Licence Appeal Tribunal File Number: 22-013894/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:
Abdullkadir Mohamoud
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Bruce Stanton
APPEARANCES:
For the Applicant:
Ilan Liebner, Counsel
For the Respondent:
Sean Cheskes, Counsel
Heard by way of written submissions
OVERVIEW
1Abdullkadir Mohamoud, the applicant, was involved in an automobile accident on October 22, 2019, 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, TD General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2Two preliminary issues were raised in this matter, a) whether the applicant’s claim for benefits was barred pursuant to section 55(1) of the Schedule for not notifying the insurer of the circumstances giving rise to the claim within the prescribed timeline, and b) whether the applicant was barred from proceeding with his claim because his OCF-1 was not filed within the appropriate timeline. In a preliminary issue decision dated December 6, 2023 the Tribunal found that although the applicant did not meet the prescribed timeline to notify the insurer of the circumstances giving rise to his claim, he had a reasonable explanation for the delay. The applicant was not barred from proceeding with this claim and the Tribunal ordered the matter proceed to a hearing on the substantive issues as set out below.
ISSUES
3The issues in dispute are:
- Is the applicant entitled to chiropractic services proposed by Mackenzie Medical Rehabilitation Centre Inc. (“Mackenzie Medical”) as follows:
(a) $2,031.12 ($3,853.10 less $1,821.98 approved) in a treatment plan/OCF-18 (“plan”) dated October 12, 2021;
(b) $1,051.66 ($2,026.55 less $974.99 approved) in a plan dated December 29, 2021;
(c) $193.60 ($1,823.60 less $1,630.00 approved) in a plan dated February 16, 2022;
(d) $529.20 ($1,857.30 less $1,328.10 approved) in a plan dated August 4, 2022;
(e) $1,525.84 in a plan dated September 16, 2022; and
(f) $1,194.38 in plan dated October 29, 2022?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is not entitled to the six treatment plans in dispute. No interest is owed. The respondent is not liable for an award under section 10.
ANALYSIS
5This appeal arises from a dispute between the applicant and the respondent as to the extent of the applicant’s accident-related injuries. There are six treatment plans in dispute, all proposed by Mackenzie Medical, some of which have been partially approved by the respondent. The applicant also seeks an award under section 10 of O. Reg. 664, under the Insurance Act, R.S.O. 1990, c. I.8, and interest on any overdue payment of benefits.
6The applicant’s entitlement to the disputed treatment plans flows from sections 15 and 16 of the Schedule which sets out the obligations of an insurer to pay the medical and rehabilitation expenses of an insured person following an automobile accident. For the applicant to succeed in his appeal he must demonstrate, on a balance of probabilities, that the disputed benefits are 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.
7The applicant submits that his evidence demonstrates the treatment plans are reasonable and necessary and relies on the Mackenzie Medical OCF-18s and clinical records, the clinical notes and records of Dr. Raymond Zatzman, M.D., the clinical notes and records of Prime Health Care Inc, and a psychological assessment report by psychologist, Dr. Jacqueline Brunshaw.
8The applicant also submits that the respondent’s denials of treatments did not comply with section 38(8) of the Schedule in that they did not correctly identify his medical condition.
9The respondent submits that the disputed portions of the six treatment plans are not reasonable and necessary and relies on the two Insurance Examination (“IE”) reports, excessive claims for supplies (gloves), and a lack of corroborating medical documentation, in denying the associated benefits. The respondent submits that the denied portions of the treatment plans complied with its obligations under s. 38(8).
Are the treatment plans reasonable and necessary?
Issue 1(a), $2,031.12, plan dated October 12, 2021
10I find the disputed portions of this treatment plan are not reasonable and necessary.
11The applicant submits that the treatment plan was proposed to reduce the pain from his injuries and referred me to the associated OCF-18 which describes the plan’s goals as pain reduction, increase in strength and increased range of motion. The functional goal is to return to activities of normal living.
12The applicant submits that the accident caused physical impairments to his right shoulder, neck, lower back, and left ankle, which have lingered well into 2021 and 2022, two to three-years post-accident (concurrent with the timing of the disputed claims for benefits). He relies on an OCF-3 and OCF-18 each completed October 12, 2021 by Dr. Ashley Narula, chiropractor at Mackenzie Medical, the clinical records of Mackenzie Medical, and the clinical notes and records of Dr. Raymond Zatzman, M.D. of All Health Medical Centre.
13The applicant submits Dr. Zatzman’s clinical record of August 5, 2022 noted the applicant had neck pain, and an MRI taken January 27, 2022 showed mild degenerative changes in the acromioclavicular joint of his right shoulder.
14The applicant submits he began taking physical rehabilitation treatments from Mackenzie Medical in October 2021 and refers me to their clinical notes and records between then and October 2022 across what appears to be a total of 29 sessions at which he received chiropractic, massage, active and physical therapy/treatment.
15The applicant submits that the pain from his injuries persisted from the time of the accident through to when he began taking treatment at Mackenzie Medical two years later (October 2021), and, as noted in paragraph five of his submissions, the pain “would not dissipate despite his diligence in attending follow-up physiotherapy sessions”.
16Although the applicant’s pain persisted, he submits that medical records demonstrate that the physiotherapy treatments were improving his physical condition and referred me to an entry in the Mackenzie Medical progress notes of April 27, 2022 which report him making progress with increased reps and weight for shoulder coils and shrugs.
17The applicant submits there are an array of medical records showing improvement in his physical condition when he receives treatment, but that his condition declines when he does not. He goes on to submit that since prior treatment can be considered a success, further treatment (as proposed by the treatment plans), can aid in reducing pain even further and ensure maximal medical recovery, which, he asserts, is the goal.
18Although the applicant points me to a CT scan taken at Sunnybrook Hospital shortly after the accident, I find this scan is of his head and is therefore not relevant to the treatment plans in dispute.
19Similarly, the applicant directed me to the clinical notes and records of Dr. Parmjit Rathaur, psychotherapist, and a psychological assessment by Dr. Jacqueline Brunshaw, psychologist. Neither of these professionals is qualified to opine on the applicant’s physical injuries and therefore this evidence does not establish entitlement to the treatment plans before me.
20The respondent denied the portions of the treatment plan that proposed chiropractic treatment, physical therapy, and massage therapy and relies on the IE report of Dr. Jamie Rusen, orthopaedic surgeon. Dr. Rusen designated the portions of it for active therapy (strengthening and stretching) and related administration and supplies expenses, as reasonable and necessary.
21I find the denied portions of the treatment plan are not reasonable and necessary because I find that the handwritten records of both Mackenzie Medical and Dr. Zatzman were largely illegible and his submissions leave doubt as to whether the physical treatments at Mackenzie Medical were effective. The applicant referred me to only one entry on April 27, 2022 (Mackenzie Medical notes), which notes improvement in his physical condition.
22Further, the applicant submits there is an array of medical evidence that demonstrates the chiropractic, massage and physical therapies he received at Mackenzie Medical improved his physical condition but aside from the example in the paragraph above, he does not cite or refer me to records which support that argument.
23I also find that the OCF-18s in evidence between October 2021 and October 2022 give no clear indication that the applicant’s physical condition was improving as a result of the denied treatments. The range of motion results for the applicant’s cervical and lumbar spine and right shoulder show only marginal improvement during that time period and his pain complaints remained consistent throughout.
24Although the applicant’s submissions have not articulated the point clearly, he seems to be arguing that since he has incurred the denied treatments in this plan and that the goals of the treatment plan (pain reduction and increased strength and ROM) are being met, the denied treatments are therefore reasonable and necessary. However, I find that it is not evident that the goals are being met and the applicant has not directed me to corroborating medical documentation to support the reasonableness and necessity of the denied treatments.
25The OCF-18 is the sole documentation proposing these treatments and it cannot be regarded as objective medical evidence in support of the reasonableness and necessity of them.
26I find the denied portions of this treatment plan are not reasonable and necessary because the applicant has not produced corroborating medical evidence to support his contention that they are, the applicant has not explained or demonstrated how the denied services would achieve the plan’s goals to a reasonable degree, and after a review of the diagnostic evidence and treatment plan and in-person examination, Dr. Rusen provided a credible basis for approving some but not all of the proposed services in the treatment plan.
27I find on a balance of probabilities that the denied portions of this treatment plan are not reasonable and necessary.
Issue 1(b) - $1,051.66, dated December 29, 2021
28I find this treatment plan is not reasonable and necessary.
29The applicant submits that this treatment plan was proposed to reduce the pain from his injuries and referred me to the associated OCF-18, which notes the goals being pain reduction, increase in strength, increased range of motion and improve sleep. The functional goal is to return to activities of normal living.
30As with the treatment plan in issue 1(a), the applicant submits that the denied treatments would help him to achieve maximal recovery and the respondent wrongly denied these treatments.
31The OCF-18 provides some insight into the applicant’s progress. Although he reports some improvement since the time of the accident more than two years ago, he continues to have pain in his neck, right shoulder, and mid and lower back. The comments include measures of his range of motion (“ROM”) in the cervical and lumbar spine, and right shoulder.
32The respondent denied the proposed benefits for chiropractic treatment, physical therapy and massage therapy and submits that the applicant has not produced any medical evidence to corroborate his contention that the denied benefits are reasonable and necessary. The respondent refers me to Dr. Rusen’s IE report which found that only active therapies for strengthening and stretching are reasonable and necessary.
33The respondent also partially denied the expense of nine pairs of gloves proposed at $5.50 each for a total of $49.50, finding the $5.50 per pair to be excessive. It approved the expense at $1.50 x 9 pairs = 13.50, i.e., $36.00 denied.
34I find the denied benefits in this treatment plan are not reasonable and necessary for essentially the same reasons as above in issue 1(a). The applicant has not provided a rationale or produced corroborating evidence to support his argument that the denied services are reasonable and necessary.
35The applicant did not provide any submissions on why the gloves expense should be $5.50 a pair. Without any documentation to support his claim for $5.50 per pair, for example a fee schedule or specification of glove that is required for the approved active therapy, there is no basis for me to conclude that the denied portion of this claim is reasonable and necessary.
36The applicant has not directed me to any evidence that his condition has changed since the treatment proposals in plan 1(a) two months earlier. I recognize that the OCF-18 documents the applicant’s pain complaints and progress with treatment, however I find that there are no comparative ROMs from the OCF-18 of October 12, 2021, hence no indication that the denied treatments, if incurred, are improving the applicant’s physical condition.
37Therefore, I find on balance of probabilities that the denied portions of this treatment plan are not reasonable and necessary.
Issue 1(c) - $193.60, dated February 16, 2022
38I find the denied portion of this treatment plan is not reasonable and necessary.
39The applicant submits that this treatment plan was proposed to reduce the pain from his injuries and referred me to the associated OCF-18, which notes the goals being pain reduction, increase in strength, increased ROM and to improve sleep. The functional goal is to return to activities of normal living.
40As with the treatment plans in issue 1(a) and (b), the applicant submits that the denied treatments would help him to achieve maximal recovery and the respondent wrongly denied these treatments.
41I note that the OCF-18 reports little progress in the applicant’s physical condition. The measures of his ROM in the cervical and lumbar spine, and right shoulder reflect similar ranges as recorded two months earlier, and he appears to be experiencing a persistence of pain in the areas of his body affected by the accident.
42The portions approved and denied are reported as follows:
Approved
Denied
Active Therapy
$676.88
Admin Assessment
200.00
Gloves
10.00
34.00
44.00
Chiropractic Treatment
451.28
Physical Therapy
297.84
Massage Therapy
153.60
Total
$1,636.00
$187.60
$1,823.60
Note: The amounts listed in the issues in dispute in the CCRO differ from those above in the amount of $6.00. The sum of the respondent’s approved services is $1,636.00 but was reported in its submissions as $1,630.00.
43I have already found that massage therapy and the excess cost of gloves is not reasonable and necessary, and the applicant has not directed me to any new evidence that his condition has changed since the treatment plan in 1(b) two months earlier.
44Therefore, I find on a balance of probabilities that the denied treatments in this plan are not reasonable and necessary.
Issue 1(d) - $529.90, dated August 4, 2022
45I find the denied portion of this treatment plan is not reasonable and necessary.
46The applicant submits that this treatment plan was proposed to reduce the pain from his injuries and referred me to the associated OCF-18, which notes the goals being pain reduction, increase in strength, increased ROM and to improve sleep. The functional goal is to return to activities of normal living.
47As with the previous treatment plans, the applicant submits that the denied treatments would help him to achieve maximal recovery and the respondent wrongly denied these treatments.
48The OCF-18 reports little progress in the applicant’s physical condition. The measures of his ROM in the cervical and lumbar spine, and right shoulder reflect similar ranges as recorded six months earlier in February, and he appears to be experiencing a persistence of pain in the areas of his body affected by the accident.
49The respondent submits that the only services in dispute in this plan are massage therapy and the cost of the gloves. The respondent submitted that the cost of gloves was excessive but unlike the previous two treatment plans, it did not approve the gloves expense at the $1.50/pair level. In its submissions, the respondent did not provide any rationale for approving the shorter, one-hour sessions versus the service provider’s proposed 1.25-hour sessions. However, in the denial letter of August 18, 2022, the respondent stated that 10, one-hour sessions are similar to what Dr. Rusen recommended in is IE report and one-hour sessions are reasonable and necessary.
50The applicant did not make any submissions on the denied portion of the physical treatments in this plan, i.e., why 1.25 hours versus 1.0 hours.
51The portions approved and denied are reported as follows:
Approved
Denied
Physical treatment (manipulation, multiple body sites)
$1,128.10
$282.20
$1,410.30
Admin Assessment
200.00
200.00
Gloves
0.00
55.00
55.00
Massage Therapy
0.00
192.00
192.00
Total
$1,328.10
$529.20
$1,857.30
The partial denial of the physical treatment is based on the respondent approving only 10, one-hour sessions at the schedule rate of $112.81 per hour. The plan proposal was for 10, 1.25 hour sessions which, at the same hourly rate, equals $141.03 per session.
52I have already found that massage therapy and the excess cost of gloves is not reasonable and necessary, and the applicant has not directed me to any new evidence that his condition has changed since the treatment plan 1(c) six months earlier. Therefore, I find the proposed massage therapy and cost of gloves in this plan are, similarly, not reasonable and necessary.
53The applicant has not provided any submissions or evidence to support its claim for $55.00 in gloves expense in this plan.
54The respondent’s recommendation for one-hour sessions of physical treatment is supported by its IE, and the applicant did not provide a basis for its proposed physical treatments, at 1.25 hours.
55Accordingly, I find on a balance of probabilities that the denied services in this treatment plan are not reasonable and necessary.
Issue 1(e) - $1,525.60, dated September 16, 2022, and Issue 1(f) - $1,194.38 dated October 28, 2022
56I find these treatment plans are not reasonable and necessary.
57The treatment plans’ goals are the same as the previous proposals in 1(b), (c) and (d).
58As with the previous treatment plans, the applicant submits that the denied treatments would help him to achieve maximal recovery and the respondent wrongly denied these treatments.
59Plan 1(e) includes 10 sessions of physical treatment totaling $1,128.24, $153.60 for massage therapy, $200.00 in fees, and $44.00 for gloves. Plan 1(f) proposes six sessions of physical treatment at 1.25 hours each, at the $112.82/hour rate, totaling $846.18, $115.20 for massage therapy, and $33.00 for gloves.
60The OCF-18s reflect little progress in the applicant’s physical condition since his previous proposed plan in August.
61The respondent submits that these treatment plans are not reasonable and necessary and relies on an IE by Dr. Oleg Safir, orthopaedic surgeon, dated April 11, 2023. It submits that, during the IE, the applicant reported a 50% subjective improvement in his symptoms. It refers me to Dr. Safir’s IE report noting the applicant showed no objective evidence of any musculoskeletal impairment and that he had achieved maximum therapeutic benefit from the formal, facility-based physical rehabilitation he had undergone. Dr. Safir opined that these treatment plans were not reasonable and necessary, and that the applicant should focus on a self-directed, at-home exercise program to nurture his recovery.
62I find the proposed treatment plans are not reasonable and necessary.
63The applicant has not produced any evidence or made any submissions specific to the denied treatments in these two plans, rather he has encompassed his rationale for their reasonableness and necessity along with the four previous treatment plans (the denials deprived him of maximal recovery and the plans were wrongly denied). The applicant contends that treatments have resulted in physical improvement and since he has incurred the treatments, they are therefore reasonable and necessary. I find his argument unpersuasive because the applicant has not provided medical evidence to establish that the treatments have improved his physical condition or met the goals of the plans to a reasonable degree.
64I give the IE report from Dr. Safir weight because his examination included an extensive document review, a 30-minute in-person examination, and Dr. Safir is an accredited orthopaedic surgeon. That Dr. Safir’s examination fell on March 11, 2023, approximately six months after the applicant’s last reported treatments at Mackenzie Medical in October 2022, and that the applicant reports his symptoms have improved by 50%, aligns with Dr. Safir’s suggestion that the applicant had reached maximal results from facility-based treatment. There is no record of the applicant attending facility-based treatment after October 2022.
65I find on a balance of probabilities that the two treatment plans proposed in issues 1(e) and (f) are not reasonable and necessary.
Denials are compliant with section 38(8) of the Schedule
66I find that the denials of the treatment plans were compliant with section 38(8) of the Schedule.
67Section 38(8) stipulates that an insurer must notify an insured person, within 10 business days after it receives a treatment plan, of the goods and services in the plan it agrees to pay for, and not pay for. In the case of those it disagrees to pay for, the insurer must provide the insured party with the medical and all of the other reasons why it considers the proposed services to not be reasonable and necessary.
68Pursuant 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 Minor Injury Guideline (“MIG”) applies.
69The Tribunal has found in T.F. v. Peel Mutual Insurance Company – 16-003316/AABS Recon (EC, April 5, 2018) (“TF v. Peel”) that as part of the “medical and all the other reasons” required in a denial letter, the insurer should engage specific details about the insured’s medical condition that forms the basis of its decision, and it must do so in a way that would allow an unsophisticated person to understand the reasons for the denial so as to make an informed decision. TF v. Peel provides guidance on the question of whether a denial notice meets an insurer’s obligations in s. 38(8). A compliant denial letter ought to include a principled rationale based fairly on an insured person’s file.
70The applicant submits that the respondent’s denial of the proposed benefits has impeded his recovery and that the respondent failed to provide adequate medical and other reasons for its denials. He referred me to TF v. Peel. The applicant submits that the respondent failed to correctly identify his medical condition and therefore wrongly denied him the proposed benefits.
71The applicant submits that the respondent did not consider elements of his medical condition. For example, he referred me to the fact that he was deemed to have a traumatic brain injury by Dr. Zatzman’s OCF-19 submitted on March 8, 2023, he suffers from psychological impairments as noted by Dr. Brunshaw and Dr. Rathaur, and did not properly consider the medical interventions he underwent for his neck and back pain at Mackenzie Medical.
72The applicant submits that he is continuing to see his family physician (Dr. Zatzman) due to his injuries and alleges the respondent has not taken that fact into its consideration of his current medical condition. He submits the respondent has mischaracterized his condition resulting in wrongful denials.
73The respondent submits that it complied with section 38(8) in its denials and set out its reasons as follows:
i. Issue 1(a) denial of December 14, 2021 provided medical reasons, noting the IE of Dr. Rusen recommended that passive treatment modalities would not be considered reasonable and necessary;
ii. Issue 1(b) denial of January 20, 2022 also referred to medical reasons per Dr. Rusen’s IE;
iii. Issue 1(c) denial of February 17, 2022 was only for massage therapy and the cost of gloves;
iv. Issue 1(d) denial of August 18, 2022 was only for massage therapy and the cost of gloves, and the denial noted that massage therapy was not reasonable and necessary, and the cost of gloves was excessive;
v. Issue 1(e) denial of October 3, 2022 was based on the IE by Dr. Safir; and
vi. Issue 1(f) denial of November 24, 2022 was based on the IE by Dr. Safir, noting why further facility-based treatment was not reasonable and necessary.
74The respondent submits that each denial letter provided the medical and all other reasons why it did not consider the services to be reasonable and necessary, and that the denial notices were clear and easy for the applicant to understand why the proposed treatment was being denied.
75I find the insurer satisfied its obligations to section 38(8) in the denial letters relating to issues 1(a), (b), (c) and (d) because it supported its medical and other reasons with Dr. Rusen’s IE report. The denial letters clearly set out the portions of the plans that the respondent agreed to and those it did not.
76I find the insurer satisfies its obligations to the provision of section 38(8) of the Schedule in relation to issues 1(e) and (f). The initial denial notices of October 3, 2024 and November 22, 2024, respectively, informed the applicant that he would need to undergo a section 44 IE before determining whether the proposed treatment plans were reasonable and necessary. After the IEs were conducted, the respondent issued a second denial notice for both treatment plans on April 11, 2023. The denial notice included the medical and other reasons for denying the proposed treatments, supported by Dr. Safir’s IE report, and were clear and concise as to why the proposed treatments were being denied.
77Accordingly, I find the respondent’s denial letters in relation to the six treatment plans comply with section 38(8) of the Schedule.
Interest
78Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Since no payments are overdue, the applicant is not entitled to interest.
Award
79As noted above, the applicant sought an award under section 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.
80Since I have found that the denied portions of the six treatment plans are not reasonable and necessary, I find that the respondent did not unreasonably withhold or delay the payment of benefits. No award under section 10 is owed the applicant.
ORDER
81Accordingly, I order the following:
i. The applicant is not entitled to the treatment plans in dispute;
ii. No payments are overdue, therefore the applicant is not entitled to interest;
iii. The respondent did not unreasonably withhold or delay payments therefore it is not liable to pay an award pursuant to section 10; and
iv. The application is dismissed.
Released: January 27, 2025
Bruce Stanton
Adjudicator