Cesario v. Aviva Insurance Company of Canada, 2023 CanLII 81812

Citation: Cesario v. Aviva Insurance Company of Canada, 2023 ONLAT 21-008625/AABS

Licence Appeal Tribunal File Number: 21-008625/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.

Parties

Between:

Lindsay Cesario

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Bonnie Oakes Charron

APPEARANCES:

For the Applicant: Maria Papadopoulos, Paralegal

For the Respondent: Jessica Bacopulos, Counsel

HEARD: In Writing

OVERVIEW

1Lindsay Cesario, the applicant, was involved in an automobile accident on February 18, 2020, 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, Aviva Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2According to the Case Conference and Order, the parties advised that the applicant was removed from the Minor Injury Guideline (MIG) prior to the case conference of July 28, 2022. No reasons were specified.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to $2829.37 for chiropractic services, proposed by Alma rehab Inc in a treatment plan/OC F-18 (“plan”) submitted July 9, 2020 and denied July 22, 2020?

ii. Is the applicant entitled to $2,496.37 for chiropractic services, proposed by Alma rehab Inc in a treatment plan submitted August 18, 2020 and denied August 26, 2020?

iii. Is the applicant entitled to $2,189.27 for chiropractic services, proposed by Alma rehab Inc in a treatment plan submitted October 7, 2020 and denied October 20, 2020?

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

RESULT

4The applicant is not entitled to the treatment plans. Since no benefits are owing, no interest is payable.

ANALYSIS

5To 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.

6I find the applicant has not demonstrated that the treatment plans are reasonable and necessary.

7The applicant submits that following the accident, she experienced physical pain in her chest, lower abdomen, and left shoulder. She later developed low back pain and headaches. She returned to work on modified duties one week after the accident, and soon returned to full-time status. X-rays and an ultrasound taken at the hospital the same day as the accident did not reveal any serious injuries. The applicant’s chiropractor wrote an OCF-3 on February 24, 2020, indicating that she would need short-term assistance with home maintenance and housekeeping activities.

8On March 4, 2020, the applicant saw her family doctor, Dr. Sequeria, who advised her to pursue physiotherapy as well as stretching and daily exercises. No further tests were ordered and despite over thirty visits to her family doctor between April 5, 2020, and September 27, 2022, the applicant only mentioned pain from the accident once on August 17, 2020. At this appointment, Dr. Sequeria records that the applicant continued to have back and shoulder pain, and the applicant’s medications were renewed.

9Approximately one year after the accident, Dr. Sequeria referred the applicant to a Chronic Pain Management (CPM) clinic for her low back pain. At the clinic consultation, Dr. Morgan ‘s report indicates that the applicant had found physiotherapy, acupuncture, chiropractic, and massage therapy to provide “minimal” benefit. This is corroborated by her statements to Dr. Oshidari at a section 44 assessment on October 28, 2020. During that assessment, the applicant reported having only a “10%” improvement from her physical therapy treatments.

10Dr. Morgan recommended a trial course of nerve block (NB) injections. The applicant attended the CPM biweekly for NB injections between May 12, 2021, and December 16, 2021. The clinical notes and records (CNRs) from the CPM clinic show that the applicant found the injections to be of benefit for both pain relief and functional improvement.

11The applicant claims three treatment plans for chiropractic and physiotherapy services. She submits they are reasonable and necessary to treat her chronic pain. However, the respondent submits that the applicant has not met the test for determining whether a treatment plan is reasonable and necessary. It argues that all three treatment plans have similar goals, and the applicant has not submitted any evidence to demonstrate her progress or that the goals are being met to a reasonable degree. She did not produce the CNRs from Alma Rehab Inc, as ordered in the Case Conference Report and Order. This evidence would have been highly relevant and failing to produce it reflects negatively on the applicant’s claim.

12Furthermore, the cost of the treatment plans when measured against the degree of success is not reasonable, especially given the success the applicant has experienced with alternative treatment, namely the NB injections. The respondent cites the test set out in V.R. vs. Aviva Insurance Company, 2019 ONLAT 18-002880/AABS, noting that the overall costs of a treatment plan must consider both the degree of success and the availability of other treatment. By the applicant’s own admission, it is the injections, and not physical therapy, that has been the most beneficial for pain relief and functional improvement.

13The respondent also points out that with regard to the treatment plan submitted July 9, 2020, much of the treatment was incurred between June 10 and July 8, 2020, prior to the submission of the plan to the respondent. If so, these amounts are not payable, pursuant to section 38(2) of the Schedule.

14The applicant is not entitled to the treatment plans in dispute because:

i. the identified goals change little between the three treatment plans;

ii. there is no evidence that the applicant is reaching the goals or making appropriate progress; and

iii. there are no contemporaneous notations of the need for ongoing physical therapy treatments in the CNRs of Dr. Sequeira, her family doctor.

Thus, the OCF-18s are not payable.

15For the reasons outlined above, I find that the applicant has failed to meet her onus to show that the medical benefits she seeks are reasonable and necessary.

Interest

16Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

17As no benefits are owing, no interest is payable.

ORDER

18The treatment plans are not reasonable and necessary.

19No interest is payable.

20The application is dismissed.