Licence Appeal Tribunal File Number: 22-010205/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:
Zaman Alli
Applicant
and
Traders General Insurance Company
Respondent
DECISION
VICE-CHAIR: Christopher Climo
APPEARANCES:
For the Applicant: Aftab A. Khan, Counsel
For the Respondent: Kevin H. Griffiths, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Zaman Alli, the applicant, was involved in an automobile accident on September 14, 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 the respondent, Insurer, 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 $2,915.40 for medical marijuana, proposed by Apollo Applied Research Inc in a treatment plan/OCF-18 dated January 21, 2022?
ii. Is the applicant entitled to $2,384.30 for a physiatry assessment proposed by Dr. Dinesh Kumbhare in a treatment plan/OCF-18 dated July 14, 2022?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
3The Case Conference Report and Order (“CCRO”) listed 7 issues in dispute plus interest and an award. In submissions for the written hearing, the applicant withdrew issues 1 to 5 from the CCRO as well as the claim for an award. The CCRO listed issue i above as $2,915.40 for medication, submitted on a claim form (OCF-6) dated January 21, 2022. The submissions from both parties clarify that that this refers to a treatment plan/OCF-18 from Apollo Applied Research Inc dated January 21, 2022 proposing $2,195.40 for medical marijuana as set out above.
RESULT
4I find that:
i. The applicant is not entitled to the treatment plans in dispute, or interest.
ii. The application is dismissed.
ANALYSIS
5To receive payment for a treatment or assessment plan under s. 15 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 how the overall costs of achieving them are reasonable.
The applicant is not entitled to $2,915.40 for medical marijuana, proposed by Apollo Applied Research Inc in a treatment plan/OCF-18 dated January 21, 2022.
6The applicant submits that the goals of the treatment, which are pain reduction and improvement in sleep, are legitimate treatment goals which benefit the applicant’s physical and mental health. The applicant submits that he has had an established history of being prescribed medical marijuana (cannabis) by his treating physicians and the OCF-18 is therefore reasonable and necessary.
7In support of this position, the applicant relies on the clinical notes and records (“CNRs”) of Dr. Franaz Salari dated July 16, 2019, which show that the applicant was recommended medical cannabis to manage chronic pain, as well as the CNRS from follow up visits with Dr. Salari on October 10, 2019 and June 8, 2020, when the dosage was increased. The applicant also relies on CNRs of Dr. Ilona Dreyzin dated May 26, 2021, which note that medical cannabis had helped with pain but not sleep and increased the dosage again, as well as the CNRs of Dr. Rajni Saraf dated May 12, 2022, which noted anxiety, sleep and suicidal thoughts were better with medical cannabis. The applicant also relies on a s. 25 report of Dr. Dinesh Kumbhare, Physiatrist, dated May 23, 2023, which noted that the applicant had benefited from medical marijuana for some pain control and recommended continuation for reduction in pain and anxiety and to improve sleep.
8The respondent submits that the treatment plans are not reasonable and necessary. The respondent submits that the applicant has not achieved meaningful pain relief and is still not sleeping well, which are the stated goals of the treatment.
9The respondent argues that the applicant’s evidence does not support the position that medical cannabis helped with pain relief or sleeping. In support of this the respondent relies on the May 12, 2022 CNRs of Dr. Saraf which report a pain score with medical marijuana which is higher than the average pain score of 5 reported in July 2019 clinical notes and records of Dr. Salari prior to the recommendation of medical cannabis. The respondent also relies on the CNRs of Dr. Salari dated June 8, 2020, Dr. Dreyzin dated May 26, 2021 and Dr. Saraf dated May 12, 2022, which all note that the applicant is still not sleeping well with medical cannabis. The respondent incorrectly ascribes all of the CNRs from Apollo Applied Research to Dr. Salari in their submissions, although some are from Dr. Dreyzin and Dr. Saraf.
10The respondent also relies on a s. 44 report from Dr. Todd Walters, dated March 30, 2022, that notes that Dr. Walters failed to identify an objective impairment. The report notes significant psychiatric issues but that treatment with a psychoactive substance such as medical cannabis is likely contraindicated. As I find that the applicant did not meet the burden of proof, I did not consider or rely on Dr. Walters’ report.
11I find that the applicant has failed to meet the burden of proving on a balance of probabilities that the treatment plan is reasonable and necessary. The first mention of the use of medical cannabis is in the CNRs of Dr. Salari in July 2019. There were dosage increases in June 2020 and May 2021, as well as ongoing medical advice on management of the method to use medical cannabis. The applicant reported a pain score of 5 out of 10 in July 2019, a pain score of 6 in June 2020 and a pain score of 8 in May 2022. The applicant reported continued issues with sleep in all three reports. In the s. 25 report from Dr. Kumbhare dated May 23, 2023, the applicant reported pain levels of 7 out of 10 for back pain, 7 for neck pain, 10+ for left side lower extremities and 7/8 for right side lower extremities. The applicant also reported difficulties falling asleep and staying asleep and sleeping 3 to 5 hours a night. The applicant also reported feelings of anger and depression. The self reports were sustained by the physical examination and standardized tests administered.
12The applicant has been taking medical cannabis for an extended period of time but there has been no meaningful improvement in pain levels, sleep or psychological symptoms In my view, the provision of further medical cannabis in a treatment plan dated January 2022 is not reasonable and necessary as it is not achieving the goals of the treatment plan.
13Finally, both parties provided submissions on whether s. 38(2)(c)(i) applies as part of the expense was incurred prior to the submission of the treatment plan. As I have found that the applicant has not met the burden of proving that the treatment plan is reasonable and necessary on a balance of probabilities, that issue is moot.
The applicant is not entitled to $2,384.30 for a physiatry assessment proposed by Dr. Dinesh Kumbhare in a treatment plan dated July 14, 2022.
14The applicant submits that the OCF-18 was for a s. 25 examination to assess their ongoing medical and rehabilitation needs from a physiatry perspective. The applicant submits that this s. 25 assessment was reasonable and necessary to determine the medical basis of several disputed/denied OCF-18 treatment plans for medical marijuana and physiotherapy. The applicant did not provide any submissions on how this OCF-18 was reasonable and necessary under s. 15 on a standalone basis.
15The respondent submits that the OCF-18 states it was for a medical-legal assessment and that there is no coverage for such assessments under s. 25. In support of this position the respondent relies on the fact that the s. 25 was conducted based on a letter of instruction from applicant’s counsel, and the invoice from Dr. Kumbhare which is for a medical legal report. The respondent cites two Tribunal decisions Green v. Intact 2021 CanLII 48162 (ON LAT) and Cosentino v Aviva CanLII 149787 (ON LAT).
16The applicant submits that the two decisions cited by the respondent are distinguishable from this matter as they relate to entitlement to post 104 income replacement benefits and were an attempt to expand the scope of s. 25. The applicant submits that this assessment relates to medical/rehabilitation benefits under s. 38. The applicant submits that if the Tribunal finds that one or more of goods and services proposed in the disputed medical marijuana treatment plan submitted under section 38 by Apollo Research Inc. is reasonable and necessary and payable by the respondent, then by virtue of s 25(1)(3)(iii), the physiatry assessment ought to also be found payable by the respondent.
17S. 25(1)(3) of the Schedule provides that the insurer shall pay reasonable fees charged by a health practitioner for reviewing and approving a treatment and assessment plan under s. 38 if one or more of the goods or services have been:
i. approved by the insurer;
ii. deemed by Regulation to be payable by the insurer;
iii. determined to be payable by the insurer on the resolution of a dispute described in subsection 280(1) of the Insurance Act.
18The applicant’s reply submission lists four treatment plans/OCF-18 (three for physiotherapy and the one for medical marijuana) which Dr. Kumbhare was asked to assess to determine if they were reasonable and necessary. The applicant notes that the three physiotherapy treatment plans/OCF-18 were withdrawn based on the findings and recommendations of Dr, Kumbhare.
19I have found above that the applicant is not entitled to $2,915.40 for medical marijuana, proposed by Apollo Applied Research Inc in a treatment plan/OCF-18 dated January 21, 2022. The three other treatment plans/OCF-18s covered by the s. 25 assessment were withdrawn by the applicant. As no goods or services have been determined to be payable by the respondent on the resolution of a dispute described in subsection 280(1) of the Insurance Act, I find that the assessment is not payable under s 25(1)(3)(iii) of the Schedule.
Interest
20As there are no benefits owing, no interest is payable.
ORDER
21For the reasons outlined above, I find that:
i. The applicant is not entitled to the disputed treatment plans nor interest.
ii. The application is dismissed.
Released: February 10, 2025
Christopher Climo
Vice-Chair