Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 24-002670/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:
Ahmad Ramezanian
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Laura Goulet
APPEARANCES:
For the Applicant: Aarij Jawaid, Counsel
For the Respondent: Andrew Rodrigues, Counsel
HEARD: By way of written submissions
OVERVIEW
1Ahmad Ramezanian, the applicant, was involved in an automobile accident on May 15, 2021, 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:
i. Is the applicant entitled to attendant care benefits in the amount of $448.49 per month, from September 29, 2022 to May 15, 2026?
ii. Is the applicant entitled to $3,825.57 ($8,050.90 less $4,225.33 approved) for occupational therapy services proposed by St. Joseph’s Health Care in a treatment plan/OCF-18 (“plan”) dated December 17, 2021?
iii. Is the applicant entitled to $1,200 for EMG studies proposed by Verity Medical Assessments (“Verity”) in a plan dated April 3, 2023?
iv. Is the applicant entitled to $2,200 for a neurological assessment proposed by Verity in a plan dated April 3, 2023?
v. Is the applicant entitled to interest on any overdue payment of benefits?
3In its submissions, the respondent put into evidence an Explanation of Benefits dated May 10, 2024, indicating that the plan for a psychiatry assessment listed as issue #5 in the Case Conference Report and Order dated March 20, 2024 has been approved. Therefore, this issue is no longer in dispute.
RESULT
4The applicant is not entitled to attendant care benefits.
5The applicant is entitled to an Obus Forme pillow, a raised toilet seat, and a perching stool as listed in the plan for occupational therapy services. The applicant is not entitled to the remainder of the plan for occupational therapy services.
6The applicant is not entitled to the plans for EMG studies and a neurological assessment.
7The applicant is entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.
ANALYSIS
The applicant is not entitled to attendant care benefits
8Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (“ACBs”) provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the approved version of the document entitled Assessment of Attendant Care Needs (“Form-1”).
9The applicant did not make submissions or direct me to any evidence with respect to ACBs.
10The respondent submits that the applicant is not entitled to ACBs because he has not demonstrated why he is entitled to these benefits.
11It is the applicant’s onus to demonstrate that he is entitled to ACBs. Accordingly, in the absence of any evidence in this regard, I find that he is not entitled to ACBs as he has not established that they are reasonable and necessary or that they have been incurred.
12To receive payment for a treatment and assessment plan under s. 15 and s. 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.
A. The plan for occupational therapy services
13The plan in the amount of $8,050.90 was proposed by Rose Carey, occupational therapist. The plan proposes documentation and support activity, thirty sessions of therapy, provider travel time, “brokerage, service,” a weighted compression vest, a weighted blanket, musician’s earplugs, an Icekap ($89.99), a Smart Watch ($299.99), a perching stool ($204.99), grab bars, a non-slip bathmat, a hand-held shower head, a bath seat, a long-handled loofah, an Obus Forme cushion ($69.99), a raised toilet seat ($74.95), a bedrail, an emergency response line, a bidet, a cognitive aids budget ($250.00), and an orthopaedic pillow ($200.00). The goals of the plan are pain reduction, energy conservation, pain and symptom management, sleep hygiene, cognitive remediation, productivity, to return to activities of normal living, to improve mood, to increase leisure participation, and to increase independence with activities of daily living.
14The plan was partially approved in the amount of $4,225.33. The respondent approved the documentation and support activity, twenty sessions of therapy, provider travel time, “brokerage, service,” the weighted blanket, musician’s earplugs, grab bars, the non-slip bathmat, the bath seat, the long-handled loofah, the cognitive aids budget (in the amount of $100.00), and the orthopaedic pillow (in the amount of $130.00).
15The applicant submits that the ten occupational therapy sessions that were not approved are reasonable and necessary. The applicant further submits that the following assistive devices that were not approved by the respondent are reasonable and necessary: an Icekap, a Smart Watch, an Obus Forme pillow, a raised toilet seat, and a perching stool.
The applicant is not entitled to the additional ten sessions of occupational therapy services
16The applicant has not demonstrated on a balance of probabilities that the additional ten sessions of occupational therapy services (“OT”) are reasonable and necessary.
17The applicant relies on the December 7, 2021 assessment report completed by Ms. Carey after her assessment of the applicant on October 14, 18, and 26, 2021. The report indicated that since the accident, the applicant has experienced cognitive, psychological, and physical symptoms that have impacted every aspect of his life. The applicant reported memory impairment, attention and concentration difficulties, pain in his neck, back, hip, and shoulders, headaches, sleep disruptions, fatigue, dizziness, nausea, vision changes, balance impairments, noise and light sensitivities, and emotional and psychological changes. Ms. Carey recommended ten OT sessions, as well as various assistive devices, as listed in the proposed plan.
18The applicant also refers to the s. 44 assessment conducted by Christine Phinney, occupational therapist, on February 23, 2022, where Ms. Phinney conducted examinations and noted that the applicant had functional impairments that necessitated numerous assistive devices and twenty hours of OT.
19The applicant submits that, given the extent of injuries caused by the accident, the proposed thirty OT sessions are reasonable and necessary, rather than the twenty sessions that were approved. In support of his position, the applicant submits that he has consistently complained of physical limitations caused by the accident with his treating physicians and subsequent assessors. He refers to the following evidence:
i. On May 25, 2021, the applicant’s family physician, Dr. Panagiotis Diavolitsis, noted that the applicant’s chronic pain had been exacerbated by the accident.
ii. The OCF-3 of Dr. Pier-Paolo Palumbo, chiropractor, dated June 9, 2021 indicated a fracture of shaft of clavicle, whiplash associated disorder with complaints of neck pain and musculoskeletal signs, lower back pain, pain in thoracic spine and radiculopathy.
iii. On November 9, 2021, Dr. Diavolitsis’ clinical notes and records indicated that the applicant had increased pain, possible post concussion syndrome, left arm immobility, hip pain, and muscle spasms, with depression and anxiety dramatically worsening.
iv. On January 31, 2022, Dr. Diavolitsis noted the applicant still had chronic pain.
v. A neurological evaluation by Dr. Vincenzo Santo Basile, neurologist, on April 27, 2023, indicated that the applicant had features of post traumatic headaches, evidence of active left sided chronic C8 cervical radiculopathy, vertigo, and likely has chronic pain syndrome.
vi. The report dated February 1, 2024 of Dr. Franco Tavazzani, orthopedic surgeon, indicates that the applicant reported pain in the lower back, neck, and left shoulder. The report goes on to state the applicant is unable to meet the physical demands of his pre-accident housekeeping, home maintenance and recreational and social activities. It was noted that this included the ability to sit or stand for prolonged periods, to bend, squat or stand up frequently, to lift and carry heavy items, to perform repetitive reaching, pushing, or pulling, to concentrate, to walk for prolonged periods, and to sleep and relax. Dr. Tavazzani recommended a continued multidisciplinary rehabilitation program with a particular focus on active conditioning with a physical therapist or personal trainer and chiropractic and massage therapy.
20The applicant submits that ongoing OT is essential and should not have been limited by the respondent. The applicant further submits that the full amount of time should have been approved as his injuries continue to impact his daily life, and that approving the full number of sessions would be in line with the recommendations made by the applicant’s treating physicians and expert assessors.
21The respondent points out that the plan that was submitted for approval indicates thirty sessions, while Ms. Carey originally recommended ten sessions. The respondent submits that Ms. Phinney’s assessment was conducted four months after Ms. Carey’s, and shows that the applicant’s injuries improved with time and through treatment received. The respondent submits that, based on Ms. Phinney’s report, it approved twenty sessions, double the amount recommended in Ms. Carey’s report.
22Although the applicant submits that approving the full amount of OT sessions would be in line with the recommendations made by the applicant’s treating physicians and expert assessors, he does not direct me to any such recommendations that have been made. Further, I note that Dr. Basile’s neurological evaluation was conducted on April 27, 2023, and Dr. Tavazzani’s report is dated February 1, 2024, and that these are therefore not contemporaneous with the proposed treatment plan, which was dated December 17, 2021. Ms. Carey, the applicant’s assessor, recommended ten sessions, and the respondent approved twenty sessions. The onus is on the applicant to demonstrate on a balance of probabilities that the additional treatment is reasonable and necessary. I find that he has not done so.
23For these reasons, I find that the applicant is not entitled to the additional ten sessions of OT services.
The applicant is not entitled to an Icekap
24The applicant has not demonstrated on a balance of probabilities that an Icekap is reasonable and necessary.
25Ms. Carey recommends an Icekap to assist with symptom management as the applicant experiences headaches frequently. The applicant submits that the accident exacerbated his headaches. The applicant relies on the October 24, 2023 report of the respondent’s insurer’s examiner, Dr. Jason Lazarou, neurologist, which noted that an exacerbation of pre-existing migraine disorder is possible as a consequence of the accident. The applicant also relies on Ms. Carey’s assessment dated December 7, 2021 indicating that stimulation such as cognitive, physical and noise and light all exacerbate the applicant’s headaches. The applicant submits this is likely related to the concussion he sustained in the accident and not pre-existing, directing me to the following evidence:
i. A notation dated November 9, 2021 made by Dr. Diavolitsis, indicating possible post-concussion syndrome as evidenced by headaches, light and noise sensitivity.
ii. The June 28, 2022 Neuro-Visual Assessment report by Dr. Riyad Khamis, optometrist, diagnosing the applicant with post-concussion syndrome more specifically post-traumatic vision syndrome, oculomotor dysfunction and visual information processing issues.
iii. Ms. Carey’s October 19, 2022 report indicating dizziness, balance impairments, vision changes and noise and light sensitivities.
iv. A psychological assessment by Dr. Joan Clayton, psychologist, dated August 14, 2021 noting concussion symptoms.
26Although Ms. Carey recommended an Icekap to address the applicant’s headaches, the applicant does not provide evidence or make submissions with respect to how this goal would be met to a reasonable degree or that the overall costs of achieving it is reasonable.
27For these reasons, I find that the applicant has not established on a balance of probabilities that an Icekap is reasonable and necessary.
The applicant is not entitled to a Smart Watch
28The applicant has not established on a balance of probabilities that a Smart Watch is reasonable and necessary.
29Ms. Carey indicates that the applicant is reporting ongoing difficulty with memory and symptom management as a result of the accident. She recommends a Smart Watch to assist with providing reminders to the applicant of appointments and “to do” items, to assist with tracking time spent doing an activity, to set a timer as an auditory reminder of when to take a rest break, or to be used as an easy way to frequently check the time to ensure he is taking breaks regularly.
30The applicant submits that he is from modest means and may not wish to maintain a phone with an active line in the future, and he may wish to use a phone which does not contain the applications required to input appointments, provide auditory reminders, or track time spent doing an activity. The applicant argues that to force him to maintain a phone for these purposes may not be feasible.
31Although Ms. Carey recommends a Smart Watch to assist with providing reminders, tracking time and to set timers, the applicant does not direct me to evidence or make submissions with respect to how these goals would be met to a reasonable degree and that the overall cost of achieving them are reasonable. I am not satisfied on a balance of probabilities that a Smart Watch at a cost of $299.99 is necessary to achieve these goals.
32For these reasons, I find that the applicant has not established on a balance of probabilities that a Smart Watch is reasonable and necessary.
The applicant is entitled to an Obus Forme pillow
33The applicant has established on a balance of probabilities that an Obus Forme pillow is reasonable and necessary.
34Ms. Carey recommends an Obus Forme pillow to address the applicant’s difficulties maintaining sitting postures for prolonged periods of time. The Obus Forme is recommended to optimize his comfort and better manage his pain in his home environment. The applicant relies on Ms. Carey’s assessment dated December 7, 2021, where she indicated that the applicant’s back pain is exacerbated with prolonged postures. The applicant also submits that he told Ms. Phinney that he could not sit for prolonged periods during the February 23, 2022 assessment. The applicant points out that Ms. Phinney indicated that the applicant was observed sitting but does not specify for how long. The applicant also relies on Dr. Tavazzani’s February 1, 2024 report which indicates that he is limited with his ability to sit for functionally useful periods of time.
35The respondent submits that Ms. Phinney confirmed no significant limitations with sitting tolerance.
36I am persuaded by Dr. Tavazzani’s report which corroborates Ms. Carey’s findings with respect to the applicant’s difficulties maintaining sitting postures for prolonged periods of time. I also accept Ms. Carey’s evidence that the Obus Forme would optimize the applicant’s comfort and better manage his pain.
37For these reasons, I find that the applicant has established on a balance of probabilities that an Obus Forme pillow is reasonable and necessary.
The applicant is entitled to a raised toilet seat
38The applicant has demonstrated on a balance of probabilities that a raised toilet seat is reasonable and necessary.
39Ms. Carey recommends a raised toilet seat with arms, to optimize the applicant’s safety and independence, as she notes that he demonstrates difficulty performing toilet transfers. The applicant refers to Ms. Phinney’s report, where she notes that although he was able to perform a toilet transfer independently, he was using the edge of the tub for external support. The applicant points out that Ms. Rose made the same observation during her December 7, 2021 assessment, submitting that since the toilet transfers are done with difficulty and dangerously, a raised toilet seat with arms should be approved.
40The respondent submits that the applicant was observed performing toilet transfers independently, confirming that the proposed raised toilet seat is unreasonable and unnecessary.
41I have considered that both Ms. Carey and Ms. Phinney made observations that the applicant was required to use the edge of the tub for support during toilet transfers. In the circumstances, I find that the use of a raised toilet seat with arms would promote safety during toilet transfers and is reasonable and necessary for the applicant’s accident-related conditions.
42For these reasons, I find that the applicant has demonstrated on a balance of probabilities that a raised toilet seat is reasonable and necessary.
The applicant is entitled to a perching stool
43The applicant has established on a balance of probabilities that the perching stool is reasonable and necessary.
44Ms. Carey recommends a perching stool to aid in symptom management while completing meal preparation tasks as the applicant has limited standing tolerance due to fatigue and ongoing pain. The applicant submits that Ms. Phinney did note during her assessment that she observed that the applicant was having balance difficulties while standing. The applicant also relies on Dr. Tavazzani’s February 1, 2024 report which indicates that the applicant is limited with his ability to stand for functionally useful periods of time.
45The respondent submits that Ms. Phinney did not observe any significant standing tolerance limitations that would deem this device reasonable and necessary.
46I am persuaded by Dr. Tavazzani’s report which corroborates Ms. Carey’s findings with respect to the applicant’s standing intolerance. I accept Ms. Carey’s evidence that a perching stool would aid in symptom management while completing meal preparation tasks. For these reasons, I find that the applicant has established on a balance of probabilities that the perching stool is reasonable and necessary.
Remaining unapproved items
47The applicant does not make submissions with respect to the weighted compression vest, the hand-held shower head, the bedrail, the emergency response line, the bidet, or the remainder of the proposed amounts for the cognitive aids budget and the orthopaedic pillow. For these reasons, I find that the applicant has not demonstrated on a balance of probabilities that these items are reasonable and necessary.
Section 3(8) of the Schedule
48I decline to exercise my discretion pursuant to s. 3(8) to deem the expenses from the proposed plan incurred.
49The applicant submits that the expenses related to this plan should be deemed incurred in accordance with s. 3(8) of the Schedule as the applicant is from modest means and is a vulnerable party unable to pay out of pocket for the services.
50Section 3(8) sets out that the Tribunal may deem an expense to have been incurred if it finds that the expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense.
51The applicant did not make submissions indicating how the insurer unreasonably withheld or delayed payment of any of the benefits and an award under s. 10 of O. Reg. 664 is not at issue.
52For these reasons, I decline to exercise my discretion pursuant to s. 3(8) to deem the expenses from the proposed plan incurred.
B. The applicant is not entitled to the plans for EMG studies and a neurological assessment
53The applicant is not entitled to the plans for EMG studies and a neurological assessment because they were incurred prior to their submission to the respondent.
54The plan for EMG studies was proposed by Anthony Grande, physiotherapist. The plan proposes a conduction study and documentation and support activity. The goals of the plan are to assess the ability of peripheral nerves to conduct electrical impulses and to return to activities of normal living.
55The plan for a neurological assessment was proposed by Mr. Grande. The plan proposes a total body assessment and documentation and support activity. The goals of the plan are to determine if there is an accident-related neurological impairment, to provide recommendations for recovery, and to return to activities of normal living.
56The applicant relies on the following evidence in support of both plans:
i. Dr. Lazarou’s October 24, 2023 report, recommending that the applicant’s family doctor refer him to a treating neurologist for assessment;
ii. Dr. Diavolitsis’ notation dated November 9, 2021, indicating possible post-concussion syndrome;
iii. The OCF-3 of Dr. Palumbo dated June 9, 2021 noting radiculopathy;
iv. Dr. Khamis’ June 28, 2022 report diagnosing the applicant with post-concussion syndrome;
v. Ms. Carey’s October 19, 2022 report indicating post-concussive symptoms;
vi. Dr. Clayton’s report dated August 14, 2021 noting concussion symptoms;
vii. A March 27, 2024 Neuro-Visual assessment report completed by Dr. Khamis noted that the applicant will continue to require neuro-visual rehabilitation to help alleviate the post-concussion vision syndrome, oculomotor dysfunction, fusional dysfunction and visual information processing problems; and
viii. A neurological evaluation and EMG conducted by Dr. Basile on April 27, 2023, as outlined above.
57The applicant submits that both plans have been incurred.
58The respondent put into evidence both plans, which indicate that they are dated April 3, 2023, but were submitted to HCAI on July 14, 2023. The respondent further submits that the report of Dr. Basile confirms that the neurological assessment, the EMG studies, and the report were all completed on April 27, 2023.
59The respondent relies on s. 38(2) of the Schedule, which sets out that an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment and assessment plan. The respondent further submits that the exceptions in s. 38(2)(a) through (d) do not apply.
60The applicant does not make submissions with respect to the applicability of s. 38(2).
61I find that both plans were submitted to HCAI on July 14, 2023, however they were incurred prior to their submission date, on April 27, 2023.
62With respect to the exceptions in s. 38(2)(a) through (d), I find that the respondent did not give the applicant a notice stating that it would pay the expenses without a treatment plan; the expenses were not for an ambulance or other goods or services provided on an emergency basis; and the expenses were not for drugs prescribed by a regulated health professional or for goods or services with a cost of $250.00 or less.
63Section 38(2) is clear. Since the plans were incurred before the applicant submitted them, and none of the exceptions apply, the respondent is not liable to pay for the plans.
Interest
64Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to the payment of interest on any overdue benefits.
ORDER
65For the above reasons, I find:
i. The applicant is not entitled to ACBs.
ii. The applicant is entitled to an Obus Forme pillow, a raised toilet seat, and a perching stool as listed in the plan for occupational therapy services. The applicant is not entitled to the remainder of the plan for occupational services.
iii. The applicant is not entitled to the plans for EMG studies and a neurological assessment.
iv. The applicant is entitled to interest on any overdue benefits pursuant to s. 51 of the Schedule.
Released: August 22, 2025
Laura Goulet
Adjudicator