Licence Appeal Tribunal File Number: 24-001393/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:
Qaqish Siham
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Jeff Chatterton
APPEARANCES:
For the Applicant:
Kelisa Reyes, Paralegal
For the Respondent:
Nathan M. Fabiano, Counsel
HEARD: In Writing
OVERVIEW
1Sahim Qaqish, the applicant, was involved in an automobile accident on January 16, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Allstate Insurance Company of Canada, 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 $3,081.50 for a chronic pain assessment, proposed by HAL Disability Management Inc., in an OCF-18/treatment plan(plan) submitted December 21, 2022?
ii. Is the applicant entitled to $1,748.81 ($2,748.36 less $999.55 approved) for assistive devices and physical therapy, proposed by Healthmax Physiotherapy Thornhill in a plan submitted February 15, 2024?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to the disputed treatment plan for physiotherapy and assistive devices in a plan proposed by Healthmax Physiotherapy Thornhill, in a plan submitted February 15, 2024.
4The applicant is not entitled to the disputed treatment plan for a chronic pain assessment proposed by HAL Disability Management in a plan submitted December 21, 2022.
5Interest applies, as per the Schedule. An award is not payable.
ANALYSIS
Is the applicant entitled to the treatment plan for physiotherapy and assistive devices?
6The applicant has met the onus to demonstrate that the treatment plan for physiotherapy and assistive devices is reasonable and necessary.
7To 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.
8The treatment plan submitted by Healthmax Physiotherapy Thornhill (by Chiropractic Dr. Venous Salehi) calls for eight sessions of physiotherapy and occupational therapy, as well as nine assistive devices, listed below.
9The respondent agreed to pay for a heat pad, a bathtub seat, a long-handled reacher, a bath scrubber, an electric shaver, a long-handled loofah, and a hair dryer stand. It did not agree to pay for a robotic vacuum cleaner, a mesh laundry bag, or education sessions.
10The applicant states that the treatment plan is reasonable and necessary. She submits that the respondent has erred by only approving what is deemed “essential” and says this prejudices the applicant by imposing an unfair burden that does not align with the Schedule.
11To support her claim, the applicant relies upon the s. 25 Occupational Therapy In Home Assessment report authored by Occupational Therapist Tovit Rubin on January 30, 2024.
12The applicant also submits that the respondent has approved attendant care for the applicant after receiving the OT Assessment report which proves that the pain suffered by the applicant is relevant and accident-derived. The respondent approved attendant care benefits in the amount of $1,195.99 plus HST per month, effective February 6, 2024.
13The respondent relies on the s. 44 multi-disciplinary report dated May 6, 2024, with an Occupational Therapy section authored by Occupational Therapist Angela Bertolo, and a Physiatry section authored by Physiatrist Dr. Seyed Hosseini.
14The OT section of the report recommends an Attendant Care Benefit, which was paid by the respondent as noted above. It also goes through the list of assistive devices on pages 35 and 36, outlining which assistive devices Ms. Bertolo believes are reasonable and necessary.
15I do not prefer the respondent’s evidence because the s.44 report relied upon by the respondent repeatedly expresses reservations with the lack of information regarding ongoing shoulder complications by the applicant. Dr. Hosseini also does not address the physical or occupational therapy requests in the OCF-18, stating merely that four of the assistive devices are reasonable and necessary.
16The Occupational Therapy section of the respondent’s report also lists the vacuum and the mesh laundry bag as being not reasonable or necessary because the applicant’s husband can do the laundry or vacuum the floors.
17I am not convinced by the respondent’s submission that assistive devices are not necessary because the applicant’s husband can do it. The respondent has already agreed that attendant care benefits are necessary. The respondent has a duty to adjust in good faith towards the applicant, and acknowledges that such chores were commonly conducted by the applicant prior to the accident.
18Furthermore, the applicant has provided supportive medical evidence, in the form of the OT Assessment report, which is contemporaneous to the treatment plan and supports the OCF-18 as being reasonable and necessary because the disputed items are necessary for a return to normal life.
19For these reasons, I find the applicant has, on a balance of probabilities, met the onus to establish entitlement to the disputed amounts in the physiotherapy and assistive devices treatment plan proposed by Healthmax Physiotherapy on February 15, 2024.
Is the applicant entitled to a Chronic Pain Assessment?
20The applicant has not met the onus for entitlement to a Chronic Pain Assessment.
21The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
22The applicant is requesting a chronic pain assessment by Orthopaedic Surgeon Dr. Tajedin Getahun in an OCF-18 dated December 21, 2022. The treatment plan calls for a full body chronic pain assessment at a total cost of $3,081.50, with a stated goal of pain management to assist the applicant with daily living.
23To support their claim, the applicant relies upon a s. 25 Physiatry Assessment conducted by Dr. Shariff Dessouki, Physiatrist, dated February 15, 2023. Dr. Dessouki diagnosed the applicant with chronic right shoulder pain and features of a chronic pain syndrome.
24The respondent points out that a Chronic Pain Assessment was applied for and approved by the insurer in 2017, yet the applicant chose not to attend. The respondent argues that the applicant has not met the onus to demonstrate why this chronic pain assessment is necessary when the respondent has already approved a chronic pain assessment with the same assessor that was never incurred.
25The respondent denied the 2022 OCF-18 because it had not received updated medical notes and records since 2017. In the Explanation of Benefits letter dated January 3, 2023, the respondent requests updated records, while denying the Chronic Pain Assessment. The respondent wrote: “the subject accident took place February 16, 2014. Your last confirmed treatment date was March 8, 2018, and we have not received any medical information since 2017.”
26In summary, the respondent argues it agreed to pay for a chronic pain assessment several years earlier, which was not incurred. The fact that this earlier assessment was not incurred indicates that a duplicative assessment eight years later is not reasonable or necessary.
27I agree with the respondent. I give less weight to the report from Dr. Dessouki because it was written after the initial denial from the respondent. Therefore, it is not contemporaneous with the disputed treatment plan.
28While I note that the respondent has only addressed the issue of duplication of assessments in its submission and not in its explanation of benefits, I am alive to the fact that it did not have any indication the applicant had chronic pain concerns for nearly seven years. It stands to reason that if the applicant chose not to attend the prior assessment, it would indicate she herself did not have reason to believe a condition existed or that it was not caused by the 2014 accident.
29While the onus is on the applicant to prove that she is entitled to the Chronic Pain Assessment, I have not been led to contemporaneous supportive medical evidence like clinical notes and records from a family physician or treatment provider that support the applicant had chronic pain concerns or that there are grounds on which to believe such a condition exists 11 years post accident.
30For these reasons, I find the applicant has not, on the balance of probabilities, met the onus for entitlement to a Chronic Pain Assessment.
Was the denial letter provided by the respondent compliant with the Schedule?
31The respondent’s denial letter of February 23, 2023 is compliant with s. 38(8).
32Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has a impairment to which the MIG applies.
33The applicant also submits that both denial letters were not compliant with s.38(8) of the Schedule. It is not necessary for me to review the denial for the HealthMax Treatment Plan because it has already been approved. For the Chronic Pain Assessment, the applicant alleges the denial of February 23, 2023 was not compliant because it generically references the passage of time instead of providing a medical reason for a denial.
34The respondent disagrees, saying the lack of medical evidence is, in and of itself, a medical reason for denial.
35I agree with the respondent. I have reviewed the Explanation of Benefits, and I find the respondent clearly indicated the medical reason for a denial, that “the subject accident took place February 16, 2014. Your last confirmed treatment date was March 8, 2018, and we have not received any medical information since 2017.” A significant gap in treatment or other communication with the insurer is, in my opinion, a valid medical or other reason for a denial under these circumstances. The respondent clearly laid out timelines, and asked for updated medical records which had not been provided to it. I find these are all reasonable actions, compliant with the Schedule, and routine to the adjustment of a file.
36For this reason, I find the respondent’s letter February 3, 2023 was compliant with s. 38(8) of the Schedule.
Interest
37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies on the disputed amounts for the assistive devices and physiotherapy treatment plan proposed by Healthmax, as per the Schedule.
Award
38The 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this criteria.
39The applicant has requested an award of fifty percent of the disputed amount, saying the respondent has breached its fiduciary duty to adjust the claim in good faith.
40The respondent submits that it has adjusted the claim in good faith. It further points out that the applicant did not submit any basis for the award, as they were required to by the Case Conference Report and Order.
41I find that the respondent, while mistaken on the issue of assistive devices and physiotherapy, has shown a pattern of adjusting this claim in good faith.
42For this reason, I do not find that the respondent’s conduct in relation to Treatment Plan 2(ii) reaches the level to merit an award. The respondent is not liable to pay an award.
ORDER
43The application is granted in part.
i. The applicant is entitled to $1,748.81 ($2,748.36 less $999.55 approved) for assistive devices and physical therapy, proposed by Healthmax Physiotherapy Thornhill in a plan submitted February 15, 2024.
i. Interest is due on the overdue amounts of that treatment plan, as per the Schedule.
ii. The applicant is not entitled to a Chronic Pain Assessment or an Award.
Released: November 21, 2025
Jeff Chatterton
Adjudicator