Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-002927/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:
Olugbenga Ayenimelo
Applicant
and
The Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR: Aric Bhargava
APPEARANCES:
For the Applicant: Albert Wong, Counsel
For the Respondent: Sonya Reid, Counsel
HEARD: By way of written submissions
OVERVIEW
1Olugbenga Ayenimelo, the applicant, was involved in an automobile accident on November 16, 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, Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal — Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The parties agree the Minor Injury Guideline (MIG) is no longer an issue in dispute effective January 7, 2022.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $206.88 ($1,299.99 less $1,093.11 approved) for physiotherapy services, proposed by Allied Physiotherapy & Wellness Centre in a treatment plan/OCF-18 (“plan”) submitted February 25, 2021?
ii. Is the applicant entitled to $2,000.00 for an attendant care assessment, proposed by All Health Medical Centre in a plan submitted February 17, 2021?
iii. Is the applicant entitled to $1,860.00 for a functional ability evaluation assessment, proposed by All Health Medical Centre in a plan submitted February 25, 2021?
iv. Is the applicant entitled to $4,025.82 for physiotherapy services, proposed by Allied Physiotherapy & Wellness Centre in a plan submitted November 11, 2021?
v. Is the applicant entitled to $2,117.72 for passive therapy/medical services, proposed by Allied Physiotherapy & Wellness Centre in a plan submitted June 1, 2021?
vi. Is the applicant entitled to $1,813.77 ($3,366.68 less $1,552.91 approved) for passive therapy/medical services, proposed by Allied Physiotherapy & Wellness Centre in a plan submitted January 5, 2021?
vii. Is the applicant entitled to $1,093.11 ($1,766.22 less $673.11 approved) for passive therapy/medical services, proposed by Allied Physiotherapy & Wellness Centre in a plan submitted December 14, 2021?
viii. Is the respondent liable to pay an award under s. 10 of Reg 664 because it unreasonably withheld or delayed payments to the applicant?
ix. Is the applicant entitled to interest on any overdue payment of benefits?
4In his submissions, the applicant confirmed that the issue of the treatment plan dated November 25, 2021 for physiotherapy services has been withdrawn.
RESULT
5I find the applicant is not entitled to the outstanding balance of $206.88 for physiotherapy services proposed in the plan submitted February 25, 2021.
6I find the applicant is not entitled to $2,000.00 for the attendant care assessment proposed in the plan submitted February 17, 2021.
7I find the applicant is not entitled to $1,860.00 for the functional ability evaluation assessment in the plan submitted February 25, 2021.
8I find the applicant is not entitled to $4,025.82 for physiotherapy services proposed in the plan submitted November 11, 2021.
9I find the applicant is not entitled to $2,117.72 for passive therapy/medical services proposed in the plan submitted June 1, 2021.
10I find the applicant is not entitled to $1,813.77 for passive therapy/medical services proposed in a plan submitted January 5, 2021, less collateral benefits.
11I find the applicant is not entitled to $1,093.11 for passive therapy/medical services proposed in a plan submitted December 14, 2021, less collateral benefits.
12The applicant is not entitled to an award.
13The applicant is not entitled to interest in accordance with s. 51 of the Schedule.
14In his submissions the applicant has asked for costs. I do not find the applicant has met the high threshold for ordering costs.
PROCEDURAL ISSUES
The applicant’s request for costs
15In its written hearing submissions, the applicant asked for costs of no specified amount.
16Rule 19.2 of the License Appeal Tribunal Rules, 2023 (“Rules”) provides that a party may make a request for costs in writing or orally at a case conference or hearing, at any time before the decision or order is released. The respondent made no submissions about the request to add costs as an issue in dispute.
17As the applicant requested costs as part of its written hearing submissions and prior to the decision in this matter, I find that the applicant has requested costs in accordance with Rule 19.2 and, therefore, the issue of costs is added as an issue in dispute in this hearing.
ANALYSIS
Is the outstanding balance of $206.88 for physiotherapy treatment reasonable and necessary?
18I find the applicant has not produced sufficient evidence to demonstrate, on a balance of probabilities, that the outstanding balance of the proposed treatment plan is reasonable and necessary.
19To receive payment for an OCF-18 under section 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.
20The physiotherapy treatment plan submitted by Allied Physiotherapy & Wellness Centre is meant to address the applicant’s injuries including whiplash, sprain and strain of thoracic spine, lumbar spine, shoulder joint, joints and ligaments at wrist and hand, and hip, radiculopathy, other anxiety disorders, nonorganic sleep disorders, and headache. The provider proposed exercise and physical rehabilitation. The goal for this plan is pain reduction, increased range of motion, increase in strength, return to activities of normal living, return to pre-accident work activities, and return to modified work. The treatment plan was originally submitted while the applicant was in the MIG on December 14, 2019, for $1,299.00. The treatment was partially approved for $1.093.11, that was the remaining amount in the MIG. The outstanding $206.88 remaining represents 4 exercise sessions.
21The applicant states that he has suffered whiplash; neck, back, shoulder pain; headaches; dizziness; fatigue; loss of sleep; nervousness; muscle weakness; low back pain; neck pain; mid back pain; and joint paint. The applicant argues his treatment plan was denied while he was still within the MIG.
22The applicant submits that the respondent’s s. 44 insurer’s examination report by Dr. Atu Sekyi-Otu, orthopaedic surgeon, dated December 15, 2021 should not be relied upon as it is inconsistent with the family doctor’s clinical notes and records (“CNRs”), and focuses on the applicant’s credibility. The applicant also submits that the s. 44 physiatry report dated October 15, 2021, prepared by Dr. Yuri Marchuk, physiatrist, recommended physiotherapy treatment.
23The respondent submits that the applicant has not met the onus to prove the treatment is reasonable or necessary. The respondent also submits that the treatment plan was partially approved on December 29, 2021, up to the MIG limit, based on Dr. Marchuk’s recommendation for treatment.
24Both parties rely on the s. 44 report of Dr. Sekyi-Otu’s report, the family doctor’s CNRs, and the s. 44 report of Dr. Marchuk. The orthopaedic assessment and physiatry assessment note the applicant was recovering from two previous accidents and already receiving physiotherapy. I find the applicant has not provided medical evidence to satisfy the onus, on a balance of probabilities, to demonstrate that the outstanding exercise sessions and balance of the treatment plan is reasonable and necessary.
25I find the applicant is not entitled to the outstanding balance of $206.88 for the physiotherapy services in dispute.
Is the attendant care assessment for $2,000.00 submitted by All Health Medical Centre reasonable and necessary?
26I find the applicant has not demonstrated, on a balance of probabilities, that the proposed attendant care assessment is reasonable and necessary.
27The attendant care assessment submitted by All Health Medical Centre is meant to assess the applicant’s limitations regarding his tasks of employment, activities or normal living, personal care, and assess his home environment to address barriers of functioning. The goal of the assessment is to return to activities of normal living.
28The applicant states that the treatment plan was denied while he was still within the MIG and that it should be reconsidered now that he is out of the MIG. The applicant relies on the CNRs of Dr. Olaniyi Ajisafe, family physician, and the s. 44 physiatry assessment report prepared by Dr. Marchuk, physiatrist, an orthopaedic surgeon’s report prepared by Dr. John Townley, orthopaedic surgeon, a Fracture Clinic Report prepared by Dr. James Seligman, orthopaedic surgeon, and an orthopaedic evaluation prepared by Dr. Sekyi-Otu, physician.
29The respondent states the attendant care assessment was denied based on the MIG. The respondent relied on Dr. Ajisafe’s CNRs that noted the applicant had soft tissue injuries of the neck, shoulder and back. The respondent argues the applicant has pre-existing injuries from previous accidents that are unrelated to the accident and relies on Dr. Sekyi-Otu’s orthopaedic assessment report and submits the assessment is not reasonable and necessary.
30The CNRs of Dr. Ajisafe from August 11, 2020 to February 3, 2021 note the applicant experienced pain due to the injuries from the accident. Dr. Ajisafe noted the applicant’s “pain is associated with no major issues” and the applicant’s “condition is getting better” in January 2021. During this time the applicant was receiving physiotherapy and responded well to the treatments.
31I find Dr. Townley’s report is convergent with Dr. Ajisafe’s CNRs. The report and the CNRs establish the applicant suffered a set back from his accident-related injuries and the applicant responded well to ultrasound-guided injections as a form of treatment, however, I find no evidence to support the applicant’s claim that he is restricted in his daily activities.
32Dr. Marchuk’s s. 44 physiatry assessment report dated October 15, 2021 noted the following impairments: whiplash associated disorder, cervicogenic headaches, bilateral shoulder myofascial dysfunction, left rotator cuff tears, lumbar musculoligamentous dysfunction and right epicondylitis. Dr. Marchuk did not provide a recommendation for an attendant care assessment in his report and the applicant has not submitted evidence to support this request.
33Dr. Sekyi-Otu’s s. 44 orthopaedic assessment dated December 30, 2021 noted there is “no evidence of ongoing impairment” that is attributable to the accident and the applicant was “somewhat self-limiting, and pain focussed.” The applicant argues that Dr. Sekyi-Otu’s report and findings are in contrast with the family doctor. However, Dr. Sekyi-Otu’s report benefits from assessing the applicant in person through a variety of tests and considerable paper-review including the proposed treatment plans, Dr. Ajisafe’s CNRs, and Dr. Marchuk’s report.
34I find Dr. Sekyi-Otu’s report is thorough in its assessment of the applicant’s injuries. While Dr. Ajisafe’s CNRs noted the applicant initially suffered injuries due to the accident, he has responded well to the treatments. The applicant bears the onus to establish entitlement to the treatment plan and removal from the MIG alone does not establish entitlement. I find an attendant care assessment is not reasonable and necessary because the applicant has not submitted evidence in support of his entitlement.
35I find the applicant has not demonstrated, on a balance of probabilities, the proposed attendant care assessment in dispute is reasonable and necessary.
Is the functional ability evaluation assessment for $1,860.00 submitted by All Health Medical Centre reasonable and necessary?
36I find the applicant has not demonstrated, on a balance of probabilities, that the functional ability evaluation assessment is reasonable and necessary.
37The functional ability evaluation assessment submitted by All Health Medical Centre is meant to determine the patient’s functional capacity and current levels of functioning as it relates to home and work-related activities. The goal of the assessment is pain reduction, increase in strength, increased range of motion and return to activities of normal living.
38The applicant argues the plan should be deemed reasonable and necessary because the applicant has been removed from the MIG. I find Dr. Marchuk’s report corroborates Dr. Ajisafe’s CNRs and Dr. Marchuk noted the applicant’s condition improved enough to return to modified work. Dr. Ajisafe also cleared the applicant for a return to work making the functional ability assessment unnecessary.
39I find Dr. Sekyi-Otu’s s. 44 orthopaedic assessment, which took place over a year after the accident, suggests the applicant has achieved maximal recovery because no accident-related impairments were identified. Dr. Sekyi-Otu noted “It is unlikely that a functional abilities evaluation would lead to a treatment plan that would alter his functional outcome, or facilitate symptom resolution.” I find the applicant’s return to work, also corroborated by his family doctors CNRs, demonstrates that he responded well to the physiotherapy and a further functional ability assessment is not reasonable or necessary.
40While I am alive to applicant’s injuries, I find Dr. Sekyi-Otu’s report is thorough and provides considerable value in establishing that a functional assessment will not contribute to the applicant’s recovery. I find the functional ability evaluation is not reasonable or necessary.
Is the physiotherapy treatment plan for $4,025.82 submitted by Allied Physiotherapy & Wellness Centre reasonable and necessary?
41I find the physiotherapy treatment plan, on a balance of probabilities, is not reasonable and necessary.
42The applicant states the treatment plan is reasonable and necessary and relies on Dr. Marchuk’s report. The applicant argues that Dr. Setyi-Otu’s report is in direct contrast with the CNRs of Dr. Ajisafe, the report focusses on the applicant’s credibility, and that his pain has continued and is a consistent problem to date.
43The respondent states that this denial was based on Dr. Setyi-Otu’s report. The respondent states that 39 sessions of chiropractic treatments were previously approved based on Dr. Marchuk’s recommendation.
44Dr. Setyi-Otu met with the applicant one year after the accident and included a review of Dr. Ajisafe’s CNRs up to February 2021 as part of his extensive paper-review of materials. Dr. Ajisafe’s CNRs noted the applicant had returned to work as of April 2021 and that the applicant responded well to treatments to date. Dr. Setyi-Otu conducted a head and neck examination, cervical spine assessment, examined the upper extremities including the shoulders, scapular assessment, tested grip strength, a neurological examination of the upper and lower extremities, thoracic spine, lumbar spine, the joints, wrists and forearms and noted “at the completion of the physical examination [he] described no exacerbation of present symptoms, and reported feeling comfortable”.
45I find Dr. Setyi-Otu’s report establishes that the applicant has responded well to treatments for his accident-related injuries. The applicant states the report is focussed solely on the applicant’s credibility; however, I find Dr. Setyi-Otu relied on both formal and informal testing and the opinion provided in the report was of the patient’s injuries only. I find, on a balance of probabilities, the treatment is not reasonable or necessary.
Is the applicant entitled to the balance of the treatment plans for chiropractic treatment in the amounts of $2,117.72, $1,813.77, and $1,093.11?
46I find that the applicant is not entitled to the outstanding amount of the treatment plans.
47The respondent confirmed in its submissions that it has approved and partially paid these plans. The respondent has requested that the applicant provide proof of the remaining expenses being submitted to his collateral benefits provider.
48For the treatment in the amount of $2,117.72, this plan was originally submitted March 25, 2021. Based on the respondent’s letter dated January 7, 2022 the respondent paid $2,117.72 and $714.43.
49For the treatment in the amount of amount of $1,813.77, the respondent partially approved $1,552.91. Subsequently, the treatment plan was approved by the respondent in its letter dated January 7, 2022 for the full amount of $3,366.58.
50For the treatment in the amount of $1.093.11, the respondent partially approved $1,093.11 in a letter dated February 24, 2022. The respondent requested the applicant provide proof that the remaining expenses were submitted to his collateral benefits provider.
51The applicant’s reply submissions included “Extended Health Care Claims” for the period of June 3, 2020 to September 12, 2022 and November 14, 2022 to January 22, 2024, and an invoice from Allied Physiotherapy & Wellness Centre Inc. for the period June 1, 2021 to April 8, 2024. The applicant did not clearly identify the corresponding claim amounts, the approval, or denial amounts.
52In review of the submissions, I find each treatment plan was partially or fully approved. The applicant has not demonstrated entitlement to the remaining amounts.
Interest
53Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are overdue, I find that interest is not applicable.
Award
54The 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. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold. I find the applicant is not entitled to an award.
The applicant’s request for costs is denied
55I find the applicant is not entitled to costs in this matter.
56Rule 19.1 of the Rules states that the Tribunal may award costs when “another party has acted unreasonably, frivolously, vexatiously, or in bad faith.” Rule 19.5 provides a list of factors the Tribunal shall consider when determining whether to order costs.
57While the applicant has not specified the amount, the applicant did not make any direct submissions in support of its costs request. As such, I find the applicant has not met its onus related to costs.
ORDER
58The applicant is not entitled to:
i. The outstanding balance of $206.88 for physiotherapy services proposed by Allied Physiotherapy & Wellness Centre.
ii. $2,000.00 for the attendant care assessment proposed by All Health Medical Centre.
iii. $1,860.00 for the functional ability evaluation assessment proposed by All Health Medical Centre.
iv. $4,025.82 for physiotherapy services proposed by Allied Physiotherapy & Wellness Centre.
v. $2,117.72 for passive therapy/medical services proposed by Allied Physiotherapy & Wellness Centre.
vi. $1,813.77 for passive therapy/medical services proposed by Allied Physiotherapy & Wellness Centre.
vii. $1,093.11 for passive therapy/medical services proposed by Allied Physiotherapy & Wellness Centre
59As there are no overdue benefits, the applicant is not entitled to interest.
60The applicant is not entitled to a s. 10 award.
61The applicant is not entitled to costs.
Released: May 8, 2025
Aric Bhargava
Adjudicator