Citation: Awad v. Aviva Insurance Company, 2025 ONLAT 24-001274/AABS

Licence Appeal Tribunal File Number: 24-001274/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:

Sherif Awad

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Bernard Trottier

APPEARANCES:

For the Applicant:

Mireille Dahab, Counsel

For the Respondent:

Yalda Aziz, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Sherif Awad, the applicant, was involved in an automobile accident on March 20, 2022, 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 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:

1. Is the applicant entitled to $1,353.72 ($3,619.30 less $2,265.58 approved) for chiropractic and physiotherapy services proposed by HealthMax Physiotherapy – Thornhill, in a treatment plan/OCF-18 submitted April 26, 2022, and partially approved May 4, 2022?

2. Is the applicant entitled to $4,725.65 for a bone growth stimulator, proposed by HealthMax Physiotherapy – Thornhill in a treatment plan submitted May 10, 2022, and denied May 25, 2022?

3. Is the applicant entitled to $2,712.77 ($3,192.77 less $480.00 approved) for chiropractic and physiotherapy services, proposed by HealthMax Physiotherapy – Thornhill in a treatment plan submitted March 7, 2023, and partially approved May 31, 2023?

4. Is the applicant entitled to $12,770.97 for a chronic pain management program, proposed by HealthMax Physiotherapy – Thornhill in a treatment plan submitted February 7, 2024, and denied February 26, 2024?

5. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant is not entitled to the medical and rehabilitation benefits in dispute.

4As no payments were unreasonably withheld or delayed, the applicant is not entitled to an award.

5As no benefits are payable, no interest is payable.

BACKGROUND: MINOR INJURY GUIDELINE (“MIG”)

6The accident occurred on March 20, 2022. On March 22, 2022, the applicant attended MacKenzie Health – Richmond Hill Hospital and obtained x-ray images of the chest, pelvis, lumbar spine and right foot, with no bone fractures identified.

7On April 12, 2022, the applicant obtained a further x-ray report from Bluewater Imaging, which revealed a non-displaced right fifth toe fracture. The applicant provided this report to the respondent on August 18, 2022, and the respondent requested an addendum insurer’s examination (“IE”) review by Dr. Gilbert Yee, orthopedic surgeon. Upon receipt of a report from Dr. Yee on September 23, 2022, the applicant was removed from the MIG, resulting in a further partial approval of the treatment plan for chiropractic and physiotherapy services (issue 1). The respondent maintained its denial of the treatment plan for a bone growth stimulator (issue 2) as not reasonable and necessary. Most of the line items for further chiropractic and physiotherapy services in the treatment plan submitted March 7, 2023 (issue 3) were denied as not reasonable and necessary, as was the treatment plan for a chronic pain management program submitted February 7, 2024 (issue 4).

8To receive payment for the disputed treatment and assessment plans under s. 15 and 16 of the Schedule, outside of the MIG, the applicant bears the burden of demonstrating on a balance of probabilities that the benefits are 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.

ANALYSIS

Issue 1: Chiropractic and physiotherapy services in the amount of $1,353.72

9I find that the disputed portion of the treatment plan for chiropractic and physiotherapy services (issue 1) is not reasonable and necessary, and it is therefore not payable by the respondent.

10The disputed treatment plan is comprised of the following line items:

Description	OCF-18 Comments	Total Cost
1. Manipulation, multiple body sites	Chiropractic treatment	$676.92
2. Therapy, multiple body sites	Physiotherapy	$598.56
3. Exercise, multiple body sites	Active therapy	$840.00
4. Stimulation, muscles of lower leg (around knee)	Laser therapy of the right foot	$1,353.72
5. TENS unit accessories	TENS unit pads	$33.00
6. Documentation and support activity for claim	OCF-18 completion	$112.81
Tax		$4.29
Total		$3,619.30

11All of the line items for this treatment plan were approved by the respondent, except for Line 4 regarding laser therapy of the applicant’s right foot and lower leg.

12The disputed treatment plan was proposed by Dr. Venous Salehi, chiropractor with HealthMax Physiotherapy – Brampton (“HealthMax”). The stated goals of the plan are to reduce pain, increase range of motion, increase strength, improve healing rate, educate, reassure and encourage the patient, prevent chronicity of injuries and return the patient to activities of normal living.

13The applicant submits that the line item for laser therapy of the applicant’s right foot and lower leg is reasonable and necessary as a result of the accident, and it should be paid by the respondent. The applicant directed me to the clinical notes and records (“CNRs”) of his family physician, Dr. Magdy Salama, who examined the applicant on April 12 and 22, 2022, and diagnosed the applicant with a right toe fracture, pain in the lower back and problems with sleep distributions.

14The applicant submits that the disputed line item is sufficiently important to him that he elected to incur the cost despite the respondent’s denial.

15The respondent submits that there is no medical evidence that links the applicant’s right knee complaint to the accident. The respondent submits that, in Part 7 of the OCF-18, Dr. Salehi indicates that the applicant suffered a right knee injury in 2018 due to falling on ice. The applicant argues that any treatment of the right knee is not reasonable and necessary as a result of the 2022 motor vehicle accident.

16The respondent relies on the in-person IE conducted by Dr. Yee on June 15, 2022, where he noted residual symptoms of the applicant’s toe injury, with no tenderness over the talonavicular (midfoot) region. In his report dated June 28, 2022, Dr. Yee opines that the treatment plan, in its entirety, was not reasonable and necessary as he considered the applicant’s injuries to be predominantly minor in nature. In Dr. Yee’s addendum IE report of September 23, 2022, following the receipt of the x-ray report from Bluewater Imaging, he opines that applicant’s injuries are no longer minor, due to the toe fracture. He opines, at that time, that Lines 1, 2, 3, 5 and 6 are reasonable and necessary, but that Line 4 for laser therapy is not “clinically indicated”.

17That respondent submits further that in a follow-up IE of the applicant with Dr. Yee on May 10, 2023, the applicant reported that his right foot pain had resolved. Dr. Yee assessed, at that time, that there was no swelling or tenderness in the forefoot, midfoot or ankle and that the applicant demonstrated a normal range of motion without pain. Dr. Yee opined that there was no tenderness in the fifth toe, that there was no deformity of the other toes, and that the applicant’s gait was normal.

18Lastly, the respondent submits that the applicant entered into evidence a letter from HealthMax dated February 23, 2023, indicating that he incurred $3,200.93 worth of treatment without specifying whether any laser therapy had been incurred.

19The applicant did not direct me to any medical reports or notes that indicate that the applicant suffered an injury to his right knee as a result of the accident. Therefore, I find that treatment of the applicant’s knee, as a result of a 2018 fall, is not reasonable and necessary as a result of the 2022 accident.

20The applicant did not direct me to any opinion that indicated that laser therapy was medically necessary to treat a toe fracture. I prefer the opinion of Dr. Yee, that laser therapy for a toe fracture is not clinically necessary, in the absence of any medical opinion from the applicant on the reasonableness and necessity of laser therapy for a toe fracture.

21Finally, the applicant did not direct me to any evidence that he incurred the cost of laser therapy to treat his toe fracture, which was apparently resolved by May of 2023.

22For the reasons above, I find that the applicant has not met his burden of demonstrating, on a balance of probabilities, that laser therapy to the right foot and lower leg is reasonable and necessary as a result of the accident, pursuant to the Schedule.

Issue 2: Bone growth stimulator in the amount of $4,725.65

23I find that the treatment plan for a bone growth stimulator (issue 2) is not reasonable and necessary, and it is therefore not payable by the respondent.

24The applicant submits, based on the opinion of Dr. Salehi in the OCF-18 dated May 10, 2022, that bone growth stimulation has been medically proven to be effective for treatment of fractures secondary to trauma, such as that to the applicant’s toe, because it would help him with weight-bearing activities such as walking, standing and stair climbing.

25The respondent submits that the applicant has not provided any medical evidence that corroborates the reasonableness and necessity of a bone growth stimulator. The respondent argues that it is not recommended by Dr. Salama or any medical practitioner other than Dr. Salehi. The respondent argues further that the applicant’s toe fracture was uncomplicated and healed normally.

26The respondent relies again on Dr. Yee, who opines that the applicant’s toe injury is an undisplaced fracture of the 5th proximal phalanx and that there is no radiographic evidence of delayed healing. The respondent argues that it is not liable to cover experimental treatments. It argues, particularly, that the Tribunal has ruled against the necessity of bone growth stimulators when the fracture is not categorized as a non-union facture, citing Balasubramaniam v. Aviva General Insurance, 2023 CanLII 30763 (ON LAT).

27I find that I prefer the opinion of Dr. Yee to that of Dr. Salehi on the reasonableness and necessity of a bone growth simulator. The evidence before me indicates that the applicant’s toe fracture was uncomplicated and resolved in due course, without the need for novel therapies.

28For the reasons above, I find that that the applicant has not met his burden of demonstrating, on a balance of probabilities, that a bone growth stimulator is reasonable and necessary as a result of the accident, or that the cost of the bone growth stimulator is reasonable compared to other therapies available to him.

Issue 3: Chiropractic and physiotherapy services in the amount of $3,192.77

29I find that the applicant has not met the burden of demonstrating, on a balance of probabilities, that the disputed portions of the treatment plan for chiropractic and physiotherapy services (issue 3) are reasonable and necessary. They are therefore not payable by the respondent.

30The disputed treatment plan, submitted March 7, 2023, is comprised of the following line items:

Description	OCF-18 Comments	Total Cost
1. Manipulation, multiple body sites	Chiropractic treatment	$676.92
2. Therapy, multiple body sites	Physiotherapy	$598.56
3. Exercise, multiple body sites	Active therapy	$840.00
4. Therapy, multiple body sites	Manual therapy	$840.00
5. TENS unit accessories	IFC pads	$33.00
6. Documentation and support activity for claim	OCF-18 completion	$200.00
Tax		$4.29
Total		$3,192.77

31The respondent approved part of Line 3 for exercise sessions and Line 6 for the OCF-18 completion, upon receipt of an IE report dated May 31, 2023, from Dr. Yee. In his report, Dr. Yee opined that instead of 12 exercise sessions, the appellant should be instructed in a formal home-based exercise program with 4 sessions and documentation. The total amount approved was $480.00.

32The applicant submits that the proposed treatment plan is reasonable and necessary at that point in his recovery. Dr. Salehi, who completed the OCF-18, indicates that the applicant continues to suffer from pain in the right foot, ongoing lower back pain that radiates to his lower extremities, and neck pain on his left side. The applicant submits that the cost of the treatment plan was incurred, as he did not want to stop treatment.

33The applicant submits that the respondent relies heavily on the addendum report of Dr. Yee, dated September 23, 2022, in denying most of this treatment plan. The applicant argues that the respondent focused only on the portions of the report that favoured their denials, and that it disregarded Dr. Yee’s observations that the applicant still demonstrated tenderness to palpation over his lumbar spine and his right fifth toe at that time.

34The respondent submits that the applicant has not met his burden of demonstrating that the treatment plan is reasonable and necessary as a result of the accident, at that point in his recovery. The respondent submits that by May 31, 2023, the applicant’s toe injury and foot pain had been resolved, as observed by Dr. Yee. The respondent directed me to the CNRs of HealthMax, from visits on December 6, 2022 and January 24, 2023 that attributed the applicant’s back pain to work, and not to the accident. The respondent argues that further facility-based treatment was not reasonable and necessary to treat the applicant’s accident-related injuries, at the time the treatment plan was submitted.

35The respondent submits that it relies on the orthopedic assessment report of Dr. Yee, dated May 31, 2023, which post-dates the treatment plan, in denying most of the line items. The respondent submits that it relies, as well, on the opinion of Dr. Ron Esterbauer, general practitioner, who examined the applicant on February 15, 2023, and who reviewed the applicant’s CT scan of May 10, 2023. The respondent directed me to Dr. Esterbauer’s letter report of June 23, 2023, where he opines that it was difficult to ascertain how much of his lumbar spine symptoms were related to degenerative change, and how much may have been caused by the accident. Dr. Esterbauer opined further that the lack of benefit of physiotherapy, reported by the applicant, would suggest that the likelihood of further benefit of physiotherapy is “guarded.”

36The respondent argues that despite the applicant’s assertion that the treatment plan was incurred, the applicant has not provided any evidence to that effect.

37I find that the applicant has not provided supporting evidence, contemporaneous to the submission of the treatment plan, about one year post-accident, that further facility-based physical therapy services are reasonable and necessary. The assessments of the applicant’s injuries, other than the toe fracture, found them to be minor in nature. I prefer the opinion of Dr. Yee, who does not recommend further chiropractic and physiotherapy treatment, because it is consistent with the report of Dr. Esterbauer and also with the CNRs of HealthMax. I find that the recommendation of Dr. Yee, for further home-based exercise (partial approval of Line 3), reasonable in light of the medical evidence before me.

38For these reasons, I find that the applicant has not met his burden of demonstrating, on a balance of probabilities, that the disputed line items of the proposed treatment plan are reasonable and necessary as a result of the accident.

Issue 4: Chronic pain management program in the amount of $12,770.97

39I find that the applicant has not met the burden of demonstrating, on a balance of probabilities, that a chronic pain management program (issue 4) is reasonable and necessary. It is therefore not payable by the respondent.

40The applicant and the respondent dispute whether the applicant meets the criteria for a chronic pain diagnosis. To be valid medically, the Tribunal generally relies on the American Medical Association’s Guides, 6th edition (the “AMA Guides”) for evaluating chronic pain claims (see, for example, the Tribunal’s analysis in 17-007825 v. Aviva Insurance Canada, 2018 CanLII 98282 ON LAT). The AMA Guides state that at least three of the following six criteria must be met for a diagnosis of chronic pain:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.

ii. Excessive dependence on health care providers, spouse, or family.

iii. Secondary physical deconditioning due to disuse and or fear avoidance of physical activity due to pain.

iv. Withdrawal from social milieu, including work, recreation, or other social contracts.

v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.

vi. Development of psychosocial sequelae after the initial incident, include anxiety, fear-avoidance, depression, or nonorganic illness behaviors

41The applicant relies on Dr. Tajedin Getahun, orthopedic surgeon, who opined in a chronic pain assessment report dated November 7, 2023, that the applicant satisfied the criteria (i), (ii), (iii) and (iv) above, but did not satisfy criteria (v) and (vi). Dr. Getahun opined that the applicant has met four of the six diagnostic criteria, which establishes a diagnosis of chronic pain syndrome.

42The applicant argues that the chronic pain diagnosis is corroborated by the CNRs of Dr. Salama, who opined on May 31, 2023, that the applicant suffered from osteoarthritis of the spine at multiple levels, disc bulges in the lumbar spine, and lower lumbar spondylosis.

43The applicant argues that the chronic pain diagnosis is corroborated further by the psychological IE assessment of Dr. Zubina Ladak, psychologist, who opined in her report dated June 22, 2022, that the applicant suffered from mood declines, nervousness, sleep interruptions, energy declines and pain in the lower back and toe, and headaches.

44The applicant submits that the respondent failed to reference the findings in Dr. Getahun’s report in its denial of the proposed treatment plan. He argues that the respondent, in its denial, relied solely on the earlier orthopedic IE report of Dr. Yee, dated May 10, 2023, and that the respondent failed to consider the entirety of the applicant’s medical history.

45In the disputed treatment plan, Dr. Getahun recommends that the applicant be treated with physiotherapy, chiropractic therapy, cognitive behavioural therapy, nerve block injections and pharmacological interventions, in line with the treatment recommendations in the AMA Guides.

46The respondent disputes each of the four criteria noted by Dr. Getahun in his diagnosis of chronic pain syndrome.

47For criterion (i), the respondent submits that, following the accident, the applicant was prescribed only Tylenol and Advil. In his report, Dr. Getahun notes that the applicant utilized Lyrica, used to treat nerve pain. However, the respondent argues that it was not prescribed until 14 months post-accident, by Dr. Esterbauer, and that the prescription was not refilled. The respondent argues that the applicant has not met the criterion of abuse or dependence of prescription drugs, and therefore has not satisfied criterion (i) of the AMA Guides. I agree with the respondent.

48For criterion (ii), the respondent submits that the applicant has not demonstrated excessive reliance on healthcare providers. The respondent argues that the applicant spaced interactions with medical professionals appropriately, and that the applicant’s use of physiotherapy, and over-the-counter medications instead of narcotics, reflects measured healthcare utilization. The respondent argues that the applicant has not met criterion (ii). Here again, I agree with the respondent

49Regarding criteria (iii) and (iv), the respondent argues that there is no evidence that the applicant suffered from secondary physical deconditioning from disuse of fear-avoidance of activity due to pain, or withdrawal from social milieu or work. The respondent relies on the interdisciplinary IE report of Dr. Yee and Dr. Godwin Lau, psychologist, dated May 23, 2024, where the applicant indicated that he continued to share household duties with his wife, performed personal care independently, worked regular hours, and drove a vehicle as before the accident. For criteria (iii) and (iv), I find that I agree with the respondent.

50I find that I prefer the evaluation of the respondent, supported by the opinions of Dr. Yee and Dr. Lau, that the applicant does not meet any of the criteria for a diagnosis of chronic pain syndrome as described in the AMA Guides. I assign less weight to the opinion of Dr. Getahun, that the applicant meets criteria (i) to (iv), because it does not align with the balance of the medical evidence before me, including the CNRs of Dr. Salama and Dr. Esterbauer, as well as the applicant’s pharmacological history and multiple IE reports.

51I find that the applicant does not meet three or more of the six criteria for diagnosing chronic pain syndrome, as described in the AMA Guides. I find, therefore, that the treatment program for a chronic pain management program is not reasonable and necessary, and it is not payable by the respondent.

Award

52The applicant sought an award under s. 10 of Reg. 664. I find that the respondent acted in accordance with the requirements of the Schedule, and I dismiss the applicant’s claim for an award as there is no evidence the respondent unreasonably withheld or delayed the payment of a benefit.

53The applicant submits that the respondent denied the treatment plans, initially, because the applicant’s injuries were “predominantly minor in nature”. The applicant argues that these denials were arbitrary, as the medical information sent to the respondent indicated that the accident-related impairments did not fall into the minor category. The applicant argues that the arbitrary denials and delayed approvals warrant an award under s. 10, since they were unreasonable.

54The respondent submits that it adjusted the applicant’s file based on the available medical evidence, reviewed it promptly, and obtained IE reports when necessary. It submits further that, when it maintained the applicant in the MIG for issues 1 and 2, it only had the diagnostic imaging from MacKenzie Health that indicated no fractures. The respondent submits that it did not receive the x-ray report from Bluewater Imaging until August 18, 2022, whereupon it removed the applicant from the MIG and re-adjusted the file on the basis of whether the components of each proposed treatment plan were reasonable and necessary.

55I find that the applicant has not met his burden of proving, on a balance of probabilities, that the respondent unreasonably withheld of delayed payment of benefits.

Interest

56Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are payable, no interest is payable.

ORDER

57The applicant is not entitled to the medical and rehabilitation benefits in dispute.

58Since no benefits were unreasonably withheld or delayed, the applicant is not entitled to award under s. 10 of Reg. 664.

59Since no benefits are payable, no interest is payable.