Licence Appeal Tribunal File Number: 22-009935/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:
Zeeshan Khan
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR: Rachel Levitsky
APPEARANCES:
For the Applicant: Neha Kohli, Paralegal
For the Respondent: Abigail Newcombe, Counsel
HEARD: By way of written submissions
OVERVIEW
1Zeeshan Khan, the applicant, was involved in an automobile accident on July 13, 2020, 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, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
Page Limits
2The respondent submits that the applicant did not abide by the submission page limits set out in the Case Conference Report and Order (“CCRO”) of May 17, 2023. The order was on consent and indicated that the submissions would be limited to 12 pages in length. The respondent submits that the applicant’s submissions are 16 pages, and if he required additional pages, he should have brought a motion to vary the CCRO. The respondent argues that it would be prejudicial to the respondent to be required to adhere to the 12-page limit while the applicant exceeded it. It requests that I strike the applicant’s submissions entirely, or in the alternative, strike any submissions beyond the 12-page limit.
3Pursuant to ss. 23(1) and 25.0.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, it is within my discretion to strike any submissions in excess of the 12-page limit laid out in the CCRO. While I agree with the respondent that the applicant did not comply with the CCRO, I choose not to exclude the applicant’s submissions.
4The first two-thirds of the thirteenth page was taken up by the style of cause, whereas the respondent included its style of cause in a separate cover page which it did not count towards its own page limits. Pages 15 and 16 are only signature pages. Accordingly, the only paragraphs at issue would be 22 to 24. I do not find that any of those paragraphs are helpful in reaching a determination on the issues before me. Paragraph 22 refers to a case that deals with the Minor Injury Guideline, which is not an issue in this hearing. Paragraph 23 makes statements regarding an accounting report without providing any supporting evidence for the claims made and does not further the applicant’s argument in any event. Paragraph 24 refers generally to sections of the Schedule, and states that “the applicant has incurred the significant cost of nearly all the treatment plans in dispute”, without providing any evidence or specifying what has been incurred. Therefore, I find that the respondent is not prejudiced by my decision not to exclude the submissions.
Productions
5The respondent submits that the applicant is in breach of the CCRO as he did not fulfil various production obligations. In addition, the respondent submits that the applicant produced records from Dr. Abounaja from August 22, 2021 to August 13, 2023 within his submissions, and not before, which was also in breach of the CCRO. The respondent submits that the applicant should not be permitted to rely on those records given his failure to comply with the CCRO. The respondent also submits that if I am inclined to consider the records, the notes support the respondent’s position.
6The respondent acknowledged that it had an opportunity to review the records, and took a position on them. The respondent has not provided any evidence that it would be prejudiced if the records were not excluded from the hearing. I find that the applicant would be prejudiced if these records were excluded from the hearing, and this outweighs any potential prejudice to the respondent. I accordingly decline to exclude the records of Dr. Abounaja from the hearing.
ISSUES
7The issues in dispute are:
(i) Is the applicant entitled to attendant care benefits in the amount of $2,012.08 per month from July 13, 2020 to April 21, 2022?
(ii) Is the applicant entitled to $2,825.00 for an income calculation report dated November 15, 2021?
(iii) Is the applicant entitled to $2,012.08 for an assessed monthly attendant care benefit (Form 1) dated December 1, 2021?
(iv) Is the applicant entitled to $2,374.40 for chiropractic services, proposed by Scarborough Medical Centre in a treatment plan dated November 24, 2020?
(v) Is the applicant entitled to $2,396.80 for psychological services, proposed by Svetlana Gabidulina in a treatment plan dated July 21, 2021?
(vi) Is the applicant entitled to $1,015.87 for assistive devices proposed by Q Medical in a treatment plan dated August 12, 2020?
(vii) Is the applicant entitled to $1,318.96 for assistive devices proposed by Q Medical in a treatment plan dated December 31, 2021?
(viii) Is the applicant entitled to $850.00 for a nutritional assessment, proposed by Svetlana Gabidulina and Yulia Khaya in a treatment plan dated July 21, 2021?
(ix) Is the applicant entitled to $4,294.00 for an MRI, proposed by Q Medical in a treatment plan dated August 12, 2020?
(x) Is the applicant entitled to $2,486.00 for a cognitive assessment, proposed by Q Medical in a treatment plan dated October 6, 2021?
(xi) Is the applicant entitled to $2,486.00 for a social assessment, proposed by Q Medical in a treatment plan dated October 21, 2021?
(xii) Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by Q Medical in a treatment plan dated October 21, 2021?
(xiii) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
8The applicant is entitled to $850.00 for a nutritional assessment, proposed by Svetlana Gabidulina and Yulia Khaya in a treatment plan dated July 21, 2021, plus any applicable interest.
9The applicant is entitled to $2,486.00 for a chronic pain assessment, proposed by Q Medical in a treatment plan dated October 5, 2021 (incorrectly identified above as being dated October 21, 2021), plus any applicable interest.
10There is no evidence that issues (iii), (vi), and (ix) were ever submitted or denied by the respondent, and accordingly I do not have the jurisdiction to determine the applicant’s entitlement to those benefits.
11The applicant is not entitled to the remainder of the issues in dispute.
ANALYSIS
Issues (i) and (iii) - Attendant Care Benefits
12Although I find that the applicant was entitled to attendant care benefits, he has not proven that the benefit was incurred pursuant to s. 3(7)(e), and they are accordingly not payable.
13Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (ACBs) provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).
14The applicant relies on a Form-1 completed by Aliah Zain, occupational therapist, dated November 27, 2021, and submits that he is entitled to $2,012.08 in monthly attendant care from July 13, 2020 to April 21, 2022. Ms. Zain recommended assistance with dressing and undressing, toenail care, meal preparation and serving, walking supervision, bathroom and bedroom cleaning, laundry, applying creams, maintaining medication supply, and bathing. I find that Ms. Zain’s report was detailed and provided appropriate explanations for the recommended care.
15I also find that there is corroborating evidence that the applicant required attendant care assistance after the accident. For some time, the applicant was using a wheelchair, and subsequently ambulated with a cane. He did not drive prior to the accident, but was unable to ride his bicycle after, and relied on family members to drive him to appointments. He reported to Dr. Amena Syed, s. 44 psychologist, on April 22, 2021, that his wife was helping him with personal hygiene. He also reported to a psychiatrist, Dr. Rebecca Carriere, on October 29, 2020, that he required help from his wife with changing and showering, and was not able to complete any cooking, cleaning, or chores.
16The respondent relies on the s. 44 report of Dawn Li, occupational therapist, from an assessment on October 28, 2022. She opined that the applicant does not require attendant care assistance. The respondent further submits that, based on the applicant’s own self-report to Ms. Li, he does not require attendant care benefits and does not require assistance with his self care.
17I agree with the respondent that by the time the applicant was assessed by Ms. Li, he did not require attendant care assistance. This was also the case when he was assessed by Dr. Yuri Marchuk, physiatrist, on April 22, 2022. At that point, the applicant advised Dr. Marchuk that he was able to complete his self-care tasks such as grooming, dressing, toileting, and bathing, and was able to walk, climb stairs, sit, and stand.
18However, the applicant is not seeking attendant care benefits past April 21, 2022. Ms. Li’s report provides limited assistance to me as her assessment took place six months after that date, and she did not provide an opinion as to the applicant’s past needs. I accordingly accept Ms. Zain’s recommendation and find that the applicant was entitled to $2,012.08 in monthly attendant care benefits for the time period in dispute.
19Despite my finding that the applicant required attendant care assistance, the applicant has not provided any proof of incurred attendant care expenses during the disputed time period. The applicant submits that he relied on his wife’s assistance for dressing and undressing, and tub transfers and setup. Other than that, the applicant has not provided any further details that would help him prove that the expenses were incurred pursuant to s. 3(7)(e) of the Schedule. I note that the applicant chose to forego making any reply submissions, even though the respondent raised this as an issue.
20I accordingly find that attendant care benefits are not payable for the time period in dispute.
21The only other attendant care issue in dispute is referred to as “$2,012.08 for an assessed monthly attendant care benefit (Form 1)” (issue (iii)). The applicant submits that “the attendant care assessment” is reasonable and necessary. There is no treatment plan before me in the amount of $2,012.08, nor is there a treatment plan dated December 1, 2021. As far as I can tell, there is no attendant care assessment in dispute. If a request for a benefit has not been submitted and denied, no “dispute” exists as defined in s. 280 of the Insurance Act. The applicant has failed to explain or provide evidence in support of what he is seeking, or whether it was ever denied by the respondent. As such, I find that I do not have the jurisdiction to determine whether this item is payable.
Issue (ii) - Income Calculation Report
22I find that the applicant has not met his onus in demonstrating entitlement to the income calculation report in dispute.
23The applicant seeks $2,825.00 for an income calculation report dated November 15, 2021. His only submission regarding this report is that it is payable pursuant to s. 7(4)3 of the Schedule, and that the report was prepared to expedite the calculation as it had been 32 weeks post-accident and the respondent had yet to prepare a calculation. No evidence was tendered in support of this argument.
24The respondent submits that it has already paid $2,825.00 for an initial income calculation report, dated February 22, 2021. It relies on s. 7(5) of the Schedule, which states that an insurer is not required to pay more than $2,500 for the preparation of one or more of these reports. I note that there is no evidence before me that the respondent already paid for a report, aside from the respondent saying so in its submissions.
25However, it is the applicant who has the onus of proving entitlement to this expense. The only document provided by the applicant regarding an income loss report is a copy of a report dated February 22, 2021. The issue in dispute was for a report from November 15, 2021. The applicant has not provided me with a copy of that report, or an invoice for that report, if it was ever authored. I note that even if these documents were provided to the Tribunal previously, the CCRO stipulates that any documents previously filed with the Tribunal must be resubmitted for the hearing. Further, the applicant did not address the respondent’s argument regarding s. 7(5). I accordingly find that the applicant has not met his burden in proving that he is entitled to this expense.
Issue (iv) – Chiropractic Services
26I find that the applicant has not met his burden of proving that this treatment plan is reasonable and necessary.
27To 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.
28The applicant seeks $2,374.40 for chiropractic services in a treatment plan dated November 24, 2020. The applicant has not provided me with a copy of the treatment plan in dispute. He has not identified the goals of treatment, how they are to be met, or even the cost of each service proposed in the treatment plan. Further, with respect to treatment records, he has only provided me with clinical notes and records from his family physician, Dr. Abounaja, and Scarborough General Hospital. Dr. Abounaja recommended physiotherapy, aqua fit, and core strengthening around the time this treatment plan was submitted. Without having a copy of the treatment plan before me, I have no way of knowing whether any of those recommendations were included in the treatment plan. I accordingly find that it is not payable.
Issue (v) – Psychological Services
29I find that the applicant is not entitled to this treatment plan.
30The applicant is seeking $2,396.80 for psychological services, proposed by Svetlana Gabidulina, psychologist, in a treatment plan dated July 21, 2021. The treatment plan recommends a number of assistive devices for use during psychological treatment sessions. The proposed items are: audio meditation guide, meditation chair, mediation mat, meditation cushion, meditation candle, Bluetooth speaker, salt lamp, incense set, room divider, Must S Brain Sense headband, mindful crystal set, pain and symptom tracker diary, gratitude book, mental health journal, Cards for Calm, PlayingCBT therapy game, eye pillow, back roll, yoga blocks, and yoga wheel. There is also an amount indicated for the completion of the treatment plan, and delivery of the items. The applicant submits that the proposed devices were intended to aid in rehabilitation, pain reduction, correct positioning, and support him with developing self-management strategies. He also submits that the goals of the devices were to alleviate anxious and depressive symptoms, return to pre-injury functional and independence levels, and resume daily activities.
31The applicant was assessed by Dr. Rebecca Carriere, psychiatrist, on July 13, 2020. Dr. Carriere diagnosed the applicant with Major Depressive Disorder, Posttraumatic Stress Disorder, Situational Phobias, and Somatic Symptom Disorder. She recommended pharmacotherapy and psychotherapy. She did not recommend any assistive devices. Aside from Dr. Gabidulina, none of the assistive devices listed in this treatment plan were recommended by any of the assessors or treatment providers relied on by the applicant or respondent.
32The respondent relies on the s. 44 report of Dr. Amena Syed, psychologist, who assessed the applicant on April 22, 2021. Dr. Syed diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood, and opined that psychological treatment sessions were reasonable and necessary. However, in a paper review report dated November 24, 2021, Dr. Syed addressed this treatment plan specifically, and opined that the devices were not reasonable and necessary.
33I note that the applicant attended psychological treatment sessions via telephone. There are no records before me from those sessions. Aside from the treatment plan itself, the applicant has not provided evidence or an explanation to explain why each of the proposed items are reasonable and necessary. On a balance of probabilities, I find that he has not met his burden in this regard, and accordingly the treatment plan is not payable.
Issues (vi) and (vii) – Assistive Devices
34There is no treatment plan before me in the amount of $1,015.87 or dated August 12, 2020 (issue (vi)). The applicant did not make any submissions regarding this treatment plan in particular. As such, I do not know what assistive devices the applicant is seeking. Further, the respondent submits that it does not have a record of this treatment plan, or of any denial letter for this item. I find that this issue is not properly before me, and I do not have the jurisdiction to determine whether the applicant is entitled to it.
35The applicant is also seeking $1,318.96 for assistive devices proposed in a treatment plan dated December 31, 2021 (issue (vii)). For the reasons below, I find that the applicant is not entitled to this treatment plan.
36Upon review of the treatment plan before me, it appears that the correct amount is $1,318.90 and the correct date of the treatment plan is December 8, 2021. The devices were recommended by Ms. Zain in her report, and are as follows: cervical pillow, curved/angled bath brush, extra long handled shoe horn, long handled reacher, long handled toe nail trimmer, clamp-on tub safety rail, neck and shoulder Therm heat wrap, electric heating pad, gel seat cushion, bath chair, and raised toilet seat.
37By the time the applicant was assessed by Ms. Li in October 2022, she opined that he did not require any of these devices. Ms. Li did not observe any functional limitations or impairments with respect to his neck, he was independent in his self-care, could access his feet and reported independence with toenail clipping, could transfer to the tub independently, was observed to sit for a long period of time, was independent in showering standing up, and was able to complete sit-to-stand transfers and thus did not require a toilet seat.
38The evidence before me is that the applicant’s condition improved over time, such that he was eventually able to return to work and complete all of his self-care tasks independently. There is no evidence that the applicant incurred the cost of any of these items prior to this improvement. I find that, on a balance of probabilities, the applicant has not proven that he requires these items, and the applicant is accordingly not entitled to them.
Issue (viii) – Nutritional Assessment
39I find that the applicant is entitled to this treatment plan.
40The treatment plan for a nutritional assessment, dated July 21, 2021, states that the applicant reported a change in dietary intake. The goal of the treatment plan was to identify nutrition-related problems, establish whether a nutritional diagnosis exists, and if so, its effect on the applicant’s health, lifestyle, and response to medical recommendations.
41Dr. Syed indicated in her report that the applicant reported a decrease in his appetite since the accident, and that he had a fluctuation in his weight. He made a similar report to Dr. Carriere. I find that, on a balance of probabilities, there is sufficient evidence that the applicant was struggling with dietary issues such that an assessment of this kind was warranted. I also find that the cost of $850.00 is not excessive. As such, the applicant is entitled to this treatment plan.
Issue (ix) – MRI
42The applicant submits that an MRI is essential in investigating the accident’s impact to the applicant’s right knee. However, the applicant has not provided me with a treatment plan or OCF-6 for this item. The respondent submits that it has no record of a treatment plan being submitted for an MRI, and no denial letter for this item. The applicant did not make any reply submissions with an explanation. I find that this issue is not properly before me, and I do not have the jurisdiction to determine whether the applicant is entitled to it.
Issue (x) – Cognitive Assessment
43I find that the applicant is not entitled to this treatment plan.
44The applicant requests funding for a cognitive assessment, to be completed by an occupational therapist, in the amount of $2,486.00. The treatment plan refers to Dr. Carriere’s report, noting that the applicant has poor concentration and is more forgetful. The goals of the assessment were to identify cognitive limitations, level of functioning, and impairment, as well as identify tasks, environments, and equipment that present barriers to the applicant’s recovery and return to normal activities. It would also provide recommendations to encourage and facilitate restoration of pre-accident levels of function and cognitive abilities.
45While the applicant may have been experiencing some issues with concentration and forgetfulness in October 2020 when he was assessed by Ms. Carriere, he did not report these issues to Ms. Zain by October 2021. In fact, Ms. Zain indicated that the applicant did not have any cognitive issues. The applicant also advised Ms. Li that he did not have any cognitive issues. It appears that the applicant’s condition improved such that a cognitive assessment is not warranted. There is no evidence that a cognitive assessment took place prior to this improvement. I therefore find that the applicant is not entitled to this treatment plan.
Issue (xi) – Social Assessment
46I find that the applicant is not entitled to this treatment plan.
47The applicant requests funding for what he described as a “social assessment” in the amount of $2,486.00. The respondent points out that the date and amount of the disputed treatment plan are incorrect. The correct amount in dispute was $2,034.00 for a social work assessment, proposed in a treatment plan dated October 5, 2021. I have reviewed the treatment plan, and this appears to be accurate.
48The respondent submits that a social work assessment is a duplication of services, as the applicant was already under the care of a psychologist. Ms. Syed agreed with this position in a report dated November 18, 2021.
49As the applicant has not provided any explanation as to how this assessment would vary from the services that he has already been provided, and the assessment he had already undergone with Dr. Carriere, I find that he has not proven on a balance of probabilities that this treatment plan is reasonable and necessary.
Issue (xii) – Chronic Pain Assessment
50I find that the applicant is entitled to this treatment plan.
51The applicant submitted a treatment plan for a chronic pain assessment in the amount of $2,486.00. The respondent submits that the correct date for this treatment plan is October 5, 2021, and upon review of the treatment plan, this appears to be the case. The treatment plan indicates that the applicant had been reporting pain and interference in activities of daily living for a prolonged duration. The goals of the treatment plan were to determine the mechanism of pain, evaluate barriers to recovery and impairments in activities of daily living, and restore pre-accident levels of function.
52The applicant ultimately attended a chronic pain assessment with Dr. Yuri Marchuk, physiatrist, on April 22, 2022. Dr. Marchuk diagnosed the applicant with lumbar musculoligamentous dysfunction, and right patellofemoral joint dysfunction. He also queried a right meniscus/ligament tear, for which he recommended further investigation through an MRI.
53The respondent submits that as Dr. Marchuk ultimately found that the applicant was not suffering from chronic pain syndrome, it was correct in denying the treatment plan. I do not agree. The respondent has not provided me with any authority stating that a chronic pain assessment is not warranted unless there is an ultimate diagnosis of chronic pain syndrome. The applicant only has to prove on a balance of probabilities that it was reasonable and necessary to assess whether he suffered from chronic pain or chronic pain syndrome.
54The respondent relies on the reports of Dr. David Berbrayer, physiatrist. During Dr. Berbrayer’s assessment on June 28, 2021, the applicant was still experiencing pain in his neck and low back, was using prescription medication, was using a cane, and required his wife’s assistance with housekeeping tasks. However, with respect to this treatment plan, Dr. Berbrayer stated in a paper review report of December 1, 2021: “I do not feel that the proposed assessment or examination described in the OCF-18 dated October 5, 2021 and signed by Dr. Doreen Payan is reasonably required. This is based on my history, examination, and documentation review.” I do not find Dr. Berbrayer’s opinion to be compelling, as he did not elaborate on this at all, and did not explain why the applicant’s reported symptoms did not merit further investigation.
55I find that there is evidence that for approximately 1.5 years after the accident, the applicant continued to suffer from pain and functional limitations, such that further investigation was warranted. He repeatedly complained of low back pain to Dr. Abounaja, and was continually prescribed pain medication. On November 17, 2021, Dr. Abounaja indicated that he was suffering from chronic back pain. According to Ms. Zain’s report, he was still using a cane in October 2021, and required assistance with his self-care. He also received formal psychological diagnoses from Dr. Syed and Dr. Carriere. These symptoms and diagnoses are compelling evidence that it was reasonable to explore whether the applicant was suffering from chronic pain or chronic pain syndrome.
56For those reasons, I find that on a balance of probabilities, a chronic pain assessment was reasonable and necessary at the time the treatment plan was submitted. The respondent does not take issue with the cost of the treatment plan, and I find that it is compliant with s. 25(5) of the Schedule. I accordingly find that the applicant is entitled to the cost of this assessment.
Interest
57Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
ORDER
58The applicant is entitled to $850.00 for a nutritional assessment, proposed by Svetlana Gabidulina and Yulia Khaya in a treatment plan dated July 21, 2021, plus any applicable interest.
59The applicant is entitled to $2,486.00 for a chronic pain assessment, proposed by Q Medical in a treatment plan dated October 5, 2021 (incorrectly identified above as being dated October 21, 2021), plus any applicable interest.
60There is no evidence that issues (iii), (vi), and (ix) were ever submitted or denied, and accordingly I do not have the jurisdiction to determine the applicant’s entitlement to those benefits.
61The applicant is not entitled to the remainder of the issues in dispute.
Released: October 17, 2024
Rachel Levitsky
Adjudicator
