Licence Appeal Tribunal File Number: 22-001467/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:

Simeon Somasundaram

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Anita Sol-Edeigba

APPEARANCES:

For the Applicant: Simeon Somasundaram, Applicant Shahzad Ayub, Counsel

For the Respondent: Aviva General Insurance, Adjuster Kristofer B Angle, Representative

Written Hearing: Heard by way of written submissions

OVERVIEW

1Simeon Somasundaram, the applicant, was involved in an automobile accident on May 4, 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 General Insurance and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The issues to be decided in the hearing are:

i. Is the applicant entitled to $3,447.50 for chiropractic services, proposed by Aqua Wellness in a treatment plan/OCF-18 (“plan”) that was denied on April 7, 2020?

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

RESULT

3I find that the applicant is not entitled to the medical rehabilitation treatment plan, nor interest.

PROCEDURAL ISSUES

Page limit of respondent ‘s submissions

4The respondent’s submissions are 14 - pages as opposed to 10 pages as indicated in the Case Conference Report Order (CCRO) dated November 29, 2022, that set this matter down for a written hearing. The applicant states that this has caused incurable prejudice to the applicant.

5I agree with the applicant that the respondent was not compliant with the page limit set out in the CCRO. However, if the style of cause page and the index page are removed, there are 12 pages left in the respondent’s submissions. I do not find this would bring incurable prejudice to the applicant.

6I have considered the entire respondent’s submissions.

Applicant’s Missing OCF-18 Form

7The respondent raises concern about the applicant’s initial submission, particularly the absence of the OCF-18 forms for the disputed treatment plan and failure to address the reasonableness and the necessity of those plans. The respondent argues that the applicant should be prevented from submitting this evidence in his reply submissions, as this would be admitting new evidence, which should have been submitted in the initial submission.

8In their reply submissions, the applicant contends that proving the reasonableness and necessity of the disputed plans is unnecessary, as all denial notices and notices of examination were deficient according to s.38(11) and s.44(5) of the Schedule. It is pertinent to note that in the reply, the applicant has now included the previously missing OCF-18 and provided some argument regarding its reasonableness.

9The respondent indicated that the applicant should be precluded from leading medical evidence or the disputed OCF-18 in reply, and states that the applicant must adduce all evidence upon which he intends to rely on in the first instance, The respondent submits further that the applicant should be precluded from adducing any new evidence in reply which reasonably could have been included with his initial submissions.

10I find it appropriate to admit the applicant’s missing OCF-18 in its reply for several reasons. Firstly, the treatment plans in question form a crucial aspect of the applicant’s claim, and not allowing the applicant to rely on them would undermine his ability to present his case effectively before the Tribunal. Denying the admission of these documents could result in prejudice to the applicant.

11Secondly, while the respondent argues that the evidence should have been included in the initial submissions, the Tribunal has the discretion to consider evidence presented at any stage of the proceedings, particularly when it serves the interests of fairness and ensures a thorough consideration of the case.

12Furthermore, considering that the missing OCF-18 was ultimately provided by the applicant, albeit in the reply submissions, and that they were originally part of the applicants claim, and were already in the respondent’s possession they cannot be considered entirely new evidence. Lastly, it is essential to uphold the principal of fairness in adjudicating the matter. Allowing the applicant to include these documents and arguments ensures that both parties have a full opportunity to present their case and address any issues raised during the proceedings and the Tribunal has the benefit of fully informed adjudication.

ANALYSIs

The applicant has not established entitlement to the OCF-18 for chiropractic treatment.

13To 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.

14An applicant may also establish entitlement to payment of a treatment plan, by showing that the respondent failed to comply with the notice requirements in s. 38(8) or s. 44(5) of the Schedule, and that the goods and services were incurred during the period of non-compliance.

15The applicant argues that all of the treatment plans in dispute are payable, as the respondent did not comply with its statutory notice requirements.

16The applicant submitted an OCF-18 for 10 sessions of different treatments being proposed by both a chiro and a massage therapist totalling $3,447.50. The applicant argues that he is entitled to the treatment plan in dispute, as the insurer failed to comply with its obligation to provide proper notice and medical reasons under s. 38(8). The respondent contends that both of its explanation of benefits (“EOB”) were provided to the applicant ten business days after the OCF-18 was submitted (February 15, 2019 and February 26, 2019) and are therefore in compliance with s. 38(8) and s. 44(5) of the Schedule. The respondent further submits that the applicant has not provided any evidence or submissions that the treatment plan was incurred. I find the treatment plan is not reasonable and unnecessary.

17In addition, I find that the respondent’s notices dated February 15 and 26, 2019 complied with s. 38(8) and s. 44(5) of the Schedule.

18The EOB dated February 26, 2019, requests the applicant’s attendance at an insurer’s examination (“IE”). The medical reason provided for the IE, was that there appeared to be pre-existing or concurrent medical conditions that could affect the applicant’s care and treatment. I find that these reasons effectively communicate the respondent’s reasons for requesting the IE. In his own submissions, the applicant makes the argument that his pre-existing symptoms were exacerbated by the accident. The reasons provided for the requested IE, include the reference to pre-existing conditions. I find that the notice is clear and sufficient enough for the applicant to make an informed decision about whether to attend the IE.

19In addition, I agree with the respondent that even if the February 15, 2019 notice was non-compliant, the notice dated February, 26 2019 would have cured any previous deficiency. This correspondence enclosed the multidisciplinary IE assessment and stated the findings of the applicable assessors. A clear medical reason is provided, namely, that the assessor has determined that the applicant sustained ‘’uncomplicated soft tissue injuries’’ to his neck, upper back, lower back, right wrist, left shoulder, back and right wrist and left knee. I note that the applicant did not provide any submissions as to how the letters did not comply with s. 38(8) of the Schedule, nor has the applicant provided any submissions or evidence as to whether the treatment plan was incurred during the period of alleged non-compliance.

20Therefore, I find that the respondent’s denial of benefits is valid and that, in order to establish entitlement to the disputed benefit, the applicant must establish that the recommended treatment is reasonable and necessary.

21I find that the applicant has failed to demonstrate that the proposed treatment is reasonable and necessary.

22The only evidence provided by the applicant as to the reasonableness and necessity of the chiropractic treatment, is the OCF-18 itself, which is authored by chiropractor Dr. Roy Priesnitz of Aqua Wellness Centre.

23When comparing the respondent’s IE assessments to the OCF-18 of Dr Roy Priesnitz. I prefer the IE assessments of Dr. Weisleder. The respondent’s IE assessors reviewed the applicant’s medical file, including diagnostic imaging and the clinical notes and records of the family physician. In contrast, Dr. Roy Prietzner, had no progress note and the orthopaedic IE assessment conducted by Dr. Louis Weisleder, found that the applicant sustained only uncomplicated soft tissue injuries and had reached maximum medical improvement. Dr. Weisleder noted the applicant’s pre-existing history of impairments of sinusitis and scoliosis surgery were not injuries that will prevent him from achieving maximal medical recovery from the minor injury guideline. Dr. Weisleder concluded that the applicant had already been appropriately assessed and treated for the accident-related injuries.

24Given the applicant’s extensive pre-accident medical history, I find it persuasive that the respondent’s IE assessors considered this medical information when rendering their opinion and that Dr Prietzner did not. I find that the applicant has failed to demonstrate that the proposed treatment is reasonable and necessary. The only evidence provided by the applicant as to the reasonableness and necessity of the medical rehabilitation treatment, is the OCF-18 itself. It is pertinent to note that during the assessment, the applicant reported being involved in a subsequent accident on January 31, 2019, in which he reported sustaining similar injuries as he did in the subject accident. After reviewing relevant medical evidence by Dr. Louis Weisleder dated January 31, 2019, he described the applicant’s ongoing symptoms and indicates that they were the same as the previous upon his observations. I accept Dr Weisleder’s evidence that the applicant has been assessed and treated for injuries sustained in the accident.

25For these reasons, I find that the applicant has not led sufficient evidence to establish that he is entitled to the disputed treatment.

Interest

26Since no benefits are payable the applicant is not entitled to interest in accordance with s. 51 of the Schedule.

ORDER

27For the reasons outlined above, I order that:

i. The applicant is not entitled to the OCF-18s in dispute for chiropractic treatment nor interest.