Citation: Yakub v. Aviva Insurance Canada, 2024 ONLAT 22-008786/AABS

Licence Appeal Tribunal File Number: 22-008786/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:

Sulyman Yakub

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Maria Papadopoulos, Paralegal

For the Respondent:

Natalie Spinelli, Paralegal

HEARD:

By Way of Written Submissions

OVERVIEW

1Sulyman Yakub (the “applicant”) was involved in an automobile accident on July 8, 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 Aviva Insurance 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:

I. Is the applicant entitled to $3,286.43 for chiropractic services, proposed by Dr. Dario Mirian from New Flow Medical Clinic, in a Treatment Plan (“OCF-18”) submitted August 27, 2021 and denied September 15, 2021?

II. Is the applicant entitled to $3,169.75 for chiropractic services, proposed by Dr. John Bare, from New Flow Medical Clinic in an OCF-18, submitted February 17, 2022 and denied February 22, 2022?

III. Is the applicant entitled to $2,803.09 for chiropractic services, proposed by Dr. John Bare, from New Flow Medical Clinic in an OCF-18 submitted June 27, 2022 and denied July 04, 2022?

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

RESULT

3I find that:

I. The applicant is not entitled to any of the OCF-18s in dispute, as he has not demonstrated that they are reasonable and necessary. As there are no benefits due, interest is not payable.

II. The application is dismissed.

ANALYSIS

OCF-18 in the amount of $3,286.43 for chiropractic treatment, submitted on August 27, 2021

OCF-18 in the amount of $3,169.75 for chiropractic treatment, submitted on February 17, 2022

OCF-18 in the amount of $2,803.09 for chiropractic treatment, submitted on June 27, 2022

4Based on the totality of the medical evidence, I find that the applicant has not proven on a balance of probabilities that the proposed OCF-18s are reasonable and necessary.

5The OCF-18, submitted on August 27, 2021, pertains to chiropractic and massage services. The remaining two OCF-18s in dispute pertain to: chiropractic, massage, and physiotherapy services.

6To 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.

7The applicant argues that his physical injuries have developed into chronic pain. The applicant further submits that the goals of the treatment plans include: to reduce pain, increase strength and increase his range of motion, which are all reasonable and necessary. He further argues that he has consistently reported to all his providers that his treatment at both Brampton Civic Care Centre and New Flow Medical Centre was helpful for his recovery. Finally, the applicant submits that the progress reports, completed by Dr. John Bare, his treating chiropractor, dated May 19, 2022 and September 22, 2022, should be given more weight than the s. 44 musculoskeletal assessment of Dr. L. Todd Walters, general physician, dated March 10, 2022.

8Meanwhile, the respondent argues that the applicant has not established that the proposed OCF-18s are reasonable and necessary, due to the lack of contemporaneous medical documentation supporting the proposed services. Moreover, it relies upon the s. 44 assessments of Dr. Walters, dated June 21, 2019, and March 10, 2022, where no objectively reproducible musculoskeletal impairment was identified and it was opined that the applicant achieved maximum medical recovery. The respondent also relies on the clinical notes and records (“CNRs”) of Dr. Martin Pinto, the applicant’s family physician.

9I find that the applicant has not led sufficient evidence to establish that the proposed services are reasonable and necessary.

10First, the applicant has not provided contemporaneous medical records from his family physician Dr. Pinto, recommending ongoing chiropractic, massage, and physiotherapy treatment. I acknowledge the applicant’s submissions that Dr. Pinto advised the applicant to start physiotherapy on July 11, 2018. However, this entry is three years outdated and not contemporaneous to the OCF-18s in dispute, as this recommendation was made more than three years before they were submitted.

11Notably, the applicant did not seek medical attention from Dr. Pinto beyond July 2018 until April 30, 2021. From April 2021 to November 2022, the applicant met with Dr. Pinto on 11 separate occasions for visits unrelated to the accident. During these visits, neither the accident or the proposed services were discussed or recommended. I place more weight on these entries and the lack of a recommendation, as this evidence is the most contemporaneous to the submission of the OCF-18s.

12Next, I acknowledge that a large part of the applicant’s case rests on the progress reports by Dr. Bare, dated May 19, 2022 and September 22, 2022. The applicant relies heavily on these reports because Dr. Bare determined that he has chronic pain, has not reached maximum medical recovery, and he would benefit from further treatment. However, I find these progress reports to be of limited evidentiary value for the following reasons.

13First, Dr. Bare did not review any medical records in preparation of his reports, which if he had done so, he would have discovered that the applicant last met with his family physician for accident-related complaints in July of 2018.

14Second, while Dr. Bare diagnosed the applicant with chronic pain because of the duration of time since the accident, this is not supported by the other contemporaneous medical evidence, like Dr. Pinto’s records.

15Third, Dr. Bare did not address how the goals of the proposed OCF-18s will be met with the chiropractic, massage, and physiotherapy services. Instead, Dr. Bare vaguely opined that the applicant would benefit from continued functional restoration programme and that additional therapy is required to improve the applicant’s overall well being.

16In a similar vein, while Dr. Bare notes in his reports that the applicant continues to have difficulties with his activities of daily living, he does not advise whether the 46 sessions have assisted with this. Likewise, Dr. Bare noted similar functional limitations in range of motion testing during both reports and that the applicant continued to lack full muscular strength and endurance. However, he provided no explanation on how the proposed services would achieve these goals, other than vaguely stating that additional therapy is required to improve overall well being.

17Significantly, there are no CNRs from New Flow Medical Clinic to accompany the progress report, thus, there is no further context in which to assess whether the goals of the OCF-18s will be met. Without such information I am unable to assess how the stated goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit.

18While I further acknowledge that pain relief can be a legitimate goal for treatment, it does not follow that payment is automatically reasonable and necessary where there is limited evidence of improvement. For instance, Dr. Bare completed two progress reports during the time period of May 19, 2022 to September 22, 2022, and in both reports he noted that the applicant’s recovery progression was moderate and there was only a 10 percent improvement between the two visits. Despite noting the improvement, Dr. Bare did not provide any details on how treatment was improving the applicant’s condition, other than providing a percentage of improvement.

19Equally, the applicant relies on his self-reporting to various s. 25 assessors, including Dr. Viachislav Prigozhikh, neurologist and Dr. Nina Belyakova, psychologist, that treatment was helpful. However, these reports were done in January of 2019 and May of 2020. Thus, I place little weight on this, as this is not contemporaneous to the OCF-18s. Moreover, without the records of New Flow Medical Clinic, it is difficult to ascertain the progress of the applicant’s pain with treatment and specifics of how it helps.

20I also prefer the reports of Dr. Walters over the reports of Dr. Bare. While I am alive to the applicant’s position that Dr. Bare is the applicant’s treating chiropractor, I find that Dr. Walter’s conclusion is more consistent with the bulk of the medical evidence, like Dr. Pinto’s records.

21For example, Dr. Walters concluded that the applicant sustained a WAD-II strain and lumbosacral strain and had achieved maximum medical improvement, which is consistent with the lack of recommendations for treatment contemporaneous to the OCF-18 and lack of pain complaints as indicated in Dr. Pinto’s records.

22I also acknowledge that the applicant disputes Dr. Walters’ reports as he only met with the applicant for 45 minutes. However, the onus rests on the applicant to prove the reasonableness and necessity of the plan, not on the respondent to disprove it. The applicant has not provided sufficient medical evidence to refute Dr. Walters’ opinion.

23Finally, the applicant relies in large part on 16-002047 v. RBC Insurance Company, 2017 CanLII 81606 (ON LAT) (“16-002047”) to support his position on why Dr. Walter’s report is further deficient. Particularly, he argues that Dr. Walters has provided no explanation for why his sprain and strain injuries have not resolved at the time of his assessment, other than just saying it, which is similar to the fact pattern in 16-002047.

24I am not bound by previous Tribunal decisions and I find the factual matrix in16-002047 is distinguishable from the matter before me. In 16-002047, the applicant had produced records from his family physician wherein the proposed treatment was recommended. Here, as noted above, the applicant last sought medical attention for his accident-related injuries in July of 2018, and there are no contemporaneous recommendations for treatment. Further, as noted above, the onus is on the applicant to establish that the proposed services are reasonable and necessary, which I find he has not done so.

25In conclusion, I find that the applicant has not met his onus to establish that the proposed OCF-18s are reasonable and necessary.

The applicant is not entitled to Interest

26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable under s. 51.

ORDER

27For the reasons outlined above, I find that:

I. The applicant is not entitled to any of the OCF-18s in dispute, as he has not demonstrated that they are reasonable and necessary. As there are no benefits due, interest is not payable.

II. The application is dismissed.