Avelino Flauta v. Aviva General Insurance, 2023 CanLII 4445

Citation: Flauta v. Aviva General Insurance, 2023 ONLAT 20-015451/AABS

Licence Appeal Tribunal File Number: 20-015451/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:

Avelino Flauta

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Janet Rowsell

APPEARANCES:

For the Applicant: Ryan Caesar, Counsel

For the Respondent: Yann Grand-Clement, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1The applicant was a driver involved in a motor vehicle accident on August 3, 2019, where his vehicle was rear-ended with what is characterized in the collision report as “light damage to the centre and right rear section of his vehicle.¹” The applicant sought statutory accident benefits from Aviva General Insurance (the “respondent”) pursuant to the Statutory Accident Benefits Schedule, O. Reg. 34/10 (the “Schedule”).

ISSUES

2The issues in dispute are:

1. Is the applicant entitled to a medical benefit in the amount of $1,487.10 for chiropractic services?
2. Is the respondent liable to pay an award pursuant to Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicant has not met his burden of proof, by demonstrating, on a balance of probabilities, that the recommended treatment plan in dispute is reasonable and necessary pursuant to the Schedule. Therefore, no award or interest is payable.

ANALYSIS

4Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the motor vehicle accident. The applicant bears the onus of proving, on a balance of probabilities, that any recommended treatment or assessment plan is reasonable and necessary.

5There must be objective medical evidence to substantiate the reasonableness and necessity of the proposed treatment plan. Treatment and assessment plans on their own do not prove that the treatment which is proposed is reasonable or necessary. The applicant should identify the goals of the proposed treatment, how the goals would be met to a reasonable degree, and that the overall time and costs to achieve those goals are reasonable.

6The OCF-18 completed by Kaivan Sadeghi, chiropractor at Way to Health Clinic Incorporated, is dated August 25, 2020, and it is attached at Tab E of the Applicant’s Brief.² The OCF-18 proposes ten weeks of sessions for the purpose of therapy, exercise and mobilization of multiple body sites, stimulation of muscles in back and documentation of support activity. The goals of the OCF-18 are described as increasing range of motion and body strength, return to activities of normal daily life, and to the applicant’s pre-accident work activities.

7The applicant submits that the disputed OCF-18 is reasonable and necessary and that the Insurance Examination (“IE”) assessment by Dr. Oshidari Alborz should be given little weight since it is alleged that Dr. Alborz in his report, does not place sufficient weight on pain self-reported by the applicant. There are no section 25 assessment reports filed by the applicant addressing the issue in dispute of the OCF-18 proposing chiropractic services by Kaivan Sadeghi.

8Following the August 3, 2019, motor vehicle accident, the applicant met his family physician, Dr. A. Rajinder Kaur on August 6, 2019. He complained of pain in the upper and mid-back, in addition to neck and shoulder pain.³ The applicant underwent diagnostic x-rays on August 11, 2019, where there was evidence of degenerative disc disease and mild scoliosis.⁴ The applicant visited Dr. Rajinder Kaur on a number of occasions, some of the dates of his visits are illegible in the copies of the clinical notes and records in the applicant’s brief, but it appears there were visits on September 29, 2019, November 5, 2019, January 19, 2020, and August 4, 2020. At those appointments, the applicant did not report lower back pain at any appointment between September 15, 2019, and December 10, 2020.⁵

9Since January 2020,⁶ the applicant has continued to work. He did not report any new accident-related symptoms of pain to his physician until December 10, 2020.

10Specific to the treatment plan at issue, the insurance examination (“IE”) assessor Dr. Alborz Oshidari⁷, physical medicine and rehabilitation specialist, opined that the applicant⁸ suffered injuries to his neck, right shoulder and lower back, as a result of a previous motor vehicle accident which occurred on November 1, 2017, and that all the symptoms arising from that accident resolved entirely within a few months of treatment.⁹ Dr. Oshidari found that the applicant did not suffer from a physical impairment requiring subsequent chiropractic treatment as a result of the motor vehicle accident that occurred on August 3, 2019.

11The applicant submits that Dr. Oshidari's report should be given little weight because the applicant was removed from the MIG and because the applicant’s injuries are not minor injuries, citing correspondence from the respondent dated March 26, 2021. However, the correspondence referenced from the respondent dated March 26, 2021, relates to Dr. F. Salerno's psychological assessment report and removal from the MIG by reason of psychological impairments as opposed to findings respecting physical impairments.

12The applicant contends that Dr. Oshidari disregarded his complaints of discomfort and pain in the right shoulder blade and lower back. The respondent submits that the applicant only reported pain in the lower back, not shoulder pain. Dr. Oshidari opined that the applicant’s right shoulder injury had resolved and that the low back sprain was not of such a nature or magnitude that it required treatment. The respondent submits that Dr. Oshidari's report is consistent with the content of the clinical notes and records of the applicant's family doctor.

13I am persuaded that the assessment report of Dr. Oshidari is probative of the state of the applicant’s impairments, given that the applicant did not seek medical intervention following September 15, 2019, until returning to Dr. A. Rajinder Kaur over a year later complaining of ongoing pain following the motor vehicle accident on August 3, 2019.¹⁰ Dr. Oshidari opined that the assessment of November 14, 2020, failed to reveal any structural or physiological abnormality. In responding to the questions of the respondent, Dr. Oshidari opined that although the applicant suffered some discomfort and pain in the lumbar area at the time of the accident, by the time of the assessment Dr. Oshidari found that the applicant experienced initially sprain/strain of the cervical spine and contusion of the right shoulder, which resolved. However, Dr. Oshidari opined that, all the injuries fit under the definition of a minor injury and could be treated under the minor injury guideline.¹¹

14I find, on review of the evidence, that the physical therapy proposed in the treatment plan of $1,487.10 for chiropractic services recommended by Way to Health Clinic Incorporated in the OCF-18, is not reasonable and necessary pursuant to the Schedule. The medical evidence from the months following the accident did not support a need for facility-based treatment at the time this plan was proposed. The applicant has not met his burden.

CONCLUSION

15The proposed treatment plan (OCF-18 for $1,487.10 for chiropractic services) is not reasonable and necessary pursuant to the Schedule.

16It follows that the respondent cannot be found to have unreasonably withheld or delayed payment of the benefits pursuant to section 10 of Regulation 664. Thus, no award is payable.

17Finally, given that there is no overdue payment of benefits, the applicant is not entitled to any interest pursuant to s. 51 of the Schedule.

18The application is dismissed.

Footnotes

1. 1Applicant’s Submissions, Tab B, Motor Vehicle Collision Report, dated August 7, 2019.
2. 2Applicant’s Brief, Tab E, OCF-18 completed by Kaivan Sadeghi, dated August 25, 2020.
3. 3Applicant’s Brief, Bathurst Walk-in Clinic, Tab D, Clinical Notes and Records of Dr. Atwal Rajinder Kaur.
4. 4Applicant’s Brief, Bathurst Walk-in Clinic, Tab D, Clinical Notes and Records of Dr. Atwal Rajinder Kaur.
5. 5Applicant’s Brief, Bathurst Walk-in Clinic, Tab D, Clinical Notes and Records of Dr. Atwal Rajinder Kaur.
6. 6Respondent’s Brief, Tab 9, Applicability of the Minor Injury Guideline (OCF-18) Physical Medicine and Rehabilitation Specialist Assessment Report, page 92.
7. 7Respondent’s Brief, Tab 9, Applicability of the Minor Injury Guideline (OCF-18) Physical Medicine and Rehabilitation Specialist Assessment Report, page 88
8. 8Applicant’s Brief, Tab E, OCF-18 of Kaivan Sadeghi, dated August 25, 2020.
9. 9Respondent’s Brief, Tab 9, Applicability of the Minor Injury Guideline (OCF-18) Physical Medicine and Rehabilitation Specialist Assessment Report, page 91 and 93.
10. 10Respondent’s Brief, Tab 9, Applicability of the Minor Injury Guideline (OCF-18) Physical Medicine and Rehabilitation Specialist Assessment Report, page 88.
11. 11Ibid.