Azam v. Unifund Assurance Company, 2025 CanLII 1819

Licence Appeal Tribunal

Citation: Azam v. Unifund Assurance Company, 2025 ONLAT 23-001077/AABS

Licence Appeal Tribunal File Number: 23-001077/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:

Syed Iqbal Azam Applicant

and

Unifund Assurance Company Respondent

DECISION

ADJUDICATOR: Tami Cogan

APPEARANCES:

For the Applicant: Shahen Alexanian, Counsel

For the Respondent: Farzana Merchant, Counsel

Interpreter: Safia Parveen, Urdu Language

Hearing Reporter: Laura Tang

HEARD by Videoconference: December 2, 2024

OVERVIEW

1Syed Iqbal Azam, the applicant, was involved in an automobile accident on November 1, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule"). The applicant was denied benefits by the respondent, Unifund, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2On June 30, 2021, an application was filed for Tribunal file number 21-008114/AABS. It was set for a written hearing on February 10, 2023. On January 30, 2023 the application was withdrawn. The same day, the applicant filed a new application for Tribunal file number 23-001077/AABS. The new application contained the same issues in dispute as in the previous application. The issues in Tribunal file number 23-001077/AABS were set down for a one-day videoconference hearing on December 2, 2024.

Motion for Preliminary Issue to be heard

3On October 18, 2024, the respondent filed a motion to have a preliminary issue heard before the substantive issues. The motion was scheduled to be heard at the hearing.

4At the onset of the hearing, the respondent submitted the Tribunal should add the preliminary issue of whether the application should be dismissed on the basis that it is frivolous, vexatious, or commenced in bad faith and is an abuse of process. The respondent submitted that this preliminary issue was identified in the Response by Insurance Company, in the respondent's case conference summary, orally at the case conference, in a request for an amended case conference report, and in the Notice of Motion filed on October 18, 2024.

5The applicant submitted that the preliminary issue should not be scheduled at the onset of a substantive issues hearing because it is highly irregular and is not economically efficient to have to prepare for both a preliminary issue hearing and a substantive issue hearing when the preliminary issue may render the substantive issue hearing unnecessary. The applicant submitted that the preliminary issue should be heard in writing and the substantive issue hearing should be adjourned sine die, until the preliminary issue is decided. Furthermore, the preliminary issue is a complex one that needs preparation and supporting case law.

6I find that the issue of whether the application should be dismissed on the basis that it is frivolous, vexatious, or commenced in bad faith and is an abuse of process, is a proper preliminary issue to be heard in advance of the substantive issues because if successful, it would dispose of the entire application. I am satisfied that the respondent has put the applicant on notice of its intention to raise this preliminary issue. The preliminary issue was identified in the Response by Insurance Company filed on February 13, 2023, in the case conference summary filed on May 2, 2024, it is referenced in the case conference report and order dated May 27, 2024, and in a request for amendment to the case conference report and order on May 28, 2024, as well as in this motion filed on October 18, 2024. The respondent's motion is granted.

7The applicant has requested that if the motion is granted, the preliminary issue hearing be conducted in writing, and that the substantive issue hearing follow at a later date.

8I find that the Tribunal's order of October 18, 2024 was clear that the motion would be heard today, and Counsel were aware that if the motion succeeded, a preliminary issue hearing would follow. I have not heard a persuasive reason as to why the parties could not be prepared to present their case orally today to address the preliminary issue. The expectation of the Tribunal is that parties will attend scheduled events prepared to present their case. I also note that this file is 672 days old, and proceeding to a written hearing would cause unnecessary delay. I find that to proceed with the preliminary issue hearing orally is an efficient use of the resources allocated and ensures a timely resolution of the merits of this dispute.

PRELIMINARY ISSUE

9I am dismissing the preliminary issue for the following reasons.

10The respondent raises the issue of whether the application should be dismissed on the basis that it is frivolous, vexatious, or commenced in bad faith and an abuse of process.

11The Tribunal has the power to make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes pursuant to the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("SPPA"), section 23(1). Further, the Tribunal may dismiss an appeal without a hearing if the appeal is frivolous, vexatious, or commenced in bad faith pursuant to Rule 3.4 of the Licence Appeal Tribunal's Rules, 2023 ("Rules").

12It is the respondent's position that the filing of an application (23-001077/AABS) with the same issues in dispute as an application (21-008114/AABS) withdrawn on the same day, is an abuse of process. In the 2021 application, the applicant was restricted from filing affidavit evidence but did so on January 10, 2023. The respondent filed a motion to strike the affidavit as it was not compliant with the case conference report and order. The respondent submits the 2021 application was withdrawn three days after the respondent had filed their written submissions and the 2023 application filing was seeking a "do-over", a strategic withdrawal, once the respondent's argument was known to the applicant.

13It is the applicant's position that no decision was made on the 2021 application, and it can be withdrawn at anytime. The current counsel was not present at the case conference when the matter was set down for a written hearing without affidavit evidence, to which he would never have agreed. It was when he attempted to enter affidavit evidence that he was informed it was not permissible by the case conference report and order. Directions were given to withdraw the application, but counsel did not know the actual date the notice of withdrawal was filed. The purpose of the withdrawal was to ensure the applicant would receive a fair hearing with either affidavit evidence or oral testimony.

14Although the respondent is frustrated by the late withdrawal by the applicant, this is his right. There are no legislative restrictions about, if or when, an applicant can withdraw an application. I find the filing of a new application is not an abuse of process because the applicant is entitled to file an application for resolution of disputes in respect of his entitlement to Statutory Accident Benefits under s.280(2) of the Insurance Act R.S.O. 1990, CHAPTER I.8. A decision was not rendered on the first application, and as it was withdrawn, the applicant was entitled to file an application for the issues in dispute.

15The issue of whether this application is an abuse of process is dismissed.

SUBSTANTIVE ISSUES

16The issues in dispute are:

1. Is the applicant entitled to $3,292.25 for physiotherapy services, proposed by Good Health Rehab Centre, in a treatment plan dated May 18 2021?
2. Is the applicant entitled to $27,400.00 for catastrophic impairment assessments, proposed by LV Rehab, in a treatment plan dated September 20, 2021?
3. Is the applicant entitled to a repayment of $1,000.00 for costs paid by the applicant pursuant to a motion order rendered on March 3, 2023, as the motion order and an amended motion order were set aside per a decision on reconsideration rendered October 5 2023?
4. Is the applicant entitled to interest on any overdue payment of benefits?

SUBSTANTIVE ISSUES RESULT

17The applicant is not entitled to $3,292.25 for physiotherapy services.

18The applicant is not entitled to $27,400.00 for catastrophic impairment assessments.

19The applicant is to be reimbursed $1,000.00 for costs paid pursuant to the Motion Order of March 3, 2023, that has been cancelled.

20The applicant is not entitled to interest.

SUBSTANTIVE ISSUES ANALYSIS

Issue 1: Physiotherapy Treatment Plan

21I find the applicant is not entitled to the physiotherapy treatment plan dated May 18, 2021 for the following reasons.

22To 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.

23I have reviewed the treatment plan in dispute, which identifies the goals of treatment as pain reduction, increase in strength, increased range of motion, and return to activities of normal living. The treatment proposed is for 31 hours of physical rehabilitation.

24The applicant submits that the goal of pain relief is reasonable, and the treatment plan should be approved.

25The respondent relies on the physiotherapy report of Dennis Polygenis, physiotherapist, dated July 29, 2021, in support of the denial of the treatment plan.

26It is well established that the treatment plan alone does not prove the treatment is reasonable and necessary, but instead must be supported by medical records.

27In reaching my conclusion, I have considered the numerous clinical notes and records of the applicant's doctors to which I was directed. I find the clinical notes and records of the Multispecialty Clinic do not support the applicant's position because they are predominately illegible. From the clinical notes and records of Dr. Nazim Daya and Dr. Shabana Sikander, the family physicians, I note the following:

i. In 2013, after the accident the applicant was sent for imaging which identified degenerative disc disease of the mid and lower cervical spine including neural foraminal narrowing. ii. In 2015, the applicant reported to his doctor he had hit his head against the door frame of a vehicle and was diagnosed with a concussion. iii. In 2016, his family doctor mentions physiotherapy in relation to the applicant's neck tension and headaches. The applicant was referred to a neurologist. Dr. Zaitlen, neurologist opined the headaches are benign. iv. In 2017, the applicant reported joint pain for which he was directed to use hot compresses and Tylenol. v. In 2018, the applicant reported neck pain, and the treatment recommendations were hot compresses and Tylenol. vi. In 2019, the applicant was referred to a neurologist regarding his headaches. Dr. Friedman, neurologist opined that the applicant's sleep apnea could be a cause of his headaches arranged for an MRI, which resulted in an unremarkable finding. In September, the applicant reported sudden onset neck pain and was diagnosed with a neck sprain and osteoarthritis. vii. In 2020, the applicant reported in May he was having neck pain for a few days. The doctor's recommendation were warm compress and stretching and prescribed acetaminophen. The doctor noted the applicant's history of degenerative disc disease and chronic backpain. In June, an X-ray revealed mild osteoarthritis. The doctor recommended swimming exercise and to refrain from heavy lifting. The applicant followed-up regarding neck pain, with the last reference of the year in November. viii. In 2021, the applicant reported polyarticular joint pain in May, which was attributed to osteoarthritis and/or degenerative disc disease.

28I am persuaded by the physiotherapy assessment of Mr. Polygenis completed on July 5, 2021 in which the detailed results of the examination are provided to support the author's conclusions. The applicant had reported to the assessor that he receives only temporary relief of his symptoms as a result of the facility-based physiotherapy. Mr. Polygenis stated that clinical physiotherapy guidelines would not support ongoing physiotherapy and that further facility-based treatment is not recommended. Therefore, Mr, Polygenis opined the treatment plan is not considered reasonable and necessary.

29I find that the evidence I have been directed to, does not support the reasonableness or necessity for physiotherapy. Although pain reduction, increased range of motion and increase in strength and return to activities of normal living are legitimate goals for a treatment plan, the applicant did not speak to the specifics of the disputed treatment plan, its goals, or costs. I did not hear evidence that supported the applicant suffered from a reduction in activities of normal living for which physiotherapy would be a reasonable or necessary treatment.

30I find that the applicant has not proven on a balance of probabilities that the treatment plan in dispute is reasonable or necessary.

Issue 2: Catastrophic Impairment Assessments

31I find the applicant is not entitled to the catastrophic impairment assessments dated September 20, 2021 for the following reasons.

Section 45 of the Schedule

32The applicant submits that he sustained an impairment as a result of the accident, which is evidenced by the fact he received income replacement benefits ("IRBs") for six months. In light of his impairment, he is entitled to the catastrophic impairment assessments pursuant to s. 45 of the Schedule which provides an automatic right to have the assessments completed and paid for by the respondent because CAT is a determination and not a benefit under the Schedule. Further, the applicant argues that because CAT assessments are not a benefit, the legal test of reasonableness and necessity does not apply.

33Section 45 of the Schedule allows a person who sustains an impairment as a result of an accident to apply to the insurer for a determination of whether the impairment is catastrophic.

34An application to the insurer for a determination of CAT is through the submission of an OCF-19. This process does not necessitate Independent Medical Examinations ("IMEs") if the medical records on file support the determination. If the applicant wants to pursue IMEs in support of the OCF-19, those assessments are subject to s. 25(1) 5. of the Schedule. The approval for CAT assessments is captured under s. 38(1)(b), which applies to all applications for approval of assessment or examinations. Section 38(3)(c) requires the assessment plan and proposed costs to be reasonable and necessary.

35I acknowledge that the applicant was in receipt of IRBs for six months and that he had sustained an impairment which entitled him to the benefits. However, I must also take into consideration that the applicant returned to work and is no longer entitled to IRBs. I find that the past receipt of IRBs does not prove an impairment that would trigger s. 45 of the Schedule. However, if the applicant can prove that the assessments were reasonable and necessary to investigate whether he sustained an impairment at a level that meets CAT determination, then he would be entitled to the assessments.

Reasonable and Necessary

36It is well established that for entitlement to an assessment, the applicant must show that it is reasonable and necessary to investigate a condition. The applicant also must prove that the assessment being recommended is for impairments sustained in the car accident.

37I have reviewed the CAT assessment plan in dispute. The goals are identified as pain reduction, to restore functional tolerance and endurance, and to return to the activities of normal living. The proposed services include: a CAT file review and intake; CAT file review; CAT orthopaedic assessment; CAT Orthopaedic assessment report; CAT psychological assessment; CAT occupational therapy attendant care assessment; a CAT occupational therapy attendant care report; Activities of Daily Living Evaluation; Situational evaluation; CAT chronic pain assessment; CAT chronic pain assessment report; Travel time CAT; completion of the OCF-18; and completion of the OCF-19.

38The applicant submits that his complicated medical history, including depression that began in childhood and has gotten worse, along with the psychological records, support the need for an assessment.

39The respondent submits that the medical records do not support the reasonableness and necessity of CAT assessments. The applicant had a psychological impairment that was diagnosed in 2008. During his treatment sessions with Dr. Jagtaran Dhaliwhal, psychiatrist, and Dr. Amin Muhammad, psychiatrist, the applicant discusses stressors stemming from family, work, and finances, and does not mention the accident. The applicant undertook training as a Personal Support Worker and is employed as a caregiver. Dr. Tejedin Getahum, recommended the CAT assessments, however, he does not provide any explanations as to why the treatment and assessment plan is reasonable or necessary.

40At the hearing I heard testimony from the applicant that he cares for his three children with whom he lives, and that he is a professional caregiver, which I find inconsistent with his claim that the CAT occupational therapy attendant care assessment, CAT occupational therapy attendant care report, Activities of Daily Living Evaluation, and Situational Evaluation are reasonable and necessary. I find that this testimony indicates the applicant is independent in his functioning, able to care for himself and his children and continues to work in his chosen profession. I find these CAT assessments are not reasonable or necessary because I have not been directed to evidence that supports that the applicant has functional limitations, or safety concerns or lacks the ability to care for himself.

41I have also considered that the evidence before me indicates that Dr. Nazim Daya and Dr. Shabana Sikander, the family physicians, have not made any reference to, referrals for, or requested consultations from, chronic pain specialists, or orthopaedic surgeons, which I find contradicts the applicant's position that these assessments are reasonable or necessary. Therefore, I find that the CAT orthopaedic assessment, CAT Orthopaedic assessment report, CAT chronic pain assessment, and CAT chronic pain assessment report are not reasonable and necessary because there is no medical basis to support the assessment for these purported CAT impairments.

42In reaching my decision, I have considered the clinical notes and records to which I was directed. The clinical notes and records of Dr. Sikander, family physician, evidence that the applicant was referred to psychiatrists for treatment of his depression and anxiety in 2016. However, the family physician records reference family and home as the source of the applicant's anxiety and not the accident. Before me I also have the clinical notes from Dr. Amin Muhammed, psychiatrist, from three treatment sessions in 2020, and one treatment session in 2021. In what appears to be the first session with Dr. Muhammed on August 17, 2020, the accident is listed in the history of presenting illness but is not referenced again in the treatment notes. Under past history, Dr. Muhammed indicates that the applicant was treated by Dr. Dhaliwal, psychiatrist, from 2016 to 2019, and that Dr. Dhaliwal discontinued the applicant's medication and advised the applicant to follow-up with his family physician. The record also indicates that during his treatment with Dr. Dhaliwal, the applicant was non-compliant with his medications. Dr. Sikander's notes indicate the applicant stressors are family, finance, and work. Based on the evidence before me, I agree with the respondent, and I find that the treatment records do not support that the applicant's psychological condition is as a result of the accident. I find the psychological assessment is also not reasonable or necessary because the applicant has not proven that the assessment being recommended is for impairments sustained in the car accident.

43I find that without the assessments discussed above, CAT file review and intake, CAT file review, Travel time CAT, completion of the OCF-18, and completion of the OCF-19 as listed in the dispute treatment plan, are not reasonable or necessary.

44I find the applicant has not proven on a balance of probabilities that the CAT assessments are reasonable or necessary.

Issue 3: Repayment of Costs

45I find the applicant is entitled to repayment of $1,000.00 in costs paid to the respondent pursuant to a Motion Order dated March 3, 2023.

46The applicant was ordered to pay costs to the respondent following a Motion on March 3, 2023. An Amended Motion Order was subsequently made On March 24, 2023. In a Reconsideration Decision dated October 5, 2023, both the Motion Order and the Amended Motion Order were overturned.

47The Motion Order, Amended Motion Order, and Reconsideration Decision are related to Tribunal file number 21-008114/AABS and 23-001077/AABS. In accordance with the Reconsideration Decision Order, the Motion Order and Amended Motion Order were cancelled. Therefore, I find that any Orders contained therein are of no force or effect, including the order for costs pursuant to Rule 19. If the funds had not been paid, they would no longer be owed as a result of the Reconsideration Decision. It is therefore reasonable to conclude that the funds that were paid under the cancelled Motion Order, are an overpayment and should be refunded to the applicant.

48I find the $1,000.00 paid by the applicant to the respondent pursuant to the cancelled Motion Order of March 3, 2023, are to be refunded to the applicant.

Issue 4: Interest

49There is no overdue payment of benefits, therefore the applicant is not entitled to interest pursuant to section 51 of the Schedule.

ORDER

50The applicant is not entitled to the treatment plan or assessments.

51The respondent will repay to the applicant $1,000.00 in costs.

52No interest is owing.