Citation: Wancho v. Security National Insurance Company, 2024 ONLAT 22-004046/AABS

Licence Appeal Tribunal File Number: 22-004046/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:

Arsalan Wancho

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR: Teresa Walsh

APPEARANCES:

For the Applicant: Rizwan Wancho, Paralegal

For the Respondent: Karen Klaiman, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Arsalan Wancho, the applicant, was injured in an automobile accident on February 14, 2020. The applicant sought medical benefits from the respondent, Security National Insurance Company, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The respondent denied the benefits in dispute on the basis that they were not reasonable and necessary. The applicant disagreed and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

3Following a February 8, 2023 case conference in this matter, three disputed claims for physiotherapy treatment benefits and a disputed ambulance service expense were resolved by the parties. Accordingly, this decision deals with the remaining issues in dispute.

ISSUES

4The remaining issues in dispute are:

i. Is the applicant entitled to $2,200.00 for a neurological assessment, proposed by Jerome Wong of Whitby Physiotherapy and Rehab Clinic in a treatment plan/OCF-18 (“treatment plan”) submitted May 25, 2021 and denied June 7, 2021?

ii. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Jerome Wong of Whitby Physiotherapy and Rehab Clinic in a treatment plan submitted June 1, 2021 and denied June 7, 2021?

iii. Is the applicant entitled to $2,200.00 for a physiatry assessment, proposed by Jerome Wong of Whitby Physiotherapy and Rehab Clinic in a treatment plan submitted June 7, 2021 and denied June 15, 2021?

iv. 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?

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

RESULT

5The applicant has not established that the three disputed assessments are reasonable and necessary. As there are no payments owing for the treatment plans proposing the assessments, no interest is payable.

6The respondent is not liable to pay an award under O. Reg. 664 to the applicant.

ANALYSIS

Applicant must establish the assessments are reasonable and necessary

7In order to receive payment for a treatment and assessment plan under ss. 15 and 16 of the Schedule, the applicant bears the burden of establishing on a balance of probabilities that the benefit is reasonable and necessary. To do so, the applicant should identify the goals of the treatment or assessment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

8For the reasons that follow, I find that the applicant has failed to meet his burden to establish that the three disputed assessments are reasonable and necessary.

The neurological assessment is not reasonable and necessary

9I find that the applicant has not demonstrated that the neurological assessment is reasonable and necessary.

10The treatment plan proposing the neurological assessment is not included in the applicant’s hearing materials. In support of his submission that a neurological assessment is reasonable and necessary, the applicant relies on the OCF-3 (disability certificate) dated February 26, 2020, prepared by F. Ahmed, a chiropractor at Mississauga Active Therapy. This disability certificate describes neck pain, sprains and strains of the spine and hip ligaments, tension type headache, post-concussion syndrome and other anxiety disorders directly resulting from the accident. The applicant further relies on the January 23, 2021 disability certificate prepared by A. Mukhi, a physiotherapist at Whitby Physiotherapy and Rehab Clinic, referencing neck and back strains and sprains, headache and “other migraine” directly resulting from the accident.

11The applicant also relies on medical records provided, covering the period June 2, 2021 to April 25, 2022, which reference ongoing complaints by the applicant to treatment providers of: “cluster headaches” of several days’ duration, “chronic headaches since [the accident]”, “sensitivity to sound and light” and limited headache relief from prescribed medication. Two consultation letters from neurologist Dr. B.K. Temple, dated June 2, 2021 and September 20, 2021, are included in the medical records. Both letters indicate evaluations of the applicant by telephone. While Dr. Temple does refer to the applicant’s ongoing headaches, he recommends treatment by way of continuing medication, physiotherapy and massage.

12In none of the foregoing disability certificates and medical records relied on by the applicant is there a recommendation that the applicant undergo a neurological assessment in connection with his post-accident complaints of ongoing neck and back pain and headaches.

13The respondent relies on the s. 44 report of neurologist Dr. N. Yahmad dated November 30, 2022, and obtained in response to the disputed treatment plan proposing a neurological assessment. Dr. Yahmad met with the applicant in person. He obtained a history and conducted a neurological examination. Appended to Dr. Yahmad’s report is a list of documents he reviewed in connection with his assessment, including treatment plans, medical records and other s. 44 assessment reports for the applicant. In his report, Dr. Yahmad notes that in the accident, the applicant did not hit his head or face on the interior of the vehicle, nor did he lose consciousness. Further, Dr. Yahmad notes the applicant’s pre-accident history of migraine headaches.

14Dr. Yahmad’s report also contains details of the physical neurological assessment he carried out on the applicant. He notes that the applicant had tenderness in the cervical spine region, normal range of motion with no stiffness in his shoulders and tenderness in his back. No abnormal findings are noted by Dr. Yahmad on cranial nerve, motor, sensory and coordination examinations.

15Dr. Yahmad finds that, as a result of the accident, the applicant experienced an exacerbation of his pre-accident migraine headaches. In Dr. Yahmad’s view, the exacerbation of the applicant’s headaches is related to: “soft tissue injuries, not neurologic in nature, and not associated with any neurological disability or impairments.” Further, Dr. Yahmad finds that the applicant’s headaches have features of “cervicogenic headaches that are musculoskeletal in nature, and they are not neurological in nature, and are not associated with any neurological disability or impairments.” Dr. Yahmad adds that the physical neurological examination demonstrated no hard, objective evidence or neurological symptoms or conditions. On the basis of the foregoing findings, Dr. Yahmad concludes that the proposed neurological assessment is not reasonable and necessary.

16There is a consensus in the medical records and reports produced by the parties that the applicant’s pre-accident headaches worsened as a result of the accident. There is also evidence that the applicant has ongoing neck and back pain as a result of the accident. However, the applicant has failed to demonstrate on a balance of probabilities that a neurological assessment is reasonable and necessary in relation to his accident-related injuries. Neither the applicant’s treating neurologist (Dr. Temple) nor the s. 44 neurology assessor (Dr. Yahmad), recommend the neurological assessment as being reasonable and necessary.

17Based on the totality of the evidence, I find that the applicant has failed to demonstrate that the neurological assessment is reasonable and necessary.

The chronic pain assessment is not reasonable and necessary

18I find that the applicant has not demonstrated that the chronic pain assessment is reasonable and necessary.

19There is no treatment plan proposing the chronic pain assessment in the applicant’s hearing materials. The applicant submits that a chronic pain assessment is reasonable and necessary based in part on the disability certificates dated February 26, 2020 and January 23, 2021 summarized above. The applicant further relies on the medical records described above, which detail the applicant’s ongoing post-accident complaints of neck pain and headaches. The September 20, 2021 consultation letter of the applicant’s treating neurologist Dr. Bell suggests that if the applicant’s neck pain and headaches do not improve with physiotherapy and massage, “he could be referred to a chronic pain clinic to consider nerve blocks in the cervical spine and in the scalp …”

20Of note, the applicant fails to explain why his hearing materials do not contain any objective medical information pre-dating the accident, or for the 17 months following the accident. Pre-accident medical records for the applicant were obtained, as they are referred to by the respondent’s s. 44 assessors in their reports. The missing medical information could have assisted in showing to what extent the applicant sought treatment for neck pain, back pain and headaches prior to and in the months following the accident.

21The applicant relies on the s. 25 chronic pain assessment report prepared by Dr. Paul Perlon, dated July 5, 2021, in support of his submission that the assessment is reasonable and necessary. Dr. Perlon practices emergency and chronic pain medicine.

22In his report, Dr. Perlon concludes that the applicant: “… certainty suffers from chronic pain and is unlikely to improve. This diagnosis is related to the motor vehicle accident …” Dr. Perlon finds that the applicant would benefit from assessment at a multidisciplinary chronic pain management clinic, and that he may also benefit from other treatments, including nerve blocks and/or infusion therapy with medication. He notes that the applicant is awaiting an assessment at a Cannabis clinic, which treatment may provide some benefit.

23I afford limited weight to the s. 25 chronic pain assessment report prepared by Dr. Perlon for the following reasons:

i. Although other assessments of the applicant in 2021 were conducted in-person, Dr. Perlon states in his report that he was unable to assess the applicant in person, due to COVID. Accordingly, there are no physical examination findings supporting Dr. Perlon’s chronic pain diagnosis.

ii. Unlike the s. 44 assessors, who reference several pre- and post-accident records for the applicant, Dr. Perlon identifies only two documents that he reviewed in connection with his report – the January 23, 2021 disability certificate, and an initial assessment from Whitby Physiotherapy and Rehabilitation Centre completed on June 21, 2020 (this latter document is not included in the applicant’s hearing materials). There is no indication in his report that Dr. Perlon had or reviewed information about the applicant’s pre-accident medical history or functionality.

iii. Nowhere in Dr. Perlon’s report does he refer to any independent, objective information to support the applicant’s self-reports of: being unable to complete his law student articles or work in any capacity since September 11, 2020, an inability to drive independently, more time required for personal care activities, and experiencing no improvement in his migraine headaches, stiffness and back pain despite more than 16 months of physiotherapy, massage and chiropractic management. This self-reported information differs from that the applicant provided to s. 44 assessors Dr. Yahmad (referenced above) and Dr. R. Williams (referenced below).

iv. Similarly, nowhere in Dr. Perlon’s report does he reference any objective medical evidence supporting his diagnoses of: post-concussion syndrome, chronic daily headaches, cervicogenic headaches, adjustment disorder secondary to the accident, primary insomnia, whiplash injury/myofascial pain cervical, thoracic and lumbar spine, and features of post traumatic stress disorder.

24In addition to Dr. Perlon’s report, the applicant also relies on the report of Dr. S.W.J. Wong, a physiatrist. Dr. Wong’s report, dated July 23, 2021, is based on an in-person interview and assessment of the applicant on the same date. Like Dr. Perlon, Dr. Wong finds that the applicant suffers from chronic pain. In Dr. Wong’s view, the applicant “is totally disabled from returning to any work at this time” and “will require a comprehensive chronic pain program to address both the physical and the psychological concerns.”

25I am not persuaded by Dr. Wong’s findings that the applicant suffers from chronic pain due to the accident. As with Dr. Perlon’s report, I find that the lack of any pre-accident medical records for the applicant referenced by Dr. Wong result in him having unreliable information about the applicant’s medical status and functionality prior to and at the time of the accident. Indeed, under his report heading “Health History”, Dr. Wong refers to the applicant recalling only mild, intermittent back pain before the accident and denying any other significant medical history. Conversely, in the s. 44 physiatry reports relied on by the respondent, pre-accident medical records are noted to indicate that the applicant had a lengthy history of migraine headaches, which occasionally interfered with his activities, and for which he received ongoing treatment.

26Additionally, the applicant apparently reported to Dr. Wong that he had not worked since the accident, due to experiencing a lot of pain and an inability to concentrate. This self-reporting is unsupported by any objective, independent information. It is also inconsistent with the applicant’s reports to his treating neurologist, Dr. Temple, and to the s. 44 assessors, Dr. Yahmad and Dr. Williams, that he had completed his law articles in the six months following the accident and was actively looking for work in 2021. The applicant further reported to Dr. Yahmad that he had worked as a lawyer for eight months in 2022.

27In submitting that the chronic pain assessment is not reasonable and necessary, the respondent relies on the s.44 physiatry reports of Dr. R. Williams, dated March 10, 2021 (based on an in-person assessment) and August 19, 2021 (based on a paper review). Dr. Williams’ March 10, 2021 report includes the following information and findings:

i. Medical records dating from 2015 to 2019, indicate that the applicant had a lengthy history (10-plus years before the accident) of “throbbing headaches on the right with nausea” and light sensitivity, right-sided neck pain and lower back pain. These headaches were reported to interfere on occasion with the applicant’s ability to attend school and participate in other activities. The applicant had sought treatment from a family physician and a neurologist for his headaches.

ii. In terms of his post-accident functionality, the applicant told Dr. Williams that he had completed his law articles after the accident and was looking for work. The applicant described being independent in personal care activities and driving for short distances, but not caring for his young daughter or engaging in any social/recreational activities enjoyed pre-accident (going to the gym, swimming, hiking, playing cricket and soccer).

iii. On physical examination, Dr. Williams notes that “the applicant demonstrated limited effort … especially during strength testing.” Dr. Williams adds that the applicant “… flipped and flopped between his answers in regard to his medication usage. Overall, he was invasive [evasive] and not forthcoming with his medical history.”

iv. Dr. Williams diagnoses include: cervical spine sprain/strain, exacerbation of pre-existing migraine and myofascial pain affecting the neck and upper back muscles, thoracic spine sprain/strain and lumbar spine sprain/strain with no clinically relevant features of radiculopathy.

28In his August 19, 2021 (paper review) report, Dr. Williams finds that the proposed chronic pain assessment is not reasonable and necessary. In support of his view, Dr. Williams states: “There is no heavy reliance on and/or misuse of medications, nor is there an excessive reliance on healthcare practitioners. He continues to be independent with his activities of daily living, and worked for approximately six months following the subject accident.”

29I prefer the respondent’s s. 44 reports of Dr. Williams as they refer to objective medical evidence from before and after the accident, which evidence is missing from the applicant’s s. 25 reports. Based on the totality of the evidence summarized above, I find that the applicant has failed to demonstrate that the chronic pain assessment is reasonable and necessary.

The physiatry assessment is not reasonable and necessary

30I find that the applicant has not demonstrated that the physiatry assessment is reasonable and necessary.

31As with the other two disputed assessments, the applicant did not include the treatment plan proposing the physiatry assessment in his hearing materials. The applicant submits that this assessment is reasonable and necessary based on the above-referenced disability certificates and medical records from June 2, 2021 to April 25, 2022. The applicant further relies on the physiatry assessment report of Dr. Wong, referenced above. I find that Dr. Wong’s report does not support a physiatry assessment being reasonable and necessary, for the same reasons I previously provided for my finding that the report does not support a chronic pain assessment being reasonable and necessary. Dr. Wong’s report does not reference any objective medical evidence to support the applicant’s self-reported post-accident functionality. As noted above, this self-reported information is contrary to that the applicant provided to a treating doctor and s. 44 assessors.

32For the same reasons detailed above, I prefer the s. 44 reports of Dr. Williams, who concludes that a physiatry assessment is not warranted.

33Based on the foregoing, I find that the applicant has failed to demonstrate that the physiatry assessment is reasonable and necessary.

Interest

34As there are no payments owing for the treatment plans proposing the three assessments, no interest is payable.

Award

35The applicant sought an award under s. 10 of Ontario Regulation 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. As no benefits are payable, the applicant is not entitled to an award.

ORDER

36For the reasons outlined above, I find that:

i. The applicant is not entitled to payments for three treatment plans proposing a neurological assessment, a chronic pain assessment and a physiatry assessment. Accordingly, the applicant is not entitled to interest.

ii. The applicant is not entitled to an award under s. 10 of O. Reg. 664.

iii. The application is dismissed.