Citation: Asanoski v. Certas Home and Auto Insurance Company, 2024 ONLAT 22-004348/AABS

Licence Appeal Tribunal File Number: 22-004348/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:

Muhamed Asanoski

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Lisa Holland

APPEARANCES:

For the Applicant: Wendy Sokoloff, Counsel

For the Respondent: Thomas McKinlay, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Muhamed Asanoski, the applicant, was involved in an automobile accident on February 12, 2017, 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, Certas Home and Auto Insurance Company ("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 $3,545.54 for physiotherapy services, proposed by Oakville Rehab Centre in a treatment plan/OCF-18 ("plan") dated November 24, 2021, and denied on November 26, 2021?

ii. Is the applicant entitled to $4,365.86 for psychological services, proposed by Sarvin Sabet Psychological Service in a plan dated February 5, 2022, and denied on February 12, 2022?

iii. Is the applicant entitled to $4,411.50 for physiotherapy services, proposed by Oakville Rehab Centre in a plan dated December 16, 2022, and denied on January 11, 2023?

iv. Is the applicant entitled to $2,200.00 for an occupational therapy functional assessment, proposed by Okell Rehabilitation Services in a plan dated January 25, 2022 and denied February 12, 2022?

v. Is the applicant entitled to $2,200.00 for an occupational therapy retroactive attendant care needs assessment, proposed by Okell Rehabilitation Services in a plan dated January 25, 2022 and denied February 12, 2022?

vi. 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?

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

RESULT

3The applicant is precluded from claiming entitlement to the physiotherapy treatment plan dated December 16, 2022 and an occupational therapy functional assessment submitted on February 9, 2022 pursuant to s. 20(1)(a) of the Schedule because the treatment plans were submitted more than five years after the accident.

4I find that the applicant has not demonstrated that the proposed treatment plans for physiotherapy services dated November 24, 2021, for psychological services dated February 5, 2022 and for an occupational therapy retroactive functional assessment dated January 25, 2022 are reasonable and necessary for his accident-related injuries. As a result, the OCF-18's in dispute are not payable. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule and an award does not apply.

5The respondent's denial of treatment plans dated November 24, 2021, February 5, 2022 and January 25, 2022 were proper notice in accordance with s.38 (8) of the Schedule and therefore, those treatment plans are not payable.

6The application is dismissed.

ANALYSIS

7To receive payment for a treatment plan under 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. 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 same are reasonable.

Are the physiotherapy services reasonable and necessary?

8The applicant seeks payment for an OCF-18 dated November 24, 2021 in the amount of $3,545.54 for physiotherapy services to address his neck, shoulder, and back complaints with radiculopathy. The applicant relies on the clinical notes and records ("CNRs") of Dr. Evis Skendaj, a medicolegal report by Dr. Zeeshan Waseem, physiatrist, various treatment records and Insurer Examination ("IE") reports from a prior motor vehicle accident on November 22, 2015 (the "2015 accident").

9The applicant submits that he sustained injuries and aggravated injuries to his chest, neck, shoulders and back as a result of the subject accident. The applicant submits that injures to his neck, shoulder, back, ribs and headaches from the 2015 accident were nearly resolved at the time of the accident.

10The applicant has provided contradictory evidence regarding his injuries from the 2015 accident. In his submissions, the applicant relies on IE reports by Dr. Oleg Safir, orthopaedic surgeon, dated October 4, 2016 and June 1, 2017, which concluded that he reached maximum recovery from the 2015 accident before the accident. Conversely, the applicant also points to a medicolegal report dated May 15, 2023 by Dr. Waseem that concluded that his injuries were aggravated as a result of the accident. Dr. Waseem further states that the aggravation of the applicant's injuries to his neck, left shoulder and back includes hand numbness and headaches as a result of the accident.

11In contrast, the respondent relies on the complete CNRs of Dr. Skendaj, the report of Dr. Nina Belyakova, psychologist dated January 30, 2018, the consultation report of Dr. Waseem and various clinical notes and records of treating practitioners and specialists. The respondent submits that the IE reports of Dr. Safir are from the 2015 accident and should not be considered.

12The respondent submits that the applicant was receiving physiotherapy from the 2015 accident at the time of the accident. The respondent further submits that the applicant reported to Dr. Belyakova that he was receiving no benefit from physiotherapy, and he ceased treatment in June or July 2017. In addition, the respondent submits that the applicant did not seek further physical treatment until November 24, 2021, after he sustained subsequent injuries contributing to his physical and psychological complaints.

13The respondent points to subsequent injuries that are mentioned in the CNRs of Dr. Skendaj, including a concussion on October 29, 2017, after an assault and a work-related injury in 2019. The respondent submits that the applicant was referred to Dr. Waseem for his workplace injury on February 5, 2021. Dr. Waseem recommended physiotherapy for the applicant's workplace injury. The respondent points out that although in February 2021, Dr. Waseem reported the symptoms of the applicant's workplace injury as persistent numbness in his left hand and leg, he later attributed these symptoms to the accident in his report dated May 15, 2023. The respondent also refers to the applicant's unrelated sinus procedures for migraine headaches and insomnia after the accident.

14Based on the evidence before me, I find that the applicant has reported conflicting accounts of his injuries from the 2015 accident. He reported only a 10% improvement in his symptoms from the 2015 accident to Dr. Daniel Cohen, psychologist in an IE report dated November 17, 2017, and that he is unlikely to make a full recovery from the earlier accident or return to work as an automobile mechanic. The applicant contradicted his reports to Dr. Cohen in his submissions that Dr. Safir found that he recovered from the 2015 accident at the time of the accident.

15I find that the medical evidence does not point to an accident-related injury wherein physiotherapy services are recommended by the applicant's doctors over four years after the accident. I agree with the respondent that Dr. Waseem's report of May 15, 2023 contradicts his earlier report of February 5, 2021. I find Dr. Waseem's earlier report is more persuasive in that the applicant's symptoms of numbness were caused by his workplace injury. I find there is no medical evidence provided that further physiotherapy treatments are reasonable and necessary as a result of the accident.

16I find that the applicant has not met his burden of proof on a balance of probabilities that the OCF-18 for physiotherapy services is reasonable and necessary as a result of the accident.

Are the psychological services reasonable and necessary?

17I find that the applicant has provided insufficient evidence in support of the OCF-18 dated February 5, 2022, completed by psychologist, Sarvin Sabet in the amount of $4,365.86 for psychological services.

18The applicant relies on a psychological report dated January 30, 2018 by Vladimir Kulikov, psychometrist, various treatment records and IE reports from the previous accident. Although the applicant submits that Mr. Kulikov diagnoses major depressive disorder from the subject accident, Dr. Cohen makes the same diagnoses as a result of the 2015 accident. The applicant does not explain the reason he did not attend psychological therapy until over five years after the accident, despite an approved treatment plan in 2018.

19The applicant concedes that he has pre-existing depression and anxiety resulting from the 2015 accident. I find that the applicant has not provided updated medical documentation from his treating doctors since April 2018 to show how the accident affected his pre-existing psychological condition. In support of the OCF-18 by Sarvin Sabet, the applicant submits that he required therapy in 2022 for complaints involving mood, pain, sleep difficulty, headaches, irritability and social isolation.

20In response, the respondent indicates that the applicant never attended psychological therapy despite the partial approval of a treatment plan dated April 2018 by Dr. Belyakova of General Med M Inc. The respondent submits that the applicant had pre-accident panic attacks, insomnia, frustration and poor memory and concentration after he was fired from his job in May 2016. In 2016, Dr. Skendaj prescribed lorazepam and recommended supportive psychotherapy. The respondent also refers to a subsequent diagnosis of ADHD in 2022 for which the applicant was prescribed medication with improved memory and concentration.

21I find that the applicant has not demonstrated that the OCF-18 of Sarvin Sabet is reasonable and necessary. The respondent approved psychotherapy with Dr. Belyakova in 2018 which the applicant has not attended. In addition, the applicant did not report any accident-related psychological complaints to his doctor after he started working for the period from 2019 to 2022. The applicant has not established that the OCF-18 for a psychological assessment is reasonable and necessary as a result of the accident.

Are the occupational therapy assessments reasonable and necessary?

22The applicant seeks payment for an OCF-18 dated January 25, 2022 and submitted on February 9, 2022 in the amount of $2,200.00 for an occupational therapy retroactive functional assessment by Okell Rehabilitation Services. The treatment plan was completed by Lauren Okell, occupational therapist with a description of injuries to include depression, phobia, fractured rib, irritability, anger, adjustment disorder, insomnia, fatigue and altered cognitive function. The applicant has not provided any medical documentation in support of the treatment plan. The applicant makes no submissions on whether the assessment is reasonable and necessary as a result of the accident. I also note that the applicant returned to a physically demanding job in 2019.

23In contrast, the respondent points to the report of Dr. Waseem in which attendant care is not recommended. The respondent submits that a retroactive assessment of attendant care needs is not reasonable and necessary 3 days before the expiry of the 5-year limitation period.

24I find that the applicant has not established that the OCF-18 for an occupational therapy retroactive functional assessment is reasonable and necessary as a result of the accident.

Were the respondent's denial of treatment plans proper under Section 38(8) of the Schedule?

25As an alternative argument, the applicant submits that the respondent did not properly deny the disputed treatment plans dated November 24, 2021 for physiotherapy services, February 5, 2022 for psychological services and January 25, 2022 for an occupational therapy retroactive functional assessment, in accordance with s. 38(8) of the Schedule.

26Section 38(8) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 business days of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide medical and all other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.

27If an insurer fails to comply with s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer who fails to provide the insured with adequate notice of the reasons for its denial is prohibited by s. 38(11) 1 from taking the position that the insured person has an impairment to which the MIG applies. Second, s. 38(11)2 provides that is an insurer fails to provide proper notice of the reasons for its denial it must pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives notice as described in s. 38(8).

28The Tribunal has recognized medical reasons for denial as specific details about the insured's condition forming the basis for the insurer's decision or identifying information about the insured's condition that the insurer still requires. In addition, the insurer should refer to the specific benefit or determination at issue with the relevant section of the Schedule.

Sufficiency of respondent's denials of OCF-18's dated November 24, 2021, February 5, 2022 and January 25, 2022

29The applicant submitted OCF-18's for physiotherapy services by Oakville Rehab Centre, psychological services by Sarvin Sabet Psychological Services and an occupational therapy retroactive functional assessment by Okell Rehabilitation Services. The respondent denied these treatment plans within 10 business days of receipt by way of letters dated November 26, 2021, February 12, 2022 and February 12, 2022.

30The language used in the denial letters is substantially similar, in that the respondent requested updated medical documentation from April 2018 to determine the applicant's current need for treatment. The respondent also made inquires about the applicant's need for physical and psychological therapy since he didn't attend approved treatment since January 2018.

31In denial notices dated November 26, 2021, February 12, 2022 and February 12, 2022, the respondent has requested information about the insured's condition and functional limitations that the insurer does not have but requires to determine whether the treatment plans are reasonable and necessary.

32The respondent has specifically requested further information about the applicant's current medical condition nearly four years after the accident. As such, I find the respondent's request for updated medical information in letters dated November 26, 2021, February 12, 2022 and February 12, 2022 were valid denials of the OCF-18's dated November 24, 2021, February 5, 2022 and January 25, 2022.

The Applicant is precluded from claiming entitlement to the physiotherapy treatment plan dated December 16, 2022 and an occupational therapy functional assessment submitted February 16, 2022

33I find that the applicant is precluded from claiming entitlement to the treatment plans for physiotherapy services and an occupational therapy functional assessment pursuant to section 20(1)(a) of the Schedule because they were submitted past the 5-year mark from the date of the accident.

34Section 20(1)(a) of the Schedule states:

20(1) Subject to subsection (2) no medical, rehabilitation and attendant care benefit is payable for expenses incurred,

(a) more than 260 weeks after the accident, in the case of an insured person who was at least 18 years of age at the time of the accident.

35The applicant makes no submissions regarding the second treatment plan for an occupational therapy functional assessment submitted on February 16, 2022. In his submissions, the applicant did not provide copies of the treatment plan or the denial notice regarding this issue in dispute.

36In contrast, the respondent submits that the OCF-18 for an occupational therapy functional assessment was received and submitted beyond the five year limitation period on February 16, 2022 and February 28, 2022 on HCAI.

37The date of the accident is February 12, 2017. This means that the applicant (who is not catastrophically impaired) had until February 12, 2022 to submit treatment plans. Given that the treatment plan for physiotherapy services was submitted in December 2022, and the treatment plan for an occupational therapy functional assessment was submitted on February 16, 2022, the applicant is precluded from claiming entitlement.

Interest

38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since the applicant was not successful in demonstrating that the OCF-18's in dispute for physiotherapy services, psychological services and occupational therapy retroactive functional assessment are reasonable and necessary, no benefits are owing and interest does not apply.

Award

39The applicant sought an award under s. 10 of Reg. 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. I find an award is not appropriate because the respondent did not unreasonably withhold payment as the denials were based on reasonable, objective assessments of the applicant.

ORDER

40For the reasons set out above, I find that:

i. The applicant is not entitled to the treatment plans in dispute for physiotherapy services dated November 24, 2021, for psychological services dated February 5, 2022 and for an occupational therapy retroactive functional assessment dated January 25, 2022;

ii. The respondent's denials of the OCF-18's dated November 24, 2021, February 5, 2022 and January 25, 2022 were proper notice in accordance with section 38(8) of the Schedule;

iii. The applicant is precluded from claiming entitlement to the physiotherapy treatment plan dated December 16, 2022 and an occupational therapy functional assessment submitted on February 16, 2022 because the treatment plans were submitted more than five years after the accident, pursuant to s. 20(1)(a) of the Schedule;

iv. Interest is not payable and an award does not apply, and;

v. The application is dismissed.