Odebiyi v. Belair Insurance Company Inc., 2025 CanLII 39304

Citation: Odebiyi v. Belair Insurance Company Inc., 2025 ONLAT 23-009091/AABS

Licence Appeal Tribunal File Number: 23-009091/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:

Soliu Odebiyi

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR: Roderick Walker

APPEARANCES:

For the Applicant: Chinweaku Joy Allen Nwachukwu, Counsel

For the Respondent: Mikal Daniel, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Soliu Odebiyi, the applicant, was involved in an automobile accident on January 29, 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, Belair Insurance Company Inc., 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 $3,042.56 for psychological services, proposed by Dr Zubina Ladak in a treatment plan/OCF-18 (“plan”) dated February 2, 2023?

ii. Is the applicant entitled to the assessments and services proposed by Visram Tasneem, as follows: a) $2,124.80 for chiropractic services, in a plan dated February 23, 2023? b) $3,118.95 for chiropractic services, in a plan dated July 12, 2022? c) $2,547.36 for chiropractic services, in a plan dated March 21, 2022?

iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Dr. Judith Polowsky in a plan dated March 3, 2022?

iv. Is the applicant entitled to $3,042.56 for psychological services, proposed by Dr Zubina Ladak in a plan dated May 9, 2023?

v. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Khimji Altaf in a plan dated March 23, 2022?

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

RESULT

3The applicant is not entitled to any of the above treatment and assessment plans.

4No interest is payable.

5The application is dismissed.

PROCEDURAL ISSUES

6Pursuant to the Case Conference Order and Report dated February 4, 2024, the parties were given page limits for their written submissions. The page amount limits were 10 pages for the parties inclusive of arguments and case law and five pages for the applicant’s reply evidence if needed. I find that the respondent has submitted 17 pages of written submissions and three pages of footnotes. I find that the respondent’s submissions could have been made in the page limit. As I am the hearing adjudicator, I have the discretion to determine whether to consider submissions that do not comply with the filing requirements. Although I appreciate the additional information given by the respondent, I will allow the additional pages as information only and give it the proper weight considering the excess page limit produced by the respondent. This doesn’t prejudice the applicant in anyway as the applicant didn’t raise this issue in their submissions.

7To 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.

Analysis

The applicant is not entitled to $3,042.56 for psychological services proposed by Dr Zubina Ladak in a treatment plan dated February 2, 2023

8I find that the applicant is not entitled to the above treatment plan.

9The applicant relies on a Disability Certificate (OCF-3) submitted by Dr. Visram Tasneem, chiropractor, of Oshawa Physiotherapy and Rehabilitation dated July 17, 2020, which listed injury and sequelae information to include whiplash associated disorder (WAD2) with complaint of neck pain with musculoskeletal signs; sprain and strain of cervical spine; sprain and strain of thoracic spine; sprain and strain of wrist; headache; reported anxiety with driving and reported lifestyle changes.

10The applicant further relies on the OCF-18 submitted by Dr. Ladak, psychologist, of Oshawa Physiotherapy and Rehabilitation which recommends 12 sessions of therapy for mental health and addictions. The goals of the OCF-18 are to decrease psychological problems and return to activities of daily living. However, the applicant submitted that there were no barriers from any pre-accident activity that would limit the applicant from carrying on a normal life. The applicant also relies on Dr. Ladak’s Psychological Assessment report dated April 12, 2022, which found that the applicant meets the criteria for a DSM-5 diagnosis.

11The respondent submits that the treatment plan is not reasonable and necessary. The respondent submits that the applicant’s psychological complaints are self reported and are not corroborated by any objective medical evidence. The respondent also relies on the s.44 psychological assessment reports of Dr. Direnfeld and Dr. Seon. They concluded that the applicant didn’t match the criteria for a DSM-5 diagnosis and the OCF-18 for psychological services is not reasonable and necessary.

12I find that the OCF-18 for psychological services is not reasonable and necessary. The applicant was diagnosed with somatization disorder & adjustment disorders by psychologist Dr. Ladak. Dr. Ladak proposed 12 sessions with a psychotherapist at a cost of $149.61 each. I also find that the applicant returned to his pre-accident employment, sought new employment and began school to become a PSW. Dr. Ladak stated that there are no barriers to recovery in OCF-18 and she denied any pre-existing conditions in the OCF-18.

13Further, I find that the clinical notes and records (“CNRs”) of the applicant’s family physician do not support that a psychological impairment. The applicant did not make any accident-related psychological complaints until nearly 2.5 years following the accident, on July 29, 2022. The applicant did not make any accident-related psychological complaint in his previous 16 appointments to his family doctor, nor when he was making psychological complaints in February 2021 leading to his referral for PTSD symptoms, nor when he first became a patient to family doctor Dr. Sahaana Rangarajan, G.P. in October 2020 in which the consultation note does not indicate this accident or any resulting symptoms from it.

14Further, the applicant relies on Dr. Ladak’s psychological assessment report dated April 12, 2022, which states that the applicant meets the criteria for DSM-5 diagnoses, specifically, somatic symptom disorder with predominant pain and adjustment disorder with mixed anxiety and depressed mood. However, I find Dr. Ladak’s report to have limited persuasive value because she assessed the applicant virtually, in addition to not having reviewed any of the applicant’s CNRs.

15I find the respondent’s s. 44 psychological assessments to be persuasive. Dr. Direnfeld and Dr. Seon reviewed the applicant’s health history and assessed the applicant in the office. Dr. Direnfeld concluded on the totality of the records and his observations of the applicant, that he does not exhibit accident-related psychological symptoms warranting a DSM-5 diagnosis. In Dr. Seon’s s. 44 report dated September 21, 2022, the applicant denied any significant symptoms of anxiety, depression or post-traumatic stress that negatively interfered with his social, occupational, or overall level of functioning to support a psychological diagnosis. Further, both Dr. Direnfeld and Dr. Seon concluded that the OCF-18 for psychological services is not reasonable and necessary.

16For the above reasons, I find that the applicant has not met his onus, on the balance of probabilities, to prove that the treatment plan is reasonable and necessary.

The applicant is not entitled to any of the disputed treatment plans for chiropractic services.

17I find the applicant is not entitled to the chiropractic treatment plans.

18The applicant submits that the proposed treatment is needed for his chronic pain in the left hand, wrist pain, neck pain, shoulder pain and continuing headaches and dizziness. The applicant relies on CNRs from Glazier Clinic, Lakeridge Hospital and Lifemark Physiotherapy. Also, the applicant relies on three OCF-18s from Tasneem Visram, chiropractor, of Oshawa Physiotherapy & Rehabilitation Centre. The goals of these OCF-18s were pain reduction, increase in range of motion, increase of strength, and a return to normal life activities. The three OCF-18s propose physical rehabilitation, massage therapy sessions, chiropractic sessions, and physiotherapy sessions. The listed impairments were chronic pain; sprain and strain of thoracic spine; sprain and strain of cervical spine; disorders of initiating and maintain sleep [insomnia]; nervousness; limitation of activities due to disability; and problem related to lifestyle, unspecified. The respondent relies on the reports of its s. 44 assessors, Dr. Moolla, G.P., and Dr. Hanna, G.P. dated May 19, 2023, April 17, 2023, August 12, 2022, and August 26, 2022. Dr. Moolla and Dr. Hanna concluded that the OCF-18s for chiropractic services are not reasonable and necessary.

19I find it unreasonable for a chiropractor to propose treatments based on psychological impairments or to conclude that the applicant suffers from disorders of initiating and maintain sleep [insomnias], nervousness, stress not elsewhere classified, and problem related to lifestyle that is unspecified. I find that psychological factors are outside the scope of a chiropractor’s practice.

20I find also between September 2020 and August 2021, the CNRs of Glazier Medical Centre indicated that he attended the clinic several times with no accident-related complaints. On his visit on February 8, 2021, the applicant was referred to a psychiatric assessment at Lakeridge Health in Oshawa for PTSD symptoms related to previous trauma while living in Africa, not the accident from which he is now claiming car accident benefits.

21The respondent’s s. 44 assessor Dr. Moolla confirmed in his report dated April 17, 2023, that the applicant reported no wrist pain now, his low back pain has improved significantly, and he has minimal improvement in neck pain. These subjective complaints did not correlate to any objective physical injury and Dr. Moolla concluded that the applicant experiences cervical and lumbar myofascial strain. He found that prognosis is favourable for a full recovery.

22Further, Dr. Hanna in both of his reports dated August 12, 2022, and August 26, 2022, concluded that the applicant sustained no more than sprain/strain type injuries to his cervical, thoracic, and lumbar regions. There was no evidence of radiculopathy, myelopathy, or neuropathy at the time of assessment. Dr. Hanna found that facility-based treatment is not indicated for applicant’s accident-related injuries, and that there were no valid signs of musculoskeletal, orthopedic, or neurological injury.

23I find the respondent’s s. 44 assessment reports to be persuasive. I find the OCF-18s alone is not compelling evidence that the applicant suffers from chronic pain or has any functional limitations, as no additional objective evidence was submitted to support such a finding. For example, there were no progress reports or treatment records submitted by Dr. Visram, the applicant’s treatment provider. Further, there was insufficient evidence that he conducted any physical examination of the applicant. The OCF-18s in dispute propose a therapy treatment that is excessive, redundant, and repetitive and unnecessary.

24For these reasons, I find the applicant has not met his onus to prove, on a balance of probabilities, that the above three treatment plans are reasonable and necessary.

The applicant is not entitled to $3,042.56 for psychological services, proposed by Dr Zubina Ladak in a plan dated May 9, 2023.

25I find the applicant is not entitled to the above psychological services.

26The applicant relies on an OCF-18 that states the applicant’s listed injury and sequelae information to include somatization disorder, adjustment disorders. Proposed goods and services included twelve one-hour sessions of therapy; two hours of testing; documentation and preparation services of total of $3,042.56. Part 11 of the OCF-18 listed the health care provider to provide the psychological treatment to include Ms. Valerie Smith, psychotherapist.

27The respondent relies on the report dated September 21, 2022, from the s 44 assessor, Dr. Terra Seon, psychologist, where Dr. Seon examined and reviewed the OCF-18 in dispute. Dr. Seon performed several tests including objective psychometric testing, including a Brief Battery for Health Improvement 2 (BBHI-2). The applicant’s test results were considered valid and interpretable; however, his psychological defensiveness score was moderately low, suggesting a small risk that symptomology may be over-reported. The Pain Patient Profile (P3), a self-report instrument designed to identify pain patients who experience emotional distress associated with primary complaints of pain. On the P3, the applicant obtained a valid profile. Within the test measure, he scored within the below average range on the anxiety, depression, and somatization scale. The applicant’s test results identified he experienced an appropriate level of concern regarding pain and was generally optimistic and confident his condition would continue to improve. He did not report any physical symptoms and problems and his below average score on the somatization scale indicated health related concerns may not occupy an excessive amount of his attention. His below average score on the anxiety and depression scale identified that he may not experience significant emotional distress, sleep disturbance, change in affect, symptoms of irritability or agitation. The applicant was also given a structured inventory of malingered symptomology (SIMS), a self-administered screening measure designed to detect malingered responding across a variety of domains. The applicant’s test results were not significantly above the recommended cutoff score and did not suggest a high likelihood of potential symptom magnification.

28I find that the applicant has not suffered a psychological impairment from the accident that would make the treatment plan reasonable and necessary. I find Dr. Seon’s report dated September 21, 2021, Firstly, I I put significant weight on it. I find that Dr. Seon’s conclusions that the applicant’s subjective complaint was of minimal concern was supported by objective psychometric testing and consistent with the applicant’s denial of any significant symptoms of sadness, upset, frustration, irritability, agitation or outbursts of anger. The applicant’s current presentation was not of the magnitude to warrant a psychological diagnosis in direct relation to the injuries sustained in the motor vehicle accident of January 29, 2020.

29Secondly, the applicant reported he remains hopeful for improvement, specifically in relation to symptoms of vehicular nervousness traveling through the specific intersection where the accident occurred. The applicant continues to own and operate a vehicle describing himself as a confident driver. He continues to maintain gainful employment as an Uber Eats driver and denying any significant psychological impairment that negatively interfered with his occupational functioning. The applicant maintains a level of engagement and desire to engage in social activities while denying any tendency to socially isolate or avoid social interaction.

30I find that the OCF-18 dated May 2, 2022, for twelve sessions of psychotherapy is not reasonable and necessary.

The applicant is not entitled to $2,200.00 for a psychological assessment proposed by Dr. Judith Pilowsky in a plan dated March 3, 2022

31I find that the applicant is not entitled to the above psychological assessment.

32The applicant relies on a Disability Certificate (OCF-3) submitted by Dr. Visram Tasneem, chiropractor, of Oshawa Physiotherapy and Rehabilitation dated July 17, 2020, which listed injuries and sequelae information to include whiplash associated disorder (WAD2) with complaint of neck pain with musculoskeletal signs, sprain and strain of cervical spine, sprain and strain of thoracic spine, sprain and strain of wrist and headache, with the applicant reporting anxiety with driving and lifestyle changes.

33The applicant further relies on the OCF-18 itself, where Dr. Pilowsky states that the applicant has suffered extent of symptoms such as, pain and mood. The applicant is limited in his activities and lacks the interest or inclination to socialize. Also, after the accident, the applicant’s general disposition and mood has changed. His emotional functioning was adversely affected by the accident, and he disclosed the following: periodic sadness, feeling overwhelmed and unable to cope with accident sequalae, frustration and irritability, pessimistic thinking, feelings of vulnerability, suicidal ideation, and struggles to fall asleep. Also, the applicant has intrusive thoughts and images of the accident with anxiety and fear.

34The respondent relies on the s. 44 assessment reports of Dr. Direnfeld, psychologist, and Dr. Seon, psychologist, who concluded that the OCF-18 for psychological assessment is not reasonable and necessary. The respondent submits that the applicant’s psychological complaints are self reported and are not corroborated by any medical evidence submitted by the applicant.

35In my review of the assessment plan, I find that Dr. Pilowsky stated that there are no barriers to recovery in the OCF-18 Also Dr. Pilowsky fails to even consider the applicant’s pre-existing health status in her additional comments section for the OCF-18. I find the respondent’s s. 44 assessment reports to be persuasive. Both Dr. Direnfeld and Dr. Seon reviewed the applicant’s health history and assessed the applicant in the office. Dr. Direnfeld concluded on the totality of the records and his observations of the applicant that he does not exhibit any accident-related psychological impairments warranting a DSM-5 diagnosis. In Dr. Seon’s report dated September 21, 2022, the applicant denied any significant symptoms of anxiety, depression or post-traumatic stress that negatively interfered with his social, occupational, or overall level of functioning to support a psychological diagnosis. Further, both Dr. Direnfeld and Dr. Seon concluded that the OCF-18 for psychological services is not reasonable and necessary.

36For these reasons, the applicant has not met his onus to prove, on the balance of probabilities, that he is entitled to the above assessment.

The applicant is not entitled to $2,200.00 for a chronic pain assessment proposed by Khimji Altaf in a plan dated March 23, 2022

37I find the applicant is not entitled to the above chronic pain assessment.

38The applicant relies on an OCF-18 prepared by Khimji Altaf, physiotherapist, dated March 23, 2022. His stated injuries include chronic pain, sprain and strain of the cervical spine, nervousness, and limitation of activities due to disability. The applicant submits that this chronic pain assessment is reasonable and necessary.

39The applicant states that he has a restricted range of motion of the cervical and lumbar spine. He has a tenderness on palpation of the cervical, thoracic, and lumbar regions. The applicant’s neurological examination was clear of disease. The applicant had 5 out of 5 positive Waddle’s signs, and there was evidence of functional overlay.

40The respondent relies on the s. 44 assessment report of Dr. Michael Hanna, dated August 12, 2022.

41Dr. Hanna found that the applicant sustained no more than sprain/strain type injury to his cervical, thoracic, and lumbar regions. There was no evidence of radiculopathy, myelopathy, or neuropathy.

42I did not find the OCF-18 prepared by Khimji Altaf to be compelling evidence that the applicant suffers from chronic pain or has any functional limitations, as no objective evidence was submitted to support such a finding. For example, there were no progress reports or treatment records submitted by Mr. Altaf. Also here was insufficient evidence that Mr. Altaf had conducted any physical examination of the applicant. It is well-settled that an OCF-18 alone is not sufficient evidence of the reasonableness and necessity of a claim.

43For these reasons, I find that the applicant is not entitled to the above chronic pain assessment, as he has not met his onus to prove, on a balance of probabilities, that the plan is reasonable and necessary.

Interest

44As I have found none of the disputed treatment plans are payable, there is no interest payable.

ORDER

45For all the foregoing reasons, I order:

i. The applicant is not entitled to any of the treatment plans in dispute.

ii. No interest is payable.

iii. The application is dismissed.