Licence Appeal Tribunal File Number: 23-011796/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:
Shevah Tietz
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
VICE-CHAIR: Geneviève Painchaud
APPEARANCES:
For the Applicant: Lisa Bishop, Counsel
For the Respondent: Christopher McCormack, Counsel
HEARD: By way of written submissions
OVERVIEW
1Shevah Tietz, the applicant, was involved in an automobile accident on August 26, 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, The Dominion of Canada General Insurance Company, 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 ("ACBs") in the amount of $3,000.00 per month from March 29, 2022, to date and ongoing?
ii. Is the applicant entitled to $5,786.89 for occupational therapy services proposed by Innovative OT in an OCF-18/treatment plan ("plan") submitted April 14, 2022?
iii. Is the applicant entitled to $3,706.89 for a home modification assessment proposed by Innovative OT in a plan submitted June 8, 2022?
iv. Is the applicant entitled to $1,745.96 ($5,668.28 less $3,922.32 approved) for psychological services proposed by InnerQore Health Psychology and Wellness in a plan submitted January 2, 2024?
v. Is the applicant entitled to interest on any overdue payment of benefits?
vi. Is the respondent liable to pay an award under s. 10 of Reg 664 because it unreasonably withheld or delayed payments to the applicant?
3The applicant withdrew issue 3 as listed in the case conference report and order of March 18, 2024.
4The applicant reduced the monthly amount sought from $3,093.94 per month to $3,000.00 per month for the ACBs as previously outlined in in the case conference report and order of March 18, 2024.
RESULT
5Based on the totality of the evidence before me, and for the reasons that follow, I find:
i. The applicant is not entitled to attendant care benefits.
ii. The applicant is not entitled to the assessment and treatment plans.
iii. The applicant is not entitled to interest.
iv. The applicant is not entitled to an award.
ANALYSIS
The accident
6The applicant submits that on August 26, 2019, he was a pedestrian in a parking lot when a vehicle backed into him, causing him to jump away quickly and landing in a way that immediately caused his knee to pop and give way. The driver fled the scene.
7The applicant then called his wife who drove him to the hospital.
8Over the next couple of weeks, he had several imaging tests performed which ultimately confirmed a tear of meniscus of knee.
9The respondent submits there is no objective evidence of the incident, and that the applicant was inconsistent in his reporting of if he made any contact with the vehicle or if he fell on the ground. There is also inconsistency with dates surrounding the events as follows:
i. The August 26, 2019 notes from triage at the hospital indicate "no fall", notes from the nurse indicate "fell on right knee" and notes from doctor indicated he "landed on the right knee and felt a popping and giving way".
ii. The August 26, 2019 notes from Dr. Portnoi, the applicant's family doctor indicated that the accident happened the day before, on August 25.
iii. The police report indicates it was filed on August 29, 2019 and that the accident happened August 29. In his submissions the appellant states that he reported the incident on August 26 while the driver fled the scene, yet in his written statement in evidence, he states that he went to the collision centre to report the incident a few days later, on August 29.
iv. The applicant's signed statement to the respondent dated September 23, 2019, indicates he "didn't fall to the ground".
v. March 10, 2022, occupational therapy in-home assessment report by Sohaib Nehal, OT quotes the applicant saying felt a vehicle hit him on the left side of the body.
10The evidence provided corroborates that the applicant had to make a sudden move as a car was backing into him, and that sudden move impacted his right knee, resulting in pain. While there is contradictory evidence of the exact date of the accident, I accept it is most likely August 26, 2019.
Pre-accident right knee issues
11The applicant makes no mention of any pre-accident issue with his right knee in his submissions.
12The respondent submits that the applicant continuously failed to report and falsely deny a pre-existing right knee impairment to assessors and post-accident treating practitioners.
13In support for a pre-accident right-knee impairment, the respondent points to, and I observe:
i. In April 2019, Dr. Tran notes that the applicant had a long-standing right knee impairment that was getting worse, that he had pain with mobilization, that his right knee pain was not yet diagnosed and ordered an ultrasound.
ii. In May 2019, Dr. Portnoi's notes indicate that an ultrasound of the right knee showed small joint effusion.
iii. On August 26, 2019, Dr. Portnoi's notes indicate that the applicant fell on his right knee, where he had pain before. The records also indicate that the applicant had a right knee ultrasound recently, prior to the injury, but that Dr. Portnoi did not yet have this report.
14The respondent argues that the post-accident assessors and treating practitioners were not told or were misled about the pre-accident right-knee impairment, as per the evidence in the following reports and notes:
i. The September 21, 2020, s. 44 orthopedic report by Dr. Dessouki indicates that "There was no documentation to demonstrated that Mr. Tiez has a pre-existing issue…Mr. Tiez denied any pre-existing issue with his right knee". On the other hand, while reviewing an OCF-18 completed by Igor Sapozhikov, chiropractor, he noticed there was a note indicating the patient has a right knee pre-existing condition.
ii. On March 1, 2021, the consultation notes of Dr. Wasserstein, orthopedic surgeon, indicates that the applicant was previously asymptomatic on his right knee. His June 7, 2021 notes indicate that the applicant denied any previous history of knee pain.
iii. On May 31, 2022, an in-home assessment report addressing ACBs conducted by Dr. Baskind, neurologist, indicates that the applicant mentioned that he began to experience pain in his right knee following the accident, but besides low back pain, his health history was otherwise unremarkable.
iv. On May 31, 2022, an in-home occupational therapy assessment report by Lee Birbragor, OT, highlights that the appellant reported swelling of this left knee 5-7 years prior. There was no mention of pre-accident issues with the right knee.
15I find that the applicant did have a pre-accident right-knee impairment and that he failed to disclose it to medical practitioners and assessors, which could have impacted their findings and recommendations.
Post-accident right knee issues
16On the day of the accident, Dr. Claridge of Mackenzie Richmond Hill Hospital diagnosed an "MCL sprain and possible meniscus, possible ACL".
17Surgery was booked to repair the tear, but COVID hospital closures delayed the procedure.
18On March 1, 2021, Dr. Wasserstein of Sunnybrook Hospital diagnosed the applicant with:
i. Right knee medial compartment arthrosis.
ii. Right knee posterior horn medial meniscus tear, complex.
iii. Right knee lower extremity mild varus alignment.
19Dr. Wasserstein's report states that the applicant was previously asymptomatic on the right knee and recommended the applicant try a medial unloader brace, an injection of hyaluronic acid and consider surgery.
The applicant is not entitled to ACBs in the amount of $3,000.00 per month from March 29, 2022, to date and ongoing
20I find the applicant has not established that he is entitled to payment of ACBs.
21Section 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 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 version of the document entitled Assessment of Attendant Care Needs ("Form-1").
22A Form-1 completed by Sohaib Nehal, OT, was submitted on March 17, 2022, proposing ACBs of $3,093.94 per month.
23On March 28, 2022, the respondent advised it was unable to approve the Form-1 based on the fact the accident happened approximately two and a half years prior, and that the medical evidence did not support it. It offered to pay up to $3,000.00 of incurred ABCs pending receipt of insurer examination reports. No invoices of ACBs were provided.
24On June 13, 2022, the respondent advised the applicant that it had determined that the Form-1 is not reasonable and necessary and that he no longer required attendant care services based on s. 44 assessors' opinions and medical documentation.
25The applicant submits that ACBs are necessary to assist him in getting back to his regular activities and tasks safely. He points to an occupational therapy in-home assessment report dated March 10, 2022, by Nehal recommending 315 minutes of monthly assistance at a cost of $3,093.94 but makes no further substantive submission in support.
26The Nehal report recommends the following minutes of assistance per week, for a total of over 46 hours per week of assistance:
i. Dress: 70
ii. Undress: 70
iii. Grooming: 50
iv. Feeding: 420
v. Mobility: 840
vi. Hygiene: 75
vii. Basic Supervisory care: 840
viii. Co-ordination of attendant care: 60
ix. Exercise: 240
x. Medication: 30
xi. Bathing: 75
xii. Maintenance equip./supplies: 30
27The respondent submits that the multidisciplinary s. 44 reports do not support ACBs as being necessary. It points to the May 31, 2022, ACB assessment report by Dr. Baskind, neurologist, stating that he is currently independent with his personal care, that he has no difficulty walking or transferring from standing to sitting and that from a strictly neurological perspective the ACBs requested in the Form-1 are not reasonable or necessary.
28The respondent also points to a s.44 orthopedic assessment report by Dr. Dessouki, orthopedic surgeon, dated May 31, 2022, evaluating ACBs. Dr. Dessouki concluded that based on the applicant's history, physical examination, and review of the documentation provided, the applicant's accident-related diagnosis is consistent with cervical strain, bilateral shoulder strain, lumbosacral strain and right knee sprain. Also, the limitations described by the applicant were not consistent with the limitations observed in the assessment. Finally, he concluded that the expenses on the Form-1 were not reasonable or necessary as a direct result of the accident as there is no objective evidence of residual musculoskeletal impairment attributable to the injuries sustained in the accident.
29The respondent also ordered a s. 44 occupational therapy in-home assessment by Lee Birbragor, OT whose report is dated May 31, 2022, and concludes that the applicant does not require ACBs and that he is independent with his personal care tasks.
30As for the surveillance obtained in August 2022 provided by the respondent, it shows the applicant walking, working and carrying garbage bags, and going over a fence, without any apparent difficulty.
31Because of the following reasons, I find the applicant is not entitled to ACBs.
32I find that the omission and denial of the existence of pre-accident right knee pain by the applicant significantly impacts his credibility and the findings in the Nehal assessment. Although Nehal did indicate she accessed the notes of Dr. Portnoi of August 26, 2019, she does not mention any pre-accident knee issues, nor appears to consider it as she states that the applicant denied any pre-accident medical history. I am led to conclude that the assessment by Nehal could have come to significantly different conclusions if the true information was provided.
33I also find there is contradictory information in the applicant's reports of the impact of the accident on his activities of daily living from one assessor to another. The assistance that Nehal recommended covers many activities of daily living that the applicant told other assessors he was independent with. Therefore, I find that the Nehal report is flawed and exaggerated and give limited weight to the report.
34Although the s. 44 assessors were also misled about the pre-existing right knee issues, Dr. Dessouki did notice inconsistencies between what he was observing and what the applicant was claiming, again impacting the applicant's credibility. Dr. Dessouki did not consider any pre-existing right-knee issue as the applicant denied it.
35The surveillance evidence taken only a few months after the assessments is also inconsistent with some of the self-reports of the applicant to assessors and does not appear to show the applicant needing any assistance or having difficulty in walking or performing tasks and the applicant appeared to be working at his job.
36I also have no evidence of incurred ACBs, and s. 19 of the Schedule is clear that insurers are only liable to pay for incurred ACBs, and s. 3(7) defines what is required to meet the definition of incurred. Without any evidence from the applicant on this, I am unable to find that any ACBs have been incurred. The applicant does not request that I deem them incurred under s. 3(8), and I decline to do so.
37Given the credibility issues with the applicant's OT report, the surveillance evidence, reports indicating independence with activities of daily living, and no evidence of incurred ACBs, I find that the applicant has not shown, on a balance of probabilities, that he is entitled to ACBs from March 29, 2022, to date and ongoing.
The applicant is not entitled to $5,786.89 for occupational therapy services
38I find the applicant has not established that he is entitled to occupational therapy services.
39To receive payment for a treatment and assessment plan under 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.
40The applicant submits that the OCF-18 treatment plan proposed by Nehal on April 14, 2022, is reasonable and necessary. The goal of the treatment plan is to achieve a return to activities of daily living and is part of a multidisciplinary approach including physiotherapy, chiropractic, psychological and massage services. Nehal's plan proposes 10 treatments over 12 weeks at a cost of $2,294.30 plus provider travel time of $1,496.30, and the balance being planning, preparation and documentation for a total of $5,786.89.
41In support of the treatment plan, the applicant points to the Nehal occupational therapy in-home assessment report dated March 10, 2022, and highlights the following from the report:
i. The applicant stated that when pain is severe, "I am walking from seat to seat… when I am in pain, I use a cane, otherwise I am limping".
ii. The applicant stated he has to push himself to do more than he is comfortable doing and pays the price later.
iii. Nehal noted that the applicant cannot meet the physical and cognitive demands of the job he is engaged in.
42The applicant argues that there is evidence supporting other accident-related issues beyond the right knee, as he reported weight gain, feeling pessimistic, work performance impacts, back pain, headaches, etc. in his meetings with his family doctor as per Dr. Portnoi's notes. Dr. Portnoi recommended continuing rehabilitation and psychotherapy and referred him to Dr. Joshi for his headaches.
43On August 5, 2021, Dr. Portnoi completed an OCF-3 and diagnosed adjustment reaction, dysthymia, meniscus tear, sciatica, low back strain, headache and non-organic insomnia as a result of the accident.
44The respondent submits that the inconsistent self-reports of the applicant, the surveillance and the fact the applicant has continued to work since the accident support the denial, and that the Nehal report should not be given any weight.
45Because of the following reasons, I find the applicant is not entitled to occupational therapy services.
46Again, I find that the omission and denial of the existence of pre-accident right-knee pain by the applicant significantly impacts his credibility, and well as contradictory statements to different assessors and treating practitioners. I am led to conclude that the assessment by Nehal could have come to significantly different conclusions with the complete pre-accident information considered and accept the respondent's position that I accord no weight to the report.
47The inconsistencies in the applicant's ability to move is demonstrated through limitations described by the applicant to assessors describing his movements as slow and cautious. Such self-reports were not consistent with the majority of the evidence, such as those observed in the s. 44 assessments and the surveillance video, where the applicant does not appear to have limitations as he is seen carrying garbage bags, climbing over a fence and walking normally.
48Also, I find Nehal's treatment plan somewhat vague in its objective of achieving a return to activities of daily living by addressing barriers impeding normal daily function. It is unclear if she is treating the applicant's knee or any other issue. I also find it is an unreasonable cost for 10 treatments as it proposes a significant amount of costs for planning and reporting. The applicant did not provide submissions or evidence on why such a high cost for planning and reporting was reasonable and necessary.
49Although I agree that the OCF-3 completed by Dr. Portnoi's described in paragraph 43 makes several diagnoses, it was completed 8 months prior to the treatment plan at issue and I have not been pointed to other evidence to suggest the diagnosis was identical 8 months later, nor what other treatments were undertaken during that period.
50Had the applicant been forthcoming about his pre-existing impairment, the assessors would have had the complete medical history to conduct a fulsome assessment. and if the applicant's condition was aggravated or not by the accident, but unfortunately, the assessors were unable to evaluate this.
51Based on this, I find that the applicant has not shown, on a balance of probabilities, that he is entitled to the occupational therapy treatment plan.
The applicant is not entitled to $3,706.89 for a home modification assessment
52I find the applicant has not established that he is entitled to a home modification assessment.
53Again, under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities s that the benefit is reasonable and necessary as a result of the accident.
54An OCF-18 proposed by Helen Leimonis, OT, and submitted on June 8, 2022, for a home modification assessment describes the goal being to address accessibility/modifications and provide a quote for items to increase client safety and independence for the applicant to achieve a return to activities of daily living. It appears to be focused on the applicant's bathroom, based on the assessment from Nehal.
55The respondent denied the treatment plan based on the following:
i. Dr. Dessouki opined that the applicant does not have an impairment that requires the need for attendant care or assistive devices as a result of the motor vehicle accident.
ii. Dr. Baskind concluded that from a strictly neurological perspective, ACBs and the expenses noted on the Form-1, dated February 9, 2022, are not reasonable and necessary.
iii. Birbrager noted that based on this occupational therapy in-home assessment, from a functional perspective, the applicant reported that he is currently independent with his personal care tasks.
56I find the evidence fails to demonstrate that a home modification assessment is reasonable and necessary for the following reasons:
i. The OCF-18 is based on the Nehal assessment which I have already found to be of limited persuasive value because it was misinformed.
ii. In the OCF-18, Ms. Leimonis marked the applicant's prior and concurrent conditions as unknown and includes amounts for education of applicant safety and transfer. The evidence calls into question the necessity of the applicant needing assistance with transfer as only Nehal came to that conclusion, and it does not appear to even be a need expressed by the applicant.
iii. The lack of information about the applicant's pre-accident condition and situation undermines the validity of conclusions made. The conclusions made by Leimonis are mostly based on self-reports of the applicant and on the Nehal report.
iv. I therefore find that the assessments such as the one conducted by Dr. Baskind and Dr. Jwely, where the applicant states that he is currently independent with his personal care, are more convincing as they are supported by the majority of the evidence presented.
v. The applicant does not appear to find home modifications in his bathroom to be necessary nor due to the accident based on his statements to assessors where he describes being independent with his personal care tasks.
57Based on this, I find that the applicant has not shown, on a balance of probabilities, that he is entitled to a home modification assessment.
The applicant is not entitled to $1,745.96 ($5,668.28 less $3,922.32 approved) for psychological services
58An OCF-18 proposed by Dr. Jeremy Frank, psychologist, was submitted January 2, 2024, and is supported by his psychological assessment report dated December 8, 2023.
59The treatment plan's goal is to achieve a return of activities of daily living and pre-accident work activities and proposes 16 session of cognitive behaviour therapy of 1.5 hours in length.
60Dr. Frank's plan is supported by his assessment report where he diagnosed the applicant with PTSD, somatic symptom disorder with predominant pain moderate to severe and major depressive disorder with anxious distress moderate in severity.
61The respondent denied the treatment plan in part because it had been over four years since the accident and because a previous treatment plan was approved in 2021 for counselling sessions which were not completed as only one session was attended. It requested an insurer's examination be conducted.
62Dr. Ahmed Jwely, psychiatrist, conducted the psychiatry assessment on behalf of the insurer on April 3, 2024, where he diagnosed the applicant with chronic adjustment disorder (mixed) mild to moderate and somatic symptom disorder. He agreed in part with Dr. Franks' proposal and suggested that approving 10 sessions rather than 16 and 3 planning service rather than 5 would be more appropriate given the need to evaluate the applicant's response to therapy over time.
63The applicant points to Dr. Jwely's opinion that 6 to 12 months of targeted psychiatric and psychological interventions could result in substantial improvements.
64The respondent submits that the applicant only attended one of the ten approved sessions between April 24, 2024, when they were approved, to August 26, 2024, when the 5-year entitlement to non-CAT medical benefits expired, and that therefore the claim is without merit.
65I find the evidence fails to demonstrate that the balance of the psychological services treatment plan is reasonable and necessary because the applicant has not used the psychological treatment approved beyond one session. It is reasonable for the respondent to have approved the plan in part, subject to evaluating the applicant's response to therapy, especially as he did not make full use of a previously approved psychological treatment plan.
66I am not concluding that psychological treatment for the applicant is not reasonable or necessary. I am simply concluding that the applicant was approved for psychological treatment he has not used. The applicant has therefore not met his onus to prove that additional treatment is reasonable or necessary.
67Based on this, I find that the applicant has not shown, on a balance of probabilities, that he is entitled to the balance of the psychological treatment plan.
Interest
68Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
69As no benefits are overdue, no interest is payable.
Award
70The applicant sought an award under s. 10 of Reg. 664.
71Under 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.
72Without a finding of entitlement to a disputed benefit, I find there is no basis for an award.
73I therefore concluded that the applicant is not entitled to an award.
ORDER
74For the reasons outlined above, I find that:
i. The applicant is not entitled to attendant care benefits.
ii. The applicant is not entitled to the assessment and treatment plans.
iii. The applicant is not entitled to interest.
iv. The applicant is not entitled to an award.
75The application is dismissed.
Released: October 2, 2025
Geneviève Painchaud
Vice-Chair