Licence Appeal Tribunal File Number: 21-014313/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:
Breshna Niazi
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Ludmilla Jarda
APPEARANCES:
For the Applicant:
Syed M. Raza, Counsel
For the Respondent:
Yann Grand-Clement, Counsel
HEARD:
By Written Submissions
OVERVIEW
1Breshna Niazi (the “applicant”) was involved in an automobile accident on January 13, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Aviva Insurance Company of Canada (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from February 16, 2020 to January 13, 2022?
Is the applicant entitled to $2,952.42 ($3,856.85 less $904.43 approved) for physiotherapy services from Wilson Massage and Physio Ltd. proposed in a treatment plan/OCF-18 (“treatment plan”) dated August 16, 2020?
Is the applicant entitled to $4,588.40 for physiotherapy services from Wilson Massage and Physio Ltd. proposed in a treatment plan dated March 19, 2021, denied by the respondent on April 14, 2021?
Is the applicant entitled to $299.20 ($2,892.98 less $2,593.76 approved) for psychological services from Gozlan Psychology Professional Corporation proposed in a treatment plan dated February 12, 2021?
Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons that follow, I find that:
The applicant is not entitled to NEB.
The applicant is not entitled to the disputed treatment plans.
The applicant is not entitled to interest.
The respondent is not liable to pay an award.
PROCEDURAL ISSUE
4The applicant failed to submit copies of the disputed treatment plans as evidence for the hearing.
5In J.R. v. Certas Home Insurance Company, 2018 CanLII 13161, on reconsideration it was determined that the Tribunal is obligated to ask parties to submit information that it believes a party meant to rely upon as evidence that formed the basis of the parties’ dispute but was never filed.
6As neither party included a copy of the disputed treatment plans as evidence, in order to fully and properly assess the reasonableness and necessity of the treatment plans, the Tribunal reached out to both parties and requested copies of the disputed treatment plans on May 2, 2024 and on May 14, 2024. On May 14, 2024, the parties provided copies of the disputed treatment plans.
7I note that prior to providing the Tribunal with copies of the disputed treatment plans, there was some dispute between the parties as to who was responsible for producing the disputed treatment plans. For clarity, applicants to the Tribunal are obligated to make their own case, and as part of this obligation, applicants must adduce all evidence which they need or intend to rely on.
ANALYSIS
Background
8On January 13, 2020, the applicant was travelling on Highway 400 southbound. She was rear ended near the Finch Avenue exit when she attempted to change lanes. Immediately following the accident, emergency medical services attended the scene, and the applicant declined to go to the emergency department as she did not have any pain at the time.
Non-earner benefit (“NEB”)
9Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers from a complete inability to carry on a normal life as a result of and within 104 weeks after the accidents.
10Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, which generally focuses on a comparison of the applicant’s pre-accident and post-accident activities.
11At the time of the accident, the applicant was a 38-year-old homemaker and mother of two children. She participated in numerous recreational activities, including shopping, socializing, going on outings with friends and family, attending the gym regularly, playing outdoors and engaging with her children, and helping her children with schoolwork. She was independent in all housekeeping/home maintenance functions and all her personal care tasks.
12The applicant submits that since the accident, she has been completely unable to carry on a normal life. She is unable to return to previously enjoyed activities due to her pain, limitations, fatigue, and low motivation. She does not go out and see friends as she did previously. She is no longer working out at the gym as she used to, due in part to the lockdown restrictions associated with the COVID-19 pandemic and her physical pain limitations. She experiences difficulties engaging with her children due to pain, headaches, low mood, low motivation, and distractions. She struggles to help her children with schoolwork, as sitting is painful, requiring frequent position changes, and her decreased concentration makes helping them more difficult. She is unable to move furniture and to clean windows. She continues to perform all other housekeeping/home maintenance tasks, but she performs them slowly and with considerable pain.
13She relies on the clinical notes and records (“CNRs”) of Dr. Yasmeen Shaikh, family physician, and Humber River Hospital, a Disability Certificate dated January 16, 2020 completed by Glenn Walkins, chiropractor, a chronic pain medical assessment report dated December 3, 2020 completed by Dr. Igor Wilderman, physician, and a psychological assessment report dated January 28, 2021 completed by Dr. Oren Gozlan, psychologist.
14In response, the respondent submits that the applicant has failed to demonstrate that she suffers from a complete and continuous inability to carry on a normal life. While the applicant reported that she is slower to complete her activities and does her housework less frequently, she continues to be independent with all activities of daily living, housekeeping, and cooking. Further, she continues to exercise, to care for her children, and to help her children with their schooling.
15The respondent relies on various insurer examination reports including a physician assessment report dated October 22, 2020 completed by Dr. Charanjit Sandhu, occupational medicine physician, a psychological assessment report dated October 22, 2020 completed by Dr. Howard Waiser, psychologist, and a neurology assessment report dated December 16, 2020 completed by Dr. Dimitrios P. Dimitrakoudis, neurologist.
The applicant is not entitled to an NEB
16I find that the applicant is not entitled to an NEB of $185.00 per week for the period of February 16, 2020 to January 13, 2022 as she has not demonstrated that she suffers from a complete inability to carry on a normal life.
17I find that there is insufficient evidence to support that the applicant meets the NEB test. The day following the accident, on January 14, 2020, the applicant presented at the Humber River Hospital and reported experiencing pain in the back of her neck and shoulders. Diagnostic imaging of her cervical spine showed that she had mild C5-6 degenerative disc disease, which is a pre-existing condition, and was otherwise unremarkable. The applicant was diagnosed with muscle injury to the neck as a result of the accident, and she was advised to take Tylenol or Advil.
18Two days later, on January 16, 2020, the applicant consulted Dr. Walkins who identified her accident-related injuries as follows: cervicalgia, sprain and strain of cervical spine, pain in thoracic spine, sprain and strain of lumbar spine, headache, other mood (affective) disorders, other sleep disorders, and shoulder lesions. Although Dr. Walkins indicated in an OCF-3 that the applicant suffers from a complete inability to carry on a normal life, the medical evidence, as identified above, did not support Dr. Walkins’ finding, and the anticipated duration of disability was 9-12 weeks which suggests a minor injury. Further, while Dr. Walkins noted that the applicant experienced pain and discomfort with sciatic postures, prolonged sitting, standing, walking, and bending, is unable to lift or carry at this time, has difficulty with children duties, and sleeping, there is no meaningful analysis in the OCF-3 of the applicant’s pre-accident and post-accident activities as required by Heath.
19Moreover, the following day, on January 17, 2020, the applicant consulted her family physician, Dr. Yasmin Shaikh and complained of neck and shoulder pain, nightmares, and fear of driving. Dr. Shaikh diagnosed the applicant with a neck and shoulder sprain and recommended physiotherapy and the continued use of Tylenol. When the applicant saw Dr. Shaikh again on February 19, 2020, she reported ongoing neck and bilateral shoulder pain since the accident as well as nightmares affecting her sleep and phobia to driving. Dr. Shaikh further diagnosed the applicant with neck and shoulder strain, anxiety, and phobia and recommended that she continue physiotherapy and start psychotherapy or counselling.
20I do not find the applicant’s evidence and submissions regarding her entitlement to NEB persuasive. Although Dr. Wilderman concluded that the applicant met the test for NEB, I place limited weight on his report. Dr. Wilderman did not review the applicant’s medical records or any diagnostic imaging, he heavily relies on the applicant’s self-reporting, and his findings are not consistent with the applicant’s contemporaneously documented medical condition. Further, although Dr. Wilderman conducted an analysis of the applicant’s pre-accident and post-accident activities, there is insufficient evidence to support that her accident-related injuries prevent her from completely engaging in her pre-accident activities. Rather, his report indicates that except for moving furniture and cleaning windows, she continues to perform all housekeeping and home maintenance activities albeit more slowly.
21Similarly, I place less weight on Dr. Gozlan’s report as he did not review the applicant’s medical records, and he heavily relies on the applicant’s self-reporting. Further, although Dr. Gozlan diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood, and somatic symptom disorder (chronic pain), and conducted an analysis of the applicant’s pre-accident and post-accident activities, Dr. Gozlan does not express an opinion regarding the applicant’s entitlement to NEB.
22I prefer Dr. Sandhu’s finding that, from a musculoskeletal perspective, the applicant does not suffer from a complete inability to carry on a normal life. According to his report dated October 22, 2020, he reviewed the applicant’s relevant medical records and diagnostic imaging. His musculoskeletal examination of the applicant revealed self-limitation of her cervical spine, shoulders, and particularly of her lumbar spine on forward flexion, and she did not have any features of an active radiculopathy or myelopathy. Dr. Sandhu concluded that the applicant’s presentation was consistent with residual symptoms of myofascial sprains to her cervical spine, shoulders, and lumbar spine, along with ongoing post-traumatic headaches. Further, the applicant reported to Dr. Sandhu that since the accident she remains independent with all activities of daily living, and she continues to perform all housekeeping, cooking activities, and childcare activities, but that she does these activities with reduced pacing and more frequent breaks.
23I also prefer Dr. Waiser’s finding that, from a psychological perspective, the applicant does not suffer from a complete inability to carry on a normal life. According to his report dated October 22, 2020, he reviewed the applicant’s relevant medical records and diagnostic imaging. Following his examination, he diagnosed the applicant with adjustment disorder and a specific phobia (travelling) as a result of the accident, which is consistent with the applicant’s medical records. Further, the applicant reported that she continues to perform her housekeeping activities, and she continues to help her sons with their schooling, but that it is more challenging for her, and it takes longer.
24Finally, the applicant has not tendered any evidence to support that she suffers from a neurological functional impairment as a result of the accident. Therefore, I accept Dr. Dimitrakoudis’ finding that, from a neurological perspective, the applicant does not suffer from a complete inability to carry on a normal life. According to his report, Dr. Dimitrakoudis reviewed the applicant’s relevant medical records and diagnostic imaging. Following his examination, he diagnosed the applicant with cervical soft-tissue/strain injury, superimposed on pre-existing cervical degenerative disc disease, post-traumatic headaches, likely cervicogenic in origin and related to whiplash-type injury, possible occipital neuralgic pain related to whiplash-type injury, and non-neurologic, possible psychological sequelae of the accident. Further, while the applicant reported that she was slower to complete her activities at home, did her housework less frequently, and was less physically active than she was prior to the accident, there was no indication that she was unable to perform her pre-accident activities as a result of her accident-related injuries.
25Accordingly, I find that the applicant has not demonstrated that she suffers from a complete inability to carry on a normal life as a result of the accident. Therefore, she is not entitled to an NEB.
26To 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.
27When an insurer denies a treatment plan, s. 38(8) of the Schedule requires that the insurer reply to a treatment and assessment plan within 10 business days, identifying the goods and services it will or will not pay for and provide the medical and all other reasons for its decision.
28Section 38(11) provides the consequences of an insurer’s failure to comply with s. 38(8) of the Schedule, which includes the obligation to pay for the goods and services incurred by the applicant starting on the 11th business day and ending on the day a compliant notice is provided.
29The applicant submits that the disputed treatment plans are reasonable and necessary, and she argues that the respondent’s denial letters were not specific and contravene s. 38(8) of the Schedule. The applicant did not tender as evidence a copy of the disputed treatment plans or denial letters.
30The respondent submits that the applicant failed to meet her onus of showing that she is entitled to the disputed treatment plans and argues that the treatment plans are not reasonable and necessary. The respondent further submits that all its denials provided medical reasons and complied with s. 38(8) of the Schedule.
The disputed treatment plans are not payable pursuant to s. 38(11)2 of the Schedule
31I find that the applicant has failed to demonstrate, on a balance of probabilities, that the disputed treatment plans are payable pursuant to s. 38(11)2 of the Schedule.
32I am not persuaded by the applicant’s submissions that the respondent’s denial letters relating to the disputed treatment plans failed to comply with s. 38(8) of the Schedule. As the applicant did not tender as evidence a copy of the denial letters, she has not met her evidentiary burden to establish the respondent’s non-compliance with the Schedule.
33Nevertheless, given that the respondent included a copy of the denial letters with its written hearing submissions, I can consider whether the denials are compliant. I have reviewed the Explanations of Benefits dated August 25, 2020, October 23, 2020, February 26, 2021, March 29, 2021, and June 11, 2021, and I find that all the respondent’s denials complied with s. 38(8) of the Schedule. Indeed, the reasons provided for the denial clearly indicated the medical reasons, including specific details about the applicant’s condition forming the basis of the respondent’s decision. Moreover, the reasons provided are sufficient to allow the applicant to make an informed decision to either accept or dispute the respondent’s decision.
34As such, the applicant has failed to establish that the disputed treatment plans are payable pursuant to s. 38(11)2 of the Schedule.
The applicant is not entitled to the unapproved balance of physiotherapy services in the amount of $2,952.42
35I find that the applicant has failed to demonstrate, on a balance of probabilities, that the unapproved balance of the treatment plan for physiotherapy services is reasonable and necessary. As such, the applicant is not entitled to $2,952.42 for the treatment plan dated August 16, 2020.
36The treatment plan proposes an assessment with a physiotherapist, 10 multidisciplinary rehabilitation sessions, 15 physiotherapy sessions, 15 massage therapy sessions, and 10 acupuncture sessions. The goals of the treatment plan are to reduce pain, to increase strength, to increase range of motion, and to return to activities of normal living.
37I find that the applicant’s submissions and evidence fail to demonstrate her entitlement to the unapproved balance of the treatment plan. In her written hearing submissions, she has not identified the goals of the treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
38While the applicant indicates that Dr. Sandhu noted that she had an ongoing impairment to perform repetitive bending, Dr. Sandhu concluded that her physical injuries could be treated within the Minor Injury Guidelines (“MIG”) and that the unapproved balance of the treatment plan was not reasonable and necessary. Further, while the applicant alleges that Dr. Majal diagnosed her with chronic pain, she did not direct the Tribunal to any medical evidence to support her allegation. As such, the applicant has not met her evidentiary burden.
39Correspondingly, I accept Dr. Sandhu’s finding in his report dated June 7, 2021 that the unapproved balance of the treatment plan is not reasonable considering the nature of the applicant’s accident-related injuries and the amount of time that has passed since the accident. Dr. Sandhu recommended that the applicant focus her rehabilitation on an active independent exercise program.
40Further, as noted by the respondent, when the treatment plan was submitted, the applicant’s primary complaints to her family physician were mood related and headaches, neither of which are addressed by the treatment plan.
41Accordingly, I find that the applicant has not proven that the unapproved balance of the treatment plan is reasonable and necessary.
The applicant is not entitled to physiotherapy services in the amount of $4,588.40
42I find that the applicant has failed to demonstrate, on a balance of probabilities, that the treatment plan dated March 19, 2021 for physiotherapy services in the amount of $4,588.40 is reasonable and necessary.
43The treatment plan proposes 15 physiotherapy sessions, 30 massage therapy sessions, 15 multidisciplinary rehabilitation sessions, and reassessment with a chiropractor. The goals of the treatment plan are to reduce pain, to decrease inflammation of restricted spinal joint segments, and to return to activities of normal living.
44I find that the applicant’s submissions and evidence fail to demonstrate her entitlement to this treatment plan. In her written hearing submissions, she has not identified the goals of the treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
45While the applicant refers to Dr. Shaikh’s clinical note dated March 1, 2022 which indicates that the applicant continues to have pain and headaches, there is no indication in the clinical note that further facility-based physical therapy is reasonable and necessary. Further, while the applicant alleges that declaring that her physical injuries fall within the MIG after removing her from the MIG is contrary to the Schedule, she has not directed the Tribunal to any authority to support her allegation. As such, the applicant has not met her evidentiary burden.
46Correspondingly, I accept Dr. Sandhu’s finding that the applicant’s accident-related physical injuries are soft-tissue injuries and that they would have healed by the time the treatment plan was submitted. Dr. Sandhu opined that the applicant had reached maximum therapeutic benefits from facility-based treatment and recommended that the applicant consider engaging in a yoga program, Pilates, or other exercises for strengthening core muscles of her back and abdomen, and participating in an aqua therapy program.
47As such, I find that the applicant has not proven that the treatment plan is reasonable and necessary.
The applicant is not entitled to the unapproved balance of the psychological services in the amount of $299.20
48I find that the applicant has failed to demonstrate, on a balance of probabilities, that the unapproved balance of the treatment plan for psychological services is reasonable and necessary. As such, the applicant is not entitled to $299.20 for the treatment plan dated February 12, 2021.
49The treatment plan proposes 16 therapy sessions, documentation support activity for claim form, and assessment/service. The goals of the treatment plan are as follows: reduction of depressive, anxious, post-traumatic stress symptomology; improvement of emotional status; optimization to cope with pain; a return as closely as possible to pre-accident driving comfort and safety; improvement of sleep; containment of incessant worrying; encouragement of resumption of previously enjoyed activities; and increase activity level.
50I find that the applicant’s submissions and evidence fail to demonstrate her entitlement to the unapproved balance of the treatment plan. While she claims that the respondent’s denial breached section 38(10) of the Schedule, her submissions and evidence are silent regarding the particulars of the alleged contravention.
51Additionally, as noted by the respondent, the unapproved balance of the treatment plan relates to assessment/service. The applicant has not explained what the assessment/service relate to, nor does she explain why the expense is reasonably required beyond the $200.00 fee for completing the treatment plan.
52Accordingly, the applicant has not met her evidentiary burden and proven that the unapproved balance of the treatment plan is payable.
Interest
53Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are overdue, no interest is payable.
Award
54Pursuant to s. 10 of Regulation 664, the respondent may be liable to pay an award if the Tribunal finds that it unreasonably withheld or delayed payment of a benefit. As I have concluded that the applicant is not entitled to NEB and to the disputed treatment plans, it follows that no benefits were unreasonably withheld or delayed. Accordingly, the respondent is not liable to pay an award.
ORDER
55For the reasons outlined above, I find that:
The applicant is not entitled to NEB.
The applicant is not entitled to the disputed treatment plans.
The applicant is not entitled to interest.
The respondent is not liable to pay an award.
56The application is dismissed.
Released: May 30, 2024
Ludmilla Jarda
Adjudicator