Citation: Reis v. Aviva Insurance Company, 2023 CanLII 4447

Licence Appeal Tribunal File Number: 20-013438/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:

Alfredo Reis

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Alfredo Reis, Applicant Dominik Gora, Counsel

For the Respondent: Mark Bedard, Adjuster April C Snow, Counsel

Interpreter: Isabel Melo, Continental Portuguese Patricia Ribeiro, Portuguese

Court Reporter: Taylor Boden, Victory Verbatim

HEARD: by Videoconference: September 13 and 14, 2022

OVERVIEW

1Alfredo Reis, (the “applicant”) was involved in an automobile accident on November 13, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The parties participated in a case conference, however, they were unable to resolve the issues in dispute. The matter proceeded to a two-day videoconference hearing, where I heard the testimony of the applicant and Dr. Rodrigues, his treating chiropractor. On behalf of the respondent, I heard the testimony of Dr. Walters, general practitioner and insurer examination (“IE”) assessor.

ISSUES

3I have been asked to decide the following issues in dispute¹:

(i) Is the applicant entitled to medical benefits recommended by Multi Rehabilitations Services (“Multi-Rehab”) in the following treatment plans (“OCF-18s) for chiropractic and kinesiology treatment²:

a) $3,058.20 dated July 3, 2018;

b) $3,073.00 dated September 24, 2018;

c) $2,863.80 dated January 24, 2019; and

d) $3,740.00 dated July 22, 2019

RESULT:

4After considering the testimony of all witnesses, and reviewing all of the evidence I find:

(i) The applicant is not entitled to the four OCF-18s for chiropractic treatment recommended by Multi-Rehab.

PROCEDURAL ISSUES

Qualifying Dr. Rodrigues as an Expert Witness

5The respondent challenged the applicant’s request to qualify Dr. Rodrigues as an expert. The respondent submits that as the applicant’s treating chiropractor Dr. Rodrigues is not a neutral assessor. Therefore, it would be inappropriate to qualify him as an expert for the purpose of this hearing. The applicant submits that the respondent did not provide 10 days notice of its intent to challenge Dr. Rodrigues’ qualifications pursuant to Rule 10.4 of the Licence Appeal Tribunal’s Common Rules of Practice and Procedure (“Rules”). Rule 10.4 provides that a party intending to challenge an expert’s qualifications, report, or witness statement shall give notice, with reasons, for the challenge to the other parties as soon as possible and no later than 10 days before the hearing and must file a copy with the Tribunal.

6While I agree with the applicant that the respondent did not challenge the applicant’s request to qualify Dr. Rodrigues as an expert, I agree with the respondent that Dr. Rodrigues is not an expert as defined by Rule 10.2 in that the doctor was not retained by the applicant to provide an independent neutral assessment. Consequently, I accept Dr. Rodrigues’ evidence as the applicant’s treating chiropractor. Dr. Rodrigues has been treating the applicant consistently since the accident. Therefore, the doctor has a vested interest in the outcome of the hearing.

Quality of Portuguese Interpretation

7At the conclusion of the applicant’s in-chief examination, the applicant advised that he could not understand the interpreter because she spoke Brazilian Portuguese versus Continental Portuguese (his dialect). The Tribunal arranged for another Portuguese interpreter to attend the hearing and I allowed the applicant the opportunity to do his in-chief testimony again. The respondent opposed the Tribunal’s decision on this issue.

8The respondent submits that to allow the applicant a do over would be procedurally unfair as he did not raise any issues with the quality of the interpretation when he was asked if he understood the interpreter. It maintains that the applicant raised the issue regarding interpretation because his initial in-chief testimony was not helpful to his case. The respondent advised the Tribunal that it would be cross-examining the applicant based on his initial testimony. The applicant argues that to proceed in this manner would be procedurally unfair as the applicant could not understand the interpreter and was unable to communicate same. Further, the respondent should not be permitted to cross-examine the applicant on his initial testimony for these reasons.

9I agree with the applicant and did not permit the respondent to cross-examine him on his initial testimony. To accept the respondent’s position would prevent the applicant’s fair participation in the hearing as an issue with interpretation has been raised. Having said that, the respondent raised a valid point about the timing in which the applicant raised the issues with interpretation. The applicant should have brought it to the Tribunal’s attention right away to ensure the hearing was completed in an efficient, proportional and timely manner. Ultimately, I did not find the applicant’s second in-chief testimony helpful. Therefore, the respondent was not prejudiced by my allowing the applicant the opportunity to re-do his in-chief examination in a dialect of the language he understands.

BACKGROUND

10On November 13, 2017, the applicant was involved in an accident, when his vehicle was rear ended while stopped at a traffic light. Paramedics attended the scene but the applicant refused to go to the hospital and drove home. He followed up with his family doctor who referred him to Multi-Rehab for physical therapy for neck strain. Between November 13, 2017 and July 3, 2018, the applicant attended Multi-Rehab for approximately 118 sessions of physical therapy.

ANALYSIS

Is the applicant entitled to the four OCF-18s for chiropractic treatment recommended by Dr. Rodrigues?

11I find the applicant has not demonstrated that the four OCF-18s recommending chiropractic treatment are reasonable and necessary.

12To receive payment for an OCF-18 under s. 15 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 case law is also well established that medical treatment is reasonable and necessary if it results in the temporary relief of pain or restores an individual’s function.³

13All four OCF-18s were authored by Dr. Rodrigues and the goals were to increase strength and range of motion (ROM) and reduce pain in order to return the applicant to his activities of daily living. Since all four OCF-18s are practically identical as far as setting out the goals and the types of treatment to avoid duplication they will be dealt with together. The following is a summary of the treatment recommended in the OCF-18s:

14The OCF-18 dated July 3, 2018 recommended 40 sessions of physical rehabilitation and 2 sessions of kinesiology and included fees for preparation and assessment services for a total cost of $3,058.20. The duration of the OCF-18 was 5 weeks. When applying simple math, this is equal to 8 treatment sessions per week. The OCF-18 noted that the applicant had continued improvement in his cervical and thoracic spine and that his bilateral shoulder pain continued to be reduced in frequency and intensity. It noted that the applicant still reported ongoing neck and upper back pain and recommended further care to return him to his activities of daily living.

15The second OCF-18 dated September 24, 2018 recommended 30 sessions of physical rehabilitation and 30 sessions of kinesiology treatment and included fees for form completion for a total cost of $3,073.00. The duration of the treatment was 9 weeks, which when broken down equals a total of 6.67 sessions of physical rehabilitation and kinesiology per week. The plan noted that the applicant had a recent flare up of neck pain and stiffness in bilateral neck, shoulders and upper back. Dr. Rodrigues notes that the applicant’s progress to date had been slow, although he generally reported overall improvement.

16The third OCF-18 dated January 24, 2019, also notes that the applicant’s recovery was slow and that he was still having difficulties with his activities of daily living and housekeeping tasks. That OCF-18 recommended 32 sessions of physical rehabilitation and 18 sessions of chiropractic treatment at a total cost of $2,853.80. The duration of the OCF-18 was 9 weeks, which is equal to 5.56 sessions per week. The final OCF-18 dated July 17, 2019 notes the same activity limitations and indicated that the applicant’s cervical symptoms are moderate. As of the date of the final OCF-18 not much improvement is noted on the OCF-18 itself. That OCF-18 recommended 52 sessions of physical rehabilitation at a total cost of $3,740.00. The duration of the plan was 19 weeks, which equals an average of 2.74 sessions of treatment per week.

17In response to the first two OCF-18s, the respondent sent the applicant an Explanation of Benefits dated November 6, 2018 in which it denied the OCF-18s based on the IE report of Dr. Walters dated October 31, 2018. The respondent relied on the same IE report of Dr. Walters in denying the subsequent two OCF-18s submitted in 2019. Dr. Walters’ examination of the applicant revealed that the applicant still had reduced ROM of the cervical spine and that this was as a result of the accident. Dr. Walter’s report noted that the applicant had returned to completing his activities of daily living and personal care tasks, with the exception of completing heavier housekeeping chores and requiring assistance with buttoning his shirt. The applicant reported to Dr. Walters that he finds therapy helpful and that there was a 10% improvement in his condition since the accident. The report also notes that the applicant had a persistent impairment of the right hand and shoulder which pre-dated the subject accident. Of significance, the applicant acknowledged during his testimony that he was limited in carrying out heavier housekeeping chores prior to the accident as a result of pre-existing right shoulder impairment.

18Dr. Walters’ IE report concluded that the applicant had not achieved maximal medical improvement. However, the doctor opined that there was no indication that he will make further recovery with the proposed chiropractic and kinesiology treatment and that the OCF-18s were not reasonable and necessary. Dr. Walters noted that the applicant has Therabands and is knowledgeable on home exercise rehabilitation given his pre-existing right shoulder impairment. Further, the applicant was back to carrying out his normal activities of daily living at the time of his assessment. Dr. Walters testified that as of the date of his assessment the applicant had undergone significant treatment with little benefit. In the doctor’s opinion considering the applicant’s progress, alternative options should have been investigated. For the following reasons, I agree with the respondent and do not find the OCF-18s reasonable and necessary.

19As a starting point, I agree with the respondent that the treatment recommended by Dr. Rodrigues was excessive. For example, the initial OCF-18 dated July 3, 2018 recommended that the applicant receive eight sessions of therapy per week. This means the applicant would have to attend treatment every day of the week and twice on one day. The applicant has failed to convince me that the number of treatment sessions recommended by Dr. Rodrigues and the cost of receiving same are reasonable. The evidence supports that at the time the first disputed OCF-18 was submitted the applicant had already attended over 118 sessions of chiropractic treatment. I agree that the treatment received by the applicant as of that date resulted in minimal improvement. I agree with Dr. Walters’ testimony that at this point the applicant should have looked at alternative treatment options. Instead, he proceeded to incur the denied OCF-18s.

20I also find the applicant’s improvements between the submission of the OCF-18s to be vague and lacking in detail. Dr. Rodrigues even states in the OCF-18s that the applicant’s progress to date had been slow and was delayed because of the applicant’s age and occupational history. Further, the functional ability evaluations (“FAEs”) of Dr. Rodrigues from 2017 to 2020 show inconsistent results to the improvements to the applicant’s ROM and strength in his cervical spine despite receiving so much treatment. The progress notes of Multi-Rehab were not legible which makes it difficult for both the respondent and the Tribunal to interpret the impact or improvements the treatment was having in stabilizing the applicant’s impairments. Consequently, I am not persuaded that the objectives of the OCF-18s in improving the applicant’s ROM or strength have been achieved. Now, I need to address whether the OCF-18s resulted in reducing the applicant’s pain or enabled him to return to his activities of daily living.

21The applicant testified that he was severely limited in his ability to carry out his activities of daily living post-accident. In addition, it took him until March 2020, the date he was discharged from treatment, to get back to his pre-accident function. The applicant testified that for over a year following the accident he was unable to drive, walk, climb stairs, bathe, groom or carry out his housekeeping tasks. He contends that he lived on the main floor of his home as a result of his lack of mobility. The applicant could not give any estimate of how long he was limited in carrying out these activities but claimed that most of his limitations lasted until March 2020. The applicant testified that the treatment he received resulted in decreased pain, which allowed him to return to driving, increased his mobility and provided independence with self-care and housekeeping tasks.

22I find the applicant’s evidence regarding his post-accident limitations in his activities of daily living to be vague, inconsistent and lacking in detail. For example, in Dr. Walters’ IE report from October 2018, the applicant reported being independent with driving, light housekeeping tasks, personal care and walking. Under cross-examination, the applicant was asked whether his self-reports to Dr. Walters was an accurate reflection of his abilities at that time. The applicant indicated that he did not remember what he reported to Dr. Walters but he did not dispute that the details outlined in Dr. Walters’ report were not accurate.

23I find the applicant’s testimony damaged his credibility. His in-chief testimony about being unable to walk and drive for over a year post-accident were undermined in his statements to Dr. Walters, his cross-examination, and the FAE reports of Dr. Rodrigues. Under cross-examination, the applicant was asked how he got to treatment in the year following the accident and he said that he walked. However, the applicant testified that he could not walk for a long time post-accident but he reported to Dr. Walters that he was able to drive. Both Dr. Walters’ report and Dr. Rodrigues’ FAE reports from 2017 to 2020 note that the applicant walks an hour per day. These inconsistencies did not help the applicant’s case. For these reasons, I give his evidence little weight. I also give little weight to the applicant’s self-reports to Dr. Rodrigues about his pain and limitations.

24Finally, I do not place much weight on Dr. Rodrigues’ report dated January 19, 2022 as for the first time the doctor opined that the applicant’s pre-existing right shoulder impairment was exacerbated by the accident resulting in a chronic pain condition. This new diagnosis was not listed in any of the OCF-18s prepared by Dr. Rodrigues. Further, Dr. Rodrigues’ report was completed over four years post-accident almost a year and a half after the last OCF-18 was denied. Further, Dr. Rodrigues acknowledged that he did not review the ambulance call report or the applicant’s family doctor’s CNRs in completing his report. The family doctor’s CNRs reflect that the applicant’s primary complaint following the accident was neck strain.

25While the family doctor’s CNRs note the applicant’s ongoing complaints of neck strain and recommended that the applicant continue physical therapy, these were also based on the applicant’s self-reports which as highlighted above are not accurate. I also do not find that the ongoing physical therapy incurred by the applicant met the stated goals. Furthermore, I agree with the respondent that the applicant’s last report of neck strain was referred to in a CNR from January 2019. The applicant contends that this is because he was getting better from the treatment received from Dr. Rodrigues. I do not agree as I find the medical evidence does not support that the amount of treatment received by the applicant resulted in consistent pain reduction, increased strength or ROM. I do not find the goals of the OCF-18s were achieved and I find the cost of same excessive.

26For all of the above-noted reasons the applicant has not met his onus in proving on a balance of probabilities that the four OCF-18s recommending chiropractic treatment are reasonable and necessary.

ORDER

27For all of the above-noted reasons, I order as follows:

a) The applicant is not entitled to the four OCF-18s for chiropractic treatment recommended by Multi-Rehab.

Footnotes

1. 1The applicant withdrew the OCF-18 dated November 19, 2019 in the amount of $2,410.00 for chiropractic treatment recommended by Dr. Rodrigues.
2. 2Of note, all four OCF-18s refer to physical rehabilitation versus chiropractic treatment.
3. 3Both parties submitted a high volume of case law which set out the legal test for entitlement to medical benefits under the Schedule. The test to determine whether medical benefits are reasonable and necessary is well established. Since I am not dealing with a novel issue, I do not find it necessary to address every decision referred to by the parties.