Citation: Samadi v. TD General Insurance Company, 2025 ONLAT 23-013043/AABS

Licence Appeal Tribunal File Number: 23-013043/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:

Behrang Samadi Applicant

and

TD General Insurance Company Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Kenway Yu, Counsel

For the Respondent: Ken Yip, Counsel

HEARD: By way of written submissions

OVERVIEW

1Behrang Samadi, the applicant, was involved in an automobile accident on September 19, 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 the respondent, TD General Insurance Company, 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 $1,995.55 for an in-home attendant care assessment and completion of Form 1, proposed by Alliance Diagnostics and Treatment Inc. in a treatment plan/OCF-18 dated December 6, 2021?

ii. Is the applicant entitled to $1,995.55 for a chronic pain assessment, proposed by Alliance Diagnostics and Treatment Inc. in a treatment plan dated January 25, 2022?

iii. Is the applicant entitled to $1,723.41 for a functional abilities evaluation, proposed by Alliance Diagnostics and Treatment Inc. in a treatment plan dated January 25, 2022?

iv. Is the applicant entitled to $1,497.79 for a worksite/occupational demands assessment, proposed by Alliance Diagnostics and Treatment Inc. in a treatment plan dated February 7, 2022?

v. Is the applicant entitled to $5,401.20 for chiropractic, physiotherapy and acupuncture services, proposed by Wilson Massage and Physio Ltd in a treatment plan dated December 27, 2022?

vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3I find that:

i. the applicant is entitled to the treatment plans for a functional abilities evaluation and a worksite/occupational demands assessment, plus interest;

ii. the applicant is not entitled to the remaining treatment plans in dispute; and

iii. the respondent is not liable to pay an award.

ANALYSIS

Overview

4The applicant was involved in a motor vehicle accident on September 19, 2019, and was subsequently found to have been catastrophically (“CAT”) impaired by the respondent on September 21, 2022. The respondent’s CAT assessors agreed that pursuant to Criterion 8 of the Schedule, the applicant had sustained a class 4 (marked) impairment in three areas of function due to a mental or behavioural disorder.

5To 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.

OCF-18 dated January 25, 2022 for a functional abilities evaluation (“FAE”); and OCF-18 dated February 7, 2022 for a workplace/occupational demands assessment

6I find that the applicant has met his onus to prove, on a balance of probabilities, that both of these treatment plans are reasonable and necessary.

7The respondent denied both of these treatment plans by letters dated January 28, 2022 and February 7, 2022 on the basis of prior s. 44 reports. A September 23, 2021 s. 44 FAE report found that the applicant had demonstrated functional ability as Light to Medium Physical Demand Characteristic, and November 9, 2021 and January 10, 2022 s. 44 reports found that there was a lack of objective evidence of any musculoskeletal injury. The respondent also denied the workplace/occupational demands assessment on the grounds that an income replacement benefit (IRB) had been stopped on November 17, 2021.

8The applicant argues that the respondent’s denial of the OCF-18s is contradicted by the results of its s. 44 CAT assessors, the s. 25 assessors, and the applicant’s family physician, who all had found significant physical injuries. He submits that the respondent’s own CAT physiatry assessor, Dr. David Berbrayer, had diagnosed the applicant with bilateral rotator cuff tendinitis, cervical spine myofascial pain and mechanical low back pain. Further, the s. 25 chronic pain assessment report of Dr. Marciniak dated April 1, 2023 found that the applicant suffered from functional restrictions due to chronic pain.

9The respondent submits that both of these treatment plans were properly denied on the basis of prior s. 44 reports. It further submits that the applicant has had multiple functional capacity evaluations (August 27, 2020, September 23, 2021, January 10, 2022 and July 22, 2024) and multiple vocational/jobsite assessments (August 2020, October 1, 2021, January 10, 2022 and August 2, 2024) over the course of his claim. Accordingly, the respondent argues that the questions of functional evaluations and worksite assessments have been asked and answered multiple times through the evolution of the claim and that the denied OCF-18s for a FAE and workplace/occupational demands assessment are redundant and a duplication of services. The respondent also submits that the applicant continues to be entitled to IRBs to date.

10I find that the applicant has established entitlement to both OCF-18s.

11Although the respondent argues that both assessments were denied based on prior s. 44 reports, I note that two of these reports were the November 9, 2021 and January 10, 2022 s. 44 physiatry reports which found that there was a lack of objective evidence of any musculoskeletal injury, and that the applicant had just been diagnosed with sprain/strain of the right shoulder, cervical and lumbar spine. However, the respondent’s CAT physiatry assessor subsequently diagnosed the applicant with a number of physical impairments, including: bilateral rotator cuff tendinitis, cervical spine myofascial pain and mechanical low back pain.

12Further, I do not agree with the respondent that the proposed FAE and workplace/occupational demands assessment would be redundant and a duplication of services. The respondent points to a number of functional evaluations and worksite assessments that had been conducted over the years, to argue that the question has been “asked and answered”. However, I note that all of these FAE assessments and workplace/occupational demands assessments had been s. 44 reports requested by the respondent. The respondent does not direct me to any s. 25 FAE or workplace assessments that it had previously approved. I do not find the fact that the respondent had conducted its own FAE and workplace demands assessments, would mean that a corresponding s. 25 assessment would now no longer be required.

13I am also not persuaded by the respondent’s argument that these assessments are no longer required because the applicant “continues to be entitled to” IRBs. In fact, at the time the OCF-18s were denied, the respondent expressly stated in the denial letter dated February 7, 2022 that IRBs had been stopped on November 17, 2021. Therefore, at the time the OCF-18s dated January 25, 2022 and February 7, 2022 were submitted, IRBs were clearly not being paid and were an issue in dispute between the parties.

14The medical evidence submitted by the applicant establishes that he suffered from physical impairments and functional limitations as a result of the accident. I find that he has met his onus to prove, on a balance of probabilities, that the proposed FAE and workplace/occupational demands assessments are reasonable and necessary.

OCF-18 dated December 6, 2021 for an in-home assessment and completion of Form 1

15I find that the applicant has not established entitlement to the OCF-18 dated December 6, 2021.

16The applicant submitted an OCF-18 for an in-home assessment and completion of an Attendant Care Needs Form 1. He relies on the s. 25 occupational therapy report of Meera Bhatt (OT) dated April 12, 2021. Ms. Bhatt found that the applicant had significant difficulties in performing his activities of daily living, and had significant limitations in his functional abilities and ranges of motion as a result of the accident.

17While the respondent does not dispute that it denied the OCF-18 dated December 6, 2021 for an in-home assessment and Form 1 completion, it argues that the applicant had already submitted an identical treatment plan dated February 8, 2021, which was approved in full by the respondent on February 26, 2021. As such, the respondent argues that the OCF-18 dated December 6, 2021 is not reasonable and necessary as it would be a duplication of services.

18I agree with the respondent and find that the applicant has not established entitlement to the OCF-18 dated December 6, 2021.

19The respondent has provided evidence that a similar treatment plan was submitted on February 8, 2021 in the same amount, which was approved in full by the respondent. The applicant did not provide reply submissions disputing that the prior plan had been approved or explaining why the additional assessment and Form 1 completion is reasonable and necessary. Accordingly, I agree with the respondent that the OCF-18 dated December 6, 2021 would be a duplication of services, and that the applicant has not established entitlement to same.

OCF-18 dated January 25, 2022 for a chronic pain assessment

20I find that the applicant has not established entitlement to the OCF-18 dated January 25, 2022.

21The applicant argues that in denying the chronic pain assessment, the respondent had failed to consider the results of its own CAT assessors who had found significant physical injuries. The applicant submits that the respondent’s CAT physiatry assessor, Dr. David Berbrayer, had diagnosed the applicant with bilateral rotator cuff tendinitis, cervical spine myofascial pain and mechanical low back pain.

22The respondent submits that after the applicant had been found to be catastrophically impaired, he re-submitted another treatment plan for a multidisciplinary assessment dated November 21, 2022. This treatment plan was approved in full on November 24, 2022. As such, the respondent argues that the January 25, 2022 treatment plan for a chronic pain assessment is a duplication of services.

23I agree with the respondent and find that the applicant has not established entitlement to the OCF-18 dated January 25, 2022.

24The subsequent OCF-18 dated November 21, 2022 proposed a comprehensive, multidisciplinary therapeutic needs assessment. The stated goals of the plan were pain reduction, increase in strength and to outline what specific modalities were required to help the applicant improve his recovery from his accident-related impairments. This is similar to the stated goal of the January 25, 2022 OCF-18, which proposed the chronic pain assessment to properly evaluate the applicant’s injuries and determine the appropriate course of management for the injuries.

25The applicant did not provide reply submissions, or provide submissions on why a chronic pain assessment would be required in addition to the approved multidisciplinary therapeutic needs assessment. Without submissions or evidence on this point from the applicant, I find that he has not met his onus to prove that the chronic pain assessment is reasonable and necessary.

OCF-18 dated December 27, 2022 for physiotherapy, chiropractic and acupuncture services

26I find that the applicant has not established that this treatment plan is reasonable and necessary.

27The applicant submitted an OCF-18 dated December 27, 2022 for 20 sessions of physiotherapy treatment, 15 sessions of chiropractic treatment, 15 sessions of acupuncture treatment and 20 sessions of massage. The stated goals of the plan were: pain reduction, increase in strength and range of motion and a return to activities of normal living.

28To establish his claim, the applicant relies on the respondent’s CAT physiatry report, where Dr. Berbrayer diagnosed the applicant with bilateral rotator cuff tendinitis, cervical spine myofascial pain and mechanical low back pain. He further cites the s. 25 chronic pain report of Dr. Marciniak who recommended ongoing physical treatment to address the applicant’s chronic pain. Finally, the applicant points to a letter dated August 14, 2023 from his family physician Dr. Fanipour, who noted that the applicant required ongoing physical treatments.

29The respondent submits that the applicant’s impairments were primarily psychological in nature. It further cites the updated s. 44 psychological assessment report of Dr. Nemeth dated February 12, 2024 who noted the applicant’s lack of improvement with treatment, and that the applicant had yet to be referred to an interdisciplinary pain management program. Dr. Nemeth found that at this point, the only program that would currently be of benefit would be an in-patient program that can address all of the diagnosed disorders simultaneously. A referral to such a program, such as Homewood Health, could be made by the applicant’s family physician.

30The respondent further relies on surveillance evidence to argue that the applicant now lives in Las Vegas, Nevada, and that the proposed OCF-18 for treatment in Ontario would not be reasonable and necessary. The applicant did not provide reply submissions to address the respondent’s arguments with respect to an in-patient program or whether he was currently residing in Las Vegas, Nevada.

31Upon review of the medical evidence, I find that the applicant has not established entitlement to the OCF-18 for physical therapy.

32Although I do not dispute that the applicant sustained physical impairments and suffered ongoing pain post-accident, the onus rests with the applicant to establish, on a balance of probabilities, that ongoing treatment is reasonable and necessary. The OCF-18 notes that this was a subsequent treatment plan and that “continued therapy is advised with a focus on manual therapy”. However, the applicant has not submitted as evidence records from his physiotherapy treatment clinic or any progress reports to outline what progress he had made with prior treatment. Nor has the applicant provided submissions detailing the period he had previously attended treatment, what type of treatment he had obtained and how the stated goals of treatment had been met with the previous sessions.

33The applicant has also not provided clinical notes and records (“CNR”) from his family doctor, Dr. Fanipour, to outline the course of the applicant’s treatment post-accident. The applicant instead relies on two isolated documents from Dr. Fanipour, such as a note dated August 14, 2023 stating that the applicant should stay off work and “continue his psychotherapy, physiotherapy and massage treatments”, and a Disability Certificate dated April 4, 2024 which noted low back pain and neck pain. However, these documents are of limited benefit without the full medical record and submissions from the applicant as to what treatment he had previously obtained, and what benefit he had derived from it.

34Further, the applicant relies on the s. 25 chronic pain report of Dr. Marciniak, who diagnosed the applicant with chronic pain syndrome as a result of the accident, and noted that the applicant had deteriorated when his treatment program was interrupted. However, I note that Dr. Marciniak recommended a multidisciplinary structured chronic pain program, in three phases. Although passive modalities (like acupuncture and massage) and an active exercise program were recommended, this was together with psychological treatment, retraining, and a goal attainment program. All of these modalities were proposed to be done together as part of this structured chronic pain program.

35As such, the program proposed by the applicant’s chronic pain specialist is more akin to the respondent’s assessor’s recommendation of an interdisciplinary pain management program where the psychological and physical symptoms are addressed together. The OCF-18 dated December 27, 2022 is not identified as a structured chronic pain program and does not appear to have a psychological component. In his submissions, the applicant did not identify this OCF-18 as a chronic pain program, or provide submissions as to why the physical treatment specified in the OCF-18 is preferable to the chronic pain program recommended by his chronic pain specialist.

36For the above reasons, I find that the applicant has not established that the treatment plan dated December 27, 2022 is reasonable and necessary.

Interest

37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies on the treatment plans for a functional abilities evaluation and a worksite/occupational demands assessment.

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.

39The applicant submits that the respondent refused to fully consider his physical injuries or all relevant evidence when denying the claim. While I have found that the applicant is entitled to two of the treatment plans in dispute, the applicant has not directed me to specific evidence of unreasonable withholding of the payment of benefits. I find that the applicant has not established grounds for an award.

ORDER

40I find that:

i. the applicant is entitled to the treatment plans for a functional abilities evaluation and a worksite/occupational demands assessment, plus interest;

ii. the applicant is not entitled to the remaining treatment plans in dispute; and

iii. the respondent is not liable to pay an award.