Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 24-007705/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:
Sule Ghadaki
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Kateryna Vlada, Counsel
For the Respondent:
Kristen M. Slaney, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Sule Ghadaki, the applicant, was involved in an automobile accident on November 18, 2021, 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, Allstate 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 an income replacement benefit (“IRB”) in the amount of $241.82 per week from November 25, 2021, to ongoing?
ii. Is the applicant entitled to $430.76 ($1,329.01 less $898.25 approved) for physiotherapy services, proposed by Yonge-Spruce Chiropractic in a treatment plan dated March 2, 2022?
iii. Is the applicant entitled to $1,112.14 ($4,241.13 less $3,118.99 approved) for psychological services, proposed by HM Medical Network Ltd. in a treatment plan dated December 16, 2022?
iv. Is the applicant entitled to $4,672.20 for a chronic pain program, proposed by The Rehab Centre, in a treatment plan dated September 29, 2022?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant is not entitled to an IRB in the amount of $241.82 per week from November 25, 2021, to ongoing.
4I find that the applicant is not entitled to the balance of the treatment plan for physiotherapy services dated March 2, 2022.
5I find that the applicant is not entitled to the balance of the treatment plan for psychological services dated December 16, 2022.
6I find that the applicant is not entitled to the treatment plan for a chronic pain program dated September 29, 2022.
7I find that the applicant is not entitled to interest.
ANALYSIS
Entitlement to IRBs
8I find that the applicant is not entitled to an IRB from November 25, 2021 to ongoing.
9To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks of the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are substantially unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
10The applicant claims that at the time of the accident, she was employed as a Sales Advisor with Dotcom Advantage Realty Inc. She claims entitlement to an IRB in the amount of $241.82 per week from November 25, 2021 to date and ongoing, on the basis that she was substantially unable to perform the essential tasks of her pre-accident employment due to her physical and psychological injuries sustained in the accident. She relies upon the clinical notes and records (“CNRs”) of her family physician, Dr. Maryam Mohammady, which support her consistent reporting of her ongoing symptoms including back pain, left knee pain, frequent headaches and insomnia, and the impact on her daily functioning and quality of life. She further relies upon the report of Dr. Alireza Kachooie, physiatrist, dated October 20, 2023 which diagnosed her with chronic pain. She submits that in addition to her physical injuries, she sustained significant psychological impairments for which she consulted several specialists including Dr. Robin Cardon, psychiatrist, Dr. Elena Baskakova, psychologist and Dr. Mitra Monir Abbasi, psychiatrist.
11The respondent submits that the applicant does not meet the test for IRBs. It relies upon the Orthopaedic Insurer Examination (“IE”) report of Dr. Rick Zarnett, dated June 1, 2022, the Psychological IE report of Dr. Jennifer Out, dated March 8, 2023, and the Addendum report of Dr. Out, dated July 10, 2023, all of which concluded that she did not suffer a substantial inability to perform the essential tasks of her pre-accident employment. Based on these reports, the applicant’s IRBs were stopped effective July 21, 2023.
12I find that the applicant has not proved on a balance of probabilities that she suffered a substantial inability to perform the essential tasks of her pre-accident employment as a result of the accident.
13I find that the applicant has not provided any details of her pre-accident employment in her submissions except to submit that she was a Sales Advisor. I find that the IE reports note that she was working part time as an assistant for her husband’s real estate company, which is inconsistent with her submissions that she was a Sales Advisor. I find that the applicant has not pointed the Tribunal to the essential tasks of her pre-accident employment or set out any specifics of the duties she performed.
14I find that aside from the Disability Certificate, which indicates that she suffers a substantial inability to perform the essential tasks of her pre-accident employment for an anticipated duration of five to eight weeks, there is no evidence indicating that the applicant’s injuries impact her ability to complete her pre-accident work tasks. The applicant’s family physician, Dr. Mohammady, never advised the applicant to refrain from working or completing any tasks. Dr. Mohammady’s CNRs note a visit following the accident on November 18, 2021 in which she reported severe back pain. The subsequent records up to February 23, 2022, note she complained of bilateral knee pain and upper and lower back pain. The next complaint of back pain is not made until August 1, 2023, over a year later and there is no mention of the subject accident being the cause of her back pain. None of the applicant’s other medical documents submitted, indicate that the applicant has a substantial inability to complete any specific tasks from a physical perspective as a result of the accident.
15While the applicant submits that Dr. Kachooie diagnoses her with chronic pain, I find that a diagnosis of chronic pain is not stated anywhere in his report dated October 21, 2023. The report notes that the applicant’s pre-accident medical history includes a previous surgery to her ankle. Dr. Kachooie diagnoses her with right C6 cervical radiculopathy, osteoarthritis of the right ankle due to a bimalleolar fracture, sacroiliac joint disorder – right greater than left, osteoarthritis knees and whiplash. I find that there is no mention of the applicant being involved in the subject accident and there is no discussion of her functional abilities or her ability to engage in her pre-accident employment tasks.
16I find the Orthopaedic IE report of Zarnett, dated June 1, 2022, more persuasive. Dr. Zarnett assessed the applicant and concluded that she did not suffer a substantial inability to complete the essential tasks of her pre-accident employment. Dr. Zarnett concluded that the applicant sustained uncomplicated myofascial strains to her cervical spine, trapezial areas and lumbar spine. He noted she reported that she had pre-existing knee pain. He found that in spite of her ongoing complaints, they did not correlate with the objective findings as the examination did not demonstrate any significant abnormalities.
17While I accept the applicant’s submission that she had ongoing pains following the accident, I do not find that she has provided sufficient medical evidence to support that her ongoing physical pain impacts her ability to complete her work tasks and therefore she has not proven on a balance of probabilities that she suffers a substantial inability to complete the essential tasks of her employment from a physical perspective as a result of the accident.
18With respect to the applicant’s psychological impairments, I further find that she has not proven that she suffers a substantial inability to complete the essential tasks of her employment as a result of the accident.
19I find that the report of Dr. Cardon dated July 12, 2022, diagnosed the applicant with major depressive disorder. However, within this report there is no mention of the subject accident, and the applicant’s reason provided for not working is that “she has been unable to leave home to go to work as her autistic children need round the clock supervision for safety reasons.”
20I further find that the report of Dr. Abbasi dated June 6, 2023, addresses the applicant’s diagnosis with major depressive disorder, third episode chronic with an anxious mood that is currently stable on the medication. The report notes that the applicant has had multiple life stressors including her first five years coming to Canada and not being able to have her first son join them, which prompted her first episode of depression. She then had her second episode of depression prompted by being postpartum after her fourth delivery. Her third episode became chronic, and it was prompted by two of her sons dealing with their mental health issues. I find that nowhere within this report does Dr. Abbasi discuss the subject accident or any issues arising therefrom. There is no discussion of the applicant’s functional abilities or her inability to perform the essential tasks of her pre-accident employment.
21I give little weight to the Psychological Assessment report of Foujan Rahmati, who was supervised by Dr. Baskakova, dated August 6, 2022. I find that this report is the only psychological report relied upon by the applicant that references the subject accident. The report by the applicant about her pre-existing psychological history is inconsistent with the findings of Dr. Cardon and Dr. Abbasi. Of significance, I find that the applicant reported to Ms. Rahmati that with respect to her psychiatric history, she has never had any history of psychological problems in the past. She attributes all of her psychological impairments to the subject accident. The reports of Dr. Abbasi and Dr. Cardon, which the applicant relies upon, are clearly contradictory, and note a significant history of psychological issues. As stated above, neither of these reports mention or attribute her psychological impairments to the accident. Therefore, I find that the information provided by the applicant about her history of psychological impairments is not accurate and therefore the conclusions made by Ms. Rahmati that the applicant’s psychological impairments are as a result of the accident cannot be conclusively relied upon.
22Even if I accept the applicant’s submission that she suffered a psychological impairment as a result of the accident, I find the IE report of Dr. Out persuasive in determining that the applicant’s psychological symptoms are relatively mild and she does not suffer a substantial inability to perform her pre-accident employment. I further find that the applicant’s denial to Dr. Out of any other mental health problems prior to the accident except for post-partum depression after her youngest son was born, is again inconsistent with her treating psychologist and psychiatrist’s reports who set out in detail her extensive pre-existing mental health issues.
23For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that she is entitled to an IRB from November 25, 2021 to ongoing.
Non-Compliance with Section 33(1) of the Schedule
24While I have determined that the applicant has not proved on a balance of probabilities that she is entitled to an IRB, the parties have also made submissions on whether she is in non-compliance with s. 33(1) of the Schedule in replying to the respondent’s requests for documentation and information.
25Pursuant to s. 33(1) of the Schedule, an applicant is required to provide information reasonably required to assist the insurer in determining an applicant’s entitlement to a benefit. Subsections 33(6) and (8) confirm that an insurer is not required to pay a benefit during a period in which a request under s. 33(1) has not been complied with.
26The applicant submits that she has provided the respondent with all relevant documentation in her possession in order to calculate her IRB. In addition to providing the respondent with an accounting report from Great Oak Accounting, dated July 13, 2022, setting out her entitlement, she responded to the respondent’s requests for information and provided further documentation on an ongoing basis.
27The respondent submits that it engaged the services of Davis Martindale to provide a report regarding quantum of IRBs payable. Despite its multiple requests and the requests made by Davis Martindale, the applicant has not provided the required documentation to calculate the quantum of her IRB and is non-compliant with s. 33(1) of the Schedule. In addition, the respondent submits that the applicant did not provide the requested income tax documentation, as ordered by the Tribunal in the CCRO.
28I find that the respondent made multiple requests to the applicant for information and documents related to her employment. The respondent expressed to the applicant that this information was required before her IRB could be quantified and paid. When these documents were not provided, the respondent sent letters to the applicant holding her in non-compliance. I find upon review of these requests, that the documents and information requested are reasonable because they relate to confirming income and payments to the applicant for the pre- and post-accident periods. The requests further seek to confirm the number of hours worked by the applicant and the basis of the payments made to her.
29I find upon review of the report from Davis Martindale, that the following information continues to be required:
i. Documentation supporting the applicant’s earnings from Realty from January 2020 to present (i.e. payroll history, pay statements, etc.);
ii. Details and documentation supporting the source and nature of the post-accident deposits and e-transfers to the applicant’s TD bank account; and
iii. Details regarding the average weekly hours worked and duties performed by the applicant, Mr. Ghadaki and all other individuals/family members working at Realty prior to and subsequent to the accident.
30I find that the report acknowledges the email correspondence from the applicant’s legal counsel dated May 27, 2024, stating that there are no pay statements, the post-accident deposits in question were for work before the accident, and the applicant does not have fixed hours at Realty. While the applicant submits that this email complied with the s. 33 requests, I find that the response is lacking in significant information that is required to calculate her IRBs.
31Despite having the right of reply, the applicant did not provide reply submissions to address the issue of her non-compliance with the CCRO. Without any submissions or evidence from the applicant as to whether she complied with the CCRO, I find that the respondent has established that the applicant is non-compliant.
32I therefore conclude that the respondent is not liable to pay IRBs, pursuant to s. 33(6), as the applicant has not complied with s. 33(1) of the Schedule or the CCRO. I find that the applicant did not provide the respondent with the information reasonably required to assist it in determining the quantum of IRBs payable and therefore pursuant to s. 33(6) of the Schedule, it is not liable to pay IRBs to the applicant during the period in dispute.
33For the reasons outlined above, I find that the applicant has not met her evidentiary onus to prove entitlement to IRBs from November 25, 2021 to ongoing.
Entitlement to Medical and Rehabilitation Benefits
34To 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. In the context of an assessment, while the applicant does not need to prove the condition exists, he must prove with persuasive evidence that there is some accident-related condition that warrants investigation via the proposed assessment.
Entitlement to the treatment plan for physiotherapy services
35I find that the applicant is not entitled to the balance of the treatment plan for physiotherapy services.
36The applicant claims entitlement to $430.76 ($1,329.01 less $898.25 approved) for physiotherapy services proposed in the treatment plan dated March 2, 2022. The treatment plan proposed the following:
10 sessions of physiotherapy at $99.75/PR $997.50
2 sessions of massage therapy at $58.19/PR $116.38
Documentation, support activity for clam form $200.00
37By EOB, dated July 7, 2022, the respondent partially approved the treatment plan. It advised the applicant that her injuries fall under the MIG and at this time there is $944.26 in funding remaining. The respondent advises that the treatment plan is partially approved in the amount of $898.25 because the plan proposed treatment on a “PR” basis which is not acceptable. It states that the clinic must state the length of time they are proposing therapy based on the Financial Services Commission of Ontario’s maximum hourly rate. It therefore approved the treatment plan based on one hour of service provided. With respect to physiotherapy services, it approved $698.25 of the $997.50 claimed, denied the massage therapy services and approved the claim for completion of $200.00.
38I agree with the respondent that the treatment plan under “measure” lists PR. It does not provide the length of each treatment session proposed. However, based on the cost, total count of sessions and the total cost indicated, it is clear that the sessions proposed were one hour in length.
39With respect to the applicant’s submission that the balance of the treatment plan should be payable because the treatment provided short-term pain relief and increased her ability to participate in activities of daily living, I find that the applicant has not pointed the Tribunal to any contemporaneous medical evidence at the time of submission of this treatment plan to support that her physical injuries were not minor and that ongoing treatment was reasonable and necessary. I find that the applicant has referred in her submissions to the CNR of Dr. Mohammady, dated February 23, 2022 where the applicant reported pain in her back and knees. The next CNR provided is not until over a year and a half later on August 1, 2023. I find that there are no submissions from the applicant as to why there is a lack of complaints or what her condition was during this period of time. I therefore find that the IE report of Dr. Zarnett, dated June 1, 2022, which was prepared after submission of the treatment plan must be given more weight where he concludes that there is no evidence of any impairment at this time which would require formal or informal treatment.
40For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that she is entitled to the balance of the treatment plan for physiotherapy services in the amount of $430.76.
Entitlement to the treatment plan for psychological services
41I find that the applicant is not entitled to the balance of the treatment plan for psychological services.
42The applicant claims entitlement to $1,112.14 ($4,241.13 less $3,118.99 approved) for psychological services proposed in the treatment plan submitted on December 16, 2022. The treatment plan recommends the following:
12 – 1.5 hour sessions of therapy, mental health - $2,693.04
Test, mental health and addictions – 1.5 hours - $224.42
“Preparation, service” – 1.5 hours - $224.42
“Documentation, support activity – $673.25
“Documentation, support activity for claim form” - $200.00
Educational material – e.g. Hand-outs, books - $200.00
43By EOB dated, January 4, 2023, the respondent advised that the treatment plan was not payable due to the applicant’s failure to attend a s. 44 Psychological IE assessment. The applicant submits that the respondent subsequently partially approved the treatment plan on April 24, 2023.
44The applicant submits that the entirety of the treatment plan should be payable because continued psychological counselling is both reasonable and necessary to support her recovery and to address her ongoing post-traumatic symptoms.
45The respondent submits that it approved 12 – 1 hour sessions of psychotherapy. It denied the other costs or surcharges related to the treatment plan. It notes that as per the FSCO regulations, “Expenses related to professional services” as referred to in the Schedule and the Professional Services Guideline include all administrative costs, overhead, and related costs, fees, expenses, charges and surcharges. It states that insurers are not liable for any administration or other costs, overhead, fees, expenses, charges or surcharges that have the result of increasing the effective hourly rates, or the maximum fees payable for completing forms, beyond what is permitted under the Professional Services Guidelines.
46I find that I am unable to determine based on the submissions and evidence of the parties, which items in the treatment plan in dispute were denied. A copy of the EOB dated April 24, 2023 has not been provided by either party. Based on the respondent’s submissions, it appears that the respondent approved one-hour sessions rather than the one and a half hour sessions proposed for treatment and denied the administrative costs proposed. However, without having a copy of the EOB which sets out what was actually denied, I cannot assess what is actually in dispute.
47I find that it is the applicant’s onus to prove entitlement to the balance of this treatment plan and no particulars were provided as to what is actually in dispute. The applicant has not made submissions as to the length of the treatment sessions proposed or whether the cost of the additional items proposed in the treatment plan are reasonable and necessary.
48For the reasons outlined above, I find that the applicant has not proved on a balance of probabilities that she is entitled to the balance of the treatment plan for psychological services.
Entitlement to the treatment plan for a chronic pain program
49I find that the applicant is not entitled to the treatment plan for a chronic pain program.
50The applicant claims entitlement to $4,672.20 for a chronic pain program proposed by Dr. Kachooie, of The Rehab Centre, in a treatment plan dated September 29, 2022. The treatment plan recommends the following:
Documentation, support activity for claim form - $200.00
20 sessions of physical rehabilitation – $1,977.20
10 sessions of acupuncture, multiple body sites - $750.00
TENS Unit - $300.00
6 sessions of Therapeutic intervention - $750.00
Back support - $150.00
Pillow, cervical - $150.00
Education, promoting health and preventing disease - $85.00
Massager, personal - $250.00
51By EOB, dated April 21, 2023, the respondent denied the treatment plan. It states that it does not have any CNRs to support a chronic pain diagnosis. It further states that although the Orthopaedic IE completed by Dr. Zarnett refers to the applicant’s injuries from a Minor Injury Guideline perspective, Dr. Zarnett notes, “From a physical perspective, there is no impairment which would require any assistive devices or equipment to assist in achieving recovery” and “From a musculoskeletal perspective, there is no evidence of any impairment at this time which would require further formal or informal treatment.” The respondent advises that it was sending the treatment plan for an addendum as the applicant is no longer a MIG claim, to determine if the treatment plan is reasonable and necessary.
52A Physiatry IE report was subsequently prepared by Dr. Yuri Marchuk, dated July 10, 2023. Dr. Marchuk concluded that he was unable to assess whether the treatment plan in dispute was reasonable or necessary without reviewing the applicant’s pre-accident CNRs regarding the applicant’s reported pre-existing lower back condition.
53By EOB, dated July 21, 2023, the respondent advised that based on the Physiatry IE report of Dr. Marchuk and the Psychological IE report of Dr. Out, dated July 10, 2023, that the treatment plan in dispute was denied. Both assessors concluded that no further assessments or examinations are necessary. It notes that Dr. Marchuk requested pre-accident CNRs to determine if the treatment plan is reasonable and necessary and therefore the respondent requested the pre-accident records of the applicant’s family doctor, orthopedic specialist and any other specialist for two years prior to the accident to present.
54By EOB, dated August 18, 2023, the respondent provided a second request for these records. It advises that, “Failure to provide the CNRs by September 8, 2023, may result in delays in denied and suspension of medical benefits.”
55By EOB, dated December 8, 2023, the respondent made a third request for the CNRs. The records were requested to be provided by January 15, 2024.
56I find that there is no indication in the submissions or evidence of either party as to whether these CNRs were subsequently provided to the respondent or the date that they were provided. I find that within the applicant’s evidence there are pre-accident medical records from the applicant’s family physician, Dr. Mohammady, dating back to November 30, 2018, however the date that these records were provided to the respondent has not been indicated. It does not appear from either parties’ submissions that an Addendum report was prepared by either Dr. Out or Dr. Marchuk which reviewed the applicant’s pre-accident records.
57The applicant submits that the treatment plan is reasonable and necessary because she has been formally diagnosed with chronic pain by multiple specialists and it was recommended that she participate in a chronic pain management program by Dr. Kachooie. She argues that her symptom history reflects a consistent and credible pattern of pain complaints that are functionally limiting and ongoing, well beyond the typical recovery period. She claims that as her symptoms have persisted for well over three to six months, she has met the commonly accepted threshold for chronic pain.
58The respondent submits that the applicant has not proved that she suffers from chronic pain. It further submits that there was no diagnosis of chronic pain and there was no referral to a pain specialist. It argues that the report of Dr. Kachooie does not address the subject accident and instead assesses the applicant’s ankle issues and degenerative issues. It further argues that the records of the family physician show no corroborating evidence of accident-related pain, rather they discuss the difficulties she experiences with her pre-accident conditions. The applicant submits that the applicant has not demonstrated that her physical injuries as a result of the accident rise to the level of chronic pain, much less that she is experiencing a functional impairment as a result of the subject accident. In addition, her psychological issues are unrelated to the subject accident.
59In order to establish that the applicant has a chronic pain condition, she must demonstrate that her pain causes a functional impairment which adversely affects her well-being. A diagnosis of chronic pain, absent evidence of an ongoing functional impairment due to pain, is insignificant to establish a minor injury.
60I find that the treatment plan in dispute was prepared by Dr. Kachooie on September 29, 2022. At the time of preparation of this treatment plan, there is no indication that Dr. Kachooie had examined the applicant and there are no contemporaneous records referred to in the treatment plan to support the basis of the recommendations. The report of Dr. Kachooie was not prepared until October 20, 2023, over a year after the treatment plan was prepared. I find that the report does not make a diagnosis of chronic pain and the report addresses the applicant’s ankle issues and degenerative issues which are unrelated to the subject accident. I further find that the recommendations made by Dr. Kachooie in his report were for physiotherapy, weight reduction, and an SI belt and there is no mention of a chronic pain program.
61I further find that while the applicant submits that her symptom history reflects a consistent and credible pattern of pain complaints that are functionally limiting and ongoing, she has not provided sufficient evidence to support that she suffered any functional limitations as a result of her pain. I find that the applicant’s submissions and the medical evidence relied upon by the applicant do not address any functional limitations experienced by the applicant and focus on her ongoing pain complaints which is not sufficient to meet the test of chronic pain.
62I therefore do not find that that the applicant has submitted sufficient evidence to support that at the time of submission of the treatment plan she suffered a chronic pain condition requiring a chronic pain treatment program. I further find that she has not provided sufficient evidence to support that the treatment recommended is reasonable and necessary.
63For the reasons outlined above, I find that the applicant has not proved on a balance of probabilities that the treatment plan for a chronic pain program is reasonable and necessary.
Interest
64Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
65For the reasons outlined above, I find:
i. The applicant is not entitled to an IRB in the amount of $241.82 per week from November 25, 2021, to ongoing;
ii. The applicant is not entitled to the balance of the treatment plan for physiotherapy services dated March 2, 2022;
iii. The applicant is not entitled to the balance of the treatment plan for psychological services dated December 16, 2022;
iv. The applicant is not entitled to the treatment plan for a chronic pain program dated September 29, 2022;
v. The applicant is not entitled to interest; and
vi. The application is dismissed.
Released: February 4, 2026
Melanie Malach
Adjudicator