan made a referral for “back physio.” On August 19, 2020, Dr. Jegathesan noted that he completed a “physio/massage form for back pain.”
13Dr. Nayyar Razvi, Physician, Focused Practice Chronic Pain, prepared a Chronic Pain Accident Benefits Report after his assessment of the applicant on November 6, 2020. Dr. Razvi provided the following diagnoses because of the accident: chronic pain syndrome, cervicogenic headaches, zygapophyseal/myofascial pain, cervical and lumbar spine, possible bicipital tendinitis bilaterally, possible sleep apnea, mood disorder (depression with features of posttraumatic stress disorder), and general deconditioning secondary to the above. Dr. Razvi recommended that the applicant be referred to a chronic pain management centre.
14Dr. S.W. Joseph Wong, Physiatry Consultant, assessed the applicant on December 21, 2020. He diagnosed the applicant with myofascial injuries involving the cervical spine, the thoracic spine, and the lumbosacral spine, as well as his left knee because of the accident. Dr. Wong notes that the examination demonstrates abnormal muscle tightness with trigger points in these regions, which indicates ongoing soft tissue injuries. He opines that this pain is complicated with insomnia and stress problems, which he believes are factors making it more difficult for the applicant to heal from his injuries. Dr. Wong recommends a chronic pain program to address his physical and psychological concerns. He further suggests that the applicant return to physiotherapy and be followed by a kinesiologist for an exercise program to build muscle strength and endurance to function more effectively.
15Ms. Grace Gronkowska, certified Psychological Associate, assessed the applicant on July 31, 2020, and prepared a report dated September 4, 2020. The applicant reported lower back pain, neck and bilateral shoulder pain, and left knee pain. Based on the interview, a review of medical information, and his responses to psychological tests and measures, the applicant was diagnosed with Major Depressive Disorder, severe, Post-traumatic Stress Disorder, Specific Phobia (Driving), and Somatic Symptom Disorder with predominant pain. Ms. Gronkowska indicated that these impairments are related to his “recent” motor vehicle accident.
16The respondent raises a significant issue of causation as it submits the applicant’s mental health decline and diagnosis of chronic pain were identified in assessments and medical records conducted several years post-accident.
17I find that the applicant last reported pain as a result of the accident to his family physician on February 7, 2017, and there were no further pain complaints until June 30, 2020. This is a significant gap of over 3 years and 4 months. Further, according to the Billing Statement from SPARC, the applicant stopped attending for treatment on December 8, 2016, and there was no further activity until a treatment plan was prepared on July 8, 2020. As such, I find that it is not clear that the applicant’s pain symptoms, over 3 years and 4 months after the accident, are attributable to the accident. The applicant did not demonstrate that the impairments related to the treatment plan would have occurred but for the accident, given the significant gap, making it difficult to assess the reasonableness and necessity of the plan.
18Based only on the applicant’s complaint of back pain in June and August of 2020 to Dr. Jegathesan and the subsequent reports that were prepared in 2020, over 5 years after the accident, I am not persuaded that he has demonstrated on a balance of probabilities that the treatment plan is reasonable and necessary as it relates to the accident.
The applicant is not entitled to the proposed assessments
19I find that the applicant has not proven, on a balance of probabilities, that the physiatry and the chronic pain assessments are reasonable and necessary.
20Dr. Andrew Woo, chiropractor, completed an OCF-3 dated July 9, 2020, and recommended a chronic pain assessment. The treatment plans for the physiatry and chronic pain assessments were not filed by either party, which makes it difficult to assess whether they are reasonable and necessary.
21In any event, the applicant submits that the physiatry assessment conducted by Dr. Wong and the chronic pain assessment conducted by Dr. Razvi were reasonable and necessary as diagnoses and recommendations were made that helped the applicant and his treatment professionals understand his condition and needs. Further, the assessments benefit the applicant in assessing his condition and ascertaining the appropriate treatment and requests for related benefits.
22The assessments by Dr. Wong and Dr. Razvi were conducted after the treatment plans were submitted.
23I am not persuaded by the applicant’s submissions that the assessments are reasonable and necessary for the following reasons. I find that the reports of Dr. Razvi and Dr. Wong do not provide an explanation with respect to how the significant gap between the accident in January 2015 and their respective reports in November and December of 2020 affected their conclusions. Further, I find that there is no mention of chronic pain in the clinical notes and records of the applicant’s treating physicians, nor is there any recommendation for a physiatry assessment or a chronic pain assessment. Even if the treatment plan was before me, I find that the applicant has not met his onus because there is a lack of corroborating evidence in support of the need for the assessments.
24Further, as indicated above, the applicant did not demonstrate that the impairments related to the treatment plans would have occurred but for the accident given the gap, making it difficult to assess their reasonableness and necessity, particularly without having filed the treatment plans.
25On a consideration of the evidence, I find that the applicant has not established, on a balance of probabilities, that the physiatry and the chronic pain assessments are reasonable and necessary.
Interest
26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered in accordance with s. 51 of the Schedule.
Award
27The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Since no benefits were unreasonably withheld, the applicant is not entitled to an award.
ORDER
28The applicant is not entitled to the treatment plans at issue.
29The respondent is not liable to pay an award.
30No interest is payable.
31The application is dismissed.
Released: December 13, 2024
Laura Goulet
Adjudicator