Licence Appeal Tribunal File Number: 22-005308/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:
Maysam Zemari
Applicant
And
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Gareth Neilson
APPEARANCES:
For the Applicant:
Kateryna Vlada, Paralegal
For the Respondent:
Aimee Draper, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Maysam Zemari, the applicant, was involved in an automobile accident on June 4, 2017, 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, Insurer, 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 $2,702.11 for physiotherapy services, proposed by Inline Rehabilitation Center Inc. in a treatment plan/OCF-18 (“plan”) dated June 4, 2020?
ii. Is the applicant entitled to $15,941.00 for a catastrophic impairment assessment, proposed by HM Medical in a treatment plan dated April 25, 2022?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to $2,702.11 for physiotherapy services.
4The applicant is not entitled to $15,941.00 for a catastrophic impairment assessment.
5The applicant is not entitled to interest.
ANALYSIS
The Legal Test
6For the applicant to 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.
The applicant is not entitled to $2,702.11 for physiotherapy services
7I find that the applicant has not demonstrated, on a balance of probabilities, that the treatment plan is reasonable and necessary for injuries sustained as a result of the accident.
8Under s.15 and 16 of the Schedule, the applicant must show that based on the balance of probabilities that the physiotherapy services requested are reasonable and necessary, and the goal of this treatment plan and the costs associated with it, are reasonable.
9The applicant relies upon reports from General Practitioner Dr. Hadi, Psychologist Dr. Kleiman, Chiropractor Dr. Khandwalla, Chiropractor Dr. Mirlan and General Practitioner Dr. Shokr. The applicant consistently complained of physical pain symptoms, specifically on the right side of his body, and difficulties with concentration and focus. As a result, on October 25, 2017, Dr. Kleiman diagnosed the applicant with Brief Somatic Symptom Disorder with travelling related phobia. The most significant physical injury that the applicant reported was to his right elbow. Diagnostic imaging conducted July 4, 2018 showed an injury that could have been a result of a previous trauma. The applicant underwent surgery to remove bone fragments from his right elbow on September 12, 2019, without complication. After the surgery, the applicant routinely met with Dr. Shokr and consistently reported psychological and physical complaints.
10The respondent relies upon documents from Inline Rehabilitation and an Orthopaedic Assessment from Dr. Jacqueline Auguste. Dr. Auguste assessed the applicant in December 2018, where Dr. Auguste noted that the applicant was a poor historian and based on her assessment, the applicant had reached maximum medical recovery.
11The respondent notes that the injuries sustained as a result of the motor vehicle accident were significant enough to remove the applicant from the Minor Injury Guideline. However, at the expiration of the policy period the applicant had incurred $12,314.32 of medical benefits. The applicant was receiving physical treatment at Inline Rehabilitation for the injuries sustained in the accident. The respondent notes that, between 2018 and 2020, the applicant did not attend treatment on a regular basis and large gaps in the applicant attending treatment. The respondent argues there has been no medical explanation for the lack of medical treatment sought by the applicant and therefore it should be inferred that the applicant’s injuries as a result of the motor vehicle accident, have reached maximum medical recovery.
12I agree with the respondent’s position and find that based on the evidence before me, the applicant has reached maximum medical recovery from injuries sustained from the motor vehicle accident. I accept that the applicant sustained physical injuries as a result of the accident, however, I agree with the respondent’s position that if the injuries sustained were as significant as described, the applicant would have incurred far more than the $12,314.32 of treatment. Additionally, due to the large gaps in treatment and the decline in treatment throughout the 5 year policy period, I put more weight to the report of Dr. Auguste than the applicant’s doctors’ reports.
13The applicant is not entitled to $2,702.11 for physiotherapy services as they have not demonstrated, on the balance of probabilities, that this treatment plan is reasonable and necessary.
The applicant is not entitled $15,941.00 for a catastrophic (CAT) assessment
14The applicant underwent a CAT Assessment which was submitted and approved by the insurer on July 24, 2020. This assessment showed that the applicant did not meet the designation of CAT impairment under criteria 6, 7 or 8.
15The applicant argues that the respondent has a duty under section 25(1) of the Schedule, which mandates the insurer to cover expenses incurred in preparing an application under section 45 to ascertain whether the insured person has sustained a catastrophic impairment. The applicant further argues that the plan is reasonable and necessary because the applicant has not achieved a maximum medical recovery.
16The respondent counters that the plan is not reasonable and necessary because the medical documents provided by the applicant did not show a change in the applicant’s condition and therefore another round of assessments are not reasonable or necessary.
17I agree with the respondent’s position as the applicant has not demonstrated that their condition has worsened since the subject accident. Therefore, I find that they have not demonstrated that an additional CAT assessment is reasonable or necessary. While the respondent does have the responsibility to continue to adjust the applicant’s file, the applicant has not demonstrated that this assessment is warranted as a result of a marked change in the applicant’s condition since the assessment on July 24, 2020.
18The applicant is not entitled to $15,941.00 for a CAT assessment as they have not demonstrated, on a balance of probabilities, that a second CAT assessment is reasonable and necessary.
Interest
19Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, no interest applies.
ORDER
20I order the following:
i. The applicant is not entitled to $2,702.11 for physiotherapy services.
ii. The applicant is not entitled to $15,941.00 for a CAT assessment.
iii. As there are no overdue payments, the applicant is not entitled to interest.
Released: December 19, 2024
Gareth Neilson
Adjudicator