Al Mzowak v. Allstate Insurance Company of Canada, 2025 CanLII 35926

Citation: Al Mzowak v. Allstate Insurance Company of Canada, 2025 ONLAT 23-008029/AABS

Licence Appeal Tribunal File Number: 23-008029/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:

Maher Al Mzowak

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Laura Goulet

APPEARANCES:

For the Applicant: Alexander Lempp, Counsel

For the Respondent: Jonathan White, Counsel

HEARD: By way of written submissions

OVERVIEW

1Maher Al Mzowak, the applicant, was involved in an automobile accident on March 6, 2022, 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, Allstate Insurance Company of Canada, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Is the applicant entitled to chiropractic services proposed by Oxford Spine Centre, as follows: i. $3,986.00 in a plan dated August 18, 2022; ii. $3,926.00 in a plan dated January 30, 2023; and iii. $5,690.00 in a plan dated June 12, 2023?
2. Is the applicant entitled to $1,416.00 ($3,616.00 less $2,200.00 approved) for a psychological assessment proposed by Meditecs Independent Medical Examination (“Meditecs”) in a plan dated April 14, 2022?
3. Is the applicant entitled to $3,414.95 ($9,696.31 less $6,281.36 approved) for psychological services submitted in a plan on February 15, 2023?
4. Is the applicant entitled to $387.19 for supplementary goods and services submitted on an invoice (OCF-21) on June 1, 2022?
5. Is the applicant entitled to $4,090.60 for a physiatry assessment proposed by Tobias Chung, Yen-Fu Chen and Meditecs in a plan submitted on June 10, 2023?
6. Is the applicant entitled to $4,373.10 for a chronic pain assessment proposed by Tobias Chung, Joseph Kwok and Meditecs in a plan submitted on June 10, 2023?
7. Is the applicant entitled to $490.60 ($3,141.40 less $2,650.80 approved) for a functional ability assessment proposed by Tobias Chung, Adriana Dragoi and Meditecs in a plan submitted on June 10, 2023?
8. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
9. Is the applicant entitled to interest on any overdue payment of benefits?

3The respondent put into evidence a letter to the applicant dated February 3, 2023, indicating that the plan dated July 9, 2022 in the amount of $1,492.00 set out as issue 1(i) in the Case Conference Report and Order (“CCRO”) has been fully approved.

4The respondent also put into evidence a letter to the applicant dated January 12, 2023, indicating that the plan dated March 25, 2022 in the amount of $2,198.00 set out as issue 1(ii) in the CCRO has been fully approved.

RESULT

5The plan for chiropractic services dated August 18, 2022, in the amount of $3,986.00 is payable, if incurred.

6The applicant is not entitled to the other plans in dispute or the OCF-21.

7The respondent is not liable to pay an award.

8The applicant is entitled to interest on any overdue payment of benefits.

ANALYSIS

9To 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 treatment plans for chiropractic services

10The applicant submits that the disputed plans for chiropractic services are payable because the denial letters for these plans do not comply with s. 38(8) of the Schedule.

11Section 38(8) provides that the insurer must reply to a plan within 10 business days, must identify the goods and services it does not agree to pay for, and must give the medical and all other reasons for the denial. Pursuant to section 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the MIG applies, if the plan was incurred during the period of non-compliance.

12The applicant submits that the plans for chiropractic services were denied on the basis that his injuries fall within the Minor Injury Guideline (“MIG”), and do not include any meaningful discussion about the applicant’s injuries or symptoms, or their bearing on the proposed treatment. The applicant further submits that the respondent was obliged to re-engage the medical evidence that it had on file and to justify its denial in relation thereto.

The plan dated August 18, 2022 in the amount of $3,986.00 is payable

13The plan dated August 18, 2022 for chiropractic services is payable, if incurred, because the respondent’s denial was not in compliance with s. 38(8).

14In evidence is the Explanation of Benefits (“EOB”) dated August 19, 2022, which indicates that the respondent reviewed the clinical notes and records (“CNRs”) from Huron Medical Centre, and it is unable to determine whether the information provided is sufficient to exclude the applicant from the MIG. The letter further indicates that the applicant is required to attend a s.44 assessment.

15The respondent submits that it denied the treatment plan based on the insurer’s examination report of Dr. Yuri Marchuk, physiatrist, dated December 13, 2022. The EOB including the medical reasons justifying the denial was sent to the applicant on January 11, 2023.

16I have reviewed the EOB dated January 11, 2023. The letter indicates that the treatment plan is not considered reasonable and necessary based on Dr. Marchuk’s finding that, from a physical perspective the injuries are predominantly minor, i.e. of the sprain/strain variety. However, I note that at the end of the EOB, the letter indicates that, from a psychological and physical perspective, the applicant’s injuries are not considered minor injuries as defined in the MIG. I find that this is contradictory and confusing, and the information provided in the letter is not adequate to allow an unsophisticated person to understand it and make an informed decision. Accordingly, I find that the respondent’s letter was not in compliance with s. 38(8).

17The respondent did not direct me to a later denial letter with respect to this plan that was compliant with s. 38(8).

18For these reasons, I find that the plan dated August 18, 2022 for chiropractic services is payable, if incurred, because the respondent’s denial was not in compliance with s. 38(8).

The plan dated January 30, 2023 in the amount of $3,926.00 is not payable

19The plan dated January 30, 2023 for chiropractic services is not payable because the respondent’s denial was in compliance with s. 38(8).

20In evidence is the EOB dated February 7, 2023, which refers to Dr. Marchuk’s report dated December 13, 2022, addressing a previous plan proposing chiropractic treatment and acupuncture. The letter indicates that in the report, Dr. Marchuk opined that the previous plan was not reasonable and necessary because the applicant sustained minor uncomplicated soft tissue injuries for which there were mild findings on exam. The letter also indicates that Dr. Marchuk opined that from a physical medicine perspective, the applicant’s condition had plateaued. The letter further states that the respondent has not received any new medical documentation since Dr. Marchuk’s examination, and that the plan dated January 30, 2023 proposes the same services as the previous plan.

21I find that this letter clearly provides medical reasons for the denial in that it relies on Dr. Marchuk’s physical examination and opinion with respect to the applicant’s injuries, and it explains why the respondent is of the view that the plan is not reasonable and necessary.

22For these reasons, I find that the plan dated January 30, 2023 for chiropractic services is not payable because the respondent’s denial was in compliance with s. 38(8).

The plan dated June 12, 2023 in the amount of $5,690.00 is not payable

23The plan dated June 12, 2023 for chiropractic services is not payable because the respondent’s denials were in compliance with s. 38(8).

24In evidence is the EOB dated June 21, 2023, which refers to Dr. Marchuk’s report dated December 13, 2022. The letter states that Dr. Marchuk found that the applicant sustained minor uncomplicated soft tissue injuries for which there were mild findings on exam. The letter goes on to state that Dr. Marchuk opined that from a physical medicine perspective, the applicant’s condition had plateaued. The letter also refers to Dr. Marchuk’s finding that the reported complaints, as they relate to any injuries sustained as a direct result of the accident, do not correlate with his objective findings. Finally, the letter indicates that the medical information provided since Dr. Marchuk’s assessment has not been compelling to suggest otherwise, and the respondent requested an updated insurer’s examination given the time that had elapsed.

25Also in evidence is the EOB dated September 11, 2023, attaching Dr. Marchuk’s insurer’s examination report dated August 30, 2023, which indicated that Dr. Marchuk found that the applicant had reached maximum medical recovery with respect to the injuries sustained in the accident and that he opined that the plan dated June 12, 2023 was not reasonable and necessary.

26I find that the denial letters provide clear medical reasons for the denials in that they rely on Dr. Marchuk’s physical examinations and opinions with respect to the applicant’s injuries, and they explain why the respondent is of the view that the plan is not reasonable and necessary.

27I find that the plan dated June 12, 2023 for chiropractic services is not payable because the respondent’s denials were in compliance with s. 38(8).

The applicant is not entitled to the remainder of the plan dated April 14, 2022 for a psychological assessment

28The applicant has not established that the remainder of the plan dated April 14, 2022 for a psychological assessment is reasonable and necessary.

29The plan for a psychological assessment was proposed by Dr. Joseph Paton, chiropractor. The plan proposes $1,200.00 for documentation and support activity, and $2,000.00 for the assessment. The goals of the plan are to determine the nature of and the extent to which the applicant is suffering from psychological difficulties as a direct consequence of the accident to make recommendations for treatment, if necessary, and to return to activities of normal living.

30The applicant submits that the respondent allowed $2,000.00 of the plan and denied $1,416.00 because the applicant’s injuries fell within the MIG, and that the psychological assessment is not within the scope of practice of a chiropractor.

31In evidence is the EOB dated January 11, 2023 indicating that the respondent approved $200.00 for documentation and support activity and $2,000.00 for the assessment. The respondent submits that it partially approved the plan at the statutory maximum of $2,000.00 plus the $200.00 documentation, in accordance with s. 25(5)(a) of the Schedule, and that the applicant has not established why the additional $1,000.00 claimed expense for documentation is reasonable and necessary.

32The applicant did not make submissions with respect to why the additional $1,000.00 for documentation is reasonable and necessary.

33For these reasons, I find that the applicant has not established on a balance of probabilities that the remainder of the plan dated April 14, 2022 for a psychological assessment is reasonable and necessary.

The applicant is not entitled to the remainder of the plan submitted on February 15, 2023 for psychological services

34The applicant has not established on a balance of probabilities that the remainder of the plan for psychological services is reasonable and necessary.

35The plan was proposed by Dr. Tobias Chung, chiropractor, and Mariam Naji, social worker. The plan proposes 24 therapy sessions, “planning, service,” “documentation, support activity” in the amount of $853.61, an assessment, and interpretation services. The goals of the plan are to help decrease mental and emotional psychological symptoms, to provide coping mechanisms to reduce any stress, anxiety, or depressive symptoms, and to return to activities of normal living.

36The applicant submits that the respondent allowed the plan in the amount of $6,281.36 and denied the amount of $3,414.95.

37The applicant refers to the EOB dated February 28, 2023, where the respondent indicated that it did not approve the $504.00 for documentation and support activity because the maximum hourly rate for psychological services in the Superintendent’s Guideline No. 03/14 (“Guideline”) includes all administration costs, overhead, and related costs, fees, expenses, charges, and surcharges. The letter further indicates that pursuant to the Guideline, insurers are not liable for any other such costs that have the result of increasing the hourly rate.

38The applicant submits that the Guideline sets a maximum hourly rate for psychological services at $149.61, including all administrative costs. The applicant argues that this fixed rate may not reflect the true costs of providing comprehensive care, particularly in complex cases where additional documentation or support is crucial. The applicant submits that insurers are required to cover reasonable and necessary expenses, which could include additional costs if they are essential for accurate assessment and treatment. The applicant further submits that limiting coverage strictly to the maximum rate could undermine the effectiveness of necessary psychological services, leading to inadequate care.

39The applicant did not make submissions with respect to why the additional fee for $504.00 in the applicant’s case is reasonable and necessary, nor did he refer to any specific additional documentation or support that may be required in his case, or why. The applicant did not make any further submissions with respect to why the remainder of the plan for psychological services is reasonable and necessary.

40The Guideline sets out that insurers are not liable to pay for expenses related to professional services rendered to an insured person that exceed the maximum hourly rates. I find that the additional cost for documentation and support activity in this case would have the effect of increasing the maximum hourly rate set out in the Guideline.

41For these reasons, I find that the applicant has not established on a balance of probabilities that the remainder of the plan for psychological services is reasonable and necessary.

The applicant is not entitled the OCF-21 in the amount of $387.19 for supplementary goods and services

42The applicant is not entitled to the OCF-21 for supplementary goods and services.

43The applicant submits that Oxford Spine Center submitted an OCF-21 on his behalf for supplementary goods and services and for “Block 2 (weeks 5 to 8)” on June 1, 2022.

44The applicant submits that the plan, valued at $630.00, was focused on providing supplementary goods and services to help with the treatment of the applicant, and that the respondent partially allowed $242.81. The applicant filed into evidence the EOB dated June 1, 2022, which states that pursuant to the invoice submitted, only one treatment session occurred within Block 2 on April 20, 2022, therefore one session was reimbursed. The letter indicates that if this is incorrect, please provide a detailed breakdown of services attended within Block 2 at which point the invoice will be reconsidered.

45The respondent filed into evidence the OCF-21 indicating that that one treatment session occurred on April 20, 2022. The respondent submits that the applicant did not provide a detailed breakdown of the services provided under Block 2 as requested, for it to reconsider the invoice.

46The applicant did not direct me to evidence to establish that goods and services more than the $242.81 approved were incurred. Further, the applicant did not make submissions with respect to why the remainder of the plan is reasonable and necessary.

47For these reasons, I find that the applicant is not entitled to the remaining amount of $387.19 for supplementary goods and services.

The applicant is not entitled to the plan for a physiatry assessment

48The applicant has not established on a balance of probabilities that the plan for a physiatry assessment is reasonable and necessary.

49The plan was proposed by Dr. Chung, chiropractor. The goals of the plan are to complete a comprehensive medical evaluation of the applicant’s musculoskeletal and soft tissue injuries, neurological complaints, and pain syndromes to determine his current functional limitations, and to provide recommendations for the applicant’s rehabilitation and treatment requirements.

50The applicant refers to his injuries, as listed in the disputed treatment plan, as follows: cervicalgia, low back pain, sprain and strain of the cervical spine, ribs and sternum and lumbar spine, chronic instability of the knee, dislocation, sprain and strain of joints and ligaments of the knee, headache, reaction to severe stress and adjustment disorders, and malaise and fatigue.

51The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

52The applicant relies on the disputed treatment plan, but he does not direct me to any documentation from a treating physician who makes a recommendation for a physiatry assessment. Aside from referring to the treatment plan, the applicant does not make submissions with respect to why it is reasonable and necessary. The treatment plan on its own is not compelling evidence in support of an assessment.

53For these reasons, I find that the applicant has not established on a balance of probabilities that the plan for a physiatry assessment is reasonable and necessary.

The applicant is not entitled to the plan for a chronic pain assessment

54The applicant has not established on a balance of probabilities that the plan for a chronic pain assessment is reasonable and necessary.

55The plan was proposed by Dr. Chung, chiropractor. The goals of the plan are to understand the applicant’s capacity and limitations, to determine what daily needs and recommendations would best benefit the applicant’s health care, to recommend lifestyle change and coping strategies, to prevent further damage, empowerment, pain management and education.

56The applicant refers to his injuries, as listed in the disputed treatment plan, which are set out in paragraph 50, above.

57The applicant relies on the disputed treatment plan, but he does not direct me to any documentation from a treating physician who makes a recommendation for a chronic pain assessment. Aside from referring to the treatment plan, the applicant does not make submissions with respect to why it is reasonable and necessary.

58For these reasons, I find that the applicant has not established on a balance of probabilities that the plan for a chronic pain assessment is reasonable and necessary.

The applicant is not entitled to the remainder of the plan for a functional ability assessment

59The applicant has not established on a balance of probabilities that the remainder of the plan for a functional ability assessment is reasonable and necessary.

60The plan was proposed by Dr. Chung, chiropractor. The plan proposes documentation and support activity, a total body test, interpretation services, and $500.00 for transportation to treatment. The goals of the plan are to determine the applicant’s current functional level, to evaluate the applicant’s abilities relative to his work demands and activities of daily living, to return to activities of normal living, to return to pre-accident work activities, and to return to modified work activities.

61The applicant submits that the respondent denied $490.60 of the plan.

62The applicant filed the EOB dated June 21, 2023, which indicates that, pursuant to the Superintendent's Guideline No. 04/16: Transportation Expense Guideline, the insurer is liable to pay a mileage expense for transportation of the insured person to and from treatment, excluding the first 50 kms of each round trip, at a rate of $0.40 per km. The letter further indicates that the distance from the applicant’s home to the assessment is 236 kms; that after deducting the 50 km deductible, 186 km would be payable, totalling $74.40; and there is no tax applicable on transportation.

63The applicant did not make submissions with respect to how this calculation is inaccurate, or why the additional expense of $490.60 is reasonable and necessary.

64For these reasons, I find that the applicant has not established on a balance of probabilities that the remainder of the plan for a functional ability assessment is reasonable and necessary.

Interest

65Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on any overdue payment of benefits.

Award

66The 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.

67The applicant did not make submissions with respect to an award. For this reason, I find that the applicant has not established on a balance of probabilities that an award is justified.

ORDER

68For the above reasons, I find:

i. The applicant is entitled to the plan for chiropractic services dated August 18, 2022 in the amount of $3,986.00, if incurred. ii. The applicant is not entitled to the other plans in dispute or the OCF-21. iii. The respondent is not liable to pay an award. iv. The applicant is entitled to interest on any overdue payment of benefits.