Citation: Al Kafri v. Aviva Insurance Company of Canada, 2024 ONLAT 22-004170/AABS

Licence Appeal Tribunal File Number: 22-004170/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:

Ahmad Al Kafri

Applicant

and

Aviva Insurance Company of Canada*

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Jeremy M. Magence, Counsel

For the Respondent:

Jessica Bacopulos, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Ahmad Al Kafri, the applicant, was involved in an automobile accident on March 4, 2020, 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 of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided in the hearing are:

i. Is the applicant entitled to $3,413.01 for chiropractic services, proposed by Dr. John Balkansky in a treatment plan (“OCF-18”) submitted August 6, 2021?

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

3In his submissions for this written hearing, the applicant confirmed that the issue of non-earner benefits listed in the Case Conference Report and Order dated February 22, 2023 was withdrawn.

RESULT

4I find that the applicant is not entitled to the disputed treatment plan, as he has not met his onus to prove that it is reasonable and necessary. As no benefits are owing, no interest is payable.

ANALYSIS

5To 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.

OCF-18 in the amount of $3,413.01 for chiropractic services is not reasonable and necessary

6The applicant submitted an OCF-18 dated August 5, 2021 in the amount of $3,413.01. The treatment plan proposed chiropractic treatment, acupuncture, massage and physical therapy. The applicant argues that all of the proposed services are reasonable and necessary.

7He submits that the clinical notes and records (“CNRs”) of his family physician Dr. Marrat establish that the subject accident exacerbated his significant pre-existing neck and back impairments and chronic pain. Although he concedes that he suffered from chronic pain pre-accident, the applicant argues that the severity and frequency of his pain reports greatly increased post-accident. He further argues that new impairments developed post-accident, such as radiculopathy down his shoulders and arms, functional impairments in his activities of daily living, and psychological conditions such as panic attacks, PTSD, depression, and anxiety.

8The applicant further submits that the respondent is estopped from raising the issue of causation. He argues that the respondent removed him from the Minor Injury Guideline (“MIG”) only four months after the accident. As such, the applicant submits that the respondent accepted that he suffered from a pre-existing impairment directly exacerbated by the accident and cannot now argue that his current impairments were not caused by the accident.

9The respondent argues that the applicant has not established that the accident caused his current impairments. Rather, it submits that the applicant suffered from chronic low back and neck pain for years prior to the accident, and had previously been treated by an orthopedic surgeon and chronic pain specialist. The respondent further submits that the pain complaints post-accident mirror those in the years leading up to the accident.

10Further, the respondent submits that the treatment proposed in the OCF-18 is not reasonable and necessary. It relies on the s. 44 examination of Dr. Oshidari, physiatrist, who found that the applicant had already received extensive treatment without any long-term benefit, and that further physical treatment was not required.

11With respect to the respondent’s s. 44 assessment, in reply submissions the applicant submits that the report should be given little weight. He argues that it appears that this report was “ghost-written” and submitted a newspaper article which suggests that the assessor’s opinion has been discredited. I am not persuaded by the applicant’s evidence on this point. Dr. Oshidari is a member in good standing with the College of Physicians and Surgeons of Ontario. The article referenced by the applicant offered an opinion by an author who was not available for cross-examination, without any indication of the type of investigation that was undertaken. As such, I decline the applicant’s request to give Dr. Oshidari’s report limited weight.

12With respect to the issue of causation, I am not persuaded by the applicant’s estoppel argument. The applicant has not provided any specific submissions on how the equitable remedy of estoppel is applicable. Nor has he cited or directed me to any case law on the issue of estoppel or discussed how s. 131 of the Insurance Act applies in the present circumstance.

13Further, I do not agree that simply because the respondent has removed the applicant from the MIG, it cannot now argue that the present impairments were not caused by the subject accident. Although the applicant infers that at the time of his removal from the MIG the respondent accepted that he suffered from pre-existing impairments that could not be treated within the MIG, no evidence was provided on the specific reasons or the basis for the applicant’s removal. I do not see anything that prevents the respondent from raising the issue of causation with respect to the specific impairments in dispute.

14However, I do agree with the applicant that the medical evidence establishes that the subject accident exacerbated his pre-existing neck and back impairments and chronic pain for a period of time post-accident. The CNRs of Dr. Marrat show that the applicant’s pain complaints increased significantly in the seven months post-accident. Further I note that the respondent’s s. 44 assessor Dr. Oshidari in his addendum report dated September 9, 2021, stated that “I believe this car accident has exacerbated his pre-existent condition.”

15The applicant submits that since the respondent has already accepted impairment and removal from the MIG, “the burden of proof would be on the Respondent – not the Applicant – to prove that the Applicant has fully recovered…” I disagree. It is well-settled that the onus rests with the applicant not only to lead sufficient evidence to establish that he suffers from accident-related impairments, but that the proposed treatment is reasonable and necessary, see Scarlett v. Belair Insurance, 2015 ONSC 3635. While the applicant has met his onus to prove that the accident exacerbated his pre-existing impairments, I find that he has not met his burden to prove that the OCF-18 in dispute is reasonable and necessary.

16The applicant submits that given the severity of his physical impairments and post-accident psychological diagnosis, it is not unreasonable to expect that he will require ongoing treatment for “the full 5-year term of the policy”. However, to establish the reasonableness and necessity of proposed treatment, it is not sufficient to simply lead evidence of an impairment. Rather, particularly in the case of ongoing treatment, there must be sufficient evidence that the goals of treatment are being met to a reasonable degree and that the overall costs of achieving them are reasonable. I agree with the respondent that the applicant has not provided contemporaneous medical records to show that chiropractic or physical therapy was still being recommended 17 months post-accident.

17The applicant reported that he began physiotherapy soon after the March 4, 2020 accident. The OCF-18 in dispute was submitted on August 6, 2021. The CNRs of Dr. Marrat indicate that in the eight months post-accident, the applicant reported attending at physiotherapy, and it appears that Dr. Marrat continued to recommend such treatment. However, in the nine months prior to the submission of the OCF-18 I do not see such recommendations from Dr. Marrat. Further, although the applicant did attend at a pain clinic, he does not direct me to any report or CNR entry where physiotherapy or chiropractic treatment was still being recommended.

18Further, I agree with the respondent that the applicant has provided insufficient evidence that the treatment goals listed in the OCF-18 were being met, or what improvements had been made in the 17 months of treatment. The treatment goals were listed as pain reduction, increased range of motion, recovery of postural alignment and return to activities of normal living and functional status. The applicant relies in large part on progress notes and reports from his treating chiropractor Dr. Balkansky to establish improvement. However from my review of the reports there is limited evidence of improvement with respect to the stated treatment goals.

19For example, in a February 13, 2021 progress report, it appears that the applicant was reporting the same or decreased range of motion (“ROM”) in the cervical and lumbar spine with pain, although Dr. Balkansky reported that the applicant was responding to treatment and reported that it made his pain “much more manageable”. However, in the subsequent May 14, 2021 report, Dr. Balkansky reported that the applicant suffered from increasing, constant, chronic pain in the range of 7-8 on the pain scale in his neck, back and shoulder. The May 14, 2021 report is the most contemporaneous with the submitted OCF-18. However, it does not show that progress had been made with the ongoing treatment in meeting the stated goals of the plan. No additional treatment records were provided from the treating clinic to establish ongoing improvement in pain reduction, increased ROM, recovery of postural alignment and return to activities of normal living and functional status. Without such evidence, I am unable to assess whether the applicant sustained any benefit from the proposed treatment.

20The applicant argues that since he suffered an increase in psychological symptoms following the respondent’s denial of the OCF-18, it is evidence that he requires such supportive, facility-based treatment. The applicant relies on Dr. Marrat’s CNRs to show that beginning in January 2022 he suffered from panic attacks, depression and anxiety necessitating hospital visits. However, the applicant has not provided any evidence linking these increased psychological impairments to the denial of ongoing chiropractic treatment. Moreover, I have found that the applicant did not provide sufficient evidence to establish that the proposed treatment effectively addresses his pain complaints.

Interest

21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, the applicant is not entitled to interest.

ORDER

22The applicant has not demonstrated that the OCF-18 for chiropractic treatment is reasonable and necessary under s. 15. As no benefits are due, no interest is payable. The application is dismissed.