Licence Appeal Tribunal File Number: 23-002082/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:
Mohamed Ahmed
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Julia Logoutova, Paralegal
For the Respondent:
Julianne Brimfield, Counsel
HEARD: By way of written submissions
OVERVIEW
1Mohamed Ahmed (“the Applicant”) was involved in an automobile accident on February 5, 2022, and sought benefits from Co-operators General Insurance Company (“the Respondent”) 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 and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues to be decided in the hearing are:
Is the Applicant entitled to a medical benefit in the amount of $2,300.00 for a psychological assessment, proposed by Wynford Health Clinic, in a plan dated March 31, 2022?
Is the Applicant entitled to a medical benefit in the amount of $1,270.27, less $1,094.62 approved by the Respondent, for physiotherapy services, proposed by 2430303 Ontario Inc., in a plan dated June 21, 2022?
Is the Applicant entitled to a medical benefit in the amount of $2,000.00 for an orthopedic assessment, proposed by Wynford Health Clinic, in a plan dated June 21, 2022?
Is the Applicant entitled to a medical benefit in the amount of $2,000.00 for a neurological assessment, proposed by Wynford Health Clinic, in a plan dated July 8, 2022?
Is the Applicant entitled to a medical benefit in the amount of $1,050.57 for a self-directed exercise program, proposed by Wynford Health Clinic, in a plan dated July 8, 2022?
Is the Applicant entitled to a medical benefit in the amount of $3,185.19 for physiotherapy services, proposed by Winford Health Clinic in a plan dated July 19, 2022?
Is the Applicant entitled to a medical benefit in the amount of $2,000.00 for a chronic pain assessment, proposed by Winford Health Clinic, in a plan dated August 16, 2022?
Is the Applicant entitled to a medical benefit in the amount of $2,227.73 for physiotherapy services, proposed by Winford Health Clinic in a plan dated September 27, 2022?
Is the Applicant entitled to a medical benefit in the amount of $1,690.81 for physiotherapy services, proposed by Winford Health Clinic in a plan dated November 29, 2022?
Is the Applicant entitled to a medical benefit in the amount of $1,270.27 for physiotherapy services, proposed by Winford Health Clinic in a plan dated January 17, 2023?
Is the Applicant entitled to a medical benefit in the amount of $1,270.27 for physiotherapy services, proposed by Winford Health Clinic in a plan dated Feb 21, 2023?
Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the Applicant is not entitled to the benefits claimed. No interest is payable.
BACKGROUND
4The Applicant was the driver of a vehicle which was struck by a bus while attempting to make a U-turn on an urban roadway. He sought no medical attention at the scene of the accident and did not meet with any healthcare practitioner until his legal counsel referred him to Dr. P. Bruni, chiropractor, whom he met nearly two months after the accident, on March 23, 2022.
5The Applicant attended chiropractic treatment at Wynford Health Clinic thereafter, pursuant to the Minor Injury Guideline (“the MIG”).
6The Applicant subsequently complained of psychological injuries as a result of the accident and the Respondent, following an insurer’s examination (“IE”) by Dr. M. Sirota, psychologist, determined that he should no longer be subject to the MIG and the $3,500.00 funding limit for a minor injury. The Respondent also approved funding for a psychological assessment following the IE.
7About a month later, prior to the Applicant incurring the psychological assessment, the Respondent reneged on the approval and denied funding for the psychological assessment prior to it being incurred. The denial was based on an addendum IE report, by Dr. Sirota. Dr. Sirota’s opinion changed in the addendum report because, according to the Respondent, surveillance evidence demonstrated that the Applicant was not forthright in his self-reports during the IE.
8Entitlement to this psychological assessment is an issue at this hearing.
ANALYSIS
The Applicant’s elbow pain pre-dates the subject accident
9Central to the Applicant’s medical records are his left elbow issues, which I find pre-date the accident. This is confirmed in the clinical notes and records (“CNRs”) of Dr. O. Adebajo, physician. Those records show that, on December 17, 2021, the Applicant complained of ongoing left elbow pain for a few months. He had his left elbow x-rayed and the corresponding report, dated December 20, 2021, showed suspect multiple loose bodies in the region of the radio humeral joint, as well as mild/early degenerative changes. Dr. Adebajo prescribed naproxen and physiotherapy for the Applicant to address his ongoing elbow pain.
10I find no evidence indicating that the Applicant’s pre-existing elbow issues were exacerbated by the subject accident. The Applicant had his left elbow x-rayed again and a corresponding report was issued, dated July 4, 2022. The report concluded that x-rays showed no change from the December 17, 2021 report. Given that the Applicant’s elbow issues had not changed between imaging taken prior to the accident and imaging taken after, I conclude that his elbow issues are unrelated to the accident and were not exacerbated by it.
Psychological assessment plan, dated March 31, 2022
11The Respondent initially denied funding for a psychological assessment on account of the Applicant’s injuries falling within the minor injury definition, outlined in section 3 of the Schedule. The Applicant was assessed in an IE by Dr. Sirota, psychiatrist, who, after reviewing the Applicant’s medical records and conducting a clinical interview with the Applicant, concluded that the Applicant developed an Adjustment Disorder with Anxiety and Depression as well as vehicle anxiety. Notably, during the clinical interview, the Applicant reported that he had not worked since the accident, feels some anxiety about driving and being a passenger, and avoids highway driving.
12Following the psychiatric report, dated August 24, 2023, Dr. Sirota issued an addendum report, dated September 18, 2023. The purpose of the addendum report was for Dr. Sirota to comment on the surveillance evidence the Respondent obtained of the Applicant. The surveillance evidence shows the Applicant engaging in employment as a food delivery driver and driving on the highway for a brief period.
13Dr. Sirota concluded that the surveillance evidence demonstrated that the Applicant appeared to be carrying on with his life without treatment and that it does not appear that he requires psychological treatment because his symptoms are milder and impairments more minimal than Dr. Sirota initially believed. Dr. Sirota’s opinion changed to conclude that the psychological assessment is not reasonable and necessary as a result of the accident.
14From the Applicant’s perspective, Dr. Sirota’s change in opinion regarding the psychological assessment, while leaving the diagnosis unchanged, invalidates the opinion in the addendum report, entitling him to the assessment. He directed me to no other reason to conclude that the psychological assessment is reasonable and necessary.
15I find that the psychological assessment is not reasonable and necessary as a result of the accident.
16The Applicant’s medical record does not include reference to psychological symptoms by a healthcare provider who is qualified to comment on his psychological health. Specifically, the Applicant relies predominantly on the forms completed by chiropractor Dr. Bruni to support his claim that he suffered from psychological injuries. Yet, a chiropractor is not qualified to assess psychological injuries.
17A family physician is qualified to address psychological injuries, yet the Applicant’s family physician took no action in addressing the Applicant’s psychological health. The Applicant met with Dr. Adebajo following the accident, often to complain about his elbow pain and, on one occasion, was noted to look anxious and worried. Nevertheless, Dr. Adebajo never diagnosed the Applicant with a psychological injury, never referred him to psychological treatment, and never prescribed medication to address his psychological symptoms. To me, this indicates that the Applicant’s psychological issues were subclinical and never rose to the level to warrant additional investigation or treatment.
18Further bolstering the position that the psychological assessment is not reasonable and necessary is that the Applicant never incurred it during the period between the approval of it and the Respondent’s reversal of the approval. The Applicant had nearly a month to incur the assessment but chose not to. This further suggests that his psychological symptoms do not rise to the level to warrant a full assessment or treatment.
19Thus, I find that the psychological assessment is not reasonable and necessary as a result of the accident.
Orthopaedic, neurological, and chronic pain assessments
20I find that the Applicant has not demonstrated that these assessments are reasonable and necessary as a result of the accident.
21Dr. Adebajo referred the Applicant for an orthopaedic consultation regarding the foreign bodies in his left elbow, which is not an accident-related injury. Thus, this recommendation holds no weight when assessing whether an orthopaedic assessment is reasonable and necessary as a result of the accident. Otherwise, the Applicant demonstrated no orthopaedic issues, as expressly stated by Dr. R. J. Zabieliauskas, physiatrist, in an IE report, dated August 24, 2023.
22Similarly, the Applicant demonstrated no symptoms of a neurological impairment to warrant a neurological assessment. He has not directed me to any evidence of a neurological impairment or symptoms of a neurological impairment. Dr. Adebajo’s CNRs include no observations of radiculopathy, and Dr. Zabielauskas’ assessment revealed no neurological injury in the August 24, 2023 report.
23The Applicant does not suffer from an accident-related chronic pain condition. The Applicant made no submissions in relation to the chronic pain assessment plan. Dr. Adebajo’s CNRs do not demonstrate any ongoing accident-related pathology. At most, the Applicant has ongoing pain complaints relating to his left elbow, but this issue is unrelated to the accident and was not exacerbated by the accident as discussed previously.
24I find that the Applicant has not demonstrated that the treatment plans in dispute are reasonable and necessary as a result of the accident.
25Contrary to the case conference report and order, and the Applicant’s submissions, I find that the treatment plans in dispute propose mostly passive therapies and include no treatment by a registered physiotherapist. The therapies proposed in the plans are virtually identical throughout – they seek services by a chiropractor, massage therapist, assistant therapist, and an acupuncturist. The Applicant’s submissions characterize them as physiotherapy plans, proposed in connection with Dr. Adebajo’s recommendation for physiotherapy. However, as noted previously, Dr. Adebajo’s recommendations for physiotherapy beyond the initial post-accident visit are all unrelated to the accident and focus on the Applicant’s pre-existing elbow pathology, and these plans do not propose the services of a physiotherapist.
26I find Dr. Zabieliauskas’ opinion to be persuasive because it is consistent with the balance of the Applicant’s medical records and evidence. During the assessment and as reported in the August 24, 2023 report, Dr. Zabieliauskas observed that the Applicant had full range of motion “ROM” throughout his body with no overt organic pathology. There was no evidence of any orthopaedic injury, neurological injury, or chronic pain syndrome. Dr. Zabieliauskas concluded that the Applicant was safe to resume work activities in shipping and receiving, or any general warehouse work without any restrictions. This is consistent with Dr. Adebajo’s CNRs, which include no recommendations for any restriction on the Applicant’s activities.
Exercise plan, dated July 8, 2022
27I find that the Applicant is not entitled to the exercise plan and ancillary goods because they are not prescribed as a result of the accident.
28The Applicant submits that Dr. Adebajo referred him for exercise contemporaneous with the submission of this plan. The Respondent highlights that the recommendations for exercise are related to the Applicant’s left elbow pathology and suggest that it is unrelated to the subject accident.
29I find that Dr. Adebajo’s recommendation for ongoing exercise and physiotherapy are related to the Applicant’s pre-existing back and elbow issues. These issues are not as a result of the accident and there is no evidence demonstrated that they were exacerbated in the accident. Regarding Dr. Adebajo’s recommendations, in May 2021 the Applicant was referred for exercise due to ongoing back pain “for a few years”; in March 2022 the referral was noted to be related to back, shoulder, and elbow pain, which were all issues that affected the Applicant prior to the accident; and the referral for exercise in May 2022 was related to tennis elbow, not any accident-related injuries.
30Overall, I find that the applicant had not demonstrated that the self-directed exercise plan is reasonable and necessary as a result of the subject accident.
The Respondent complied with section 38 of the Schedule
31I find that the Applicant has not demonstrated that the denials related to the plans in dispute fail to comply with section 38 of the Schedule.
32The Applicant claims that several denials fail to include medical reasons, other than reference to the MIG, some denials fail to describe the Applicant’s injuries, and that the denial of the psychological assessment failed to explain how his symptoms of a psychological impairment fall within the minor injury definition. He is also critical of the IE notices but does not address any specific issues with them. The Respondent contends that the denials are valid and refer to the medical evidence they had at the time of the decision.
33I agree with the Respondent and find that the denials are compliant with section 38 of the Schedule. The denials that relate to the MIG are valid because they reference the evidence on file, a treatment confirmation form and disability certificate, and note that the injuries and sequalae are predominantly minor in nature, and that his healthcare provider has not provided any objective medical documents to support the diagnosis, nor barriers to recovery, noted in the plans. The fact that the responses are similar letters does not detract from their compliance with section 38.
34I further note that the Respondent is not required to list or describe the Applicant’s injuries, as indicated by the Applicant’s submissions. Rather, it is required to provide medical and other reasons sufficient enough for an unsophisticated claimant to decide whether to dispute the decision. Here, the Respondent has complied with this requirement. It outlined that the Applicant’s injuries are predominantly minor injuries and, of the limited documents provided to it, found no evidence of an injury that is not included in the minor injury definition.
35I find that the Applicant has not demonstrated that he is entitled to the plans due to improper IE notices. The Applicant highlighted Taksali v. Aviva Insurance Company, 2024 CanLII 128 (ON LAT) (“Taksali”) but made no submission on the specific deficiencies in the notices. Taksali is a parallel tribunal decision and is not binding upon adjudicators at the Tribunal. Moreover, Taksali erroneously concluded that a non-compliant notice of an IE caused the resulting IE report to be void ab initio. The conclusion in Taksali failed to consider that the remedy for an insufficient IE notice is that the Applicant is not obligated to attend the examination. Having made no submissions on the deficiency of the notices, I find that the Applicant has not met his onus to demonstrated entitlement based on improper IE notices.
Interest
36Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits payable, it follows that no interest is payable.
CONCLUSION AND ORDER
37The Applicant has not met his onus to demonstrate entitlement to the benefits claimed. No interest is payable.
38The application is dismissed.
Released: April 9, 2025
__________________________
Brian Norris
Adjudicator