Afkham-Rezai v. Security National Insurance Company, 2024 CanLII 15902
Licence Appeal Tribunal File Number: 22-003201/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:
Behzad Afkham-Rezai
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Hande Bilhan
APPEARANCES:
For the Applicant:
Behzad Afkham-Rezai, Applicant
Tara L Lemke, Counsel
For the Respondent:
Security National Insurance Company, Respondent
Colin Birch, Counsel
HEARD:
In Writing
OVERVIEW
1Behzad Afkham-Rezai, the applicant, was involved in an automobile accident on October 6, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Security National 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 $10,161.36 for goods and services proposed by Triona O’Sullivan, Occupational Therapist, FunctionAbility, in a treatment plan/OCF-18 (“plan”) dated November 8, 2021?
ii. 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?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the treatment plan in dispute.
4The applicant is not entitled to an award for unreasonably withheld or delayed payment of benefits.
5As none of the benefits in dispute are owing, the applicant is not entitled to interest.
ANALYSIS
Medical and Rehabilitation Benefits in the amount of $10,161.36
6I find that the applicant is not entitled to the benefits in dispute as they are not reasonable and necessary.
7Under s. 15(1) of the Statutory Accident Benefits Schedule, Ontario Regulation 34/10 (“the Schedule”), medical benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for, (h) other goods and services of a medical nature that the insurer agrees are essential for the treatment of the insured person.
8Based on the in-home assessment by Deanne Evans, occupational therapist (OT), conducted on February 7, 2022, and, the recommendations of Dr. Smith, chronic pain specialist, on June 28, 2020, I do not find that the disputed treatment plan is reasonable or necessary.
9The applicant submits that the applicant suffers from chronic pain that requires treatment beyond the Minor Injury Guideline (“MIG”) limits. The applicant in part relies on the medical reports of Dr. Acharya, physiatrist, who provided a Physiatry Assessment on April 11, 2016, where he found that the applicant suffered “diffuse and chronic supportive tissue origin pain involving the cervical, thoracic and lumbar spine as well as all four extremities as well and ongoing significant psychosocial distress”.
10The applicant further relies on the report of Dr. Smith, a chronic pain specialist, who provided an independent pain medicine assessment on June 28, 2020, and diagnosed the applicant with a chronic pain syndrome.
11The applicant requests the payment of an OCF-18 dated November 8, 2021 proposed by Triona O’Sullivan, Occupational Therapist, consisting of the following goods and services:
i. Completion of claim form ($200.00)
ii. Adjustable bed frame ($2,241.00)
iii. Mattress ($1,422.00)
iv. Massage Chair ($4,743.00)
v. Moving Costs ($1,214.75)
vi. Office Chair price difference ($78.99)
12The respondent submits that the applicant’s entitlement to medical benefits for physical injuries falls within the MIG limits, even though he had been approved for treatment outside of the MIG with respect to his psychological impairments. The respondent argues that the MIG limits apply separately for psychological services and physical supports such as assistive devices.
13The respondent cites Tribunal decisions of RK v. Unifund and Applicant v. Aviva Insurance Company which in part found that even when an applicant was removed from the MIG due to a psychological diagnosis, the physical injuries were still found to be minor and were not found to require treatment beyond the MIG limits.
14The respondent further submits that the proposed treatment plan is not reasonable or necessary based on the in-home assessment by Deanne Evans, occupational therapist, conducted on February 7, 2022.
15I find that s. 18 of the Schedule does not differentiate between the reasons as to why someone was removed from the MIG. As a result, once an insured is removed from the MIG, the $3,500.00 MIG limit cannot continue to be used as a ground for denying medical benefits. Therefore, the appropriate test to be applied in this case, is whether the proposed treatment plan is reasonable and necessary.
16The onus of proof rests with the applicant. The applicant must prove on a balance of probabilities that he is entitled to the benefits claimed under the Schedule.
17While I accept that the applicant suffers from pain, I find that he has not demonstrated on a balance of probabilities that the disputed treatments are reasonable and necessary as a result of the accident, and essential for the treatment of the insured person. Section 15(1) of the Schedule states that medical benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for, (h) other goods and services of a medical nature that the insurer agrees are essential for the treatment of the insured person.
18I find that the requested adjustable bed frame and mattress are not reasonable or necessary as the applicant already has a split bed that was deemed to be in good condition. It is also unclear how a new bed with additional functionalities would help with the applicant’s sleep problems which were outlined in the OCF-18 as a result of “PTSD and vivid flashbacks at night that result in frequent turning and hot flashes”.
19Similarly, I find the request for a massage chair not to be reasonable and necessary as the applicant and his wife already have a massage chair in their home that is situated in the applicant’s home office.
20It is noted in the in-home assessment by Deanne Evans, OT, that the applicant has a large office chair that fits the claimant ergonomically. I am not convinced that a new chair is reasonable and necessary.
21I further note that Dr. Smith’s recommendations for managing the applicant’s pain included investigations through x-ray, multimodal analgesia, swimming and a supervised exercise program, referral to an interventional pain clinic, periodic physical therapy, referral to a formal self-management program for chronic pain, psychological re-assessment, and referral to a multidisciplinary pain management program. Despite the comprehensive set of recommendations, no mention was made of assistive devices or equipment to manage the applicant’s accident-related injuries.
22Regarding the cost of moving services, as the move was not related to the accident, I do not find the respondent liable to cover the cost of moving services.
Interest
23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, I do not order interest.
Award
24As there is no outstanding payment, the respondent cannot be found liable to pay an award under s. 10 of O. Reg. 664.
ORDER
25For the reasons set out above, I find that:
i. The Applicant is not entitled to the benefits in dispute;
ii. The applicant is not entitled to interest; and,
iii. The applicant is not entitled to an award.
Released: February 28, 2024
Hande Bilhan
Adjudicator