Citation: Di Giulio v. Aviva General Insurance, 2023 ONLAT 21-011748/AABS

Licence Appeal Tribunal File Number: 21-011748/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:

Francesco Di Giulio

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Janet Rowsell

APPEARANCES:

For the Applicant:

Francesco Di Giulio, Applicant Kaitlyn MacDonell, Counsel

For the Respondent:

Aviva General Insurance

Michael W Chadwick, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Francesco Di Giulio, the applicant, was involved in an automobile accident on March 29, 2017, 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, 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 medical benefits in the amount of $1,800.00 for chiropractic treatment, proposed by Sundeep Bhasin in a treatment plan/ OCF-18 (“plan”) dated February 4, 2021?

ii. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant is not entitled to $1,800.00 for chiropractic services as the plan is not reasonable and necessary.

4The respondent is not liable to pay an award under Regulation 664 because it did not unreasonably withhold or delay payments to the applicant.

5The applicant is not entitled to interest.

ANALYSIS

Causation

6Following the accident on March 29, 2017, the applicant resumed working, completing household chores and engaging in recreational activities, until he was involved in a further accident on May 24, 2018. I find that the issue of causation should have been considered for the purpose of the treatment plan in dispute, resulting in my placing no evidentiary weight on the evidence provided by the applicant in support of the plan, since it does not address causation.

7The 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.

8The respondent submits that the applicant was in a subsequent accident on May 24, 2018. The respondent submits that a report by Dr. Igor Steinman, dated February 13, 2020, mentions the subsequent accident. Dr. Steinman’s report is published one year prior to the treatment plan proposing chiropractic treatment in dispute. The report states that after the subject accident on March 29, 2017, the applicant resumed working, completing household chores and engaging in recreational activities, until he was involved in an accident on May 24, 2018, when his vehicle was “side-swiped”. Dr. Steinman states in his report that the applicant experienced neck pain and headache as a result of the May 2018 accident, after which the applicant was diagnosed with aggravated cervical thoracic strain.

9At page 3 of Dr. Steinman’s report, it states that the applicant had seventy percent recovered from the March 2017 accident, when the May 2018 accident took place. The applicant does not address causation in their reply except to deny it as an issue.

10The test to determine causation is the “but for” test: 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.

11The applicant has the burden to demonstrate that their injuries and impairments, addressed in the treatment plan in dispute, were caused by the subject accident. The applicant has not shown, on a balance of probabilities, that the accident on March 29, 2017, is the cause of the injuries cited in the treatment plan rather than the injuries being caused by the subsequent accident on May 24, 2018.

12The letter dated February 13, 2020 from Dr. Igor Steinman refers in the final paragraph to causation, stating that the accident of May 24, 2018, aggravated the applicant’s accident-related injuries and worsened them.

13On reply, the applicant does not address causation and does not deny that an accident occurred on May 24, 2018. Instead, the applicant states that the section 44 report of Dr. Alborz Oshidari is deficient because it does not mention another accident on May 24, 2018. As stated, the applicant’s evidence, including Dr. Steinman’s report, is provided with a covering letter dated February 1, 2023. In the event that Dr. Alborz Oshidari and the respondent were not made aware of the accident in May 2018, described by Dr. Steinman as information provided to him by the applicant, that would amount to a material omission by the applicant of information to be disclosed, as opposed to Dr. Oshidari failing to take into account an accident, which he was never advised of by the applicant.

14I will address the treatment plan in dispute determining if it is a reasonable and necessary expense. However, causation should have been considered for the purpose of the treatment plan in dispute, resulting in my placing no evidentiary weight on the evidence provided by the applicant in support of the plan, since it does not address causation. I find that the applicant has failed to meet his burden to demonstrate entitlement to the treatment plan in dispute as a result.

15The treatment plan in dispute is dated February 4, 2021, and was submitted by Sundeep Bhasin, Chiropractor. The treatment plan proposes 40 chiropractic treatments and an evaluation of the applicant’s injuries. At Part 6 of the treatment plan the injuries described are subluxation complex (vertebral), cervical region, muscle strain, and shoulder region. In Part 9 of the plan, the goals of treatment are stated to be pain reduction, increase in strength, the return to the activities of normal living, increase in range of motion and a return to pre-accident work activities.

16The applicant refers to evidence supportive of the reasonableness and necessity of the treatment plan, consisting of Dr. Igor Steinman’s report dated February 13, 2020; the clinical notes and records (CNR’s) of Dr. Vojvodich and the Neuropsychological report of Dr. David Kurzman. The applicant’s evidence is without pagination and despite reference to tabs, the tabs are not numbered. I cannot locate any letter or report from Dr. Vojvodich in the applicant’s materials. Rather, there are only barely legible notes from a physical therapist named Kara Newland and an email from Sandeep Bhasin, Chiropractor, sent to the applicant’s legal counsel dated December 5, 2022. Therefore, I am unable to assess CNR’s from a Dr. Vojvodich as referenced in the applicant’s submissions.

17Dr. Igor Steinman recommends that the applicant receive chiropractic treatment, once every two to three weeks. Whereas records from Power Flow Chiropractic show that the applicant came for an initial consultation and examination on October 14, 2020, and that he received chiropractic treatment from October 15, 2020 to July 29, 2021, which is for over nine months. Before the applicant’s treatment at Power Flow Chiropractic, he received chiropractic treatment at Novo Healthnet from May 23, 2017, to March 5, 2019 (handwritten, barely legible notes from treatment by Dr. Igor Steinman are taken at each session).

18Dr. David Kurzman is a registered Clinical Psychologist with a practice in Clinical Neuropsychology. He prepared a neuropsychological assessment in relation to the applicant dated October 15, 2020. He describes the purpose of the neuropsychological assessment as to ascertain whether the applicant has cognitive impairments resulting from the accident. He also states that the purpose of his assessment is to provide recommendations regarding the applicant’s rehabilitative needs related specifically to neurocognitive functioning as opposed to physical rehabilitation, which Dr. Kurzman is not qualified to offer an opinion in relation to.

19The respondent submits that the applicant has provided no medical evidence in response to the Insurance Examination report of Dr. Alborz Oshidari. I agree that the applicant has provided no evidence to address issues of causation nor reliable medical evidence responding to the opinion and findings of Dr. Alborz Oshidari in his Physical Medicine and Rehabilitation Specialist assessment dated April 1, 2021.

20Dr. Alborz Oshidari prepared a Physical Medicine and Rehabilitation Specialist assessment dated April 1, 2021. Dr. Oshidari’s opinion is that the applicant sustained a sternum fracture which at the time of examination was well-healed and which did not cause any functional impairment. Dr. Oshidari opines that there is a potential that the applicant experienced some post-concussion symptoms and cervicogenic headaches although there was no sign of greater occipital neuralgia.

21Dr. Oshidari did not notice any sign of tendonitis, bursitis or tenosynovitis around the applicant’s shoulder area on examination. The assessment by Dr. Oshidari did not reveal any sign of radiculopathy, myelopathy, or plexopathy. In summary, the examination of the applicant did not show any structural or physiological abnormality.

22Dr. Oshidari opines in relation to the applicant’s vertigo or dizzy spells that the applicant would benefit from a referral to an ENT specialist (Ear, Nose and Throat specialist), as opposed to benefiting from further chiropractic treatment. Dr. Oshidari opines that the applicant has received extensive treatment over almost four years without any long-term benefit. The applicant described to Dr. Oshidari that the new chiropractor performed manual therapy for five minutes at a time at each session, and then would send the applicant away without any real physical benefit.

23Dr. Oshidari opines that the treatment plan in dispute for chiropractic treatment is not reasonable and necessary because based on his assessment from a physical point of view, no structural nor physiological abnormality was detected. In addition, Dr. Oshidari opined that following a lengthy period of facility-based treatment, the applicant had reached maximum medical recovery. In addition, because the chiropractor who prepared and recommended the treatment plan spends, according to the applicant, five minutes on manual therapy at each treatment session without any real physical benefit experienced by the applicant, as described, the treatment plan in dispute for further chiropractic treatment is neither a reasonable nor necessary expense.

24I find that the applicant has experienced a lengthy period of chiropractic treatment to address his injuries caused by the subject accident in the period from May 2017 to July 2021. I place greater weight on the evidence of Dr. Alborz Oshidari in his IE examination report, than on the evidence of the applicant for the reasons described. I find that the treatment plan in the amount of $1,800.00 for chiropractic treatment dated February 4, 2021, is not a reasonable and necessary expense payable by the respondent since the applicant will not benefit from further chiropractic treatment for his accident-related injuries. As stated by Dr. Oshidari, the applicant has received extensive treatment for more than four-years without any long-term benefit. I agree with Dr. Oshidari’s opinion that the treatment plan in dispute is not a reasonable and necessary expense payable by the respondent. The applicant has failed to meet his burden to demonstrate otherwise.

Interest

25Interest 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 plan, no interest is payable by the respondent.

Award

26The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The applicant is not entitled to an award under s. 10 of Reg. 664., because the applicant is not entitled to the benefits or interest claimed.

ORDER

27The applicant is not entitled to $1,800.00 for chiropractic services as it is not reasonable and necessary.

28The applicant is not entitled to an award or interest.

29The application is dismissed.