Licence Appeal Tribunal File Number: 24-010474/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:
Akram Jabarkhil
Applicant
and
SGI Canada Insurance Services Ltd.
Respondent
DECISION
ADJUDICATOR:
John Mazzilli
APPEARANCES:
For the Applicant:
Hufriz Turel, Paralegal
For the Respondent:
Jonathan Heeney, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Akram Jabarkhil, ("the applicant"), was involved in an automobile accident on June 8, 2022, 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 SGI Canada Insurance Services Ltd ("the respondent") and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
ISSUES
2The issues in dispute are:
Is the applicant entitled to services proposed by Physiomed Sherway as follows:
i. $2,965.50 for a physiotherapy services, in a treatment plan/OCF-18 ("treatment plan") submitted July 17, 2022;
ii. $2,965.50 for a chiropractic services, in a treatment plan submitted August 11, 2022; and
iii. $2,366.50 for a chiropractic services, in a treatment plan submitted September 1, 2023?
Is the applicant entitled to the assessments proposed by Downsview Healthcare Inc., as follows:
i. $2,486.00 for a neurological assessment, in a treatment plan submitted September 21, 2022; and
ii. $2,486.00 for a chronic pain assessment, in a treatment plan submitted August 30, 2024?
Is the applicant entitled to $2,486.00 for an attendant care assessment, proposed by Dr. Oleksandr Pivtoran in a treatment plan submitted December 1, 2023?
Is the respondent liable to pay an award under s. 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 chiropractic and physiotherapy treatment plans.
4The applicant is entitled to $2,486.00 for a neurological assessment.
5The applicant is entitled to $2,486.00 for a chronic pain assessment.
6The applicant is not entitled to an attendant care assessment.
7Interest is owing on $2,486.00 for a neurological assessment and $2,486.00 for a chronic pain assessment in accordance with s.51.
8The applicant is not entitled to an award.
ANALYSIS
9To receive payment for a treatment and assessment plan 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.
The chiropractic services and physiotherapy treatment plans-Issues 1. i. ii. and iii.
10I find on a balance of probabilities that the applicant is not entitled to the disputed chiropractic and physiotherapy treatment plans because they are not reasonable and necessary.
11The applicant submits as a result of the accident he suffers from WAD 2 with complaints of neck pain, stiffness and tenderness, radiculopathy in the cervical spine, headaches, anxiety, PTSD, disturbed sleep, and pain in his cervical, thoracic, and lumbar spine. He argues that the decreased range of motion in his spine has been unmanageable. The applicant relies on the clinical notes and record ("CNRs") of Dr. Daya, physician, the CNRs of Physiomed Sherway, the CNRs of Dr. Abdukhaliq, family physician and X-rays of his thoracic and lumbar spine dated May 21, 2023.
12The respondent argues that the applicant sustained soft tissue injuries to his neck and back as a result of the accident. The respondent argues that the applicant was rarely seen by a family physician and that he continues to work in a physically demanding job as a truck driver and remains independent with his activities of daily living and caregiving to his child. The respondent relies on the reports of Dr. Oshidari, physiatrist dated August 22, 2023, December 21, 2023, January 24, 2024, October 4, 2024, and December 5, 2024.
13During the period of the disputed treatment plans the applicant provided limited medical documentation that support his request for treatment which is required for a finding that the plans are reasonable and necessary. For example, the applicant attended a walk-in clinic 8 days post accident and the CNRs from Lakeshore Village Walk in Medical clinic on this day shows that the applicant suffered a mild cervical strain and a subsequent x-ray of the applicant's cervical spine dated June 21, 2022, was unremarkable. On October 12, 2022, the applicant attended his first post accident appointment with his family physician and complained about pain in his neck and lower back, however Dr. Abdukhaliq's examination of the applicant was unremarkable. The evidence of an unremarkable x-ray and an unremarkable examination by his family physician do not support a finding that the plans are reasonable and necessary.
14For the reasons above, namely the lack of documented contemporaneous corroborating medical evidence that supports the plans to be reasonable and necessary I accept the medical reasons for the respondent's denial of the plans based on the medical assessment and opinion of Dr. Oshidari that "as long as the psychological condition is not under control, the chances of physical treatment assisting him would be unusual. Therefore, the treatment plan dated September 1, 2023, submitted by Physiomed is not reasonable or necessary. Specifically, my objective findings revealed there is no sign of cervical radiculopathy. All of the symptoms are related to soft tissue injuries to the cervical and lumbar spine."
15I find on a balance of probabilities that the applicant is not entitled to the disputed chiropractic and physiotherapy treatment plans for issues 1.i., ii., and iii because they are not reasonable and necessary.
$2,486.00 for a neurological assessment-September 21, 2022
16I find on a balance of probabilities that the applicant is entitled to $2,486.00 for a neurological assessment because it is reasonable or necessary.
17The applicant submits that a neurological assessment is reasonable and necessary to address the worsening frequency and intensity of his migraine headaches, and to evaluate his cervical and thoracolumbar spine radiculopathy symptomatology. The applicant submits that he made regular visits at Rivlin Medical Group, a pain management clinic where he received intervention nerve block injections. The applicant relies on the OCF-18 dated September 30, 2022, completed by Dr. Basile, neurologist, and the CRNs of Dr. Sehdev, physician at Rivlin Medical Group.
18The respondent argues that it's s.44 neurological assessor Dr. Nikneshan diagnosed the applicant to suffer from persistent headaches that were secondary to trauma in the neck because of whiplash (WAD 2), which it argues is not a neurological impairment. It argues that the neurological examination was normal with no features to indicate significant trauma related to myelopathy, radiculopathy, or neuropathy. The respondent relies on the report of Dr. Nikneshan, neurologist dated November 10, 2023.
19I find that the applicant is entitled to a neurological assessment because the evidence shows that the applicant may suffer from an accident-related neurological injury. In his report, Dr. Nikneshan opines that no functional or physical limitations were identified on the beside neurological examination, however he further opines that the applicant has not reached maximum medical recovery from a neurological standpoint because he has ongoing headaches which have not been treated properly. Dr. Nikneshan recommended the applicant begin Nortriptyline of 20-30 milligrams before bed for a minimum of three months.
20The evidence shows that the applicant has been receiving a course of nerve block injections and the medication recommendation of Dr. Nikneshan shows that while Dr. Nikneshan's assessment was assistive to the applicant because Dr. Nikneshan's opinion that the applicant was not prescribed the proper medications from other health care providers to assist with his recovery, it also shows that a neurological assessment is reasonable and necessary because the applicant's ongoing accident-related headache complaints and treatment such as nerve block injections and Nortriptyline may suggest a possible neurological injury, that in my view supports a finding that a neurological assessment is reasonable and necessary.
21I find on a balance of probabilities that the applicant is entitled to $2,486.00 for a neurological assessment because it is reasonable or necessary.
$2,486.00 for a chronic pain assessment
22I find on a balance of probabilities that the applicant is entitled to $2,486.00 for a chronic pain assessment because it is reasonable and necessary.
23The applicant submits that the chronic pain assessment conducted by Dr. Louvish shows that he suffers from chronic pain in accordance with the American Medical Association Guidelines ("AMA Guides"). The applicant submits that the goal of the chronic pain assessment is to evaluate the extent of the patient's chronic injuries and psychological complaints and to provide a prognosis and recommendations for recovery. The applicant relies on the OCF-18 dated August 30, 2024, complete by Dr. Karmy, physician, the CNRs of Dr. Briggs, physician, the CNRS of Dr. Sehdev, physician and the chronic pain report of Dr. Louvish, chronic pain specialist dated February 18, 2025, and an MRI of the applicant's spine dated May 22, 2024, conducted at St. Joseph's Health Centre.
24The respondent argues that the medical evidence does not support a finding that the applicant suffers from chronic pain in accordance with the AMA Guides. It argues that the applicant has returned to work and there is limited evidence to support he has withdrawn from his social life and is independent with activities of daily living. The respondent relies on the paper review report of Dr. Oshidari dated October 24, 2024, and his addendum paper review report dated December 5, 2024, and the psychological report of Dr. McCutcheon, psychologist dated November 10, 2023.
25It is important to note that the respondent in its submissions makes arguments that refute Dr. Louvish's finding that the applicant suffers from chronic pain in accordance with the AMA Guides, however I note that my analysis of whether the chronic pain assessment is reasonable and necessary does require me to make a finding based on Dr. Louvish's report. My considerations involve an analysis of the persuasiveness of the medical evidence before me that support or refute investigation by way of an assessment, and I find the evidence supports a finding that a chronic pain assessment is reasonable and necessary, for the following reasons.
26In its denial of the assessment the respondent relied on the medical opinion of Dr. Oshidari. Dr. Oshidari opined that "The MRI of the spine discussed some spinal stenosis and some bulging discs. There is no documentation of only structural or physiological abnormality to make my opinion change. Also, as mentioned before, there is no psychological report that this individual suffers from somatic pain disorder." I do not accept Dr. Oshidari's opinion because the contemporaneous corroborating evidence shows that the applicant's physical and psychological injuries warrant a chronic pain assessment.
27For example, Dr. McCutcheon opined that the applicant meets the criteria for a DSM-5-TR adjustment disorder with mixed anxiety and depressed mood as a result of the accident. Dr. McCutcheon in her assessment also administered the Pain Patient Profile ("P-3") test and noted that "his somatization score suggests that the applicant considers his somatic problems to be serious and feels somewhat threated and vulnerable".
28In addition, the applicant's physical injuries related to his neck, headaches and lower back pain have been consistently documented by his treating health care providers and the MRI of May 22, 2024, shows the applicant suffers from "a mild sub acute endplate fracture of the T12 vertebral body, loss of vertebral height, spinal stenosis due to disc bulge, bilateral facet arthritis, and right foraminal stenosis." The combination of the applicant's psychological and physical accident-related injuries and the passage of time, which I note is approximately two years post accident, in my view supports a finding that a chronic pain assessment is reasonable and necessary.
29I find on a balance of probabilities that the applicant is entitled to a chronic pain assessment in the amount of $2,460.00 because it is reasonable and necessary.
$2,486.00 for an attendant care assessment
30I find on a balance of probabilities that the applicant is not entitled to an attendant care assessment because it is not reasonable and necessary.
31The applicant submits that an attendant care assessment is reasonable and necessary so that the applicant's physical and functional limitations can be seen in his home environment. The applicant submits that the respondent denied the assessment based on the report of Dr. Oshidari who is not a qualified expert in occupational therapy. The applicant relies on the OCF-18 dated November 27, 2023, completed by Dr. Pivtoran, chiropractor.
32The respondent argues that the applicant suffered from accident-related soft tissue injuries and that because of these injuries that applicant does not demonstrate a functional impairment. The respondent relies on the paper review report dated January 2, 2024, completed by Dr. Oshidari, physiatrist.
33The OCF-18 requests an attendant care benefits determination and completion of a Form-1 that I find is not reasonable and necessary because the contemporaneous evidence shows that at the time of the requested assessment the applicant worked as a truck driver, he was independent in his activities of daily living, and independent with his grooming and bathing. This is corroborated by the reports Dr. Oshidari that advise that the applicant is independent with all activities of daily living, and house chores. The neurological report of Dr. Nikneshan indicates no functional or physical limitations, and the psychological report of Dr. McCutcheon further indicate that the applicant can perform self-care activities such as dressing, bathing, and grooming independently.
34For the reasons above I find on a balance of probabilities that the applicant is not entitled to an attendant care assessment because it is not reasonable and necessary.
Interest
35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest is owing on $2,486.00 for a chronic pain assessment and $2,486.00 for a neurological assessment in accordance with s.51 of the Schedule.
Award
36I find that the respondent is not liable to pay an award to the applicant.
37The 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.
38The applicant submits that the respondent acted unreasonably by withholding benefits and failed to adjust the file in a timely manner so that the applicant could recover from his injuries, and instead the applicant was made to suffer. He argues that the respondent's unwillingness to collaborate with him was harsh, stubborn, and insensitive and has led him to suffer from chronic pain because of the lack of treatment it had approved.
39The respondent argues that it has at all material times acted in good faith and in accordance with the provisions in the Schedule based on the medical records and results of its s.44 assessors. It argues that there is no evidence of bad faith, unreasonable delay or withholding of benefits because its denials were based on the opinion of independent experts.
40I find that the respondent is not liable to pay an award to the applicant. While I do find that a neurological assessment and a chronic pain assessment are reasonable and necessary, the respondent did rely on the opinions of independent medical experts in its approval and denials during the adjustment of the file, which I find does not amount to behavior that meets the threshold of acting stubborn, unyielding, or vexatious in its adjustment of the file. Accordingly, I find that the applicant is not entitled to an award.
ORDER
41It is ordered that:
i. The applicant is not entitled to the disputed chiropractic and physiotherapy treatment plans.
ii. The applicant is entitled to a neurological assessment in the amount of $2,486.00.
iii. The applicant is entitled to a chronic pain assessment in the amount of $2,486.00.
iv. Interest is owing in accordance with s. 51 on $2,486.00 for a neurological assessment and $2,486.00 for a chronic pain assessment.
v. The applicant is not entitled to an attendant case assessment.
vi. The respondent is not liable to pay an award to the applicant.
Released: April 27, 2026
John Mazzilli
Adjudicator