Licence Appeal Tribunal File Number: 22-008806/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:
Hussein Saifya
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Tanjoyt Deol
APPEARANCES:
For the Applicant:
Mohamed Doli, Counsel
For the Respondent:
Alfred Cheng, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Hussein Saifya, (the “applicant”), was involved in an automobile accident on October 26, 2021, 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 Dominion of Canada General Insurance Company (the “respondent”) 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 attendant care benefits (“ACBs”) in the amount of $1,101.91 per month from March 18, 2022 to date and ongoing?
ii. Is the applicant entitled to the remaining balance of $599.00 for occupational therapy (“OT”) services, proposed by Neuromotion Therapy Centre in a treatment plan (“OCF-18”) dated June 9, 2022?
iii. Is the applicant entitled to the remaining balance of $997.50 for OT services, proposed by Neuromotion Therapy in a OCF-18, dated March 18, 2022?
iv. Is the applicant entitled to $2,085.32 for OT services, proposed by Neuromotion Therapy Center in a OCF-18, dated March 6, 2023?
v. Is the applicant entitled to $3,292.28 for physiotherapy services, proposed by Health Keys Health Centre in a OCF-18, dated January 15, 2023?
vi. Is the applicant entitled to the remaining balance of $2,260.00 for a chronic pain assessment, proposed by Humber River Medical Diagnostics in a OCF-18, dated January 30, 2023?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant is not entitled to ACBs.
ii. The applicant is not entitled to any of the OCF-18s in dispute, as she has not demonstrated that they are reasonable and necessary.
iii. As there are no benefits due, interest is not payable.
iv. The application is dismissed.
ANALYSIS
The applicant has not demonstrated that the proposed ACBs are reasonable and necessary
4I find that the applicant is not entitled to ACBs because she has not demonstrated that they are reasonable and necessary.
5Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for ACBs provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).
6The applicant argues that she sustained a concussion, left thumb pain, chest pain, back pain, neck pain, headaches, left knee pain, and psychological impairments as a result of the accident. She argues that as a result of her back pain, left knee pain, and thumb pain, she is unable to stand for longer than five minutes at a time, lift more than two pounds, and is unable to stoop, crouch and kneel. To this end, she relies upon the Form 1 and Occupational Therapy (“OT”) assessment report of Ms. Imran Ghaznawi, OT, dated March 18, 2022, and the s. 25 Independent Pain Medicine Assessment Report of Dr. Hien Ta, dated April 7, 2023.
7The respondent argues that the applicant’s left knee pain resolved in mid 2022 as indicated in the Clinical Notes and Records (“CNRs”) of Dr. Winifred McConville, her treating rheumatologist. The respondent also argues that the applicant has not demonstrated that the ACBs are reasonable and necessary. To support this position, it relies upon the s. 44 reports of Ms. Wesam Alghazawi, OT, and Dr. Jason Elk, chiropractor, dated June 1, 2022, and June 2, 2022.
8The areas of disagreement with respect to ACBs between the parties are as specified below:
Applicant’s Form 1
Respondent’s Form 1
Level 1
Grooming
(5 min/7 x week)
Brushing/combing hair
(5 min/7 x week)
Shampooing/drying hair
(2.5 min/1 x week)
Cleaning and trimming fingernails
(5 min/1 x week)
Cleaning and trimming toenails
(0 min)
Feeding
(90 min/7 x week)
Assistance in preparing, serving, and feeding meals
(0 min)
Mobility
(30 min/ 2x week)
Community Mobility
(0 min)
Level 2
Hygiene
(4 min/ 7x week)
Cleaning tub, shower sink and toilet after applicant’s use
(20 min/ 7x week)
Ensuring comfort, safety, and security in the environment
(5 min/ 7x week)
Hanging and sorting clothing
(0 min)
Level 3
Medication
(10 min/ 1x week)
Maintaining and controlling medication supply
(0 min)
Bathing
(6 min/ 7x week)
Assistance with bathing
(0min)
9When comparing the two competing Form 1s and OT reports, I prefer the report of Ms. Alghazawi over Ms. Ghaznawi. I acknowledge that a large part of the applicant’s case rests on the Form 1 and OT report of Ms. Ghaznawi, however I find it to be of limited evidentiary value for the following three reasons.
10First, Ms. Ghaznawi did not review the CNRs of the applicant’s pre-accident treating rheumatologist, or the CNRs of Drs. Fleuriau Chateau, Kayode Adeleye, and Emad Adbulkarim, walk-in physicians. If Ms. Ghaznawi had reviewed these CNRs she would have realized that the applicant last complained of left wrist, and shoulder pain on November 2, 2021 to Dr. Chateau, four months before the applicant met her.
11After November 2, 2021, the applicant did not report either left wrist or shoulder pain to Drs. Abdulkarim, Adeleye, Ismail, Ta, Elk, and Ms. Alghazawi, when complaining of her ongoing accident-related injuries to her back and neck.
12Meanwhile, Ms. Ghaznawi concluded that the applicant required assistance with washing her hair, brushing/styling hair, and trimming/cleaning fingernails because of ongoing left wrist and shoulder pain. However, I find this conclusion is not supported by the other contemporaneous evidence like the lack of left wrist/shoulder complains since November 2, 2021, despite seeing various treating practitioners as indicated above, and s. 25 and s. 44 doctors throughout November 2021 to 2023.
13Next, Ms. Ghaznawi’s opinion that the applicant requires assistance with her toenails, preparing/serving/feeding, cleaning, sorting/hanging clothing, and bathing is inconsistent with the bulk of the evidence before me. Notably, Ms. Ghaznawi recommended that the applicant required assistance with these tasks because the applicant is unable to reach her feet, has decreased standing tolerance, is unable to bend, and partially due to left knee pain (as well as low back pain).
14In my view, Ms. Ghaznawi’s opinion that the applicant requires assistance partially because of left knee pain is inconsistent with the CNRs of Dr. McConville, because the applicant had reported that her left knee pain had resolved in March of 2022, the same month that she met with Ms. Ghaznawi. In short, it is difficult to reconcile how Ms. Ghaznawi concluded that the applicant required assistance with feeding because of left knee pain when the applicant reported that it had resolved during the same time period to Dr. McConville.
15Unlike Ms. Alghazawi, Ms. Ghaznawi also conducted no range of motion testing, nor did she determine what the applicant’s standing, bending, and reaching tolerance was. Instead, Ms. Ghaznawi largely relied upon the applicant’s self-reporting and observations of the applicant attempting to complete her activities of daily living. Nonetheless, I place negligible weight on this because of the discrepancies in the applicant’s functional abilities.
16For example, the applicant was observed by Ms. Ghaznawi to partially squat and kneel. However, two and half months later, the applicant declined to complete crouching, kneeling, and stooping, because of low back pain with Ms. Alghazawi and Dr. Elk. The applicant has not addressed how she is able to complete a partial squat and kneel, which requires crouching, kneeling, and stooping, meanwhile she declined these tasks with Dr. Elk and Ms. Alghazawi. Indeed, Dr. Elk noted that the applicant may have the ability to bend, crouch and kneel because she demonstrated the ability to bend and flex her lower back to perform a full squat. Dr. Elk also concluded that the applicant performed the assessment in an inconsistent, self-limited, and submaximal level of effort.
17Likewise, Ms. Ghaznawi concluded that the applicant required assistance with her toenails because she cannot reach her feet. Yet, Ms. Alghazawi noted that the applicant demonstrated the ability to reach for high and low cabinets in her kitchen with no difficulties and no functional limitations.
18I am alive to the applicant’s position that she was unable to stand for longer than five minutes at a time and is not able to lift more than 2 pounds as indicated in Dr. Ta’s report, Ms. Ghaznawi and Ms. Alghazawi’s reports. In any event, on June 2, 2022, Dr. Elk also observed the applicant standing for 45 minutes during the 60 minute assessment. Due to the numerous inconsistencies as noted above, I place little weight on the applicant’s self-reporting that she can only stand for five minutes. Further, Ms. Ghaznawi did not make any recommendations for attendant care services as a result of an reduced ability in lifting, therefore the issue of how much she can lift is irrelevant.
19Finally, I am not persuaded that the applicant requires community mobility, ensuring comfort, safety, and security in the environment and assistance with her medication, as these recommendations lack clarity and are inconsistent with the other evidence before me.
20Ms. Ghaznawi recommended community mobility because of the applicant’s driving anxiety, but she provided no particulars of what kind of community mobility, nor the assistance required with this. I also note that the applicant reported to Ms. Ta that she took the bus for school, without requiring assistance. Without any particulars of what community mobility entails and the applicant having no difficulty travelling on a bus to school, it follows that this proposed service is not reasonable and necessary.
21Correspondingly, Ms. Ghaznawi’s recommendation to ensure comfort safety, and security by providing daily monitoring of mood is unclear because she provided no information on what monitoring is required and why is this required when the applicant has already received psychological treatment. Likewise, Ms. Ghaznawi’s conclusion that the applicant is unable to pick up her medications supply and requires assistance with this is unsupported by the various s. 25 and s. 44 reports, where the applicant was silent with respect to any difficulties with picking up her medication.
22Given, the preponderance of the medical evidence before me, I find that the applicant has not established entitlement to ACBs.
The Treatment Plans
23To 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 the June 9, 2022, OCF-18 for OT services, in the amount of $599.00
The applicant is not entitled to the March 18, 2022, OCF-18 for OT services, in the amount of $997.50
24The applicant has not proven on a balance of probabilities that the disputed OCF-18s for OT services are reasonable and necessary.
25The applicant’s submissions provided a summary of diagnoses listed in various s. 25 and s. 44 medical reports, CNRs from various treating practitioners, and in an Disability Certificate (“OCF-3”).
26To be frank, despite being represented by counsel, the applicant’s submissions and evidence were not assistive to the Tribunal. The applicant did not produce a copy of any of the OCF-18s in dispute. Instead, the applicant provided a summary of diagnoses as outlined above and offered a blanket submission that the OCF-18s should be approved based on her physical and psychological impairments.
27Critically, the applicant did not identify any of the items that remained in dispute in these OCF-18s. It was not until a review of the respondent’s submissions that it became clear that these OCF-18s had been partially approved and the remaining balance pertained to administrative costs like an additional progress report, brokerage, service, file review, session planning, and planning, service.
28Despite providing reply submissions, the applicant did not address the respondent’s arguments that these administrative costs were already included in the provider’s hourly rate or why an additional progress report was required. Blanket submissions that the OCF-18s should be approved based on her impairments, does not meet the applicant’s burden.
29In any event, where it is the applicant’s burden to prove, the minimum requirement is to provide the OCF-18s. This evidence is required because the Tribunal needs to understand what the remaining administrative fees pertain to. Where the applicant has failed to meet this minimal requirement and where she has also not provided specific submissions to support why the remaining administrative costs are not excessive and payable, it follows that she has fallen well short of meeting her burden of proof on these issues. Accordingly, the remaining balance in the OCF-18s are not payable.
The applicant is not entitled to the March 6, 2023, OCF-18 for OT services in the amount of $2,085.32
30I find that the applicant has not met her onus to establish that the proposed OT services are reasonable and necessary.
31As highlighted above, the applicant’s submissions provided a summary of diagnoses and a blanket submission that all the OCF-18s should be approved. Critically, the submissions did not address the goals of the assistive devices, how the goals will be met or the cost of same. Indeed, the applicant did not address what items were actually in dispute. Moreover, the applicant’s submissions did not link the diagnoses to the devices being sought or explain which practitioners recommended the assistive devices and why.
32In a similar vein, the applicant did not submit a copy of the OCF-18 for Tribunal’s review, which I understand from the respondent’s submissions to be for assistive devices such as: a shower chair, reacher, and a shoehorn. Without specific submissions speaking to the reasonableness and necessity of these assistive devices, I find that the applicant has not met her onus.
33In short, where the applicant has not made specific submissions, not proffered the OCF-18 as evidence, or identified what the assistive devices are, it follows that she has not established that the OCF-18 is reasonable and necessary.
The applicant is not entitled to the January 15, 2023 OCF-18 for physiotherapy services, in the amount of $3,292.28
The applicant is not entitled to the January 30, 2023 OCF-18 for a chronic pain assessment, in the amount of $2,260.00
34On the balance, the applicant has not demonstrated that the proposed physiotherapy services, and the remaining balance for a chronic pain assessment are reasonable and necessary.
35The applicant relies in large part on one CNR entry of Dr. Kayode Adeleke, a general practitioner, dated November 18, 2021, where physiotherapy was recommended, and that she attended for physical treatment at Neuromotion Therapy Centre and South Keys Health Centre. Problematically, despite the remaining balance for the cost of a chronic pain assessment being listed as a live issue in dispute in both the CCRO and her submissions, she provided no specific submissions on why it is payable.
36The respondent relies upon the s. 44 reports of Dr. Farooq Ismail, physiatrist, dated June 2, 2022, and June 2, 2023, where the applicant reported that her improvement remained at 10% for her pain, despite receiving extensive facility based treatment. Thus, it argues that the OCF-18 is not reasonable and necessary, as the applicant has not established that she received pain relief from the previous treatment. The respondent also argues that the remaining balance for the chronic pain assessment is not payable under s. 25(5)(a), as it has already approved $2,486.00 for the chronic pain assessment and documentation.
37The applicant has fallen very short of meeting her evidentiary onus in establishing that the OCF-18s in dispute are reasonable and necessary.
38First, the applicant has neither tendered a copy of the OCF-18s in dispute, or provided specific submissions on what the goals of the proposed physiotherapy treatment are, how they will be met, or the cost of same. Indeed, the respondent identified the goals of the proposed treatment in its submissions which are: pain reduction, increased range of motion, increase in strength and a functional goal of returning to activities of normal living. This alone makes it challenging for the applicant to meet her burden because she did not identify the goals of the proposed treatment.
39Second, I place negligible weight on the CNR entry of Dr. Adeleke, because it is outdated and not contemporaneous to the OCF-18 in dispute, as the recommendation for physiotherapy was made on November 18, 2021, a year and half before the submission of this OCF-18.
40I further acknowledge that the applicant submits that she attended physiotherapy treatment at Neuromotion Therapy Centre and South Keys Health Centre. However, she did not refer me to specific entries or progress reports of whether the stated goals are being met to a reasonable degree with the previous physiotherapy treatment.
41Significantly, the applicant also reported to Dr. Ismail that she maintained a 10% improvement in her accident-related symptoms, despite receiving manual therapy, heat/TENS application, and cupping treatment on a weekly basis between June 2, 2022 to June 2, 2023. Without specific submissions from the applicant, and the OCF-18 for physiotherapy services, I am unable to assess whether the stated goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit.
42Finally, the applicant did not address why the remaining balance of the cost of a chronic pain assessment is payable under s. 25(5)(a). As noted above, the respondent has paid the maximum quantum available under s. 25(5)(a) for the chronic pain assessment, which is $2,000.00.
43The language of Section 25(5)(a) of the Schedule is clear. Despite any other provision in the Schedule, an insurer shall not pay more than a total of $2,000.00 plus applicable harmonized sales tax (“HST”) in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it, whether it is conducted at the instance of the insured person or the insurer.
44Despite filing reply submissions, the applicant still did not address why the remaining cost for a chronic pain assessment is payable, when the respondent has already approved the maximum quantum under s. 25(5)(a). As such, I find that the remaining balance not payable because it is subject to the $2,000.00 maximum payable for any one assessment under s. 25(5)(a), which the respondent has already approved.
45In conclusion, the applicant has not demonstrated entitlement to either the OCF-18 for physiotherapy services or a chronic pain assessment.
Interest is not payable
46There are no outstanding amounts owed, and therefore no interest is payable.
ORDER
47For the reasons outlined above, I find that:
i. The applicant is not entitled to ACBs.
ii. The applicant is not entitled to any of the OCF-18s in dispute, as she has not demonstrated that they are reasonable and necessary.
iii. As there are no benefits due, interest is not payable.
iv. The application is dismissed.
Released: December 23, 2024
Tanjoyt Deol
Adjudicator