Karmali v. Aviva General Insurance, 2025 CanLII 35920

Karmali v. Aviva General Insurance

Citation: Karmali v. Aviva General Insurance, 2025 ONLAT 23-003700/AABS

Licence Appeal Tribunal File Number: 23-003700/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:

Shahzina Kassam Karmali

Applicant

and

Aviva General Insurance

Respondent

DECISION

VICE-CHAIR:

Robert Maich

APPEARANCES:

For the Applicant:

Daniella Cohen, Paralegal

For the Respondent:

Ilya Artemyev, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Shahzina Kassam Karmali, the applicant, was involved in an automobile accident on February 27, 2020, 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 General Insurance, 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:

1. Is the applicant entitled to the assessments proposed by HM Medical Network as follows:

(i) $2,460.00 for a neurological assessment, in a treatment plan/OCF-18 (“plan”) dated June 17, 2021; and

(ii) $2,460.00 for a chronic pain assessment, in a plan dated January 25, 2022?

2. Is the applicant entitled to $5,785.52 for chiropractic services proposed by HealthMedica in a plan dated January 23, 2023?

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

RESULT

3I find the applicant met her burden of proof that $2,460.00 for a neurological assessment proposed by HM Medical, in plan dated June 17, 2021, is reasonable and necessary.

4I find the applicant met her burden of proof that $2,460.00 for a chronic pain assessment proposed by HM Medical, in a plan dated January 25, 2022, is reasonable and necessary.

5I find the applicant has met her burden of proof that $5,785.52 for chiropractic services proposed by HealthMedica, in a plan dated January 23, 2023, is reasonable and necessary.

6The application is granted by the Tribunal and the applicant is entitled to the services as ordered herein.

7Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule and will apply to the orders herein.

PROCEDURAL ISSUES

8The respondent submitted that the applicant filed written submissions that exceed the limitation of 7 pages in the case conference report and order (“CCRO”) of November 27, 2023 by 3 pages. I note that the applicant’s submissions included a lengthy account of the accident, large footnote spacing and did not utilize the 3 written pages allowed for reply. It is in the hearing adjudicator’s discretion whether to ignore or consider pages over the maximum set in the CCRO. I will consider the applicants three additional pages given the number of issues in dispute and the need to adjudicate matters on their merits; further, the respondent did not establish any prejudice associated with the additional pages. I find there is no procedural unfairness in considering the applicant’s three additional pages in its submissions.

9The respondent submitted that the applicant failed to submit the relevant OCF-18s in connection with the issues 2 and 3 as evidence for this hearing , and the documents should not be entered into evidence. I find that the respondent has knowledge of the aforementioned OCF-18s and has had the documents in its possession since it was submitted for payment. Further, I find the respondent fully knew the issues in dispute since the CCRO of November 27, 2023, and the documents form part of the adjudicative record. I find there is no prejudice to the respondent in entering the OCF-18s in question as evidence.

ANALYSIS

The legal test

10On February 27, 2020, the applicant was a passenger of a vehicle and struck her head against the window as a result of the accident. She reported experiencing headaches, soreness and pain in her back directly after the accident and further symptoms of head injury as time progressed.

11Section 15(1) of the Schedule obligates an insurer to pay for all reasonable and necessary medical expenses incurred by an insured person as a result of an accident for specified services including medical, chiropractic, and neurological services. To 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.

12The standard for reasonableness and necessity requires that:

i. The treatment goals, as identified, are reasonable;

ii. The treatment goals are being met to a reasonable degree; and,

iii. The overall costs of achieving these goals are reasonable.

13The onus to prove that claimed medical benefits are reasonable and necessary lies with the insured person.

Is the applicant entitled to $2,460.00 for a neurological assessment?

14I find the applicant has met her burden of proof that $2,460.00 for a neurological assessment proposed by HM Medical, in plan dated June 17, 2021, is reasonable and necessary.

15The applicant submits that, since the accident, she has faced neurological and cognitive impairments, including severe and persistent headaches, memory loss, challenges with focus and concentration, and residual post-concussion symptoms, including photosensitivity in bright light. These neurological challenges have significantly affected the applicant’s concentration, daily activities, and executive functioning. The applicant reported in the months following the accident, severe headaches, concentration issues, movement and balance issues, memory loss, dizziness, and fogginess to various practitioners, including her family physician, Dr. Ghazi-Mirsaeed, and Dr. Paulette Licorish, a neurologist who made the diagnosis of post concussion syndrome based on these recurring, severe headaches and symptoms consistently reported since the accident to present.

16The treatment and assessment plan, submitted by physician Dr. O. Finlayson and dated June 17, 2021, proposed an Independent Neurological Assessment that was denied by the respondent on the basis that a neurological assessment had been prepared by the insurer’s examiner Dr. Ranalli, and a second examination was not necessary. The proposed goal of the plan was pain reduction and to diagnose post concessional syndrome and associated cognitive and behavioural changes, in order to facilitate a return to the activities of normal living.

17The respondent submits the insurer examination of the applicant with Dr. Ranalli, a neurologist, led to the denial of the OCF-18 based on his expert opinion that "the Applicant did not sustain a significant neurological impairment as a direct result of the motor vehicle accident." In his report, Dr. Ranalli explained that the applicant developed soft tissue strains/sprains and a minimal closed head injury.

18I find the respondent’s reasoning for denial of the proposed neurological assessment to be unreasonable. The evidence of the clinical notes and records of Dr. Ghazi-Mirsaeed and Dr. Licorish clearly indicate post concussion syndrome and significant neurological injury arising from the accident. I find the applicant’s proposed neurological assessment to be reasonable and necessary in light of the evidence of her brain injury, concussion and post concussion syndrome from the accident.

Is the applicant entitled to $2,460.00 for a chronic pain assessment?

19I satisfied that the applicant met her burden of proof that $2,460.00 for a chronic pain assessment proposed by HM Medical, in a plan dated January 25, 2022, is reasonable and necessary.

20The applicant submits on September 30, and October 2, 2021 she attended a psychological assessment evaluation with Dr. Lital Grinberg, psychologist, to gauge any emotional or behavioural disturbances as a result of the accident. She was diagnosed with a DSM-5 diagnosis for Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood; Somatic Symptom Disorder with Predominant Pain: Severe; Specific Phobia: Situational: Vehicular. The applicant states that the psychological therapy was beneficial to her in temporarily reducing the overall intensity of her symptoms with the treatment goals of pain reduction and return to pre-accident level of psychological function.

21The respondent submits that the applicant underwent an insurer examination on October 24, 2022, with Dr. Allan Kopyto, general practitioner, to assess whether the chronic pain assessment was reasonable and necessary. Dr. Kopyto reported there was no evidence of chronic pain syndrome, and no impairment was identified for which a chronic pain assessment was required. I assign less weight to the opinion of Dr. Kopyto, as he is neither a psychologist, nor a psychiatrist, nor any other form of medical specialty uniquely qualified to offer an expert opinion in psychological disorders; only psychologists and psychiatrists can give expert opinion evidence on chronic pain. Similarly, the evidence of Dr. Auguste as an orthopedic surgeon, does not extend to expert opinion evidence on psychological or psychiatric matters.

22The insurer’s psychologist, Dr. Rubenstein, stated in his assessment of December 22, 2020 that the applicant’s scores of the P3, BDI and BAI tests indicate severe levels of depressive and anxiety symptoms. However, he stated the validity index negated these indictors, and he reported the applicant was over-exaggerating symptoms without further explanation. I assign less weight to Dr. Rubenstein’s report due to the lack of specific findings that caused him to suppose the applicant was exaggerating her symptoms.

23I find the applicant’s evidence to be persuasive, as Dr. Grinberg is a qualified psychologist who is able to offer an expert opinion on psychological disorders and detailed a high level of understanding of the DSM-V, the most current standard in the definition and description of psychological disorders. I accept Dr. Grinberg’s conclusion that the applicant was diagnosed with Somatic Symptom Disorder with Chronic Pain: Severe. I find the applicant has met her burden that a chronic pain assessment is reasonable and necessary.

Is the applicant entitled to $5,785.52 for chiropractic services?

24I find the applicant has met her burden of proof that $5,785.52 for chiropractic services proposed by HealthMedica, in a plan dated January 23, 2023, is reasonable and necessary.

25The applicant submits that a Disability Certificate (OCF-3) dated March 11, 2020, completed by Dr. Mahsa Gordanpour, chiropractor, diagnosed the applicant with following injuries: injury of muscle and tendon of neck level, postconcussional syndrome, sprain and strain of thoracic spine, sprain and strain of lumbar spine, sprain and strain of shoulder joint, sprain and strain of other and unspecified parts of knee, sprain and strain of wrist. The applicant states that the chiropractic therapy she received from HM Medical and HealthMedica was beneficial to her in temporarily reducing the overall intensity of her symptoms and meets the treatment goals of pain reduction and return to activities of normal living. The applicant submits this benefit is a sufficient outcome to find the plan to be reasonable and necessary.

26The respondent relies upon the insurer’s examination report by Dr. Jacqueline Auguste, orthopaedic surgeon, dated January 13, 2021, finding that, from strictly an orthopaedic perspective, the applicant suffered a WAD I cervical strain/sprain, a right shoulder strain/sprain, and a lumbar strain/sprain as a result of the accident. Dr. Auguste opined that there are no substantive musculoligamentous, osseous, or neurologic impairments on clinical testing from an orthopaedic perspective, and that the applicant has likely reached maximal medical improvement with respect to her accident-related minor strain/sprain injuries, rendering the chiropractic services to be unreasonable and unnecessary.

27The applicant asked that I further consider the decision in 17-003735 v Certas Direct Insurance Company 2018 CarswellOnt 7179, in which the Tribunal found that “pain reduction which increases strength is a reasonable treatment goal.” In that case, the Tribunal found four treatment plans for physiotherapy to be reasonable and necessary on this basis.

28I find the applicant’s submissions to be persuasive and find that the chiropractic services plan is reasonable and necessary, as it has proven to relieve the applicant’s symptoms as per the applicant’s evidence.

Interest

29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule and will apply to the orders herein.

ORDER

30For the above reasons, I find:

i. The applicant is entitled to $2,460.00 for a neurological assessment proposed by HM Medical, in plan dated June 17, 2021;

ii. The applicant is entitled to $2,460.00 for a chronic pain assessment proposed by HM Medical, in a plan dated January 25, 2022; and,

iii. The applicant is entitled to $5,785.52 for chiropractic services proposed by HealthMedica in a plan dated January 23, 2023.

iv. The applicant is entitled to interest on all outstanding benefits calculated in accordance with s. 51 of the Schedule.