Oliveira v. Aviva Insurance Company, 2023 CanLII 30779

Licence Appeal Tribunal

Citation: Oliveira v. Aviva Insurance Company, 2023 ONLAT 21-004852/AABS

Licence Appeal Tribunal File Number: 21-004852/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:

Mario Oliveira

Applicant

and

Aviva Insurance Company

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Brent McQuestion, Counsel

For the Respondent: Kevin H. Griffiths, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Mario Oliveira (the "applicant") was involved in a motor vehicle accident on July 11, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). Aviva Insurance Company (the "respondent") denied certain benefits. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2The applicant submits that he suffered whiplash, headaches, and myofascial back pain as a direct result of the accident, injuries that were diagnosed by Dr. Maliha Sherman, family physician, and listed in a Disability Certificate/OCF-3 dated August 22, 2020. The applicant claims entitlement to two treatment plans for chiropractic services and massage therapy, plus interest.

3Aviva responds that the treatment plans have not been demonstrated to be reasonable and necessary. As the insurer holds that no benefits are overdue, it also holds that interest is not applicable.

ISSUES IN DISPUTE

4The following issues are in dispute:

1. Is the applicant entitled to $3,108.68 for chiropractic services, recommended by Stoney Creek Rehab in a treatment plan/OCF-18 dated January 28, 2019?
2. Is the applicant entitled to $2,026.76 for massage therapy services, recommended by Stoney Creek Rehab in a treatment plan/OCF-18 dated January 28, 2019?
3. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

5The applicant has withdrawn the income replacement benefit and special award claims that are listed as issues in the case conference report and order ("CCRO") dated October 27, 2021.

RESULT

6I find that the treatment plans in dispute have not been proven to be reasonable and necessary. As a result, the applicant is not entitled to either plan, or interest.

ANALYSIS

Are the treatment plans reasonable and necessary?

7To 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.

8The applicant relies on the treatment plans/OCF-18s in dispute, the specifics of which are as follows:

i. The OCF-18 for chiropractic services dated January 28, 2019 was completed by Dr. Angelo Frisina, chiropractor. It includes 16 sessions of chiropractic treatment to treat whiplash associated disorder ("WAD III") with complaint, tension-type headache, and the sprain and strain of the thoracic and lumbar spine. Four goals are listed: pain reduction, increased range of motion, return to the activities of daily living, and return to modified work activities.

ii. The OCF-18 for massage therapy was also dated January 28, 2019 and was also completed by Dr. Frisina. This plan recommends 16 sessions of massage therapy to treat the same injuries as noted above. The goals of this treatment are the same as those in the chiropractic plan.

9The respondent relies on an insurer examination ("IE") report of Dr. Allan Austin Kopyto, general practitioner, dated April 24, 2019. He examined the applicant in person on April 9, 2019 to specifically assess the two OCF-18s in dispute here. Dr. Kopyto also completed an addendum report on July 18, 2019 to review additional medical evidence submitted by the applicant, but did not change his initial opinion.

10I prefer the argument of the respondent, which centres on the applicant's failure to submit any corroborating medical evidence in support of these treatment plans. I take note of the respondent's citation of past Tribunal decisions (including Oliveira-Guerrero v. Aviva 19-006710 CanLII 97081 (ON LAT); S.A. v. Intact 19-000107 CanLII 57372 (ON LAT); L.S. v. Royal and Sun Alliance 16-002381 CanLII 39566 (ONLAT); and Applicant v. Aviva 17-002689 CanLII 2311 (ONLAT)), each of which holds that it is well settled law that treatment plans are not compelling evidence on their own to prove that their recommendations are reasonable and necessary. I agree. An applicant requires support for treatment plans courtesy of objective referrals from medical practitioners such as a family physician or a specialist. Such support has not been submitted by the applicant here, and as a result he fails to meet his burden.

11I am further persuaded by the medical evidence of the respondent presented in the IE report of Dr. Kopyto. Dr. Kopyto concluded that the two treatment plans in dispute are not reasonable and necessary as he did not identify an accident-related impairment from a musculoskeletal perspective during his examination of the applicant. Dr. Kopyto also found that the applicant displayed no signs of tenderness or abnormalities during a physical examination, that he had normal range of motion, and that he was able to ambulate normally as well as transfer from sitting to standing and standing to sitting and to get on and off the examination table without difficulty. He deemed the applicant to have had been provided with adequate rehabilitation and to have reached maximum medical improvement, so no further treatment was required.

12In addition, Dr. Kopyto recorded the applicant as saying that his treatments with Dr. Frisina have been ongoing since December 2017, yet they have only provided some temporary pain relief without any overall improvement in his symptoms. While pain relief is one of the goals of the treatment plans in dispute and is an accepted objective of treatment in its own right, as already noted the applicant has presented no evidence about pain outside of the OCF-18s, which are not proof of the reasonable and necessary nature of their treatment in and of themselves. I do not doubt the applicant's complaints, or his symptoms. However, self-reporting does not meet the applicant's burden of demonstrating that such pain exists and that it can be relieved with chiropractic treatment and massage therapy—especially given the opinion of Dr. Kopyto that the applicant suffers from no observable impairments, that he walks normally and has full range of motion, and that he has already reached maximum medical improvement.

13Correspondingly, I find that the treatment plans have not been demonstrated to be reasonable and necessary. It follows that the applicant is not entitled to these plans, nor interest.

ORDER

14I find that the applicant is not entitled to the treatment plans in dispute, nor interest.

15The application is dismissed.