Mustafa v. Western Assurance Company, 2025 CanLII 125980

Citation: Mustafa v. Western Assurance Company, 2025 ONLAT 24-002643/AABS

Licence Appeal Tribunal File Number: 24-002643/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:

Glawish Mustafa Applicant

and

Western Assurance Company Respondent

DECISION

ADJUDICATOR: Roderick Walker

APPEARANCES:

For the Applicant: Varinder Purewal, Counsel

For the Respondent: Robbie Brar, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Glawish Mustafa, the applicant, was involved in an automobile accident on September 14, 2019, 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 Western Assurance Company, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

Background

2On September 14, 2019, the applicant was involved in a motor vehicle collision where she was rear-ended by a third-party vehicle that was travelling behind her, as she was driving at 60km/h. The airbags did not deploy and there were no secondary collisions. The applicant reported immediate onset of pain in her neck and right shoulder. Later that evening, she reportedly developed mid and low back pain. She then proceeded to Juravinski Hospital, where she was examined and prescribed analgesic medication with a physiotherapy referral. She was discharged the same day and advised to see her family physician thereafter.

ISSUES

3The issues in dispute are:

1. Is the applicant entitled to $2,520.00 for a neurological assessment, proposed in a treatment plan/OCF-18 (“plan”) dated January 11, 2024, and denied February 2, 2024?
2. Is the applicant entitled to the treatment services proposed by Upper James Wellness Clinic, as follows: i. $3,164.96 for chiropractic services, in a treatment plan dated October 4, 2022; and ii. $3,164.96 for chiropractic services, in a treatment plan dated December 7, 2023?
3. Is the applicant entitled to the following proposed by Princeton Hills Medical Assessments Inc., as follows: i. $8,110.00 for psychological services, in a treatment plan dated January 11, 2024. ii. $3,142.93 ($5,736.43 less $2,593.50 approved) for occupational therapy services, in a treatment plan dated December 1, 2023.
4. Is the applicant entitled to interest on any overdue payment of benefits?

Result

4The applicant is entitled to the chiropractic treatment plan dated October 4, 2022, in the amount of $3,164.96, plus interest.

5The applicant is not entitled to the remaining treatment plans.

Is the applicant entitled to $2,520.00 for a neurological assessment?

The applicant is not entitled to the neurological assessment.

6The purpose of an assessment is to determine whether a condition exists. As a result, an assessment is speculative. Notwithstanding its speculative nature, the applicant must prove on a balance of probabilities through that the assessment is reasonable and necessary.

7The applicant relies on the disputed plan dated January 11, 2024, prepared by Dr. V. Basile. M.D. The stated goals are pain reduction, increase in strength, increased range of motion and to identify impairments and help achieve maximum recovery. The applicant has not provided any medical evidence to support that the plan is reasonable and necessary. The applicant states that the s. 44 assessor Dr. Mula’s report dated, April 4, 2024, suggested he would review any results of a neurological consultation and electrophysiological studies. The applicant questions if adequate information was given to Dr. Mula to suggest the neurological assessment was reasonable and necessary.

8The respondent relies on the s. 44 examination report completed by Dr. D. Mula on January 10, 2024. Dr. Mula noted that the claimant presented with signs and symptoms consistent with myofascial strain of the cervical spine, right shoulder, right upper extremity, thoracic spine, and lumbosacral region. The applicant also reported pre-existing conditions, including diabetes and hypertension, but denied any pre-existing pain or other medical issues at the time of the accident. The applicant noted experiencing left leg pain in late 2019 and headaches in 2020, which were deemed unrelated to the accident due to their non-contemporaneous onset.

9Dr. Mula determined that chiropractic treatment would not improve the claimant’s functional status and advised continued follow-up with her physicians. He found no medical evidence to justify a neurological assessment, and, on balance of probabilities, the applicant is not entitled to the proposed neurological assessment treatment plan. I find that Dr. Mula concluded that the proposed chiropractic treatment interventions were unlikely to improve her functional status. He recommended that the claimant continue follow-up with her treating physicians for further medical management and made no additional recommendations. Dr. Mula reviewed the information and documentation and concluded that there is no medical documentation on file to warrant the approval of a neurological assessment. I find on a balance of probabilities that the applicant is not entitled to the proposed treatment plan for neurological assessment for her accident-related injuries.

The applicant is entitled to chiropractic services in the plan dated October 4, 2022, and not entitled to the chiropractic plan dated December 7, 2023.

10The applicant is entitled to Chiropractic services proposed in the plan dated October 4, 2022, because the medical evidence does support that further therapy is reasonable and necessary for the applicant’s accident-related injuries. The applicant is not entitled to the plan dated December 7, 2023, because it is a duplicate plan and is two years later from the approved plan dated October 4, 2022.

11The applicant seeks approval for a treatment plan dated October 4, 2022, in the amount of $3,164.94, submitted by Jaspreet Kaur, Physiotherapist at Upper James Wellness Clinic Inc. The plan includes documentation and support activity for claim form: $123.14, physical rehabilitation, eight sessions at $112.81 each, mobilization of multiple body sites, eight sessions at $60.00 each and total body assessment (examination), one session at $200.00. The stated goals of the plan are to reduce pain, increase strength and range of motion (ROM), and support the claimant’s return to activities of daily living. The applicant asserts entitlement to the proposed plan, citing ongoing pain symptoms persisting years after the motor vehicle accident.

12In support of this claim, the applicant relies on a Disability Certificate (OCF-3) dated October 10, 2019, prepared by Dr. Kelvin Man, Chiropractor at Upper James Wellness Clinic. The certificate notes the following accident-related injuries and sequelae: acute stress reaction, headaches, rotator cuff syndrome, sprain and strain of the cervical, thoracic, and lumbar spine, pelvic strain, injury to the quadriceps muscle, tendon, and nausea, vomiting, dizziness, and giddiness. Additional supporting documentation includes disputed treatment plans (OCF-18s), clinical notes and records (CNRs) from Dr. K. Man, Dr. E. Kanu (family physician), Upper James Wellness Clinic, and Princeton Hills Medical Assessments Inc.

13The applicant argues that the disputed plan for chiropractic services is reasonable and necessary for pain reduction and to improve his functional abilities. The applicant further submits that the IE report by Dr. D. Mula does not address the applicant’s condition on or about May 11, 2022, when the applicant was examined.

14The respondent submits that the applicant has not provided medical evidence in support of the disputed plan. The respondent relies on the IE report of s. 44 assessor Dr. D. Mula, in which Dr. D. Mula concluded that the applicant had a poor prognosis, indicating that her condition was unlikely to significantly improve, and the plan was not reasonable and necessary.

15I find that the applicant has met her onus to establish that the proposed chiropractic plan dated October 4, 2022, is reasonable and necessary. The applicant relies on the s. 44 Examination report by Dr. D. Mula, which identified signs and symptoms consistent with myofascial strain of the cervical spine, right shoulder, right upper extremity, thoracic spine, and lumbosacral region. Dr. Mula noted that the applicant’s prognosis was poor due to a lack of improvement in symptoms and a pain-focused clinical presentation during the assessment on May 11, 2022. Importantly, Dr. Mula stated: “More than two years have elapsed since the accident. For medical purposes, the applicant’s impairment would be considered permanent at this point.”

16I find this statement persuasive, as it reflects Dr. Mula’s position at the time of his review and supports the applicant’s claim of ongoing impairment. Even though the condition has been deemed permanent, Dr. Mula concluded that ongoing chiropractic may still help manage symptoms and improve the claimant’s quality of life. The proposed physiotherapy plan aims to manage symptoms and improve functional capacity, which aligns with the goals of rehabilitation. Therefore, the plan is reasonable and necessary.

17With respect to the treatment plan dated December 7, 2023, the applicant is not entitled to the plan.

18The proposed plan, submitted by Dr. S. Chakrabarti, Chiropractor at Upper James Wellness Clinic Inc., totals $3,164.96 and includes: Documentation and support activity for claim form, 1 session at $200.00, physical rehabilitation, 16 sessions at $112.81 each, mobilization of multiple body sites, 16 sessions at $60.00 each and total body assessment (examination) 1 session at $200.00. The stated goals of the plan are pain reduction, increased strength and range of motion (ROM), and return to activities of daily living.

19This plan is similar to the treatment plan for chiropractic services dated October 4, 2022, which included identical services and goals. The applicant has not provided new or updated medical evidence to support the necessity of repeating this plan. A treatment plan alone, without contemporaneous clinical documentation or objective findings, does not constitute sufficient evidence to meet the applicant’s onus of proof.

20Furthermore, his paper review dated January 10, 2024, Dr. David E. Mula concluded that the proposed chiropractic treatments were neither reasonable nor necessary. This conclusion was based on the claimant’s medical history and clinical presentation during the assessment conducted on May 11, 2022.

21For these reasons and on a balance of probabilities, I find that the applicant has not met her onus and is not entitled to the proposed treatment plan dated December 7, 2023.

The applicant is not entitled to the psychological treatment.

22The applicant is not entitled to the psychological treatment plan.

23The applicant states that the disputed plan for psychological services is reasonable and necessary for her psychological injuries and to improve her functional abilities. The plan calls for an assessment, total body for $7000.00 and document preparation for $200.00 and the applicable tax of $910.00.

24The applicant submits that she has a history of mental health issues, and that the accident exacerbated her psychological injuries. An ODSP assessment dated December 22, 2016, diagnosed her with Major Depressive Disorder. The Ministry noted that no further review was recommended, as no significant functional improvement was anticipated with the passage of time or further treatment. The applicant has been determined to be a person with a disability within the meaning of the Ontario Disability Support Program Act.

25The respondent argues that the applicant’s arguments revolve around Dr. Mula’s expert opinion and how the conclusions in same were reached. Dr. Mula is a GP and was assessing the applicant’s physical rehabilitation needs. The applicant has not directed me to how the psychological services treatment plan is reasonable and necessary.

26I agree with the respondent that in the applicant’s submissions, she fails to direct me to any evidence as to the necessity that this treatment plan or how it will benefit her in recovering from her psychological injuries. I find as well that the applicant has not proven that her psychological injuries were caused by the accident. The applicant was diagnosed in 2008 with Major Depressive Disorder; however, there is no evidence as to how her pre-existing condition is connected to the accident. A mere citation of a long pre-accident diagnosis is not sufficient in establishing an accident-related impairment. Further, the amount disputed in that plan has not been justified. The OCF-18 proposes a $7,000 assessment which is well-beyond the maximum amount for an assessment under section 25(5)(a) of the Schedule. For these reasons, and on a balance of probabilities, the applicant has not met her onus and is not entitled to the psychological treatment plan.

The applicant is not entitled to the unapproved amount for occupational therapy services.

27The applicant is not entitled to the outstanding balance of the above occupational therapy plan. The applicant relies on a disputed occupational therapy treatment plan dated December 1, 2023, totaling $3,142.93 (original amount $5,736.43, with $2,593.50 approved). The plan includes counseling, motor and living skills training, documentation support for claim preparation, planning services, and provider travel time. The following amounts were denied: counseling and living skills ($997.50), preparation services ($49.88 and $798.10), documentation support ($100.25), planning services ($698.30), and provider travel time ($498.90).

28The respondent argues that the applicant has provided no evidence to support the disputed treatment plan and states this plan is not reasonable and necessary.

29I find that the applicant has not met her burden to establish that the proposed treatment plan for physical injuries is reasonable and necessary.

30I agree with the respondent that the applicant has not directed me to any evidence demonstrating that the treatment plan is reasonable and necessary. Here is no clear medical evidence linking those conditions to the accident or showing how the proposed occupational therapy, services would address them. Submitting an OCF-18 form alone, without supporting medical documentation, is insufficient to establish a new impairment or justify the proposed treatment. Additionally, the costs for goods and services outlined in the plan have not been adequately supported and it exceeds the typical amounts associated with occupational treatment plans.

31For these reasons, and on a balance of probabilities, I find that the applicant has not met her onus and is not entitled to the proposed treatment plan.

Interest

32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule, in this case it applies for the $3,164.96 for chiropractic services in the treatment plan dated October 4, 2022.

ORDER

33I find on the totality of the evidence that:

i. The applicant is entitled to the treatment plan dated October 4, 2022, in the amount of $3,164.96 for chiropractic services once incurred.

ii. Interest on the treatment plan dated October 4, 2022, is payable in accordance with s. 51 of the Schedule.

iii. The applicant is not entitled to the remaining treatment plans in dispute.