Licence Appeal Tribunal File Number: 21-007997/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:
Tabassum Karamat
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Lisa Yong
APPEARANCES:
For the Applicant:
Nikolai Singh, Paralegal
For the Respondent:
Nicholas Maida, Counsel
Heard:
By way of written submissions
OVERVIEW
1Tabassum Karamat, the applicant, was involved in an automobile accident on June 18, 2018, 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 Canada, 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 $1,384.70 for chiropractic services proposed by Mackenzie Medical Rehabilitation Centre (“Mackenzie”) in a treatment plan/OCF-18 (“plan”) dated November 23, 2019?
ii. Is the applicant entitled to $1,620.65 for physical treatment proposed by Mackenzie in a plan dated August 27, 2021?
iii. Is the applicant entitled to $2,655.50 for a chronic pain assessment proposed by Medex Assessments in a plan dated November 23, 2019?
iv. Is the applicant entitled to $1,417.70 for physical treatment proposed by Mackenzie in a plan dated December 28, 2021?
v. Is the applicant entitled to $12,904.59 for chronic pain treatment proposed by Downsview Health Care in a plan dated December 28, 2021?
vi. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to payment of any of the disputed plans.
4As no benefits are owing, unreasonably withheld or delayed, no interest and no award are payable.
ANALYSIS
The applicant is not entitled to payment of $1,620.65 for physical treatment and $2,655.50 for a chronic pain assessment
5The applicant has not met his burden to prove his entitlement to the plans for physical treatment and chronic pain assessment.
6To 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.
7The applicant did not provide copies of the OCF-18s for the subject plans despite the Tribunal’s request on November 1, 2023. Instead, he submitted a copy of the respondent’s denial letter dated March 25, 2022, relating to the plan for physical treatment, but there were no OCF-18s attached to this letter. The applicant also submitted another document which was unrelated to the applicant or this case. These documents were not the OCF-18s requested.
8In submissions, the applicant provided a summary of the accident and made some references to the clinical notes and records (“CNR”) from his former family doctor, Dr. Betty Choi-Fung, and current family doctor, Dr. Larab Ahmed, and a chronic pain assessment report by Dr. Grigory Karmy dated October 3, 2021. He did not provide specific submissions with respect to any of the disputed plans or identify the goals of treatment or how the goals would be met to a reasonable degree and failed to address how the overall costs of achieving them are reasonable.
9The respondent submits that the applicant has not met his onus to prove that the disputed plans are reasonable and necessary and cites the case of 18-001272 v Aviva Insurance Canada, 2019 CanLII 22218 (“18-001272”), submitting that the applicant did not provide copies of some of the OCF-18s in its submissions which makes it impossible for the Tribunal to assess whether they are reasonable and necessary against the treatment goals with any previous treatments and diagnoses. It relies on the s. 44 insurer examination reports (“IE”) by Dr. Michael Ko, MD, Dr. Jacqueline Auguste, orthopedic surgeon, Dr. Louis Weisleder.
10I agree with the respondent that, similar to 18-001272, in the absence of the OCF-18s, it is impossible for the Tribunal to assess whether the disputed plans are reasonable and necessary, and to assess the goals of the plans with any diagnoses by the applicant’s treating physicians.
11Nevertheless, I am not persuaded by the applicant’s medical evidence that he requires further physical treatment and a chronic pain assessment for the following reasons:
i. The hospital records from the day of the accident only noted a diagnosis of “contusions shoulder”. The CNR dated May 15, 2019, by Dr. Betty Choi-Fung, family physician, did not provide a diagnosis or recommend any physical treatment or physiotherapy despite noting the applicant’s complaints of pain to his “right knee, left shoulder, left jaw, left side of head pain, bruise of left wrist and left temporal (sic)”;
ii. An x-ray imaging of the applicant’s left shoulder, dated June 25, 2018, confirmed that it was normal with no fractures. An ultrasound of the left shoulder, dated June 17, 2018, revealed a small partial thickness tear of the supraspinatus tendon, but in the CNR dated August 13, 2018, the applicant reported to Dr. Choi-Fung that he was “better in (sic) shoulder”. Again, Dr. Choi-Fung did not recommend physiotherapy or provide a referral for chronic pain assessment;
iii. The applicant asserts that his right shoulder pain was exacerbated by the accident and refers to a consultation letter dated August 9, 2019, by Dr. G. Yee, orthopedic surgeon. However, the applicant did not provide the correct reference to his brief and hence I was unable to review this consultation letter in detail; and
iv. There is limited contemporaneous and compelling medical evidence showing the need for physical treatment and a chronic pain assessment.
12For the above reasons, I find the applicant has not met the onus to prove that the subject treatment plans are reasonable and necessary.
The applicant is not entitled to $1,384.70 for chiropractic services and $1,417.70 for chiropractic and massage therapy
13The applicant is not entitled the disputed plans for chiropractic services and chiropractic and massage therapy.
14As mentioned, the applicant did not make specific submissions addressing each of the subject disputed plans, including addressing the goals of the plans, how the goals would be met and the cost of achieving the goals. The applicant did not provide any specific references to his medical evidence in support that the plans are reasonable and necessary.
15The applicant referred to the CNRs by Dr. Prevez Ali, orthopedic surgeon, submitting that Dr. Ali recommended physiotherapy and a custom knee brace with the potential of left knee arthroscopic surgery if physiotherapy does not help.
16The respondent relies on its IE reports by Dr. Jacqueline Auguste, orthopedic surgeon, dated January 29, 2020, and September 26, 2022, and by Dr. Michael Ko, MD, dated February 10, 2022, whom both opined that the subject plans were not reasonable and necessary.
17I place more weight on Dr. Auguste’s report dated January 29, 2020, and subsequent addendum report dated September 26, 2022, based on her physical examination and review of an extensive list of medical documentation, including a review of Dr. Ali’s CNRs. She noted that the applicant demonstrated full ranges of motion in his head, neck, shoulder on both sides, lumbar spine and both knees. She addressed the applicant’s complaints, including a detailed explanation for why she believes that the applicant’s right knee medial meniscus tear does not appear to be caused by a dashboard injury during the accident. Dr. Auguste concluded that she found “no substantial musculoligamentous, osseous or neurologic impairment” from her examination and opined that the proposed chiropractic services in the plan was not reasonable and necessary.
18I also place more weight on the IE report dated February 10, 2022, as Dr. Ko was specifically asked to assess whether the plan for chiropractic and massage therapy was reasonable and necessary. During the physical examination, the applicant also demonstrated active ranges of motion in his cervical spine, lumbar spine, shoulders, passive ranges of motion of bilateral hips, bilateral knees, bilateral elbows and was negative in impingement tests. Dr. Ko diagnosed the applicant with sprain/strain injury of the right shoulder blade; sprain/strain injury of the cervical and lumbar spine; and sprain/strain of the bilateral knees and left elbow and opined that the plan proposing chiropractic and massage therapy is not reasonable and necessary as there is no clinical evidence of a structural musculoskeletal injury or nerve impingement.
19The applicant did not offer any further evidence or reply submissions to rebut the IE reports.
20Given the above reasons, I find the subject plans to not be reasonable and necessary.
The applicant is not entitled to payment of $12,904.59 for chronic pain treatment
21The applicant is not entitled to the plan for chronic pain treatment as it is not reasonable and necessary.
22Similar to my earlier comments, the applicant did not make specific submissions addressing the plan for chronic pain treatment but submits that he suffers from chronic headaches, post-concussive symptomatology and psychological problems and relies on a chronic pain assessment report by Dr. Karmy dated October 3, 2021.
23The respondent relies on its IE report dated March 24, 2022, and an Addendum report dated September 26, 2022, by Dr. Ko, who opined that the applicant sustained sprain and strain type injuries to his right shoulder blade, cervical spine, lumbar spine, bilateral knees and left elbow, and the subject plan is not reasonable and necessary.
24The applicant must direct the Tribunal to the relevant evidence in support of his case and explain why the subject plan is reasonable and necessary. The applicant cannot submit evidence and leave it up to the Tribunal to connect the dots and make his case.
25I am not persuaded by the applicant’s submissions of post-concussive and psychological symptoms as they are not supported by compelling and contemporaneous medical evidence.
26I prefer the evidence of the respondent over the applicant because Dr. Karmy’s chronic pain syndrome diagnosis is not in line with the rest of the medical evidence. For example, Dr. Karmy noted the applicant’s symptoms of headaches, sleep disturbances, anxiety, and mood problems, and opined that the applicant sustained a concussion as a result of the accident. However, none of the hospital records from the day of the accident and CNRs from the family doctors provided such a diagnosis or findings.
27The applicant submits that Dr. Ko did not factor in the medical evidence from the applicant’s family physician and that Dr. Ko did not administer proper testing. However, having completed three assessment reports on the applicant, of which two were in-person assessments, I find Dr. Ko’s reports to be thorough and fulsome.
28In each report, Dr. Ko provided an appendix listing numerous medical documents he reviewed, including the family physician’s CNRs. Dr. Ko conducted various tests on the applicant during each physical examination and concluded that he sustained “sprain/strain” type injuries, he has reached maximum medical improvement and that the subject plan for chronic pain treatment is not reasonable and necessary. In his Addendum report dated September 26, 2022, Dr. Ko again opined that the applicant “has had therapy for more than three years at this point and he continues to be symptomatic.” The applicant has not provided compelling evidence to rebut Dr. Ko’s conclusion.
29For the above reasons, the applicant is not entitled to the plan for chronic pain treatment as it is not reasonable and necessary.
Interest
30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, no interest is payable.
Award
31The 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.
32The applicant made no submissions and did not lead any evidence on the issue of an award. Notwithstanding the above, as no benefits are owed, the respondent cannot be found to have unreasonably withheld or delayed any payment of benefits. No award is payable pursuant to s. 10 of Reg. 644.
ORDER
33The applicant is not entitled to payment of the disputed plans as they are not reasonable and necessary.
34As no benefits are owing, unreasonably withheld or delayed, no interest and no award are payable.
35The application is dismissed.
Released: February 28, 2024
__________________________
Lisa Yong
Adjudicator