Licence Appeal Tribunal File Number: 24-008119/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:
Ali Abdul Hussein
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Nadia Mauro
APPEARANCES:
For the Applicant:
Frank McNally, Counsel
For the Respondent:
Harkamal Hehar, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Ali Abdul Hussein, the applicant, was involved in an automobile accident on October 11, 2020, 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, Wawanesa Mutual 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:
Is the applicant entitled to $1,492.00 for chiropractic services, proposed by Dr. Gorka in a treatment plan (“OCF-18”) submitted May 29, 2023, and denied June 5, 2023?
Is the applicant entitled to $7,890.34 for occupational therapy, proposed by Ferland & Associates in an OCF-18 submitted March 28, 2023, and denied June 30, 2023?
Is the applicant entitled to $2,034.00 for dietician services, proposed by Koru Nutrition in an OCF-18 submitted May 23, 2024, and denied May 30, 2024?
Is the applicant entitled to $7,843.04 for occupational therapy, proposed by Ferland & Associates in an OCF-18 submitted August 10, 2023, and denied August 22, 2023?
Is the applicant entitled to $6,424.52 for occupational therapy services in an OCF-18 proposed by Ferland & Associates submitted June 16, 2023, and denied July 24, 2023?
Is the applicant entitled to $604.00 for dental services, proposed by Dr. Darwish in an OCF-18 submitted June 26, 2023, and denied July 13, 2023?
Is the applicant entitled to $1,584.00 for chiropractic services proposed by Fortin Chiropractic in an OCF-18 submitted August 1, 2024, and denied August 7, 2024?
Is the applicant entitled to $1,995.00 for physiotherapy services, proposed by Ottawa Physiotherapy & Sport Clinic in an OCF-18 submitted August 7, 2024, and denied August 17, 2024?
Is the applicant entitled to $1,709.45 for an in-home functional assessment, proposed by Ferland & Associates in an OCF-18 submitted February 10, 2023, and denied February 23, 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?
3The applicant confirmed by way of email correspondence on February 6, 2025, that issue 1, as listed on the case conference report and order (“CCRO”), dated November 14, 2024, was withdrawn.
RESULT
4The applicant is not entitled to the treatment plans, interest, or an award.
ANALYSIS
The applicant is not entitled to the treatment plans
5I find that the applicant has not proven, on a balance of probabilities, that the proposed treatment plans are reasonable and necessary.
6To 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.
7The applicant submits that the medical evidence, including assessment by his treating physicians and various specialists, consistently support the need for a comprehensive, multidisciplinary treatment approach. The applicant submits that the disputed treatment plans are reasonable and necessary to support his recovery and manage the functional limitations that continue to impact his daily life.
8The respondent submits that the applicant has failed to establish the disputed treatment plans are reasonable and necessary.
a) The In-Home Functional Assessment dated February 10, 2023
9I find that the applicant has not proven, on a balance of probabilities, that the treatment plan for an in-home functional assessment is reasonable and necessary.
10The OCF-18, submitted by the applicant, is dated February 10, 2022, and was completed by occupational therapist, Mr. Sebastien Ferland. The OCF-18 sought funding for provider travel time, assessment, and document support activity. The goals of the treatment plan are to return to activities of normal living and “assess current daily function to develop an appropriate OT treatment plan.”
11I note that the applicant refers to and provides an OCF-18 dated February 10, 2022, in his submissions, however, it is dated February 10, 2023, in the respondent’s submissions and on the CCRO. It is not clear whether the OCF-18 referred to by the applicant in his submissions is the correct OCF-18 in dispute. However, even if this is the correct OCF-18, and the issue has been incorrectly denoted on the CCRO and the parties’ submissions, I still find that the applicant has fallen short of his burden to prove, on a balance of probabilities, that the proposed treatment is reasonable and necessary.
12The applicant submits that the proposed functional assessment is both reasonable and necessary in light of the applicant’s full clinical picture and ongoing functional limitations. The applicant relies on the Occupational Therapy In-Home Assessment of Mr. Sebastien Ferland, dated March 9, 2022.
13In my view, the applicant does not meet his burden of proving that the treatment plan is reasonable and necessary by simply submitting a report conducted by the assessor who also completed the OCF-18. There must be contemporaneous and corroborating medical evidence, around the time the treatment plan was submitted to the respondent for consideration, that would support that the treatment plan is reasonable and necessary. As such, I am unpersuaded by the report of Mr. Ferland, on its own.
14While I appreciate that the applicant submits that his symptoms justify ongoing evaluation to determine how best to support his recovery and ensure his safety and well-being at home, submissions are not evidence. The only other medical evidence the applicant has provided around the date of the disputed treatment plan is that of s. 25 psychological assessor, Dr. Gary Gerber, dated January 18, 2022. However, I find that this assessment does not support the need for the proposed treatment plan.
15First, while the applicant self-reports functional limitations during his assessment with Dr. Gerber in January 2022, the medical records identified within the psychological assessment pre-date the accident by over a year. In my view, this does not substantiate any limitations reported by the applicant 1.5 years after the accident when the report was conducted in 2022. More importantly, with respect to the proposed treatment plan, this assessor does not opine on the need for a functional assessment, rather Dr. Gerber recommends that the applicant should work with his occupational therapist to pursue an exercise program.
16Give the foregoing, I find that the applicant has not met his burden to prove that, on a balance of probabilities, the proposed treatment plan is reasonable and necessary.
b) Occupational Therapy plans dated March 28, 2023, June 16, 2023, and August 10, 2023
17I find that the applicant has not proven, on a balance of probabilities, that the treatment plans for occupational therapy are reasonable and necessary.
18The applicant did not provide the treatment plans for occupational therapy, however, in his submissions, the applicant states that occupational therapist, Mr. Ferland submitted multiple treatment plans with respect to occupational therapy services. The applicant submits that the OCF-18, dated March 28, 2023, sought funding in the amount of $7,890.34, for assistive devices such as a mattress, grab bars, tub rail, bathmat, bathtub seat, handheld shower hose, cane, and walker. The applicant states that the OCF-18, dated June 16, 2023, sought funding in the amount of $6,424.52 for additional occupational therapy treatment. The applicant states that the OCF-18, dated August 10, 2023, sought funding in the amount of $7,843.04 for biweekly 3-hour sessions with rehabilitation assistant.
19The applicant submits that since the accident, he has experienced marked deterioration with walking, climbing stairs, eating, sleeping, and socializing. The applicant further submits that this treatment is recommended to reduce fall risk, enhance independence, and bolster the applicant’s confidence.
20As I have set out above, submissions are not evidence. The applicant bears the onus of establishing that the disputed treatment plans are reasonable and necessary. In this matter, the applicant has not put forward compelling evidence beyond 2022, that would substantiate the need for the proposed occupational therapy treatment in 2023. Given this, I am unpersuaded by the report of Mr. Ferland as it was completed in March 2022, over a year prior to the disputed treatment plans. In my opinion, the report does not give an accurate account of the applicant’s medical status nor the need for rehabilitative treatment in 2023.
21I give significant weight to the s. 44 occupational therapist’s report of Mr. Jeff Perrier, dated June 2, 2023, given that it was completed to determine the reasonableness and necessity of the disputed OCF-18, dated March 28, 2023, and was conducted around the date of the disputed treatment plans. Based on a review of several medical records and observation of the applicant, Mr. Perrier ultimately opines that the occupational therapy services proposed in the March 28, 2023, OCF-18, are not reasonable and necessary. The applicant has not directed me to any other contemporaneous and corroborating evidence that would support the need for the proposed treatment dated March 28, 2023, or subsequent plans dated June 16, 2023, and August 10, 2023.
22As such, I find that the applicant has not met his burden to prove that, on a balance of probabilities, the proposed treatment plans for occupational therapy are reasonable and necessary.
c) Chiropractic Services dated May 29, 2023, and August 1, 2024
23I find that the applicant has not proven, on a balance of probabilities, that the treatment plans for chiropractic services are reasonable and necessary.
24The applicant did not provide the treatment plans for chiropractic services, however, in his submissions, the applicant states that the OCF-18, dated May 29, 2023, was submitted by “Dr. Gorka” and sought funding in the amount of $1,492.00. The applicant also states that the OCF-18 dated August 1, 2024, sought funding in the amount of $1,584.00 for chiropractic assessment, and 24 treatment sessions. The applicant submits that both plans were intended to address his ongoing functional limitations, including Whiplash Associated Disorder (WAD II), neck pain with musculoskeletal signs, and a sprain and strain of the lumbar spine. The applicant further submits that the recommended services aim to help him regain physical function, manage persistent pain, and improve overall-well being.
25The applicant submits that the chiropractic treatment proposed by Dr. Gorka is reasonable, targeted intervention aimed at addressing his ongoing post-accident impairments. The applicant submits that the respondent’s denial of this treatment based solely on earlier interventions or outdated assessments is unwarranted given the applicant’s persistent symptoms and reduced quality of life.
26While I appreciate the applicant submits that his symptoms are persistent and reduce the quality of his life, submissions are not evidence. The applicant has not directed me to contemporaneous and compelling medical evidence in 2023 or 2024 that would support the reasonableness and necessity of the proposed treatment plans. The only evidence the applicant provides in 2023 is that of s. 44 occupational therapist, Mr. Perrier, who does not opine on chiropractic therapy.
27Again, it is the applicant’s burden to prove, on a balance of probabilities, that the proposed treatment is reasonable and necessary. Since the applicant has not directed me to any medical evidence beyond 2023, I am unable to ascertain the applicant’s impairments and whether or not the disputed treatment plan in 2024 is needed. As such, I find that the applicant has fallen short of his burden.
28As such, I find on a balance of probabilities that the applicant is not entitled to the proposed chiropractic treatment plans.
d) Dietician Services dated May 23, 2024
29I find that the applicant has not proven, on a balance of probabilities, that the treatment plan for dietician services is reasonable and necessary.
30The OCF-18 completed by nutritionist, Kylie James, for dietitian services, dated May 23, 2024, sought funding for a nutrition assessment. The goals of the treatment plan are to assess nutritional intake, dietary needs, and the appropriateness of nutritional counselling and supplements.
31The applicant submits that dietician services are reasonable and necessary as the applicant has experienced worsening digestive symptoms including persistent nausea, weight loss, abdominal discomfort, and bower irregularities that interfere with daily functioning and overall recovery. The applicant submits that the proposed dietetic intervention directly addresses these impairments and supports his broader rehabilitation.
32I find that the evidence provided by the applicant does not support the need for the proposed treatment plan. While I acknowledge Ms. James’ addendum to the proposed OCF-18 that states that the applicant’s resolved digestive symptoms have retuned and he is eating very little daily, there must be contemporaneous and corroborating evidence around the time that the treatment plan was submitted, that would support that the treatment is reasonable and necessary. I am not pointed to evidence beyond 2023, and as such, find that there is a lack of contemporaneous and corroborating medical evidence that would support the reasonableness and necessity of the proposed dietician plan.
33The applicant also submits that the respondent’s denial, issued without an insurer’s examination, is procedurally deficient and contrary to the rehabilitative intent of the Schedule. While he makes a general submission, the applicant does not point to specific authority for this position.
34While neither party included a copy of the denial letter with respect to the proposed dietician services, I find that it is not necessary for the respondent to obtain an expert opinion in order to deny a treatment plan. As I have stated above, it is the applicant’s burden to prove, on a balance of probabilities, the proposed treatment plan is reasonable and necessary. In the present case, I find the applicant has fallen short of meeting his burden.
35As such, I find on a balance of probabilities that the applicant is not entitled to the proposed dietician services.
e) Dental Services June 26, 2023
36I find that the applicant has not proven, on a balance of probabilities, that the treatment plan for dental services is reasonable and necessary.
37The applicant did not provide the OCF-18 for dental services dated June 26, 2023, however, in his submissions, the applicant stated that the treatment plan was completed by “Dr. Darwish” and sought funding in the amount of $604.00.
38The applicant submits that while he has pre-accident dental history from a 2014 accident, the current issues – fractured crowns, retained root fragments, and new pain – represent a change not documented before the subject accident. The applicant submits that dental complications can emerge or worsen over time, especially when attention is focused on more acute injuries.
39As I have noted above, submissions are not evidence. I find that the evidence provided by the applicant does not support the need for the proposed treatment plan. I am neither pointed to medical evidence that opined on the need for the proposed dental services nor directed to evidence from Dr. Darwish that would corroborate the applicant’s submission that he has a broken tooth, pain near tooth 11, fractured crowns, and retained root fragments. All together, I find that there is a lack of contemporaneous and corroborating medical evidence.
40The applicant further submits that the respondent erred by denying the claim without referring the applicant for a dental medical examination. The applicant submits that the insurer must obtain an expert opinion if it disputes causation or necessity. The applicant does not point to any authority for this submission, and I find that it is not necessary for the respondent to obtain an expert opinion in order to deny a treatment plan. As I have stated above, it is the applicant’s burden to prove, on a balance of probabilities, the proposed treatment plan is reasonable and necessary. In the present case, I find the applicant has fallen short of meeting his burden.
41As such, I find on a balance of probabilities that the applicant is not entitled to the proposed dental services.
f) Physiotherapy Services August 17, 2024
42I find that the applicant has not proven, on a balance of probabilities, that the treatment plan for physiotherapy services is reasonable and necessary.
43The applicant submits that the OCF-18 dated August 7, 2024, proposed by Ottawa Physiotherapy & Sport Clinic sought funding in the amount of $1,995.00 for physiotherapy services.
44The applicant submits that the respondent’s denial of physiotherapy services overlooks the therapeutic value of continued physiotherapy in the context of chronic pain and delayed recovery. The applicant submits that the treatment is tailored to the applicant’s current limitations and is supported by functional assessments consistent with evidence-based practice.
45While the applicant directs me to the s. 44 report of occupational therapist, Mr. Jeff Perrier, dated June 2, 2023, I find that this evidence does not support the need for physiotherapy services in August 2024, given that this report was conducted more than a year prior. Again, the applicant has not directed me to contemporaneous or corroborating medical evidence at or around the date that the proposed treatment plan for physiotherapy services was submitted to support that it is reasonable and necessary.
46The applicant further submits that the respondent’s failure to obtain a current insurer’s examination before denying the plan undermines procedural fairness. As I have found above, it is not necessary for the respondent to obtain an expert opinion in order to deny a treatment plan. It is the applicant’s burden to prove, on a balance of probabilities, the proposed treatment plan is reasonable and necessary. In the present case, I find the applicant has fallen short of meeting his burden.
47As such, I find on a balance of probabilities that the applicant is not entitled to the proposed physiotherapy services.
Interest
48As there are no overdue benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
Award
49The 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.
50As there are no benefits owing, the applicant is not entitled to an award.
ORDER
51I find that:
The applicant is not entitled to the treatment plan for chiropractic services dated May 29, 2023;
The applicant is not entitled to the treatment plan for occupational therapy, dated March 28, 2023;
The applicant is not entitled to the treatment plan for dietician services, dated May 23, 2024;
The applicant is not entitled to the treatment plan for occupational therapy, dated August 10, 2023;
The applicant is not entitled to the treatment plan for occupational therapy, dated June 1, 2023;
The applicant is not entitled to the treatment plan for dental services, dated June 26, 2023;
The applicant is not entitled to the treatment plan for chiropractic services, dated August 1, 2024;
The applicant is not entitled to the treatment plan for physiotherapy services, dated August 17, 2024;
The applicant is not entitled to the treatment plan for an in-home functional assessment, dated February 10, 2023;
The applicant is not entitled to interest;
The respondent in not liable to pay an award; and
The application is dismissed.
Released: February 4, 2026
Nadia Mauro
Adjudicator