Hussein v. Aviva Insurance Company of Canada, 2025 CanLII 125959

Citation: Hussein v. Aviva Insurance Company of Canada, 2025 ONLAT 24-000401/AABS

Licence Appeal Tribunal File Number: 24-000401/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:

Omar Hussein

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Sarah Guergis

APPEARANCES:

For the Applicant: Malcolm H Zoraik, Counsel

For the Respondent: Christopher Lupis, Counsel

HEARD: In Writing

OVERVIEW

1Omar Hussein, the Applicant, was involved in an automobile accident on October 24, 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, Aviva Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

PROCEDURAL ISSUES

2The Respondent submits in its written submissions dated February 19, 2025, that it has fully approved the psychological assessment/services in dispute and the issue should therefore be withdrawn.

3The Applicant did not file a reply submission disputing the Respondent's position. Therefore, I accept the Respondent's position that the treatment plan for a psychological assessment was paid in full and is no longer in dispute. I have reflected this in the list of issues in dispute set out below.

ISSUES

4The issues in dispute are:

i. Is the Applicant entitled to $989.06 for massage therapy services proposed by Yorkstar Rehabilitation Centre in a plan dated March 24, 2023?

ii. Is the Applicant entitled to $2,071.62 for Botox injections proposed by Dr. Nhan Thein Tong in a plan dated December 21, 2023?

iii. Is the Applicant entitled to $910.00 for acupuncture services proposed by Dr. Nhan Thein Tong in a plan dated December 21, 2023?

iv. Is the Applicant entitled to interest on any overdue payment of benefits?

5The Applicant requests that the Tribunal award an award under s.10 in the body of their written submissions. However, this was not officially added as an issue in dispute at any point, nor was it included in the case conference report and order. Therefore, this issue is not before me in this hearing.

RESULT

6I find that the Applicant is entitled to the treatment plan for massage therapy services.

7I find that the Applicant is not entitled to the treatment plan for botox injections.

8I find that the Applicant is not entitled to the treatment plan for acupuncture services.

9I find the Applicant is entitled to interest on the treatment plan for massage therapy.

ANALYSIS

Is the Applicant entitled to $989.06 for massage therapy services proposed by Yorkstar Rehabilitation Centre in a plan dated March 24, 2023?

10I find the Applicant is entitled to these services.

11To 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.

12The Applicant relies on clinical notes and records from his family doctor, Dr. Nhan Thien Tong, which appear to be dated beginning in April 2021. The clinical notes and records are challenging to read due to legibility. The Applicant also relies on cervical and lumbar spine radiographs dated July 24, 2021, and disability certificates dated November 22, 2022, and March 25, 2023.

13In a disability certificate dated March 23, 2022, from Dr. Tong, the Applicant was diagnosed with chronic pain in his neck and back, headaches, anxiety and depression. Dr. Tong further opined that the Applicant had a complete disability to carry on a normal life indefinitely.

14The Applicant further submits that the s. 44 assessor, Dr. Rakesh Ratti, psychologist, stated in their report: "currently the claimant meets the criteria for a diagnosis of adjustment disorder with mixed anxiety and depressed mood in regard to the subject accident." The Applicant submits that as a result, he cannot be treated under the MIG. The Respondent confirmed the Applicant had been removed from the MIG in a letter dated August 23, 2023.

15The Respondent submits that the Applicant has not met his onus of proving that he requires further treatment as a direct result of the accident over four years later.

16The Respondent relies on a s. 44 assessment from Dr. Dharamshi, physician, dated September 12, 2023. Dr. Dharamshi identified credibility issues with the Applicant's presentation and stated that he was unable to identify any accident-related impairments from a musculoskeletal perspective. Further, that the Applicant fails to acknowledge that:

i. the lumbar spine radiograph is similar to one taken in 2016, suggesting his degeneration pre-dates and is unrelated to the accident;

ii. the cervical radiograph states his pre-vertebral soft tissues are normal, and neither radiograph causally associates his degenerative changes with the accident. Without a diagnosis and recommendation from any of his medical practitioners, he falls short of proving that he requires further physical treatment as a direct result of the accident. He did not identify any accident-related impairments from a musculoskeletal perspective;

iii. He has achieved maximum medical recovery; and

iv. The plan is not reasonable and necessary.

17Dr. Dharamshi diagnosed the Applicant with whiplash associated disorder, grade 2/persistent myofascial pain and lumbosacral musculoligamentous strain/persistent mechanical pain.

18I find there is sufficient medical evidence to establish that the Applicant requires treatment for ongoing chronic pain in his neck and back, which I can reasonably conclude that massage therapy addresses as the goal of the treatment. The Applicant was diagnosed with chronic pain which is further evidenced by the ongoing clinical notes and records from his family doctor.

19Therefore, on a balance of probabilities, I find the Applicant is entitled to this treatment plan.

Is the Applicant entitled to $2,071.62 for Botox injections proposed by Dr. Nhan Thein Tong in a plan dated December 21, 2023, and denied January 9, 2024?

20I find that the Applicant is not entitled to botox injections.

21The Applicant relies on the medical evidence set out above. The Applicant does not specifically address botox injections, or their reasonableness or necessity, in his written submissions.

22The Respondent submits that the Applicant has not shown that the plan for Botox is reasonable and necessary. His medical evidence does not include a recommendation for Botox injections by any of his assessors. The clinical notes and records do not appear to mention Botox injections at all. Further, that Dr. Dharmashi's report supports the conclusion that Botox is not reasonable and necessary as he has not sustained an accident-related musculoskeletal impairment and has reached maximum medical recovery.

23I find that the Applicant has not pointed me to sufficient evidence to specifically establish that this treatment plan for botox injections is reasonable or necessary. Further, I do not find that the Applicant's written submissions or evidence clearly address how this treatment would address the Applicant's injuries and aid in their recovery.

24Therefore, on a balance of probabilities, I find the Applicant is not entitled to this treatment plan.

Is the Applicant entitled to $910.00 for acupuncture services proposed by Dr. Nhan Thein Tong in a plan dated December 21, 2023, and denied January 9, 2024?

25I find that the Applicant is not entitled to the treatment plan for acupuncture services.

26Again, the Applicant relies on the same medical evidence as set out above.

27The Applicant does not specifically address acupuncture, or its reasonableness and necessity, in his written submissions.

28The Respondent submits that there is no recommendation from the Applicant's family doctor or treatment providers to engage in further massage or acupuncture as a result of the accident.

29I find that the Applicant has not pointed me to sufficient evidence to specifically establish that the remaining balance of this treatment plan for acupuncture services is reasonable or necessary. Further, I find that the Applicant's written submissions and evidence do not clearly address how this treatment would address the Applicant's injuries and aid in their recovery.

30Therefore, on a balance of probabilities, I find the Applicant is not entitled to this treatment plan.

Interest

31Pursuant to s. 51 of the Schedule, I find that interest applies to the treatment plan for massage therapy.

ORDER

32I find that the Applicant is entitled to the treatment plan for massage therapy services.

33I find that the Applicant is not entitled to the treatment plan for botox injections.

34I find that the Applicant is not entitled to the treatment pan for acupuncture services.

35I find the Applicant is entitled to interest on the treatment plan for massage therapy.