Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 24-001389/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:
Zuhair Qaqish
Applicant
and
Allstate Insurance
Respondent
DECISION
ADJUDICATOR: Matthew Frontini
APPEARANCES:
For the Applicant: Kelisa Reyes, Paralegal
For the Respondent: Nathan M. Fabiano, Counsel
HEARD: By way of written submissions
OVERVIEW
1Zuhair Qaqish, the applicant, was involved in an automobile accident on February 16, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule"). The applicant was denied benefits by the respondent, Allstate Insurance, 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 $3,025.00 for a physiatry assessment, proposed by HAL Disability Management Inc. in a treatment plan/OCF-18 ("plan") dated January 1, 2022 (the "Physiatry Assessment Plan")?
ii. Is the applicant entitled to $3,081.50 for a chronic pain assessment, proposed by HAL Disability Management Inc. in a treatment plan dated December 21, 2022 (the "Chronic Pain Assessment Plan")?
iii. Is the applicant entitled to $1,030.00 ($3,590.00 less $2,560.00 approved) for a neurological assessment, proposed by HAL Disability Management Inc. in a treatment plan dated November 8, 2023 (the "Neurological Assessment Plan")?
iv. Is the applicant entitled to $1,418.06 for assistive devices, proposed by Healthmax Physiotherapy Thornhill in a treatment plan dated February 14, 2022 (the "Assistive Devices Plan")?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant is not entitled to $3,025.00 for the Physiatry Assessment Plan.
ii. The applicant is not entitled to $3,081.50 for the Chronic Pain Assessment Plan.
iii. The applicant is not entitled to $1,030.00 ($3,590.00 less $2,560.00 approved) for the Neurological Assessment Plan.
iv. The applicant is not entitled to $1,418.06 for the Assistive Devices Plan.
v. The respondent is not liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant.
vi. The applicant is not entitled to interest on any overdue payment of benefits.
vii. The application is dismissed.
ANALYSIS
The applicant is not entitled to the Physiatry Assessment Plan
4I find that the applicant has not established on balance of probabilities that this treatment plan is reasonable and necessary. The applicant's submissions do not identify contemporaneous medical evidence that establishes that the Physiatry Assessment Plan is reasonable and necessary.
5To 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, in this case, an assessment, is reasonable and necessary as a result of the accident. The purpose of an assessment is to determine whether a condition exists. The applicant bears the onus to demonstrate on a balance of probabilities that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
6The applicant submits that he has been experiencing persistent pain for over a decade following the accident. The applicant relies on the treatment plan itself and the findings arising from incurring the Physiatry Assessment Plan, contained in the assessment report of Dr. Dessouki, physiatrist, dated March 1, 2023. The purpose of Dr. Dessouki's assessment was to provide an opinion on the extent the applicant's injuries following the accident and whether the applicant qualifies for Post-104 Income Replacement benefits.
7I am not persuaded that the evidence before me establishes that the Physiatry Assessment Plan is reasonable and necessary. It is well-established that an OFC-18 alone, unsupported by contemporaneous corroborating medical evidence, is insufficient to meet the applicant's burden to establish the reasonableness and necessity of the plan. The applicant's submissions do not refer to any other contemporaneous medical evidence that would support the services set out in the Physiatry Assessment Plan.
8Further, I am not persuaded that the findings of Dr. Dessouki's assessment report establish that the Physiatry Assessment Plan is reasonable and necessary. While the applicant incurred the treatment plan more than a year after its submission to the respondent, in my view, it does not provide the basis for the approval of the plan itself. First, the evidence contained in the assessment report itself did not exist at the time the Physiatry Assessment Plan. Further, the applicant's submissions do not refer to other evidence, either pre-dating or contemporaneous with the Physiatry Assessment Plan, in support of its reasonableness and necessity. As such, I place very little weight on Dr. Dessouki's opinion.
9As the applicant's submissions have not identified contemporaneous supporting medical evidence in support of the Physiatry Assessment Plan, I find that he has not established on balance of probabilities that he is entitled to this plan.
The applicant is not entitled to the Chronic Pain Assessment Plan
10I find that the applicant has not established on balance of probabilities that this treatment plan is reasonable and necessary.
11The applicant relies on several pieces of evidence to support his submissions that the disputed plan is reasonable and necessary. One of these comprises imaging reports dating from 2016 - 2022, which show progressive degenerative changes. The applicant also relies on Dr. Dessouki's report, dated March 1, 2023, which concludes that the applicant suffers chronic pain. Finally, the applicant's submissions specifically reference that on April 18, 2023, the applicant provided the respondent with various clinical notes and records. The applicant further argues that the respondent did not re-assess this treatment plan in "light of the new medical documentation".
12The respondent's submissions focus on the lack of contemporaneous medical evidence to establish that an investigation of chronic pain as a result of the accident is warranted. The respondent notes the lack of any reference to the accident to the applicant's family doctor for years. The respondent also relies on the s. 44 assessment reports of Dr. Ismail, dated August 24, 2014, and January 30, 2015, and, Dr. Hosseini, dated June 6, 2024. In particular, the respondent emphasizes that Dr. Ismail's reports were authored close in temporal proximity to the accident and involved the review the of available medical evidence. Dr. Ismail, and later, Dr. Hosseini, both concluded that the applicant had reached maximal recovery under the MIG.
13The respondent also argues that I should place less weight on Dr. Dessouki's report because it was authored 10 years after the accident and because Dr. Dessouki did not review any medical documentation post-dating June 17, 2019. Instead, Dr. Dessouki relied entirely on the applicant's self-reporting regarding his medical condition from June 17, 2019, to December 20, 2022, the date of the assessment.
14Upon considering the evidence and submissions before me, I find that the applicant has not established that the Chronic Pain Assessment Plan is reasonable and necessary. The applicant has not identified specific, corroborating medical evidence that suggests that an investigation into chronic pain as a result of the accident is warranted.
15Specifically, the diagnostic imaging reports that the applicant relies on do not establish that the progressive degeneration they document is related to the accident. The applicant has not identified any medical evidence that links the imaging result to the accident. Furthermore, I place very little weight on Dr. Dessouki's opinion, given that it is not supported by any contemporaneous medical evidence and arises primarily from the applicant's self-reporting, which is not reflected in any contemporaneous medical records, such as to a family physician.
16Finally, the applicant's submissions that he provided the respondent with "new medical documentation" on April 18, 2023, do not convince me that he has met his evidentiary burden to establish that this plan is reasonable and necessary. This evidence was a snapshot of files that were purportedly provided to the respondent on April 18, 2023. While the files themselves were not provided in relation to this citation, the names of the files indicate that many of them pertain to the 2014 – 2019. The applicant's submissions do not specifically address which medical records, by healthcare provider and date, support that the Chronic Pain Assessment Plan is reasonable and necessary.
17For the foregoing reasons, I find that the applicant has not established that the Chronic Pain Assessment Plan is reasonable and necessary.
The applicant is not entitled to $1,030.00 ($3,590.00 less $2,560.00 approved) for the Neurological Assessment Plan
18I find that the applicant has not established on balance of probabilities that he is entitled to the amount in dispute in respect of the Neurological Assessment Plan. The applicant has not established that he is entitled to funding in respect of a treatment plan beyond the limits established by the Schedule.
19In addition to the test for entitlement for a treatment under s. 16 and 17, s. 25(5)(a) of the Schedule providers that an insurer shall not pay more that $2,000.00 plus applicable taxes in respect of any one assessment.
20The applicant's submissions focus on the reasonableness and necessity of this Neurological Assessment Plan. The applicant did not provide any submissions relating to the statutory limit established by s. 25(5)(a) of the Schedule.
21The respondent's submissions focus on s. 25(5)(a) of the Schedule and its partial approval of $2,200.00, the statutory limit, of the Neurological Assessment Plan. In the respondent's submission, it has paid the amount required under the Schedule and the applicant is not entitled to any further amounts in respect of this treatment plan.
22I agree with the respondent, s. 25(5)(a) of the Schedule is unambiguous. The applicant has not provided any authority or argument as to why s. 25(5)(a) does not apply to the Neurological Assessment Plan. As such, I find that the applicant is not entitled to $1,030.00 ($3,590.00 less $2,560.00 approved) for the Neurological Assessment Plan.
The applicant is not entitled to the Assistive Devices Plan
23I find that the applicant has not established on balance of probabilities that the Assistive Devices Plan is reasonable and necessary.
24The applicant's submissions in respect of this plan largely focus on the assumption that he has previously established that he is suffering pain as a result of the accident. The applicant relies on Tribunal precedent for the proposition that pain relief is a legitimate goal of treatment under the Schedule. Without describing any specifics of the Assistive Devices Plan, the applicant submits that it is reasonable and necessary because these devices will provide pain relief.
25The respondent submits that the applicant has not established that the Assistive Devices Plan is reasonable on necessary based on relevant, contemporaneous medical evidence. The respondent also relies on the assessment report of Dr. Hosseini, dated June 6, 2024, which concluded that the disputed plan was not reasonable and necessary, and that the applicant had reached maximum medical recovery.
26The applicant has not met his burden in providing submissions, based on medical evidence, as to why the disputed items, are reasonable and necessary. The applicant's submissions alone, that such devices provide pain relief, are insufficient to meet his burden under the Schedule. Furthermore, the evidence that applicant suffers chronic pain as a result of the accident, set out in Dr. Dessouki's assessment report, is not corroborated by other contemporaneous records.
27For the foregoing reasons, I find that the applicant has not established on balance of probabilities that the Assistive Devices Plan is reasonable and necessary.
The Respondent's Compliance with s. 38 of the Schedule
28The applicant also asserts that the treatment plan(s) for the Physiatry Assessment and Chronic Pain Assessment Plan are payable because of the respondent's alleged failure to comply with the notice requirements of s. 38(8) of the Schedule. As such, the applicant submits that these treatment plans are payable pursuant to s. 38(11).
The Physiatry Assessment Plan is not payable
29I find that the Physiatry Assessment Plan is not payable pursuant to s. 38(11). The applicant has not established that the respondent contravened the notice requirements of s. 38(8) of the Schedule in respect of this treatment plan.
30The applicant submits that the Physiatry Assessment Plan is payable because the respondent failed to provide a denial within 10 days of its receipt, contrary to the timeline imposed by s. 38(8). The applicant further submits that because of the respondent's contravention of s. 38(8), s. 38(11) is engaged and the respondent is prohibited from taking the position that the MIG applies to this treatment plan and the respondent must pay for all goods, services, assessments and examinations described in the Physiatry Assessment Plan that were incurred until the respondent gave a notice that complies with s.38(11). Finally, the applicant asserts that to date, the respondent has not provided proper notice and so must pay the full amount incurred.
31Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 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 a impairment to which the MIG applies.
32The applicant has not persuaded me that the respondent's denial letter contravened s. 38(8). While the applicant submits that the letter provides no meaningful reasons, the letter clearly states that the respondent has no contemporaneous medical evidence to indicate that the treatment is reasonable and necessary. Specifically, the letter requests the applicant's OHIP summary from 2017 to date and the applicant's family doctor's notes from 2019 to date to assess the reasonableness and necessity of the Physiatry Assessment Plan submitted in 2022. Contrary to the applicant's submissions, I find that these are medical reasons and that an unsophisticated individual would understand the denial letter and that the respondent had not been provided with relevant medical information to determine the reasonableness and necessity of the plan.
33Given my finding that the denial letter provided sufficient reasons as required by s. 38(8), the applicant's arguments regarding s. 38(8) 10-business day timeline and the operation of s. 38(11) are moot. Pursuant to s. 38(11), the applicant would only be entitled to payment for the Physiatry Assessment Plan if it was incurred before the date of the denial letter was received, February 22, 2022. The applicant's submissions indicate that the Physiatry Assessment Plan was incurred on December 20, 2022, after the shall-pay period established by s. 38(8). As such, this treatment plan is not payable pursuant to s. 38(11).
The Chronic Pain Assessment Plan is not payable
34I find that the Chronic Pain Assessment Plan is not payable pursuant to s. 38(11). The applicant has not established that the respondent contravened the notice requirements of s. 38(8) in respect of this treatment plan.
35The applicant raises the same argument regarding the alleged failure of the respondent's denial letter, dated January 3, 2023, to provide reasons for the denial of the Chronic Pain Assessment Plan.
36As with the previously discussed denial letter in relation to the Physiatry Assessment Plan, the January 3, 2023 denial letter clearly states that the respondent has no contemporaneous medical evidence to indicate that the Chronic Pain Assessment Plan is reasonable and necessary. The denial letter provides an unsophisticated reader with the reason, the absence of any current medical evidence, to indicate that the Chronic Pain Assessment Plan is reasonable and necessary.
37As the applicant has not established that the January 3, 2023 denial letter contravenes s. 38(8) and therefore the Chronic Pain Assessment Plan is not payable pursuant to s. 38(11).
Interest
38As I have found that the applicant is not entitled to any of the disputed treatment plans and there are no overdue payment of benefits, therefore, he is not entitled to interest pursuant to s. 51 of the Schedule.
Award
39I find that the applicant has not established that he is entitled to an award.
40The applicant sought an award under s. 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.
41As I have found that the respondent did not withhold or delay any payments, the applicant is not entitled to an Award.
ORDER
42I find that:
i. The applicant is not entitled to $3,025.00 for the Physiatry Assessment Plan.
ii. The applicant is not entitled to $3,081.50 for the Chronic Pain Assessment Plan.
iii. The applicant is not entitled to $1,030.00 ($3,590.00 less $2,560.00 approved) for the Neurological Assessment Plan.
iv. The applicant is not entitled to $1,418.06 for the Assistive Devices Plan.
v. The respondent is not liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant.
vi. The applicant is not entitled to interest on any overdue payment of benefits.
vii. The application is dismissed.
Released: January 12, 2026
Matthew Frontini Adjudicator