OVERVIEW

1Rahim Karmali, (the "applicant"), was involved in an automobile accident on February 27, 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 Aviva General Insurance (the "respondent"), 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 $2,460.00 for a Temporomandibular Joint ("TMJ") Assessment proposed by HM Medical Network in a treatment plan ("OCF-18") dated March 2, 2021?

ii. Is the applicant entitled to $5,320.00 for chiropractic, physiotherapy and acupuncture services proposed by HealthMedica in a OCF-18 dated January 23, 2023?

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

3I note that in the Case Conference Report & Order ("CCRO") released on November 27, 2023, for issue (ii), it was noted that the OCF-18 was in relation to chiropractic services. Upon review of the OCF-18 for issue (ii), I note that the proposed services are chiropractic, physiotherapy, and acupuncture services. As such, I have reflected this above at issue (ii).

RESULT

4I find that the applicant is not entitled to any of the OCF-18s in dispute, as he has not demonstrated that they are reasonable and necessary. As there are no benefits due, interest is not payable. The application is dismissed.

PROCEDURAL ISSUES

The Applicant's submissions will not be excluded

5The CCRO stipulated a seven-page limit for initial submissions.

6The respondent argues that the applicant's initial submissions are 10 pages, and therefore he has exceeded the page limit by three pages. As a result, the respondent requests that the last three pages of the applicant's submissions be excluded from the record.

7The applicant did not provide reply submissions.

8I find that the applicant is in breach of the CCRO because the applicant's submissions are 10 pages in length, and the CCRO allocated a seven page limit.

9In accordance with Rule 3.1(a) of the Licence Appeal Tribunal Rules, 2023 ("the Rules"), I must ensure that the Rules are liberally interpreted to ensure procedural fairness to both parties, and the efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal.

10When weighing procedural fairness and any potential prejudice brought, I find that the applicant would be severely prejudiced if portions of his submissions were otherwise excluded in this matter, as he has the evidentiary onus to establish entitlement to the disputed OCF-18s. The respondent also did not provide particulars of the prejudice it would suffer as a result of the applicant exceeding the page limit. I am therefore considering the submissions in full.

ANALYSIS

The applicant is not entitled to the OCF-18 for a TMJ Assessment in the amount of $2,460.00

11I find that the applicant has not met his burden of proof to establish that a TMJ assessment was reasonable and necessary as a result of the accident.

12The applicant argues that he mentioned tooth pain, that his wisdom tooth on the left side had been chipped, constant pain in his ear, and clicking noises on both sides of the temporomandibular joint to s. 25 assessors, Ms. Lital Grinberg, psychological associate, Dr. Michael Gofeld, chronic pain and anaesthesia specialist, and s. 44 assessors, Dr. Godwin Lau, psychologist, and Dr. Aviv Ouanounou, dentist. The applicant also relies upon the clinical notes and records ("CNRs") of Dr. Minaz Karim, his treating dentist. As a result of his documented symptoms, he argues that the proposed TMJ assessment is reasonable and necessary.

13The respondent relies upon the s. 44 report of Dr. Ouanounou who found that there were no objective physical signs of oral and/or maxillofacial impairments and no reported functional disabilities associated with the oral maxillofacial structures.

14I find that the first time the applicant reported tooth and TMJ disorder symptoms was not until seven to eight months following the accident when he met with Ms. Grinberg and Dr. Lau. Notably, the applicant sought medical attention from walk-in- physicians, Drs. Hossein Aliabadi and Bahar Ghazi-Mirasaeed, on February 28, 2020 and March 23, 2020 but there was no reference to the applicant sustaining tooth pain, having a chipped tooth, or TMJ disorder symptoms. In short, the evidence most contemporaneous to the date of the accident, which are the CNRs of the walk-in-clinic as indicated above, indicate that the applicant did not report any tooth pain, a chipped tooth requiring dental treatment or TMJ disorder symptoms.

15I acknowledge that the applicant relies upon the CNRs of Dr. Karim to support his position that he had tooth pain and a chipped tooth from this accident, however he did not refer to specific CNRs that support this position. Significantly, the CNRs of Dr. Karim are largely illegible and from the CNRs that can be read, the applicant reported that his tooth was sharp and he had dental work done for generalized plaque. However, there is no reference the accident. Nor, from what can be read, did the applicant report a chipped tooth or receiving dental work with respect to this. Moreover, the applicant did not report any symptoms of a TMJ disorder to Dr. Karim nor was he diagnosed with a TMJ disorder.

16I place little weight on the applicant's self-reporting of tooth pain, that his wisdom tooth on the left side had been chipped, constant pain in his ear, and clicking noises on both sides of the TMJ jaw joint to Ms. Grinberg, Dr. Gofeld, Dr. Lau, and Dr. Ouanounou for the following reasons.

17The applicant's self-reporting of having a chipped tooth and reporting tooth pain immediately from the accident to Ms. Grinberg, Dr. Lau, and Dr. Gofeld is inconsistent with the medical evidence before me. Indeed, the applicant reported to Ms. Grinberg and Dr. Lau that his wisdom tooth was chipped immediately following the accident, and that he had a temporary fix. The applicant also reported to Dr. Gofeld that he sought medical attention on February 28, 2020, and complained of tooth pain. However, this self-reporting is not supported by the CNRs of his walk-in-clinic, nor his dentist, Dr. Karim. As noted above, the applicant did not report to Drs. Aliabdai or Mirasaeed that he sustained a chipped tooth, had tooth pain from the accident and from the CNRs that can be read from Dr. Karim, there is no indication of a chipped tooth from this accident or a temporary fix as a result.

18Moreover, the applicant reported to Dr. Ouanounou on April 26, 2021, that he had constant pain and clicking noises in both his right and left TMJ jaw joint, more in the left, which was aggravated by chewing hard or fibrous food since the accident. However, this is the first time he reported these issues, despite seeing his walk-in-physicians on February 28, 2020, and March 23, 2020, seeing his dentist, Dr. Karim from January 20, 2020 to December 2, 2020, meeting with Ms. Grinberg on October 5, 2020, and Dr. Gofeld approximately a month before Dr. Ouanounou (March 30, 2021). In a similar vein, the applicant reported constant ear pain as a result of his chipped tooth to Dr. Lau on October 6, 2020, but he did not report this ear pain to any other doctors or assessors.

19I acknowledge that the applicant relies upon Dr. Gofeld's report to support that testing revealed that his right/left lateral excursion was limited, he had pain with extrusion, tenderness of the facial protuberances at mandibular region, temporalis muscles, masseter muscles bilaterally and the TMJ bilaterally. I also acknowledge that Dr. Gofeld diagnosed the applicant with chronic odontalgia, TMJ chronic pain, and persistent idiopathic facial pain. However, I place negligible weight on Dr. Gofeld's report for the following three reasons.

20First, Dr. Gofeld is not a dentist, nor does he have training or experience with respect to diagnosing a TMJ disorder. Indeed, his report notes that he is registered with the College of Physicians and Surgeons of Ontario for chronic pain and anaesthesia. Further, there is no indication that Dr. Gofeld has training or experience with TMJ disorders.

21Second, the applicant did not report any jaw pain, clicking noises or any symptoms of a TMJ disorder to Dr. Gofeld. While the applicant reported tooth pain, Dr. Gofeld did not address how tooth pain is linked to a TMJ disorder. Dr. Gofeld also did not address why a physical examination was conducted on the applicant's TMJ when he reported no symptoms.

22Third, Dr. Gofeld's conclusions are not supported by the bulk of the other evidence before me, like the fact that the applicant did not report any TMJ issues to his walk-in-physicians and that he was not diagnosed with a TMJ disorder by his treating dentist.

23Finally, I prefer the report of Dr. Ouanounou because he is a dentist and his conclusions are supported by the bulk of the evidence before me like the fact he did not report TMJ symptoms to his walk-in-physicians, his inconsistent self-reporting and his treating dentist not diagnosing him with a TMJ disorder.

24In conclusion, I find that the applicant has not demonstrated that the cost of the TMJ assessment is reasonable and necessary.

The applicant is not entitled to an OCF-18 for chiropractic, physiotherapy, and acupuncture services in the amount of $5,320.00

25I find that the applicant has not established on a balance of probabilities that an OCF-18 proposing chiropractic, physiotherapy, and acupuncture services is reasonable and necessary.

26The disputed OCF-18 pertains to 16 sessions of manipulation of the spinal vertebrae to be completed by a chiropractor, 16 therapy sessions to be conducted by a physiotherapist, 16 exercise sessions to be completed by a physiotherapist, and eight sessions of acupuncture treatment. The goals of the OCF-18 are: pain reduction, increased strength, increased range of motion and for the applicant to return to his activities of normal living.

27To receive payment for a treatment and assessment plan under ss. 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.

28The applicant argues that he continues to complain about unresolved neck, back, left shoulder, left arm, left leg, left ankle and knee pain despite the passage of time since the accident, and therefore the proposed chiropractic treatment is reasonable and necessary. He further argues that he reported to his treating clinic, HM Medical that he has constant pain which is aggravated by driving and sustained movements/positions. He further argues that Dr. Aliabadi recommended physiotherapy treatment on February 28, 2020. To this end, the applicant relies upon the CNRs of his walk-in-clinic, HM Medical, Mackenzie Medical Rehab, and HealthMedica, and the s. 25 report of Dr. Gofeld.

29I find that the applicant has fallen well-short of establishing that the proposed chiropractic and physiotherapy services are reasonable and necessary.

30Contrary to the applicant's submissions, he has not referred me to any contemporaneous evidence that supports chiropractic services were recommended by a treating practitioner or Dr. Gofeld. Indeed, the CNRs of the walk-in-clinic show that the applicant last attended for his injuries from the accident on April 23, 2020 (nearly three years before this OCF-18 was submitted). Dr. Mirasaeed noted that the applicant had multiple joint pain due to this accident but did not recommend chiropractic services. Likewise, Dr. Gofeld diagnosed the applicant with secondary concomitant fibromyalgia and recommended treatment by a craniofacial chiropractor. However, the OCF-18 before me pertains to manipulation of the spinal vertebrae to be completed by a chiropractor.

31I acknowledge that the applicant relies upon the CNR of February 28, 2020, where he argues that Dr. Aliabadi recommended physiotherapy for his injuries. I do not concur because on February 28, 2020, Dr. Aliabadi diagnosed the applicant with muscle strain and recommended conservative management. However, the CNR is silent with respect to whether physiotherapy treatment would constitute as conservative management. In the subsequent CNRs of March 23, 2020, April 1, 2020, and April 23, 2020, physiotherapy treatment was not recommended for the applicant despite him reporting upper neck pain, lower back pain, left ankle pain, left side of body pain and multiple joint pain.

32I place little weight on Dr. Gofeld's recommendation for physical rehabilitation because this recommendation is not contemporaneous to the OCF-18, as the OCF-18 was submitted in January of 2023, and he made this recommendation in April of 2021.

33Next, it is well-settled that pain relief and returning to activities of normal living are legitimate goals of treatment, however I find the evidence before me is lacking to support that the goals will be met to a reasonable degree. Here, the applicant largely relies upon the CNRs of HM Medical, Mackenzie Medical Rehab, and HealthMedica to support he has ongoing pain and the pain is aggravated by driving and sustained movements/positions.

34However, these CNRs are largely illegible, and from the records that can be read, there is no indication that the applicant has received pain relief from chiropractic treatment despite attending previously. Likewise, from the records that can be read, there is no discussion of whether the applicant's previous chiropractic or physiotherapy treatment has helped with driving or sustained movements/positions. Moreover, despite the CNRs of HM Medical noting pain relief for the applicant from March 29, 2021 to May 14, 2021, the applicant continued to report pain/discomfort in his neck, and lower back, which resulted in him having a hard time sleeping at night and difficulties with activities of daily activity. It is also unclear from these records how much pain relief the applicant received from physiotherapy treatment as the applicant continued to complain of the same pain and limitations from March 1, 2021 to May 14, 2021.

35Finally, despite acupuncture services being in dispute, the applicant made no submissions nor did he refer me to evidence to support that these services are reasonable and necessary. Therefore, it follows that the applicant has not met his onus to establish entitlement to these services.

36For the reasons outlined above, I find that the applicant is not entitled to the OCF-18 proposing chiropractic, physiotherapy, and acupuncture services.

Interest is not payable

37As there are no overdue payments of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

38For the reasons outlined above, I find that the applicant is not entitled to any of the OCF-18s in dispute, as he has not demonstrated that they are reasonable and necessary. As there are no benefits due, interest is not payable. The application is dismissed.