Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-000608/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:
Ali Hamze
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Robert Rock
APPEARANCES:
For the Applicant:
Saloumeh Baghbani, Counsel
For the Respondent:
Yalda Aziz, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Ali Hamze, the applicant, was involved in an automobile accident on June 2, 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 Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
2On June 9, 2022, the applicant was removed from the MIG due to being diagnosed with psychological impairments in an insurer's examination report.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $3,852.98 for chiropractic services, proposed by Healthmax Physiotherapy in a treatment plan/OCF-18 ("plan") submitted April 10, 2022?
ii. Is the applicant entitled to $2,619.23 for chiropractic services, proposed by Healthmax Physiotherapy in a treatment plan/OCF-18 ("plan") submitted August 22, 2022?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the applicant has not proven on a balance of probabilities that he is entitled to the two treatment plans at issue.
5As no benefit payments are overdue, no interest is owing.
ANALYSIS
6To 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.
The applicant is not entitled to the treatment plans for chiropractic services.
7I find that the applicant has not proven on a balance of probabilities that he is entitled to the two treatment plans for chiropractic services.
8The first treatment plan, submitted April 10, 2022, includes 16 manipulation, exercise, and therapy sessions for multiple body sites, as well as documentation, assessment, and preparation service.
9The second treatment plan, submitted August 22, 2022, includes 14 manipulation, exercise, and therapy sessions for multiple body sites, as well as documentation, assessment, and preparation service.
10The goals of the two treatment plans are identical, and they are for: pain reduction, increased range of motion, increase in strength, return to activities of normal living, return to pre-accident work activities, and return to modified work activities.
11The applicant submits the two treatment plans are reasonable and necessary, based on his continued pain reporting and he relies on the clinical notes and records ("CNRs") of his family doctor, Dr. Oda, and a psychological assessment report by the insurer's assessor, Dr. Terra Seon, psychiatrist, completed on May 26, 2022.
12I find that the CNRs of Dr. Oda do not support the treatment plans for chiropractic services as reasonable and necessary. Specifically, I am not directed in the CNRs to Dr. Oda outlining that the ongoing pain reporting is attributable to the subject accident. The CNRs of Dr. Oda do not mention the subject accident or associate the applicant's pain reporting to the subject accident, as the subject accident is only referenced a few times in the CNRs and those references are not tied to pain reporting. The reporting of knee pain is not linked to the subject accident in the CNRs as it notes the applicant "denies any injury or trauma" when it was reported. Dr. Oda does not use the term chronic pain, nor does the doctor make any referrals to a pain clinic.
13The applicant makes extensive references to the psychological assessment by Dr. Seon and the pain reporting therein. While there are self reported pain references in this report, they are contradictory to the reporting in the CNRs of Dr. Oda. For example, in reporting pain in his left knee to Dr. Seon, the applicant attributes the pain to the subject accident. In Dr. Oda's CNRs, when the applicant reports left knee pain, the doctor specifically notes that the applicant denies any injury or trauma. Additionally, Dr. Seon notes that the applicant scored above the recommended cut-off score that indicates a high likelihood of potential symptom magnification in their self reporting.
14In the CNRs of Dr. Bottas, MD, who provided psychiatric care to the applicant, these CNRs make no reference to the subject accident or any ongoing reporting of pain by the applicant. The psychiatric care provided to the applicant appears to be focused on ADHD and no discussion of any accident related psychiatric problems are disclosed by the applicant.
15The respondent submits that the applicant has not proven that the two chiropractic services treatment plans are reasonable and necessary. The respondent relies on two reports by Dr. Aldridge, GP and chronic pain specialist: a MIG Determination report, dated May 24, 2022, and an Independent Medical Examination, dated February 8, 2024. Additionally, the respondent relies on an excerpt from Dr. Kudjerski, the applicant's chiropractor, from July 19, 2021.
16I find that the MIG determination report by Dr. Aldridge does not support the two treatment plans as reasonable or necessary. Dr. Aldridge's findings conclude that the reported chronology of the neck, bilateral shoulder and left knee pain are not attributable to the subject accident becaus?. The doctor further opined that, given the absence of objective musculoskeletal findings attributable to the subject accident, the treatment plans was not reasonable or necessary.
17I further find Dr. Aldridge's Independent Medical Examination does not support the two treatment plans as reasonable and necessary. Dr. Aldridge concluded that there was no evidence of objective musculoskeletal findings attributable to the subject accident. Dr. Aldridge further submitted that, given the existing pain reporting relates to pre-accident injuries, the applicant has reached maximal medical improvement.
18I then find that the excerpt from Dr. Kudjerski supports Dr. Aldridge's findings that the ongoing pain reporting is from pre-existing injuries and unrelated to the subject accident. In the excerpt, Dr. Kujerski reports, "the applicant has suffered low back pain for five years on and off". Additionally, Dr. Kujerski notes, "right shoulder lower than left shoulder, and the applicant reports it happening after working carpets with his dad for about seven years on and off".
19I find that the applicant has not proven on a balance of probabilities that the two treatment plans are reasonable and necessary as a result of the subject accident. The applicant has not directed me to any compelling evidence that the treatment plans in question would be able to meet the stated goals. I placed more weight on the reports of Dr. Aldridge as his conclusions match the reporting of the applicant to Dr. Oda. Dr. Aldridge concluded that the injuries associated with the ongoing pain reporting were pre-existing. This finding is supported by the excerpt from Dr. Kujerski. No compelling evidence has been provided to show that these pre-existing injuries were exacerbated by the subject accident, and it was Dr. Aldridge's medical opinion that the applicant has reached maximum medical improvement from his physical impairments.
20I find that the applicant has not proven on a balance of probabilities that the two treatment plans for chiropractic services are reasonable and necessary.
Interest
21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefit payments, no interest is owing.
Award
22This issue of an award was withdrawn by the applicant in his written submissions.
ORDER
23I find that:
i. The applicant has not proven that the two treatment plans in question are reasonable and necessary.
ii. As there are no overdue benefit payments, no interest is owing.
iii. The applicant withdrew the award issue in his written submissions.
iv. The application is dismissed.
Released: March 6, 2025
Robert Rock
Adjudicator