Citation: Circelli v. Aviva Insurance Canada, 2023 ONLAT 21-012997/AABS

Licence Appeal Tribunal File Number: 21-012997/AAB

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:

Anthony Circelli

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Janet Rowsell

APPEARANCES:

For the Applicant:

Anthony Circelli, Applicant

Angela Chui, Paralegal

For the Respondent:

Aviva Insurance Canada

Aimee Draper, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Anthony Circelli, the applicant, was involved in an automobile accident on June 1, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The parties consented to the withdrawal of the second issue in dispute as described in the Case Conference Report and Order, which is in the amount of $751.17 for a Theragun, as proposed in an Expense Claim Form/ OCF-6, including two visits to the Cleveland Clinic submitted on February 5, 2021.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to $2,460.00 for a physiatry assessment, proposed by Rehab First Inc. in a treatment plan/ OCF-18 (“plan”) dated November 21, 2019?

ii. Is the applicant entitled to $2,256.20 for chiropractic services, proposed by Dr. Toby Kobrossi in a treatment plan/ OCF-18 dated August 9, 2021?

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

RESULT

4The applicant is not entitled to the cost of examination in the amount of $2,460.00 for a Physiatry Assessment recommended by Rehab First Incorporated in a treatment plan/OCF-18 dated November 21, 2019.

5The applicant is not entitled to $2,256.20 for chiropractic services, proposed by Dr. Toffy Kobrossi in a treatment plan/ OCF-18 dated August 9, 2021.

6The applicant is not entitled to interest as there are no benefits overdue.

LEGAL ANALYSIS:

7The Schedule (consider adding section number(s) from the Schedule where appropriate) provides that the respondent will pay for all reasonable and necessary medical benefits to or on behalf of the applicant so long as the applicant sustains an impairment as a result of the accident and that the medical benefit is a reasonable and necessary expense incurred as a result of an accident.

8The onus is on the applicant to prove on a balance of probabilities that the expenses are reasonable and necessary pursuant to section 15 of the Schedule.

9The applicant’s accident-related injuries were not placed within the Minor Injury Guideline which caps medical treatment at $3,500.00. Therefore, his entitlement to medical benefits increased up to a maximum of $50,000based on limits set out in section 18(3) of the Schedule. To date, according to the standard benefits statement dated October 1, 2022, the applicant has incurred $11,666.25 in medical and rehabilitation benefits. The remaining amount available for treatment is $38,333.75 of the $50,000.00 medical and rehabilitation limit.

10The applicant submits that a pre-existing right shoulder condition was aggravated by the accident. Among the issues in dispute is the question of causation of the applicant’s right shoulder pain and range of motion issues. The test to determine causation is the “but for” test, signifying that causation is a factual determination made on a balance of probabilities: See Sabadash v. State Farm et al, 2019 ONSC 1121. In order to demonstrate causation, an applicant must show that “but for” the accident, the applicant would not have suffered the injuries. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be a “necessary” cause.

11Correspondence from orthopaedic surgeon, Dr. Stephen Halman, dated November 27, 2017, and March 5, 2018, describe that the applicant has long-standing right shoulder dysfunction following an injury as a professional hockey player, in 1984, when the applicant sustained an AC joint separation in the right shoulder. The applicant describes to Dr. Halman that the subject motor vehicle accident adversely affected his ability to participate in the sport of golf, however, the applicant states that he has been able to continue working as a project manager. Dr. Halman opines that the applicant has a good range of motion, good power and scapular control in his right shoulder. Dr. Halman opines respecting causation that the deformity resulting from the AC joint separation in 1984, resulted in chronic AC joint separation and bicipital tendonitis, as opposed to the accident being a cause of the right shoulder condition; Dr. Halman’s opinion is corroborated in diagnostic tests of the AC joints taken on September 23, 2017, where no fracture is noted, in addition based on an ultrasound of the right shoulder in the same time frame in September 2017. Dr. Halman describes the original 1984 joint separation as the cause of any discomfort in the right shoulder, as opposed to the applicant reporting accident caused pain. Dr Halman recommends Dep-Medrol medication and cortisone injection to the bicep sheath to address the applicant’s reported complaints.

12There are two treatment plans in dispute before me. The first treatment plan dated November 21, 2019, is in the amount of $2,460.00, proposed by Robyn McMackin, Occupational Therapist, of Rehab First Incorporated, which recommends a Physiatry Assessment. The goals of the treatment plan are a return of the applicant to the activities of normal living. In the additional comments section of the plan, it is stated that the assessment is required to identify and recommend appropriate treatment and services to aid the applicant’s recovery and to improve his ability to participate in the activities of daily living. The assessment is described as including a determination of the applicant’s recovery status, diagnosis, and prognosis, and for the purpose of developing recommendations for treatment. The treatment plan’s estimated duration is four hours for the purpose of a total body assessment and medical rehabilitation.

13The applicant submits that the seriousness of his injuries requires a physiatry assessment to evaluate what improvements could be completed to improve his functional capabilities through medical treatment and rehabilitation. The respondent relies on Dr. Oleg Safir’s Insurer’s Examination (IE) paper review, dated March 16, 2022, finding that a physiatry assessment is not clinically indicated and unnecessary, following exhaustive assessment of the applicant by means of examination by Orthopaedic Surgeon Dr. Oleg Safir. Dr Oleg Safir’s IE assessments were that the applicant has reached maximum medical recovery and there is no existing objective evidence of ongoing accident-related orthopaedic, musculoskeletal or neurological injury or impairment, which require further facility-based treatment or a physiatry assessment.

14In correspondence dated December 5, 2019, the respondent denied funding for the physiatry assessment proposed by Robyn McMackin, Occupational Therapist, based on the opinion of Dr. Oleg Safir, in a Paper Review – Orthopaedic Surgery, dated December 5, 2019, which determined that the proposed physiatry assessment was not reasonable and necessary. Dr. Safir concluded in his paper review that an MRI of the right shoulder previously recommended, had not been completed. Further, Dr. Safir opined that the applicant had reached maximum medical improvement. t An MRI the applicant’s right shoulder, took place on May 20, 2020, at the North York General Hospital, and verified there was no rotator cuff tear, and that the applicant’s subscapularis and infraspinatus were intact, in addition to there being no occult fracture or bone bruise in the right shoulder. The MRI confirmed the finding of Dr. Safir in relation to the right shoulder that the applicant had no existing objective evidence of ongoing accident-related orthopaedic, musculoskeletal or neurological injury or impairment and that he had reached maximum medical recovery.

15In Dr. Oleg Safir’s IE paper review, dated March 16, 2022, Dr. Safir opines that a physiatry assessment is not clinically indicated and not a reasonable and necessary expense. His medical findings are consistent with his previous examinations and reports in relation to the applicant, dated August 6, 2019, December 5, 2019, November 26, 2021, and dated December 10, 2021. Dr Safir prepared a paper review dated December 5, 2019, providing an opinion on the treatment plan for a physiatry assessment. Dr Safir determined that the applicant’s accident-related injuries have already been exhaustively assessed, and that in his capacity as an Orthopaedic Surgeon, he had already provided ongoing management recommendations. Dr. Safir opined that a physiatry assessment was not clinically indicated and would be unlikely to yield any additional clinical information that would be meaningfully beneficial. Having reviewed the medical evidence, I agree with Dr. Safir’s opinion that the treatment plan proposing a physiatry assessment is neither reasonable nor necessary.

16I find that the treatment plan dated November 21, 2019, in the amount of for $2,460.00, proposed by Robyn McMackin, of Rehab First Incorporated, which recommends a Physiatry Assessment, is neither reasonable nor necessary based on the medical opinion and assessment by Dr. Oleg Safir that it is not clinically indicated and would not yield any additional clinical information meaningfully beneficial because the applicant’s injuries sustained in the accident, have already been exhaustively assessed. Further Dr. Safir, in his capacity as an Orthopaedic Surgeon, has already provided ongoing management recommendations. The applicant has failed to meet his burden showing that the treatment plan dated November 21, 2019, proposing a physiatry assessment is a reasonable or necessary medical benefit.

TREATMENT PLAN FOR CHIROPRACTIC SERVICES IN THE AMOUNT OF $2,256.20, DATED AUGUST 9, 2021

17The second treatment plan in dispute, is proposed by Toffy Kobrossi, Chiropractor, dated August 9, 2021, in the amount of $2,256.20 for chiropractic services. Toffy Kobrossi describes in the treatment plan that the goals of the plan, are pain reduction, an increase in strength and range of motion, including exercise of multiple body sites and therapy of multiple body sites, completed over a proposed period of 12 weeks. In correspondence from the respondent dated November 3, 2021, it is stated that the applicant is required to attend a section 44 insurer’s examination to update? the previous report of Dr. Oleg Safir. In Dr. Safir’s IE assessment dated August 6, 2019, he determined that the applicant’s pre-existing shoulder impairment, was not affected by the accident and that the chiropractic treatment requested in the treatment plan dated August 9, 2021, was for non-accident-related impairments.

18The applicant submits that facility-based treatment has assisted with his pain management. In addition, the applicant submits that Toffy Kobrossi, proposed that the applicant was steadily improving, increasing his functionality as a result of chiropractic treatment. The respondent submits based on the IE section 44 assessment of Dr. Oleg Safir, that the treatment plan dated August 9, 2021, is not reasonable and necessary because the applicant has reached maximum medical recovery and because, there is no existing objective evidence of ongoing accident-related orthopaedic, musculoskeletal or neurological injury or impairment. By reason of Dr. Safir’s opinion, as described in the IE assessment, the respondent submits that the applicant does not require further facility-based treatment.

19The respondent describes that there has already been sufficient facility-based treatment approved by the respondent. The respondent describes , a chiropractic treatment plan in the amount of $1,306.71, dated February 11, 2019, was approved by the respondent, which was only partially incurred by the applicant following approval. In addition, the respondent approved two further treatment plans for chiropractic services proposed by Toffy Kobrossi, dated April 13, 2021, in the amount of $2,256.20, and a treatment plan, dated May 20, 2021, in the same amount of $2,256.20. Toffy Kobrossi prepared the treatment plan dated August 9, 2021, also in the amount of $2,256.20 for further chiropractic treatment, including ten sessions of active therapy and ten sessions of chiropractic treatment, which Dr. Safir opines is not a reasonable and necessary expense since the applicant no longer would benefit from further facility-based treatment.

20In correspondence from the respondent dated December 13, 2021, the respondent denies funding for the treatment plan for chiropractic services dated August 9, 2021, following the IE section 44 examination of Dr. Oleg Safir dated November 26, 2021, where Dr. Safir opines that the treatment plan is not reasonable and necessary since the applicant had reached maximum therapeutic benefit from facility-based care and there was no objective impairment attributable to the accident.

21In the IE dated November 26, 2021, and in the Clarification Addendum dated December 10, 2021, Dr. Safir opines respecting the treatment plan in dispute, that the applicant has already had the benefit of formal facility based physical rehabilitation and, achieved maximum therapeutic benefit. Dr. Safir opines that further similar care would not be expected to be of any additional therapeutic benefit. Furthermore, he states, in the absence of ongoing objective musculoskeletal impairment attributable to the accident-related injuries, there is no clinical indication for the provision of further chiropractic facility-based physical rehabilitation. Dr. Safir concludes that the treatment plan for chiropractic services, is neither reasonable nor necessary, by reason of the lack of utility or efficacy of further facility-based treatment for t the applicant’s accident-related impairments.

22In the I E, dated November 26, 2021, Dr Safir opines that the applicant’s pre-existing right shoulder pathology, exhibits some limitations in range of motion and was exacerbated by the accident, however, whatever accident-related soft tissue injuries were sustained, are subject to the customary healing time of 8 to 12 weeks. Dr. Safir opines that within all reasonable medical certainty, the limited range of motion issues in the applicant’s right shoulder are mainly consistent with a pre-existing right shoulder pathology. Therefore, Dr Safir opines that the accident-related impairments, including to the applicant’s right shoulder, had resolved, reaching maximum medical improvement, so that further facility-based treatment such as the chiropractic services proposed in the August 9, 2021, treatment plan, would not be reasonable and necessary.

23I agree with the finding of Dr. O. Safir, in his Section 44 IE, dated November 13 (26?), 2021, and his Clarification Addendum dated December 10, 2021, that the treatment plan by Toffy Kobrossi, for chiropractic services, dated August 9, 2021, is neither a reasonable nor necessary expense. I find that the applicant has failed to meet his burden. I am further persuaded that the applicant has reached maximal medical recovery, and as described, the medical evidence demonstrates that the applicant’s accident-related injuries will no longer benefit therapeutically from further facility-based treatment. In addition, I agree with Dr. Safir’s opinion that there is no evidence of ongoing objective musculoskeletal impairment attributable to accident-related injuries, and no clinical indication for the provision of further facility-based physical rehabilitation.

Interest

24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I find that the applicant is not entitled to the treatment plans, no benefits are overdue and therefore no interest is payable by the respondent.

ORDER

25The applicant is not entitled to the cost of examination in the amount of $2,460.00 for a physiatry assessment recommended by Rehab First Incorporated in a treatment plan/OCF-18 dated November 21, 2019.

26The applicant is not entitled to $2,256.20 for chiropractic services, proposed by Dr. Toby Kobrossi in a treatment plan/ OCF-18 dated August 9, 2021.

27The applicant is not entitled to interest.

28The application is dismissed.