Pereira v. Aviva General Insurance, 2023 CanLII 60247

Citation: Pereira v. Aviva General Insurance, 2023 ONLAT 21-002328/AABS

Licence Appeal Tribunal File Number: 21-002328/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:

Darren Pereira Applicant

and

Aviva General Insurance Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Darren Pereira, Applicant Todd Reybroek, Counsel

For the Respondent: Melanie Sousa, Counsel

HEARD: In Writing May 20, 2023

OVERVIEW

1Darren Pereira, the applicant, was involved in an automobile accident on March 8, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Aviva General Insurance, 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 $1,733.72 for chiropractic services, proposed by Impact Chiropractic and Rehabilitation Centre, in a treatment plan (“OCF-18”) dated October 5, 2020?

ii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

i. The applicant is not entitled to $1,733.72 for chiropractic services, proposed by Impact Chiropractic and Rehabilitation Centre in the OCF-18 dated October 5, 2020.

ii. The applicant is not entitled to interest.

ANALYSIS

OCF-18 for Chiropractic Services is Not Reasonable and Necessary

4I am not persuaded that the applicant is entitled to the OCF-18 for chiropractic services in the amount of $1,733.72 as it is not reasonable and necessary pursuant to the Schedule.

5To receive payment for a treatment plan 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 applicant’s burden goes beyond showing that the applicant has an impairment that requires treatment.

6The applicant submitted an OCF-18 for chiropractic services. The OCF-18 sought to reduce pain, increase strength and range of motion, allowing the applicant to return to activities of normal living.

7The applicant provided limited submissions addressing the reasonableness and necessity of the proposed chiropractic services. I find that the applicant did not provide sufficient evidence to establish entitlement to the chiropractic services.

8The applicant provided more details to previous pre-existing conditions and injuries, as it is undisputed by both parties that the applicant had low back pain prior to the accident.

9The applicant submitted that on June 8, 2016, prior to the accident, he injured his back in a workplace accident. The applicant was diagnosed with lumbar strain and decreased flexibility, left gluteus medius and maximum myofascial pain, and bilateral spondylolysis at L5 with grade 1 anterolisthesis of L5 over S1.

10The applicant relies on the clinical notes and records (“CNRs”) of general practitioner, Dr. Yarloslav Dvorskyy and Dr. Neil Weinberg, psychologist. Dr. Dvorskyy’s CNRs provide that the applicant has low back pain caused by heavy lifting. The psychologist report of Dr. Weinberg dated April 19, 2021, references how the applicant’s stress stems from physical limitations.

11The applicant also relies on witness statement of Maria Di Placido, the applicant’s girlfriend, which I am not persuaded by, as it was unsworn and inconsistent with the evidence before the Tribunal.

12The respondent relies on the section 44 insurer’s examination (“IE”) of Dr. Ahmad Belfon, general practioner, dated December 10, 2020, in support of its position. Dr. Belfon opined that the applicant had achieved marginal overall improvement to his back pain despite extensive therapy, and he had achieved maximum medical recovery. It was Dr. Belfon’s opinion that the OCF-18 was not reasonable and necessary as ongoing treatment would only serve to provide temporary pain relief, but not substantial functional restoration or sustainable gains.

13I am persuaded by Dr. Belfon’s December 10, 2020, opinion as he had previously assessed the applicant on January 9, 2020. In January Dr. Belfon found that the applicant had not yet achieved maximum medical recovery, and opined that treatment was reasonable and necessary prompting the respondent to approve earlier chiropractic treatment for the applicant.

14Moreover, the evidence provides that the applicant was receiving treatment from Impact Chiropractic and Rehabilitation Centre for three years prior to the accident for back pain. The Impact Chiropractic and Rehabilitation Centre records provide that prior to the accident, the applicant already had difficulties with self-care and personal hygiene, physical activities, social and recreational activities, travelling and sleep. While I respect Dr. Weinberg’s opinion, I am persuaded that the applicant’s physical limitations were already present prior to the accident.

15I am persuaded by the undisputed position of both parties that the applicant already suffered from low back pain at the time of the accident. I find that prior to the accident the treatment received by the applicant provided little improvement, and that the applicant’s physical and recreational activities were already discontinued or minimized. The applicant received treatment post accident, as approved by the respondent to bring him back to his pre-accident state. I am not satisfied that the additional treatment would benefit the applicant.

16The applicant bears the onus of proof to establish that the proposed treatment is reasonable and necessary. I am not persuaded that the evidence before the Tribunal supports the need for ongoing chiropractic services. I find that the applicant has not met his onus to establish entitlement to the OCF-18.

Interest

17Since I found no benefits payable, the applicant is not entitled to interest.

ORDER

18For the foregoing reasons, I find that:

i. The applicant is not entitled to $1,733.72 for chiropractic services, proposed by Impact Chiro and Rehabilitation in the OCF-18 dated October 5, 2020.

ii. The applicant is not entitled to interest.