Licence Appeal Tribunal File Number: 23-005298/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:
Adekunle Famutimi
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR: Laura Goulet
APPEARANCES:
For the Applicant: Dianna Morello, Counsel
For the Respondent: Marco Fantin, Counsel
HEARD: By way of written submissions
OVERVIEW
1Adekunle Famutimi, the applicant, was involved in an automobile accident on November 30, 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, 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 $9,900.00 for assistive devices proposed by New Age Specialized Assessments Ltd. in a treatment plan/OCF-18 (“plan”) submitted on November 17, 2022?
ii. Is the applicant entitled to $2,987.62 for physiotherapy services proposed by Body Worx Vitality Inc. in a plan submitted on January 17, 2023?
iii. Is the applicant entitled to $501.32 for prescription medication, parking and a psychotherapy consultation submitted on a claim form (“OCF-6”) dated March 16, 2022?
iv. Is the applicant entitled to $198.35 for prescription medication, parking and a partial eye examination submitted on an OCF-6 dated March 24, 2022?
v. Is the applicant entitled to $413.16 for prescription medication and optical services submitted on an OCF-6 dated May 9, 2022?
vi. Is the applicant entitled to $27.63 for prescription medication submitted on an OCF-6 dated September 14, 2022?
vii. Is the applicant entitled to $42.14 for prescription medication submitted on an OCF-6 dated November 17, 2022?
viii. Is the applicant entitled to $48.35 for prescription medication submitted on an OCF-6 dated December 21, 2022?
ix. Is the applicant entitled to $48.35 for prescription medication submitted on an OCF-6 dated March 1, 2023?
x. Is the applicant entitled to $385.00 for prescription medication, massage therapy and physiotherapy submitted on an OCF-6 dated April 26, 2023?
xi. Is the applicant entitled to $3,148.01 for medical marijuana proposed by MMC in a plan submitted on May 15, 2023?
xii. Is the respondent liable to pay an award under s.10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
xiii. Is the applicant entitled to interest on any overdue payment of benefits?
3In his submissions, the applicant advised that he is “not pursuing” issues iii to x, above.
RESULT
4The applicant is not entitled to the plan for an assistive device.
5The applicant is entitled to the physiotherapy sessions and the cost for initial assessments in the plan dated January 17, 2023. The applicant is not entitled to the other expenses proposed in this plan.
6The applicant is entitled to the plan for medical marijuana.
7The applicant is not entitled to an award.
8The applicant is entitled to interest on any overdue payment of benefits.
PROCEDURAL ISSUE
9The respondent submits that the applicant was not compliant regarding productions. It submits that the applicant did not respect its s. 33 request for his 2018 accident benefit file. The applicant had objected to this request because he claimed the respondent had already accessed it. Further, the respondent argues that the applicant has not produced seven items listed in the Case Conference Report and Order (“CCRO”) dated November 30, 2023. The respondent asks the Tribunal to draw a negative inference as a result of the applicant’s noncompliance.
10The applicant submits that he made the production requests and provided the respondent with the productions he received. He filed a letter, dated December 20, 2023, which lists the productions provided, and submits that the items which remain outstanding have not yet been provided by the third party. I have reviewed this letter, and it appears that three items remain outstanding: a prescription summary, clinical notes and records (“CNRs”) from Body Worx Vitality, and a collateral benefits file. The applicant attached a letter dated December 14, 2023 requesting CNRs from Body Worx Vitality, and a letter dated December 14, 2023 to Costco Pharmacy requesting a prescription summary. The applicant submits that he has made reasonable efforts to obtain the productions. The applicant further submits that the respondent’s request for the 2018 accident benefit file was not listed as a production request in the CCRO.
11I find that the applicant has made a reasonable request for two of the outstanding production orders. No submissions were made by the applicant with respect to the collateral benefits file. I decline to draw an adverse inference as I find that the applicant acted in good faith in requesting the records.
ANALYSIS
12To 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 plan for an assistive device
13I find that the applicant has not demonstrated on a balance of probabilities that the plan for a massage chair is reasonable and necessary.
14The plan was prepared by Pawan Chopra, occupational therapist, on November 17, 2022. The plan includes the cost of a massage chair, as well as “Documentation, support activity for claim form.” The goal of the plan is to return to activities of normal living. There is also an indication that the applicant requires the use of the massage chair for rehabilitation.
15The applicant relies on a referral by Dr. Rohit Chadha on October 28, 2022, who saw him in his family doctor’s clinic. The applicant filed a “referral notice” signed by Dr. Chadha indicating “advised massage chair” for the diagnosis of chronic degenerative disc disease and chronic back pain.
16The applicant also refers to the CNRs of his family physician, Dr. Stephen Small, arguing that his pre-existing conditions were aggravated by the accident. The applicant points to medical evidence from the CNRs of various doctors indicating that he has an extensive medical history of disc bulge, PTSD, sleep apnea, osteoarthritis, fibromyalgia, chronic pain, hypertension, anxiety, and dyslipidemia. The applicant did not direct me to CNRs from any of these doctors that addressed the need for a massage chair.
17The applicant submits that the massage chair is reasonable and necessary because he has extreme pain when standing, shifting from different positions and when sitting for prolonged periods of time. He submits that, with the massage chair, he can receive massages when other therapies are not available to him, particularly when he returns from his job as an Uber driver. The applicant further submits that the chair is a reasonable and necessary expense which will help to reduce the effects of the disability from the impairments caused by the accident. He also submits the massage chair would assist him to continue working.
18The respondent submits that Dr. Chadha’s referral does not explain the potential medical benefits of the massage chair or attempt to justify why it is a reasonable or necessary form of treatment. Further, the respondent points out that none of the CNRs indicate that the applicant’s family physician, Dr. Small, proposed the massage chair as a form of treatment.
19The respondent refers to the report of Dr. Angela Mailis, physician, dated April 20, 2023, which indicates that the applicant reported that he had been seeing a massage therapist without relief until January of 2023. The respondent argues that this suggests that a massage chair would not be a reasonable or necessary benefit, as it is unlikely to provide the relief that professional massage therapy has failed to achieve. The respondent further argues that the price of the chair is “exorbitantly expensive.”
20Although the applicant has filed a referral notice for a massage chair, he has not directed me to medical evidence establishing that the goals of the treatment plan, i.e., to return to activities of normal living and rehabilitation, would be met by using a massage chair, or that the overall cost of achieving them with this device is reasonable. As the plan was submitted after the referral note, I have not been directed to any evidence that Dr. Chadha considered the disputed plan to provide an opinion as to whether it is reasonable and necessary. I have also considered that the applicant reported that massage therapy did not provide him with relief. The applicant did not refer me to evidence that a massage chair would be more effective than professional therapy.
21For these reasons, I find that the applicant has not established on a balance of probabilities that the plan for a massage chair is reasonable and necessary.
The applicant is partially entitled to the plan for physiotherapy
22I find that the applicant is entitled to the physiotherapy sessions and the cost for initial assessments in the plan dated January 17, 2023.
23The plan was prepared by Maryam Ghodrati, physiotherapist, on January 17, 2023. The plan includes the cost for initial assessments for the OCF-23, the OCF-18, s. 15 and s. 16 benefits, ten sessions of physiotherapy, eight sessions of massage therapy, eight sessions of chiropractic treatment, a cervical pillow, and a gel seat cushion. The goals of the plan include pain reduction, increased range of motion, increase in strength, to return to activities of normal living, to return to pre-accident work activities and to return to modified work activities. With respect to improvement since the end of the last plan, this plan indicates that his concussion and balance have improved with concussion treatments, muscle balances including strength and tightness are improving slowly, and neck range of movement is improved.
24The applicant refers to a letter dated January 11, 2024 from his lawyer’s office to Dr. Small, requesting his opinion about physiotherapy to address the applicant’s accident-related issues. Dr. Small made a notation on the letter that physiotherapy is helpful. The applicant also filed a letter from Dr. Small dated February 21, 2024 indicating that physical therapy is critical to the applicant’s treatment to deal with his chronic pain and that physiotherapy is one component needed for his care.
25The respondent submits that the Dr. Small provided these letters only after receiving a specific request from the applicant’s representative to address physical therapy.
26The respondent relies on the Insurer’s Examination paper review report of Dr. Oleg Safir, orthopaedic surgeon, dated July 28, 2023, addressing the plan at issue. In April 2023, Dr. Safir had previously found no objective evidence of any musculoskeletal impairment because of the accident. Dr. Safir concluded that, in the absence of any new substantive clinical information or findings not previously known, there would be no clinical indication for provision of the proposed goods and services in the disputed plan.
27I find that the applicant’s family physician would be best suited to determine his needs. It is apparent from Dr. Small’s CNRs dating back to January of 2019, and the letters addressed to him by other treatment providers, that Dr. Small was highly involved in the applicant’s treatment and would be in the best position to form an opinion about his medical needs. I am persuaded by Dr. Small’s strong recommendation for physiotherapy. Given this, I am not concerned that his letter was provided after a request from the applicant’s representative. Although I have considered Dr. Safir’s opinion, I note that he did not review Dr. Small’s letters recommending physiotherapy, as these were written in January and February 2024, after Dr. Safir’s paper review.
28The respondent also points to Dr. Mailis’ report, who indicated that passive therapies and modality-based physiotherapy will not be of any help to the applicant. The applicant reported to Dr. Mailis that he had been seeing a physiotherapist and a massage therapist without relief until January of 2023. Despite this report to Dr. Mailis, according to Ms. Ghodrati, the applicant’s muscle balances including strength and tightness, as well as neck range of movement, improved since the last plan.
29The respondent pointed out that the applicant reported to Dr. Mailis that his work hours have not changed from before the accident. I find that returning to modified work activities is only one of the goals of the disputed plan. I am persuaded by Dr. Small’s opinion that physical therapy is critical to the applicant’s treatment to deal with his chronic pain. Pain reduction is also one of the goals of the plan.
30For these reasons, I find that the applicant has demonstrated on a balance of probabilities that the physiotherapy sessions are reasonable and necessary.
31Other than Ms. Ghodrati, who prepared the plan at issue, I have not been directed to recommendations from any of the applicant’s treatment providers for massage therapy, chiropractic treatment, a cervical pillow, or a gel seat cushion. As such, I find that the applicant has not demonstrated on a balance of probabilities that massage therapy, chiropractic treatment, a cervical pillow, or a gel seat cushion are reasonable and necessary.
32The respondent also argues that it sent Notices of Examination to schedule a second s. 44 assessment with respect to the plan for physiotherapy, and that the applicant refused to attend. The respondent submits that a negative inference should be drawn. In reply, the applicant submits that he attended an in-person assessment with Dr. Safir on April 12, 2023 with respect to the massage chair, and that a paper review was conducted by Dr. Safir on July 7, 2023 to address the plan for physiotherapy. The applicant argues that it is unreasonable to require him to attend a further in-person assessment to address a treatment plan that has already been assessed, especially when there is sufficient documentation to support its reasonableness and necessity. Further, the applicant submits that he asked the respondent to proceed with an additional paper review and it did not respond. Rather than an adverse inference, the Schedule provides a remedy for nonattendance at an insurer’s examination and the respondent chose not to pursue it.
33For the above reasons, I find that the applicant has proven on a balance of probabilities that the physiotherapy sessions in the disputed plan are reasonable and necessary. I also find that the cost for initial assessments is reasonable and necessary. The applicant is not entitled to the other expenses proposed in this plan.
The applicant is entitled to the plan for medical marijuana
34I find that the applicant has established on a balance of probabilities that the plan for medical marijuana is reasonable and necessary.
35The plan was prepared by Harpreet Kaur, nurse practitioner, on May 2, 2023. The plan includes “documentation, support activity,” “education and care coordination” and 180 units of medical marijuana. The goals of the plan include pain reduction, to return to activities of normal living, to return to pre-accident work activities, to help manage headaches, focus, irritability, mood, motivation, and sleep disturbances.
36The applicant relies on Dr. Small’s letter dated March 8, 2024, where he indicates that, although he does not prescribe marijuana, there may be some benefit for the applicant’s chronic condition, and he supports the applicant’s use of marijuana in the treatment of his challenging chronic pain syndrome.
37The applicant also refers to Dr. Mailis’ report, which indicates that the applicant suffers from extension intolerant lower back pain with chronic right radiculopathy, and that the back surgery performed provided very little relief. Although the applicant submits that Dr. Mailis supports the applicant’s use of medical marijuana, I find that Dr. Mailis did not indicate this in her report. I do note that the applicant reported to Dr. Mailis that he used prescribed cannabis for help with pain and sleep.
38The applicant submits that medical marijuana formulations address anxiety, depression, chronic pain, sleep disorders, and increase energy and productivity. The applicant filed receipts indicating that he has incurred the expense of the medical marijuana, despite the respondent’s denial of the plan, submitting that his pain and sleep have improved since he began using it.
39The respondent submits that there may be a conflict of interest as MMC has submitted the plan in dispute and provided the treatment that was not recommended by the applicant’s treating physicians. The respondent points out that Dr. Small vaguely states that there “may” be some benefit for the applicant’s chronic condition, that he does not prescribe this treatment, and he does not endorse the treatment as reasonable and necessary. Further, the respondent submits that Dr. Small does not provide any rationale as to why the treatment may have some benefit, nor does he discuss the accident or go into detail as to what the treatment entails.
40The respondent further submits that the CNRs do not indicate if this treatment has been successful. The respondent also argues the potential dangers associated with this treatment, which could severely impact the applicant’s ability to perform his job as an Uber/Taxi driver safely and effectively. The respondent did not file any documentation in support of this argument. Further, the respondent submits that the disputed plan does not indicate the administration of specific dosages and timing of consumption.
41Both the applicant and respondent referred me to Tribunal decisions to support their respective positions. I am not bound by other Tribunal decisions, and I am deciding this case based on its specific facts.
42I find that Dr. Small indicated that he supports medical marijuana as a form of treatment for the applicant and does not voice any concerns with respect to any potential dangers associated with it. I have also considered that in reply, the applicant submits that medical marijuana is carefully prescribed for the different therapeutic benefits of THC and CBD, and it is taken at night or during periods where the applicant is not driving. I note that the proposed plan indicates two grams of cannabis per day, and distinguishes between the use of THC + CBD, and the use of CBD alone (non-psychoactive cannabinoid). The plan explicitly states that, using CBD, the applicant will experience pain relief without any sedation, allowing safe participation in activities of daily living.
43I also note that the proposed plan indicates that it is not a subsequent treatment plan, and as such, I find that it was not possible for the provider to say whether the treatment resulted in an improvement. Dr. Small’s letter dated March 8, 2024 does indicate that he was aware that the applicant was being treated with medical marijuana from the provider Harpreet Kaur, and that he was in support of the treatment for the applicant’s chronic pain. Dr. Small refers to the applicant’s chronic pain syndrome as “challenging.” Further, the applicant advised Dr. Mailis that he used prescribed cannabis for help with pain and sleep. I note that two of the goals of the disputed plan are pain reduction and to help manage sleep disturbances.
44For the above reasons, I find that the applicant has demonstrated on a balance of probabilities that the plan for medical marijuana is reasonable and necessary.
45The respondent argues that it scheduled a s. 44 assessment on June 29, 2023 to obtain a second opinion with respect to the plan for medical marijuana, and that the applicant refused to attend. The respondent submits that a negative inference should be drawn. In reply, the applicant filed a letter dated May 23, 2024, addressed to the respondent, requesting that the assessment be rescheduled. The applicant submits that the respondent did not reply to this letter, or letters dated June 7, 2023 and January 12, 2024. Rather than an adverse inference, the Schedule provides a remedy for nonattendance at an insurer’s examination and the respondent chose not to pursue it.
Interest
46Although the respondent points out that the applicant did not make any submissions on this issue, I find that interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The respondent is liable to pay interest on any overdue benefits.
Award
47The 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.
48I have considered the respondent’s argument that the applicant abandoned his award claim, as he did not provide particulars in support of the claim as directed in the CCRO. However, since the applicant did outline his arguments in his submissions and the respondent had a chance to respond, I will deal with the merits of the applicant’s arguments.
49The applicant submits that the respondent did not properly review and adjust the claim and that its denials of the plans in dispute are unreasonable. Since I find that no benefits are payable with respect to the massage chair, I will not address the applicant’s arguments on that issue.
50The applicant submits that the respondent provided Dr. Safir with an OCF-3 that was related to a previous accident, and that the reasons given in Dr. Safir’s assessment are not supportable given the medical records with respect to the applicant’s injuries. The applicant further submits that the respondent ignored medical letters provided in support of the plans.
51I have reviewed Dr. Safir’s report dated April 25, 2023. Although it appears that he reviewed an OCF-3 from a previous accident, he also conducted an in-person interview and an examination. The applicant submits that the assessment was less than five minutes; however, Dr. Safir indicated that the assessment took 30 minutes. I am not persuaded by the applicant’s assertion that the assessment was less than five minutes because the report outlines information gleaned from the interview, as well as a physical examination of the cervical spine, thoracolumbar spine, bilateral shoulder, elbow, hand and wrist, knee, foot, and ankle.
52I also find that the respondent did not ignore the letters in support of the plans, but it did take issue with them and made submissions in that regard.
53It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, to attract an award under Reg. 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. I find that the respondent’s behavior does not reach that high standard. I find that the respondent conducted assessments and reasonably considered the information it was provided. There is no evidence of benefits unreasonably delayed or denied.
ORDER
54For the above reasons, I find:
i. The applicant is not entitled to the plan for a massage chair.
ii. The applicant is entitled to the physiotherapy sessions and the cost for initial assessments in the plan dated January 17, 2023. The applicant is not entitled to the other expenses proposed in this plan.
iii. The applicant is entitled to the plan for medical marijuana.
iv. The applicant is entitled to interest on any overdue payment of benefits.
v. The applicant is not entitled to an award.
Released: March 5, 2025
Laura Goulet
Adjudicator