Licence Appeal Tribunal File Number: 23-014934/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:
Shariff Hussein
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Aric Bhargava
APPEARANCES:
For the Applicant:
Daniella Montinaro, Paralegal
For the Respondent:
Aleah Thomas, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Shariff Hussein, the applicant, was involved in an automobile accident on December 8, 2018, 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, Aviva 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 $2,597.48 for chiropractic services proposed by Toronto Medical Centre in an OCF-18/treatment plan (“plan”) dated September 27, 2022?
ii. Is the applicant entitled to $2,104.00 for an orthopaedic assessment proposed by Toronto Medical Centre in a plan dated September 27, 2022?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the treatment plan for $2,597.48 for chiropractic services.
4The applicant is not entitled to the treatment plan for $2,104.00 for an orthopaedic assessment.
5The applicant is not entitled to interest on overdue payments.
ANALYSIS
6To receive payment for an OCF-18 under sections 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.
Is the applicant entitled to the treatment plan in the amount of $2,597.48 for chiropractic services?
7I find the applicant has not demonstrated the chiropractic services treatment plan is reasonable and necessary.
8The chiropractic services treatment plan dated September 27, 2022 from Toronto Medical Centre was not submitted in evidence however the applicant states the intended goals for this plan are pain reduction and restoration of functional ability. The applicant did not state how progress will be evaluated for this treatment plan.
9The applicant submits the treatment plan is reasonable and necessary due to his shoulder impairment and relies on the clinical notes and records (CNRs) of Etobicoke Urgent Care Clinic and Mackenzie Health, the chronic pain assessment prepared by Dr. Dima Rozen, physician, the OCF-3 dated September 27, 2022, MRI results of August 3, 2022 and the s. 44 insurer’s examination dated December 7, 2022 prepared by Dr. Jamie Rusen, orthopaedic surgeon.
10The applicant does not have a primary physician and receives care through hospital Emergency and Urgent Care Units. According to the CNRs the applicant visited Etobicoke Urgent Care four days after the accident on December 14, 2018. The CNR notes “Full shoulder/arm ROM bilat, no pain” and assessed the applicant with neck pain. By September 2019, the applicant followed up four more times and was noted to have “back pain”. There was no mention of any shoulder injury or impairment or any referral for chiropractic treatment.
11In November 2021, almost three years after the accident, the CNR notes the applicant complained his shoulder “dislocates” since the accident. In February 2022, the applicant complained his “shoulder pops” and he was referred to an orthopaedic specialist, however, there is no referral for chiropractic treatment. The applicant provided no explanation of why the shoulder injury was not observed or reported initially or within the three years after the accident.
12Dr. Rozen’s s. 25 chronic pain assessment dated July 20, 2022 states that the applicant’s shoulder abduction is “intact with good strength” with no bony abnormalities and muscle bulk is intact. The report notes pain in the right shoulder on rotation and diagnosed the applicant with “suffering from right shoulder pain and impingement and chronic myofascial lumbar pain … a direct result of the subject accident …” Dr. Rozen’s report does not refer the applicant for chiropractic services.
13Four and a half years after the accident, on June 11, 2023 the applicant had shoulder surgery for “instability of right shoulder joint”. Dr. Robert Wang, orthopaedic surgeon, notes on June 12, 2023 that the applicant “did not experience shoulder instability at the time of the accident” but “shortly afterwards while reaching for something overhead in his kitchen he experienced his first shoulder instability”. Dr. Wang also did not refer the applicant for chiropractic treatment.
14The respondent submits the treatment is not reasonable and necessary and the applicant’s shoulder impairment is a result of his previous accident in February 2016. The respondent relies the s. 44 insurer’s examination completed by Dr. Jamie Rusen dated December 7, 2022, and Dr. Wang’s CNRs.
15The respondent argues the applicant was not referred for chiropractic treatments and his injuries are not a result of the subject accident. I place more weight on the Dr. Rusen’s s. 44 report because Dr. Wang’s CNRs also support the conclusion that the applicant’s injuries are soft tissue strain/sprain thoracic and lumbar spine, and WAD 2 cervical spine strain, the applicant has reached maximum medical recovery from his accident-related injuries, and the treatment plan is not reasonable or necessary.
16Based on the evidence, the disputed treatment plan is not supported by contemporaneous corroborating medical evidence. I find the applicant has not met his onus to demonstrate that the chiropractic treatment plan is reasonable and necessary because the applicant has not directed me to contemporaneous medical evidence in support of the treatment plan.
17I find on a balance of probabilities the chiropractic treatment plan is not reasonable and necessary.
Is the applicant entitled to the treatment plan in the amount of $2,104.00 for an orthopaedic assessment?
18I find the applicant has not demonstrated the orthopaedic assessment is reasonable and necessary.
19The purpose of an assessment is to determine whether a condition exists. The applicant bears the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
20The orthopaedic assessment treatment plan dated September 27, 2022 from Toronto Medical Centre was not submitted in evidence.
21The applicant submits the orthopaedic assessment is reasonable and necessary and relies on the Urgent Care CNRs, the chronic pain assessment prepared by Dr. Rozen, and the orthopaedic assessment prepared by Dr. Rusen.
22The applicant argues that he has ongoing pain and shoulder instability and requires an assessment to identify and address his recovery needs after his shoulder surgery. However, the applicant’s complaints of shoulder instability emerged three years after the accident and his shoulder instability was a result of his reaching overhead for items at home, and not related to the accident.
23Dr. Rusen’s s. 44 insurer’s examination dated December 7, 2022 includes a review of the disputed orthopaedic assessment and states the applicant has “reached maximum medical recovery from his accident-related orthopaedic injuries”. I am persuaded by Dr. Rusen’s report because the applicant has not directed me to grounds for further investigation or why an orthopaedic assessment is required and this injury is not related to the subject accident.
24Based on the evidence, I find that there are no grounds on which to believe a condition exists that would warrant further investigation by way of an assessment. I find the applicant has not met his onus in demonstrating the orthopaedic assessment is reasonable and necessary.
25I find on a balance of probabilities the orthopaedic assessment is not reasonable and necessary.
Interest
26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing the applicant is not entitled to interest.
ORDER
27The applicant is not entitled to the treatment plans.
28As there are no overdue benefits, the applicant is not entitled to interest.
29The application is dismissed.
Released: September 18, 2025
Aric Bhargava
Adjudicator