Licence Appeal Tribunal File Number: 23-005945/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:
Azhar Mohammed
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Georgiana Masgras, Counsel
For the Respondent:
Amanda Lennox, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Azhar Mohammed (“the Applicant”) was involved in an automobile accident on April 2, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The Applicant was denied benefits by Wawanesa Mutual Insurance Company (“the Respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues to be decided in the hearing are:
Is the Applicant entitled to a medical benefit in the amount of $3,693.50 for physiotherapy services proposed by Physio Art Rehabilitation in a treatment plan/OCF-18 (“plan”) dated December 9, 2021?
Is the Applicant entitled to a medical benefit in the amount of $3,791.00 for physiotherapy services proposed by Physio Art Rehabilitation in a plan dated December 5, 2022?
Is the Respondent liable to pay an award under section 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
3The Applicant is not entitled to the benefits claimed. No interest or award is payable.
BAckground
4The Applicant was the front-seated passenger of a vehicle which struck a parked vehicle and utility pole. She sought no medical attention on the day of the accident but about two weeks later, she reported the accident to her family physician. Her physician assessed her with low back pain and recommended that she started physiotherapy.
5The Applicant has a documented medical history of epilepsy, depression, and migraine headaches. A complete record of her pre-existing health conditions is outlined in a prior tribunal decision: A.M. v. Wawanesa Mutual 2020 CanLII 45490 (ON LAT) (“AM v Wawanesa”).
6In AM v Wawanesa, the Tribunal determined that the Applicant did not sustain a catastrophic impairment and was not entitled to non-earner and attendant care benefits, and not entitled to various treatment and assessment plans.
7The Applicant continues to seek benefits from the Respondent. The current issue is her entitlement to plans for physiotherapy and other goods and services.
ANALYSIS
8The onus is on the Applicant to demonstrate entitlement to the benefits claimed. She must establish on a balance of probabilities that the proposed plans are reasonable and necessary as a result of the accident.
9The Applicant submits that the plans would benefit her in overcoming her injuries and highlights that she was seven months pregnant at the time of the accident. She also submits that it is credible that she sustained catastrophic injuries as a result of the accident, based on her the medical evidence. She states that she has undergone several treatments for her rehabilitation to good health and will continue to undergo treatments to bring her back to good health. Thus, she submits, it is only just and fair for her to receive the plans in dispute.
10The Respondent is critical of the Applicant’s evidence and submits that the catastrophic impairment assessment reports she relies on were assessed previously by the Tribunal in AM v Wawanesa and found to hold little weight. Additionally, it submits that during the period of June 13, 2019 to March 21, 2022, the records indicate that the Applicant never reported any accident related pain and did not attribute her health concerns to the subject accident at any of her numerous medical appointments.
11I find that the Applicant’s evidence holds little weight because it is not contemporaneous with the plans. From this I conclude that she has not met her burden to demonstrate that the plans are reasonable and necessary as a result of the accident.
Catastrophic impairment reports, dated September 28, 2018
12I find that the catastrophic impairment reports, dated September 28, 2018, are unpersuasive as they predate the plans by three or more years. This evidence is not contemporaneous with the disputed treatment and any opinion or recommendation provided in the reports is outdated by the time the Applicant submitted her claims. I acknowledge that the Applicant’s catastrophic impairment reports characterize her neck, back, and left shoulder strain injuries, as well as her headaches, and mental and behavioural impairments as permanent. However, such a characterization of her injuries does not automatically entitle the Applicant to benefits in perpetuity. This is because it remains her onus to demonstrate that the benefits sought are reasonable and necessary at the time the plan is submitted, in conjuncture with the medical evidence available.
13Further, I agree with the Respondent that the reports were previously assessed by the Tribunal and found to hold little weight because they lacked a fulsome analysis, were unreliable, and the findings in them were significantly contrasted by the other evidence, including surveillance evidence – which captured her walking in a mall for over an hour, when the catastrophic impairment assessment reports stated that she could walk for only 10 minutes.
Physiotherapy plans, dated December 9, 2021 & December 5, 2022
14I find that the Applicant has not demonstrated that the physiotherapy plan, dated December 9, 2021, is reasonable and necessary as a result of the accident. The plan proposes $200.00 for an assessment and documentation, $1,795.50 for 18 physiotherapy sessions, $798.00 for 8 acupuncture sessions, and $900.00 for orthotics. The plan dated December 5, 2022, proposes $200 for an assessment and documentation, $2,394.00 for 24 physiotherapy sessions, and $1,197.00 for 12 other physiotherapy sessions. I find that the Applicant has not met her onus to demonstrate entitlement to the physiotherapy plans because she has provided no contemporaneous evidence to support her claims.
15The Applicant’s family physician, emergency department, and hospital records focus primarily on issues unrelated to the accident. Although the Applicant did not direct me to any specific documents, I reviewed all of the nearly 1500 pages she provided. I find that the medical records mostly include visits related to obstetrics, gynecology, psychiatry, cardiology, and neurology. The Applicant has a history of epilepsy, migraine headaches, and pregnancy, which appear to be the reasons for most of her medical appointments.
16Moreover, most of the medical records provided by the Applicant pre-date her claims by a significant margin. For example, the Applicant’s decoded OHIP summary ends in 2016, her medication list ends in August 2018, the clinical notes and records (“CNRs”) from Spinetec, her rehabilitation facility, are for the year 2018, and the catastrophic impairments reports are from 2018, as previously noted.
17At most, I found two instances where the Applicant reported neck pain, which she claims is as a result of the accident. There is an entry, dated December 6, 2021, in the CNRS of Dr. N. Ghobora, family physician, prescribing orthotics and an MRI, but the records do not indicate the reason or suspected cause for these prescriptions. The CNRs are also unclear as to what orthotics were prescribed and I am unable to connect the prescription to the injuries the Applicant sustained in the accident. Additionally, there is an emergency room note, dated March 28, 2021, where the Applicant complained of neck pain. The Applicant reported to the emergency room physician that her headache stemmed from tooth pain which caused a headache, which in turn resulted in neck pain. The emergency room physicians gave the Applicant naproxen and referred her to a dentist. She made a similar complaint in a visit on March 18, 2021, but denied experiencing neck pain during that visit.
18I find that the entries described above are insufficient to render the treatment plans in dispute to be reasonable and necessary. The Applicant has not directed me to any CNRs from a treating healthcare provider recommending physiotherapy and/or acupuncture at a time contemporaneous with the plans. This includes her family healthcare team, emergency physicians, and the treatment provider. The complaint of March 28, 2021, appears to be related to tooth pain and not to injuries arising as a result of the accident. From the Applicant’s own reports to the emergency room physician, the pain was related to a dental issue, she did not attribute to the accident or accident related impairments, and her physician referred her to a dentist.
19I am unable to find the orthotics portion of the December 9, 2021 plan to be reasonable and necessary as a result of the accident. The Applicant made no submissions regarding orthotics, and I note that orthotics were denied as part of the decision in AM v Wawanesa. Moreover, the CNRs from Dr. Ghobora do not indicate what orthotics are prescribed, nor the reason for the orthotics. Similarly, the treatment plan includes no details regarding the orthotics. Considering the lack of information regarding the type, purpose, and cause of the prescription, I am unable to find that the orthotics proposed in the plan are reasonable and necessary as a result of the accident.
Interest
20I find no interest payable.
21Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits payable, it follows that no interest is payable.
Award
22I find no award payable.
23Under section 10 of regulation 664, 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.
24The Applicant tendered no submissions regarding an award and is not entitled to any of the benefits claimed. Accordingly, she has not met her onus to demonstrate that the Respondent unreasonably withheld or delayed the payment of benefits.
ORDER
25The Applicant is not entitled to the treatment plans, dated December 9, 2021 and December 5, 2022.
26No interest or award is payable.
27The Application is dismissed.
Released: June 25, 2025
__________________________
Brian Norris
Adjudicator