Shaikh v. Security National Insurance Company, 2024 CanLII 38454

Citation: Shaikh v. Security National Insurance Company, 2024 ONLAT 22-000724/AABS

Licence Appeal Tribunal File Number: 22-000724/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:

Nadia Shaikh

Applicant

And

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR: Andrea Reid

APPEARANCES:

For the Applicant: Lisa Bishop, Counsel

For the Respondent: Michael Kennedy, Counsel

Written Hearing: Heard by way of written submissions

OVERVIEW

1Nadia Shaikh, the applicant, was involved in an automobile accident on September 28, 2016, 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 $2,200.00 for an In-Home Occupational Therapy Assessment proposed by Deena Rogozinsky in treatment plan dated June 30, 2020?

ii. Is the applicant entitled to interest on any overdue payment of benefits?

iii. 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?

RESULT

3The applicant is not entitled to an In-Home Occupational Therapy Assessment.

4The applicant is not entitled to interest or an award.

5The application is dismissed.

ANALYSIS

The applicant is statute-barred under section 55(1)(2).

6I find that the applicant is statute-barred from proceeding with this appeal under s. 55(1)(2).

7The respondent submits the applicant is statute barred from proceeding with this appeal under s. 55(1)(2). The respondent points to the applicant’s non-attendance at requested insurer examinations without reasonable explanation. The applicant did not comment on this issue in their submissions.

8To determine whether the subject assessment is reasonable and necessary, on July 13, 2020, the respondent advised the applicant they would schedule a s. 44 insurer’s examination pursuant to section 38(10) of the Schedule. Section 44 of the Schedule allows the insurer to determine entitlement to a benefit by requiring the insured person to be examined by regulated health professionals and provide notice of the insured person’s attendance. The respondent highlights that “should the insured person not comply with that notice, section 55(1)(2) bars the insured person from applying to the Licence Appeal Tribunal for adjudication related to that benefit.”

9The insurer’s examination was scheduled for September 9, 2020 and the applicant was notified in a letter dated July 20, 2020. The applicant did not attend the examination and no reasonable explanation was provided. The respondent sent two subsequent letters to the applicant requesting assistance in rescheduling the examination and to advise of a rescheduled date for October 27, 2020. The applicant did not attend the rescheduled exam and was advised by the respondent via letter on November 4, 2020 this constituted non-compliance.

10Based on the applicant’s non-attendance at the requested insurer examinations, I agree with the respondent that the applicant is statute-barred from proceeding with this appeal under s. 55(1)(2). This is grounds to dismiss the application. However, in fairness to the applicant I will consider whether the proposed treatment plan is reasonable and necessary anyway.

The subject assessement is not reasonable or necessary.

11I find that the applicant has not met her burden of proof in demonstrating that the In-Home Occupational Therapy Assessment is reasonable and necessary.

12To receive payment for a treatment and assessment plan under s. 15 and s. 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 achieve them as reasonable.

13The applicant submits that an In-Home Occupational Therapy Assessment dated June 30, 2020 was submitted to the respondent by Deena Rogozinsky and denied July 13, 2020. A previous In-Home Occupational Therapy Assessment was approved by the respondent on July 28, 2017. The applicant submits that the proposed re-assessment is reasonable and necessary in order to determine her current level of functioning. To support this, the applicant relies on the findings of a psychological assessment report from 2018 authored by occupational therapist, Lani Legaspi. The applicant also relies on reports from neurologists, Dr. Rathbone and Dr. Naeem as well as clinical notes from family physician, Dr. Qazi.

14The respondent submits that the list of ongoing injuries and complaints included in the subject assessment are inconsistent with the respondent’s understanding of the physical injuries documented by medical evidence on file to date. The respondent relies primarily on the findings of Dr. Mohamed Khaled. The respondent further submits that the subject assessment is a duplication of services of the previously approved In-Home Occupational Therapy Assessment from 2017.

15The applicant argues the proposed assessment is reasonable and necessary in order to determine her functional abilities related to ongoing psychological conditions and chronic pain arising from the subject accident. Further, she submits that the previous in-home occupational therapy assessment was conducted three years prior and is insufficient to determine the applicant’s current abilities. The applicant submits that the medical evidence concludes the applicant suffers psychological impairments resulting from the subject motor vehicle accident. The respondent also does not refute this evidence or findings but submits that given the previously approved assessment, the subject assessment is a duplication of services.

16Throughout her submissions, the applicant attributes her “ongoing symptoms” as the need for the requested assessment. While the applicant submits this includes psychological impairments, the bulk of the applicant’s submissions and medical evidence highlight physical restrictions as the main reason for affecting the applicant’s ability to engage in activities of everyday living. These include physical symptoms stemming from her shoulder, neck and extremities as well as headaches. As noted by Dr. Naeem on September 9, 2019 “pain appears to be the predominant symptom and limiting her sleep and daily activities.”

17I am not persuaded by the medical evidence put forward by the applicant that a re-assessment based on psychological impairments from the subject accident is reasonable and necessary. The respondent approved an In-Home Occupational Therapy Assessment in 2017 and psychological services were approved in March 2018. I agree with the respondent that, in terms of psychological impairments, the assessment is a duplication of services.

18The subject assessment delivered on June 30, 2020 included a lengthy list of ongoing injuries and complaints, predominantly physical in nature. However, by 2018, the only remaining injury for which the applicant was receiving treatment was psychological in nature. At that time, the medical records do not include complaints of any physical injuries from the applicant arising from the accident. Further, submissions from both parties note that the applicant suffered a fall at home on November 22, 2018, which the applicant attributes to causing pain and numbness in her extremities. However, it is unclear from the medical evidence of neurologist, Dr. Naeem and family physician, Dr. Qazi, if the recurrence of the applicant’s physical symptoms where a direct result from the fall or from the subject accident.

19For these reasons, I find the In-Home Occupational Therapy Assessment is not reasonable or necessary.

Interest

20No interest is payable as there are no outstanding benefits pursuant to s. 51 of the Schedule.

Award

21The 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.

22Since I find that there are no benefits payable to the applicant, the respondent cannot be found to have unreasonably withheld or delayed payment. As a result, an award is not warranted in the circumstances.

ORDER

23I find the following:

i. The applicant is not entitled to an In-Home Occupational Therapy Assessment.

ii. The applicant is not entitled to interest as there is no overdue payment of benefits.

iii. The applicant is not entitled to an award.