Farra v. Aviva Insurance Canada, 2025 CanLII 13550

Farra v. Aviva Insurance Canada, 2025 ONLAT 23-002847/AABS

Citation: Farra v. Aviva Insurance Canada, 2025 ONLAT 23-002847/AABS

Licence Appeal Tribunal File Number: 23-002847/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:

Hassaan Farra

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Caley Howard

APPEARANCES:

For the Applicant:

George A Bougadis, Counsel

For the Respondent:

Thulasi Kandiah, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Hassan Farra, the applicant, was involved in an automobile accident on September 7, 2021, 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 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 $25,000.00 for dental services, proposed by Dr. J. Muyal in a treatment plan/OCF-18 (“plan”) dated November 16, 2021?

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

3The applicant withdrew issue 2 as listed in the Case Conference Report and Order dated November 17, 2023.

RESULT

4The applicant is entitled to the treatment plan for dental services plus interest.

ANALYSIS

The accident was a necessary cause of the damage to the applicant’s teeth

5In its hearing submissions, the respondent submitted that the damage to the applicant’s teeth was due to a pre-existing condition and was not caused by the accident.

6The test to determine causation is the “but for” test. Causation is a factual determination made on a balance of probabilities: see Sabadash v. State Farm et al, 2019 ONSC 1121. The applicant must show that he would not have suffered the injuries “but for” the subject accident. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be a “necessary” cause.

7To support its position that the accident did not cause the damage to the applicant’s teeth, the respondent relies on the following:

i. The clinical notes and records (CNRs) of North York General Hospital, which the respondent submits demonstrate that the applicant did not report tooth pain or other dental issues immediately after the accident;

ii. The CNRs of Dr. Adel Girgis, the applicant’s family doctor, which the respondent submits demonstrate that the applicant suffered from gingival hyperplasia and gum infections prior to the accident and as recently as one month prior to the accident;

iii. The CNRs of Dr. Aurel David, the applicant’s regular dentist, which the respondent submits demonstrate a history of poor oral hygiene, including references to abundant calculus, periodontal issues, recessions, heavy bleeding, dental caries and root canal treatment;

iv. The dental assessment performed by Dr. Ouanounou, dentist, on January 25, 2022, which the respondent submits confirmed that the applicant had gross caries/decay, severe gingival hyperplasia, moderate to severe periodontistis, poor oral hygiene, and moderate to severe generalized plaque and calculus; and

v. Neither Dr. David nor Dr. Jamie Muyal, dental surgeon, provided a detailed explanation as to how a low speed accident, in which the air bag did not deploy and the applicant did not report hitting his head, could cause the injury in question.

8In response, the applicant submits that his pre-existing periodontal disease was stable prior to the accident. In support of his position, he relies on the March 4, 2022 report of Dr. David; two letters setting out Dr. Muyal’s medical opinion, dated May 15, 2022 and February 17, 2023; the insurer’s examination (IE) addendum report of Dr. Aviv Ouanounou, dentist, dated August 12, 2022; and the November 8, 2021 and November 11, 2021 CNRs of Dr. Girgis.

9I give significant weight to the February 17, 2023 opinion letter of Dr. Muyal, in which Dr. Muyal opines that the applicant suffered trauma during the accident that caused the rapid deterioration of his already compromised dental health, because this opinion accounts for the symptoms reported by the applicant and their timing, specifically:

i. tooth pain immediately following the accident, as reported by the applicant to Dr. David on September 11, 2021, four days after the accident;

ii. a loose bridge a few days later, as reported by the applicant to Dr. David on September 14, 2021;

iii. loose teeth and more loose bridgework, as reported to Dr. Muyal and recorded in the treatment plan and also reported to Dr. Girgis on November 8 and 11, 2021; and

iv. the applicant’s progressively worsening difficulty chewing, as reported to Dr. Muyal and recorded in the treatment plan.

10I find that the applicant did not report tooth pain or other dental issues when he attended at North York General Hospital directly after the accident. However, I find that this is not necessarily inconsistent with the progression of the applicant’s symptoms, which he reported commenced as pain following the accident and progressed to loose teeth and difficulty chewing over the ensuing days and weeks. Therefore, I find that it is consistent with the opinion of Dr. Muyal.

11While the respondent directs me to evidence that the applicant suffered from gingival hyperplasia prior to the accident, I find that I have been directed to no evidence that the gingival hyperplasia either could have or was likely to have led to the applicant’s post-accident symptoms.

12The respondent submits that the CNRs of Dr. David demonstrate that the applicant had an extensive history of serious dental issues that disproves Dr. Muyal’s opinion that the applicant’s periodontal disease was kept in check prior to the accident. However, I find that the handwritten notes of Dr. David are mostly illegible. I find that I am able to make out occasional words, such as “calculus” and “bleeding”, and the CNRs contain a typed report relating to a root canal in 2017. However, I give the CNRs of Dr. David less weight due to their illegibility. In any event, I find that what I am able to read does not conflict with Dr. Muyal’s opinion, which accepts that the applicant had some degree of periodontal disease prior to the accident.

13The respondent submits that I should give Dr. Muyal’s letters less weight because his CNRs do not contain any notes supporting the statement in his letter of May 16, 2022 that he first examined the applicant on September 10, 2021. I find that the CNRs of Dr. Muyal show that the applicant completed an intake form on October 18, 2021. I find that the date of September 10, 2021 in Dr. Muyal’s letter is likely an error and Dr. Muyal likely examined the applicant initially on October 18, 2021. However, I find that the date of Dr. Muyal’s first examination of the applicant does not impact the reliability of Dr. Muyal’s opinion.

14I do not accept the respondent’s submission that Dr. Muyal stands to directly financially benefit from the approval of the treatment plan and that this should reduce the weight I place on his letters. I find that Dr. Muyal’s patient ledger shows that the applicant commenced treatment on May 11, 2022 and paid for the treatment himself. Therefore, I find that it is unlikely that Dr. Muyal was influenced by personal financial benefit c when he wrote his opinion letters dated May 16, 2022 and February 17, 2023.

15I find that the applicant has proven, on a balance of probabilities, that the accident was a necessary cause of his injuries, despite his pre-existing periodontal disease and despite Dr. Muyal not proposing a detailed mechanism by which the accident caused the damage, because:

i. The advent of the applicant’s symptoms as reported to Dr. David, Dr. Muyal and Dr. Girgis is consistent with the applicant having sustained some form of trauma in the accident that led to the rapid deterioration of the applicant’s dental health, as opined by Dr. Muyal;

ii. I have been directed to no evidence that any treatment provider recommended that the applicant undergo the disputed treatment prior to the accident; and

iii. The respondent has directed me to no evidence in support of its submission that the diagnoses made by Dr. David based on the applicant’s CT scan (the broken root and widened periodontal ligament spaces) were more suggestive of chronic pre-existing issues, rather than sudden trauma.

16For all these reasons I find that the accident was a necessary cause of the damage to the applicant’s teeth.

The applicant is entitled to the treatment plan for dental services

17I find that the applicant is entitled to the treatment plan for dental services.

18To 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.

19The treatment plan for dental services was completed by Dr. Muyal, and was dated November 16, 2021. It sought funding for $25,000 for extracting teeth #15-25 and the creation and implantation of prosthetics. The goals of the treatment plan include pain reduction, restoring the applicant’s full ability to chew and esthetics.

20The applicant submits that the treatment plan is reasonable and necessary and relies on the following in support of his position: the treatment plan; the March 4, 2022 report of Dr. David; two letters setting out Dr. Muyal’s medical opinion, dated May 15, 2022 and February 17, 2023; the insurer’s examination (IE) addendum report of Dr. Aviv Ouanounou, dentist, dated August 12, 2022; and the November 8, 2021 and November 11, 2021 CNRs of Dr. Girgis.

21The respondent submits that the applicant has not proven that the particular treatment proposed was necessary to address the damage sustained by the applicant and that the applicant has not proven that the proposed cost of $25,000.00 is reasonable for the proposed treatment.

22I find that the proposed dental treatment is reasonable and necessary for the following reasons.

23I accept Dr. Muyal’s opinion, as set out in his letter of May 15, 2022, that the alternative treatment for the applicant’s injuries would be a removable denture, rather than the surgical implants proposed in the treatment plan. I accept Dr. Muyal’s opinion that a removable denture would not have enabled the applicant to regain his previous function or esthetics because, as he explains in his letter of February 17, 2023, he considered the durability and functionality of the prosthetic, the applicant’s health, and the applicant’s needs based on his social and business circumstances, when preparing the treatment plan. Therefore, I find that the proposed treatment is likely to meet the goals of the treatment plan to a reasonable degree.

24I find that the cost of the proposed treatment is reasonable because:

i. the applicant underwent the proposed treatment and paid for it himself, despite the respondent’s denial of coverage. I find that the total cost of the treatment was $22,828.00, pursuant to Dr. Muyal’s patient ledger; and

ii. I further find that in his IE report of January 31, 2022, Dr. Ouanounou listed the fees for each procedure code of the proposed treatment and did not raise any concerns about the fees being excessive. I find that despite requesting many documents that Dr. Ouanounou thought would help him provide an opinion as to the reasonableness and necessity of the proposed treatment, Dr. Ouanounou did not request any documents clarifying the estimated fees set out in the treatment plan.

25For the above reasons, I find that the applicant has demonstrated on a balance of probabilities that the treatment plan for dental services is reasonable and necessary and the applicant is entitled to the treatment plan.

Interest

26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the overdue benefits in the disputed treatment plan.

ORDER

27The applicant is entitled to the treatment plan for dental services plus interest.