Licence Appeal Tribunal File Number: 22-002995/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:
Shari Quintero
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Ludmilla Jarda
APPEARANCES:
For the Applicant:
Joshua Meshack, Counsel
For the Respondent:
Natalie Spinelli, Counsel
HEARD:
By Written Submissions
OVERVIEW
1Shari Quintero (the “applicant”) was involved in an automobile accident on May 28, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2020 (the “Schedule”). The applicant was denied benefits by Aviva Insurance Company of Canada (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
Is the applicant entitled to $2,907.68 for chiropractic treatment, proposed in a treatment plan/OCF-18 (“treatment plan”) submitted on August 31, 2021, and denied on February 18, 2022?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons that follow, I find that the applicant is not entitled to $2,907.68 for chiropractic treatment nor interest.
PROCEDURAL ISSUES
4In her written hearing submissions, the applicant introduces a claim for an unspecified cost of examination at paragraphs 18-19. She also introduces a claim for an award under s. 10 of Regulation 664 at paragraphs 25-29 because the respondent unreasonably withheld or delayed payments to the applicant.
5The respondent opposes the applicant’s attempt to introduce new issues in dispute and requests that paragraphs 18-19 and 25-29 of the applicant’s written hearing submissions be struck.
6The applicant did not submit reply submissions, despite having the opportunity to do so. As such, she did not respond to the respondent’s objection regarding the proposed addition of two issues in dispute nor to the respondent’s request to strike portions of her written hearing submissions.
7I find that the issues of the unspecified cost of examination and award are not properly before the Tribunal and that it would be procedurally unfair to add these issues at this stage in the proceedings.
8The case conference is intended to canvass and identify all the issues in dispute between the parties, and the applicant did not raise these issues at that time. If other issues are to be added, parties must follow the appropriate procedure, such as filing a motion to add any additional issues. This has not been done in this case.
9Instead, the applicant raised these issues for the first time in her written hearing submissions. Further, the applicant has not provided an explanation for raising these issues for the first time at this late stage in the proceeding. In the absence of any explanation for delay, I am not prepared to add these issues as issues in dispute.
10Accordingly, I will not consider paragraphs 18-19 of the applicant’s written hearing submissions that deals with the unspecified cost of examination nor paragraphs 25-29 that deals with the award. I will focus my analysis on the issues that were outlined in the Case Conference Report and Order dated December 21, 2022.
ANALYSIS
The Treatment Plan
11To 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.
12Pursuant to s. 38(3) of the Schedule, a treatment and assessment plan must be signed by the insured person, be completed and signed by a regulated health professional, and include a statement by a health practitioner approving the treatment and assessment plan and stating that he or she is of the opinion that the goods, services, assessments and examination described in the treatment and assessment plan and their proposed costs are reasonable and necessary for the insured person’s treatment or rehabilitation.
13The applicant submits that the treatment plan for chiropractic care is reasonable and necessary. She relies on the clinical notes and records (“CNRs”) of Dr. Naila Hassan, her family physician, and the Humber River Hospital, as well as an OHIP Summary Report.
14In response, the respondent submits that the disputed treatment plan is deficient as it was not signed by the applicant nor a regulated health professional, and it did not contain any rationale or statement from the health practitioner stating why they believed the treatment plan was reasonable and necessary as required by s. 38(3) of the Schedule.
15The respondent further denies that the treatment plan is reasonable and necessary and submits that the applicant has failed to meet her onus of proving, on a balance of probabilities, that the treatment plan is reasonable and necessary. The respondent relies on an insurer examination general practitioner assessment report dated February 7, 2022 and an addendum report dated April 14, 2022, both completed by Dr. Maria Nesterenko, physician.
16I note that the respondent alleged that the applicant did not provide any medical evidence with her written hearing submissions. As the applicant did not file any reply submissions, she did not respond to the respondent’s allegation. However, based on an email dated August 8, 2023, the applicant served the respondent with her document brief and filed it with the Tribunal. As such, I do not agree with the respondent’s allegation that the applicant did not include any medical evidence with her written hearing submissions.
$2,907.68 for chiropractic treatment is not reasonable and necessary
17I find that the applicant did not demonstrate, on a balance of probabilities, that the treatment plan dated August 31, 2021 in the amount of $2,907.68 for chiropractic treatment is reasonable and necessary.
18The treatment plan proposes 24 sessions of chiropractic manipulation and exercises. The goals of the treatment plan are pain reduction, increase range of motion, and increase strength.
19I am not persuaded by the respondent’s submissions and evidence that the treatment plan is deficient. In its denial letters dated February 18, 2022 and April 19, 2022, the respondent did not identify a non-compliance with s. 38(3) of the Schedule as a basis for denying the treatment plan. Rather, the respondent raised the issue of non-compliance for the first time in its written hearing submissions and relies on the Health Claims for Auto Insurance (“HCAI”) issued version of the treatment plan.
20When a treatment plan is electronically submitted through the HCAI system, the regulated professional who recommended the treatment is required to print a copy of the treatment plan, sign it, and keep the copy in its records. If an insurer is going to raise an issue for the first time at a hearing that a treatment plan does not comply with s. 38(3) of the Schedule because it is not signed, it is incumbent upon the insurer to provide proof, other than the HCAI issued version of the treatment plan, that the treatment plan’s author’s copy is unsigned. No such proof has been tendered by the respondent to support its allegation that the treatment plan did not comply with s. 38(3) of the Schedule.
21I find that there is insufficient evidence to support that the treatment plan is reasonable and necessary. According to the Ambulance Call Report dated May 28, 2018, the applicant was ambulatory at the scene of the accident, and she denied experiencing any neck pain, pain on palpitation, numbness or tingling, shortness of breath, chest pain, or headache. The applicant reported feeling dizzy, weak while standing as well as experiencing back pain with movement. She was taken to the Humber River Hospital by ambulance where she reported lower back pain. No diagnostic imaging was ordered, and she was discharged home on the same day. The applicant has not directed me to any contemporaneous records to support that she experienced any ongoing impairment as a result of her accident-related injuries following the accident.
22I agree with the respondent’s argument that the treatment plan was not submitted due to the applicant’s accident-related injuries but rather as a result of the aggravation of the applicant’s pre-existing injuries sustained in a motor vehicle accident which occurred in March 2021. Further, I am not persuaded by the applicant’s argument that the consultation report dated March 8, 2022 completed by Dr. Arthur Karasik, rheumatologist and internal medicine specialist, supports that the disputed treatment plan is reasonable and necessary.
23Dr. Karasik assessed the applicant on two occasions. A review of the consultation reports dated February 26, 2020 and March 8, 2022 revealed that the applicant has a complex surgical and medical history. The applicant has a history of migraines, hypothyroidism, tonsillectomy, kidney stones, right breast implant complicated by septicemia with renal failure in 2014, cholecystectomy, fractured sacrum, borderline diabetes, dyslipidemia, osteoporosis/osteopenia, left carpel tunnel syndrome during pregnancy, a Caesarean section, tummy tuck, cauda equina syndrome surgery in 2004, attention-deficit and hyperactivity disorder, H. pylori, and depression.
24Although Dr. Karasik diagnosed the applicant with chronic pain in 2020, there is no mention of the May 2018 accident in the report. Rather, Dr. Karasik noted that the applicant has chronic pain in a variety of areas since 1997, but especially to her lower back. He recommended the use of CBD oil to alleviate her chronic pain.
25When Dr. Karasik reassessed the applicant in 2022, he indicated that she had worsened arthralgias which flared after her March 2021 motor vehicle accident. Dr. Karasik found that the applicant presented with chronic myofascial pain with exacerbation of her typical pain features. Although Dr. Karasik encouraged the applicant to continue with physiotherapy and to maintain her physical activity levels, and he opined that she would benefit from a multimodal treatment approach for her chronic pain, there is no evidence to support that this recommendation was made as a result of the applicant’s accident-related injuries or impairments. Indeed, there is no mention of the May 2018 accident in the report.
26I further find that the evidence supports that further facility-based physical rehabilitation is not reasonably required. The applicant was assessed by Dr. Nesterenko who diagnosed her with cervical spine sprain/strain, whiplash associated disorder I/II, thoracolumbar spine sprain/strain, bilateral upper extremity soft-tissue injury, and bilateral hip and bilateral knee soft tissue injuries. On physical examination, the applicant did not demonstrate any significant objective musculoskeletal impairment directly attributable to the accident-related injuries. Dr. Nesterenko concluded that the applicant’s accident-related injuries would have healed prior to her 2021 accident.
27Additionally, Dr. Nesterenko noted that the applicant already benefited from formal facility-based physical rehabilitation and that she had reached maximal therapeutic benefits from such care. She opined that further similar care would not be expected to be of any additional therapeutic benefit with respect to the applicant’s accident-related injuries, and she recommended that the applicant continue with a self-directed home exercise program for general maintenance and conditioning purposes.
28Accordingly, I find that the applicant has not proven that the treatment plan is payable.
Interest
29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that there are no overdue benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
30For the reasons outlined above, I find that the applicant is not entitled to $2,907.68 for chiropractic treatment nor interest.
31The application is dismissed.
Released: February 13, 2024
Ludmilla Jarda
Adjudicator