Citation: Okeugo v. Aviva Insurance Company, 2024 ONLAT 21-012508/AABS

Licence Appeal Tribunal File Number: 21-012508/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:

Nwachukwu Okeugo

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Lisa Yong

APPEARANCES:

For the Applicant: Salome Lopes, Paralegal

For the Respondent: Joshua Edmunds, Counsel

HEARD: In Writing

OVERVIEW

1Nwachukwu Okeugo, the applicant, was involved in an automobile accident on March 4, 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 Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

[2] The issues in dispute are: i. Is the applicant entitled to $1,610.12 for physiotherapy, proposed by Humber Civic Care Centre in a treatment plan/OCF-18 (“plan”) dated September 23, 2019? ii. Is the applicant entitled to $1,376.72 for chiropractic treatment, proposed by Humber Civic Care Centre in a plan dated January 3, 2020? iii. Is the applicant entitled to $2,629.85 for physiotherapy, proposed by Humber Civic Care Centre in a plan dated on April 7, 2021? iv. Is the applicant entitled to $2,539.00 for a Chronic Pain Assessment, proposed by Ontario Independent Assessments Centre in a plan dated November 19, 2019? v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is not entitled to any of the plans for physiotherapy and chiropractic services.

4The applicant is not entitled to the plan for a chronic pain assessment.

5As no benefits are owing or unreasonably withheld or delayed, no interest is payable.

Procedural issue

Applicant’s submissions exceed page limit

6I find that the applicant has not prejudiced the respondent with the length of her written submissions.

7The respondent submits that the applicant has failed to abide by the submission page limits set out in the Case Conference Report and Order (“CCRO”). The CCRO indicates that the applicant’s and respondent’s written submissions will be limited to 10-pages in length, but the applicant’s submissions were 12 pages in total and hence exceeded the amount allowed. The respondent submits that the excess pages should be disregarded as the applicant did not seek an order to increase the page limit. The applicant did not respond or submit any reply submissions.

8I note that pursuant to ss. 23(1) and 25.0.1 of the Statutory Powers Procedure Act, it falls directly within my discretion to strike any submissions in excess of the 10-page limits laid out in the CCRO.

[9] In this case, the respondent did not further explain or elaborate on the effect these extra pages could have on this case. Upon review of the applicant’s submissions, I am prepared to admit the non-compliant submissions because: i. the first page of the applicant’s submissions contained the Tribunal’s header which took up majority of the page and a paragraph (i.e. 4 lines) summarising the applicant’s age, date of loss and stating that it would continue to list down the issues in dispute on the following page. I do not find the content to be of any prejudice to the respondent; and ii. the last page contained three paragraphs (i.e. 9 lines of text), where the applicant appears to be closing its submissions and restating the orders sought. There were no additional references to any substantial evidence, or that the applicant raised new arguments, hence I do not find that, by admitting this page, would cause any prejudice to the respondent.

10Given the above reasons, I admit the applicant’s submissions in its entirety.

ANALYSIS

The applicant is not entitled to $2,539.00 for a chronic pain assessment

11I find the applicant is not entitled a chronic pain assessment as it is not reasonable and necessary.

12The applicant submits that a chronic pain assessment is required in order to investigate a more stable form of treatment for his ongoing chronic pain in replacement of nerve block injections and medications. He further submits that Dr. David Mula’s IE paper review assessments reports should not be relied upon as they are not credible, and the respondent failed to arrange an in-person assessment to properly assess the applicant.

13The respondent disagrees and submits that the applicant does not satisfy the criteria established under the AMA Guides for a chronic pain syndrome and does not have compelling evidence to justify a chronic pain assessment. The applicant did not make any reply submissions.

14I am not persuaded that the applicant requires a chronic pain assessment. I find the applicant attended two chronic pain assessments at Releva Chronic Pain with: Dr. Anthony Di Fonzo, physician, on December 10, 2019; and Dr. Imad Salim Dahmis, physician, on August 31, 2022. In two letters written separately by Dr. Di Fonzo and Dr. Salim Dahmis, each doctor reported details of their physical examination of the applicant, diagnoses and suggested various treatment options including interventional injections and non-pharmaceutical therapies such as physiotherapy, aqua therapy, chiropractic treatment, psychotherapy, cognitive behavioural therapy, and pharmaceutical options including various pain medications. Further, the CNRs from Releva Chronic Pain Centre also reveal that the applicant has been receiving nerve block injections for two years since November 22, 2019 for the applicant’s ongoing pain and the applicant reported that the treatments provided some improvement in the range of motion and a reduction of pain. I find that these letters and CNRs are evidence that the applicant has attended two chronic pain assessments; the applicant has received treatment previously; and do not support the need for another chronic pain assessment.

15I prefer the respondent’s IE reports by Dr. Mula as they are in line with the applicant’s medical evidence. Dr. Mula’s addendum report dated March 11, 2020, included a review of additional medical documents including the CNRs from Releva Chronic Pain Centre. Dr. Mula concluded that since the applicant has been under the care of Dr. Di Fonzo, physician from Releva Chronic Pain Centre, the disputed plan would be duplicative in nature and is therefore not reasonable and necessary.

16The applicant did not make any submissions or reply submissions to rebut Dr. Mula’s opinion or point to any further evidence to prove the need for another additional chronic pain assessment.

17For the above reasons, I find the applicant is not entitled to a chronic pain assessment as it is not reasonable and necessary.

The applicant is not entitled $1,376.72 for chiropractic services

18I find the denial letter to be valid and compliant with s. 38(8) of the Schedule.

19Section 38(8) of the Schedule requires an insurer to inform an insured person within 10 business days after it receives a plan which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.

20The applicant submits that the respondent’s denial letter is non-compliant with s. 38(8) as it failed to respond within 10 business days, identify the medical and all other reasons for the denial and contained errors. The respondent did not make submissions in response to the applicant’s s. 38(8) argument.

21I find the applicant failed to prove his case that the respondent has breached s. 38(8) of the Schedule. Upon review of the parties’ evidence, the plan was dated January 3, 2020, but there was no evidence of when the plan was submitted. The respondent’s denial letter was dated January 22, 2020, and stated that it received the plan on “2019-01-08”, which appears to be incorrect. Based on the evidence, I am unable to determine when the plan was submitted by the applicant and whether the respondent’s denial letter was issued in a timely manner in accordance with s. 38(8) of the Schedule. The onus of proof is on the applicant; to refer to the evidence and explain why the evidence is supportive of his case. He has failed to do so.

22I find the respondent’s letter was issued in accordance with s. 38(8) of the Schedule. Although the typographical errors of dates (e.g. November 19, 2019, instead of January 3, 2020), in the letter, may have caused some confusion to the applicant, it was cleared by the other references made to the subject plan, including correctly identifying the provider, goods and services and the amount for which the applicant has claimed. Most importantly, the respondent enclosed a copy of the subject OCF-18 to its letter. When the letter is viewed in context with the attached plan, it is clear that the respondent’s was responding to the plan for chiropractic services dated January 3, 2020.

23The reasons for the denial, being that Dr. Seung-Jun Lee, IE physician, opined that the applicant had reached maximum medical improvement as a result of the accident and he could not identify any accident-related impairments that would necessitate any chiropractic treatment, was clear and unequivocal. In my opinion, the reasons provided for denial appear to be sufficiently clear that would allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.

24Given the reasons above, I find the respondent’s denial notice dated January 22, 2020, to be valid pursuant to s. 38(8) of the Schedule.

The applicant is not entitled to the plan for chiropractic services as it is not reasonable and necessary

25I find the applicant is not entitled to the plan for chiropractic services as it is not reasonable and necessary.

26To 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.

27The applicant relies on the IE psychological report by Dr. Kelly McCutcheon, dated July 18, 2019 and submits the respondent failed to remove the applicant from the Minor Injury Guideline (“MIG”).

28The respondent submits that both parties’ medical evidence of the applicant prove the applicant’s injuries are minor. It relies on Dr. Lee’s IE report dated December 18, 2019.

29I am unpersuaded by the applicant’s reliance on Dr. McCutcheon’s IE report. Dr. McCutcheon was tasked to addressed the applicant’s psychological condition, not the applicant’s physical functionality. I do not find Dr. McCutcheon’s report to be relevant to this issue in dispute. The applicant bears the onus to prove that the subject plan for chiropractic services is reasonable and necessary. Accordingly, the applicant has failed to 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.

30I am persuaded by Dr. Lee’s musculoskeletal examination on December 6, 2019 as it was an in-person 60-minute assessment. During the assessment, Dr. Lee reviewed the applicant’s medical documents including diagnostic imaging results, conducted a physical examination of the applicant and concluded that the applicant sustained minor soft tissue injuries and opined that the applicant has achieved maximal improvement as a result of the accident-related injuries.

31The applicant did not make any reply submissions or point to any medical records to rebut Dr. Lee’s opinion.

32For the above reasons, I am not persuaded that the plan for chiropractic services is reasonable and necessary.

The applicant is not entitled to plans for physiotherapy in the amounts of $1,610.12 and $2,629.85

33I find the applicant is not entitled to any of the plans valued at $1,610.12 or $2,629.85 for physiotherapy as they are not reasonable or necessary.

34The applicant submits that his normal activities and employment have been affected by his ongoing pains and submits Dr. Lee’s IE report dated December 18, 2019, is not credible as it contained errors; and Dr. Shariff Dessouki’s report dated June 30, 2021, to be unreliable as it lacks fulsome consideration of the applicant’s circumstances.

35The respondent submits that both parties’ medical evidence of the applicant prove the applicant’s injuries are minor and relies on the respective reports of Dr. Lee and Dr. Dessouki.

36I find Dr. Lee’s assessment report to be thorough and credible as he conducted an in-person interview and physical examination of the applicant in the presence of an interpreter. I do not find the minor error in the report, as raised by the applicant, that the applicant’s family resides in Nigeria rather than in Canada, would affect Dr. Lee’s assessment and diagnosis. Dr. Lee was assigned the task to assess the applicant’s physical functionality and determine whether the plan in the amount of $1,610.12 for physiotherapy is reasonable and necessary. The applicant did not raise any other issues in Dr. Lee’s report or point to any evidence to discredit Dr. Lee’s opinion.

37I am persuaded by Dr. Dessouki’s report and find that the plan is not reasonable and necessary. Dr. Dessouki also conducted an in-person interview with the applicant in the presence of an interpreter, which lasted 75 minutes. Dr. Dessouki was asked to assess the applicant’s physical functionality and to determine whether the plan in the amount of $2,629.85 for physiotherapy is reasonable and necessary. Dr. Dessouki, in line with Dr. Lee’s finding, opined that “[f]rom a physiological perspective, the soft tissue injuries sustained in the subject accident have long since healed. Mr. Okeugo has reached maximal medical improvement in regards (sic) to his accident-related injuries” and hence the plan is not reasonable and necessary. The applicant did not make any reply submissions to rebut Dr. Dessouki’s findings or point to any medical evidence in support of his claim.

38Given the above reasons and the bulk of the evidence tendered, I find there is a lack of compelling and contemporaneous evidence to support that the proposed plans for physiotherapy are reasonable and necessary.

Interest

39As no benefits are overdue, no interest is payable.

ORDER

40The applicant is not entitled to the plans for physiotherapy and chiropractic services.

41The applicant is not entitled to the plan for a chronic pain assessment.

42As no benefits are overdue, no interest is payable.

43The application is dismissed.