Citation: Sagna v. Aviva General Insurance, 2024 ONLAT 22-008109/AABS

Licence Appeal Tribunal File Number: 22-008109/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:

Sylvie Sagna

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Dominique Setton

APPEARANCES:

For the Applicant:

Maria Papadopoulos, Paralegal

For the Respondent:

Nicholas Maida, Counsel

HEARD: In Writing

OVERVIEW

1Sylvie Sagna, the applicant, was involved in an automobile accident on March 28, 2021, 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 $3,175.39 for chiropractic services, as proposed by Alma Rehab in a treatment plan dated July 30, 2021?

ii. Is the applicant entitled to $2,825.37 for chiropractic services, proposed by Alma Rehab in a plan dated December 15, 2021?

iii. Is the applicant entitled to $2,495.35 for chiropractic services, proposed by Alma Rehab in a plan dated March 28, 2022?

iv. Is the applicant entitled to $2,161.30 for chiropractic services, proposed by Alma Rehab in a plan dated June 28, 2022?

v. $2,200.00 for a Biopsychosocial Assessment, in a plan dated April 26, 2022.

vi. $1,388.62 for a Driving Evaluation Assessment, in a plan dated April 26, 2022; and

vii. $2,300.00 for a Chronic Pain Assessment, in a plan dated May 19, 2022?

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

RESULT

3I find the applicant is not entitled to any of the proposed plans.

4I find there is no interest due, as there are no overdue payments.

ANALYSIS

The applicant is not entitled to $3,175.39 proposed in the treatment plan dated July 30, 2021.

The applicant is not entitled to $2,825.37 proposed in a treatment plan dated December 15, 2021.

The applicant is not entitled to $2,495.35 proposed in a treatment plan dated March 28, 2022.

The applicant is not entitled to $2,161.30 proposed in a treatment plan dated June 28, 2022.

5I find that the treatment plans are not reasonable and necessary. Under section 15 of the Schedule, the test is whether the treatment plan is reasonable and necessary. To 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.

6The applicant argues that the treatment plan of July 30, 2021, is reasonable and necessary due to her continuing neck and back pain. The applicant submits that her condition has become worse, and she continues to suffer which requires continued chiropractic treatment.

7Aviva submits that the treatment plan is not reasonable and necessary because in the opinion of the assessor, the applicant has reached maximum medical recovery for her accident-related injuries and that further facility-based treatment for chiropractic treatment will not improve her condition.

8The treatment plan was submitted on August 3, 2021. Based on the clinical notes and records of Dr. Shilash, family doctor, the applicant did not complain to her family doctor about any accident-related pain between May 18, 2021 and September 7, 2021.

9On September 7, 2021, the applicant complained about left ankle swelling, but not about pain. On September 9, 2021 she complained about right knee /calf thigh pain due to a fall in the grocery store. Aviva submits these complaints are not related to the accident. The applicant does not make any comment on these complaints. As a result, I find that these complaints are not related to the motor vehicle accident.

10The applicant consulted with her family doctor on May 18, 2022, when she complained of pains related to a work-related incident. On August 8, 2022, she reported that a heavy object fell on her left big toe, while at work. Her family doctor recommended no walking, and later recommended physiotherapy and massage treatment, but he did not say it was related to any pain caused by the motor vehicle accident that had occurred 15 months previously. I agree with the respondent that the referral is due to the injury and pain caused by events unrelated to the accident, and which occurred after the accident.

11The treatment plan submitted by Dr. Curcio of Alma Rehab referred to the goals of pain reduction, increased in strength, increase in rage of motion, improvement of muscular strength and endurance, and prevention of injuries. No objective medical evidence, such as a report or recommendation by her family doctor, are submitted to support this further treatment.

12The applicant was assessed by Dr. Ahmad Belfon regarding the treatment plans, and he also viewed and considered the medical evidence, including the X-rays of the left ankle and the ultrasound of the left ankle due to the slip and fall on September 14, 2021. He concluded that her injuries are consistent with a sprain / strain, and that she has reached maximum medical improvement from facility based rehabilitative therapy. In his opinion the injuries should resolve with the passage of time, and she should continue to stretch on a regular basis. In summary he found that the proposed treatment plan of July 30, 2021, and December 15, 2021, are not reasonable or necessary.

13The applicant has not provided objective supporting evidence to determine why the medical benefits are reasonable and necessary. In this case, the applicant has provided the treatment plan but has not provided supporting documentation for reasonableness and necessity of the chiropractic treatment.

14Without objective medical evidence I find that the applicant has not met her onus and I cannot decide in the applicant’s favour that she is entitled to the disputed treatment plans. I find that the treatment plans are not reasonable and necessary.

The applicant is not entitled to $2,825.37 for chiropractic services proposed in a treatment plan dated December 15, 2021.

15The test is the same as in the first issue, that the treatment plan must be reasonable and necessary.

16After the initial plan was denied, this plan was submitted by Dr. Curcio of Alma Rehab who referred to the goals of pain reduction, increased in strength, increase in rage of motion, improvement of muscular strength and endurance, and prevention of injuries. No objective medical evidence, such as a report or recommendation by her family doctor, have been submitted to support this further treatment, although the applicant noted that it was helpful.

17Dr Belfon conducted an additional paper review on January 24, 2022, and came to the same conclusion as before. regarding the treatment plans, and he also viewed and considered the medical evidence, including the X-rays of the left ankle and the ultrasound of the left ankle due to the slip and fall on September 14, 2021. He concluded that her injuries are consistent with a sprain / strain, and that she had reached maximum medical improvement from facility based rehabilitative therapy. In his opinion the injuries should resolve with the passage of time, and she should continue to stretch on a regular basis. Although he agrees that treatment that reduces pain is a reasonable goal, the applicant must show that the proposed treatment would improve function, and not just relieve pain. Further she did not make complaints of pain after May 18, 2021, that were related to the motor vehicle accident. I reiterate my reasons and my finding on the above first issue and that it applies to this treatment plan.

18The applicant has not met her onus in explaining why the treatment plan is reasonable and necessary. As a result, I do not find the treatment plan reasonable and necessary.

The applicant is not entitled to $2,495.35 for chiropractic services, proposed in a treatment plan dated March 28, 2022.

19The applicant submitted that the same argument for this treatment plan which were the goals of pain reduction, increased in strength, increase in rage of motion, improvement of muscular strength and endurance, and prevention of injuries. No objective medical evidence, such as a report or recommendation by her family doctor, have been submitted to support this further treatment, although the applicant noted that it was helpful.

20Dr Belfon conducted an additional paper review on May 3, 2022 and came to the same conclusion as before. regarding the treatment plans, and he also viewed and considered the medical evidence, including the X-rays of the left ankle and the ultrasound of the left ankle due to the slip and fall on September 14, 2021. He concluded that her injuries are consistent with a sprain / strain, and that she had reached maximum medical improvement from facility based rehabilitative therapy. In his opinion the injuries should resolve with the passage of time, and she should continue to stretch on a regular basis. Although he agrees that treatment that reduces pain is a reasonable goal, the applicant must show that the proposed treatment would improve function, and not just relieve pain. Further she did not make complaints of pain after May 18, 2021, that were related to the motor vehicle accident. I reiterate my reasons and my finding on the above first issue and that it applies to this treatment plan, as well.

21The test for this treatment plan is the same as in the first issue, and second issue. I reiterate my reasons and my findings on the first issue apply to the third issue here.

22The applicant has not met her onus in explaining why the treatment plan is reasonable and necessary. As a result, I do not find the treatment plan to be reasonable and necessary.

The applicant is not entitled to $2,161.30 for chiropractic services, proposed in a treatment plan dated June 28, 2022.

23The applicant submitted that the same argument for this treatment plan which were the goals of pain reduction, increased in strength, increase in rage of motion, improvement of muscular strength and endurance, and prevention of injuries. No objective medical evidence, such as a report or recommendation by her family doctor, have been submitted to support this further treatment, although the applicant noted that it was helpful.

24Dr Belfon conducted an additional paper review on June 27, 2022, and came to the same conclusion as before. regarding the treatment plans, and he also viewed and considered the medical evidence, including the X-rays of the left ankle and the ultrasound of the left ankle due to the slip and fall on September 14, 2021. He concluded that her injuries are consistent with a sprain / strain, and that she had reached maximum medical improvement from facility based rehabilitative therapy. In his opinion the injuries should resolve with the passage of time, and she should continue to stretch on a regular basis. Although he agrees that treatment that reduces pain is a reasonable goal, the applicant must show that the proposed treatment would improve function, and not just relieve pain. Further she did not make complaints of pain after May 18, 2021, that were related to the motor vehicle accident. I reiterate my reasons and my finding on the above first issue and that it applies to this treatment plan, as well.

25The test for this treatment plan is the same as in the first and following issues. I reiterate my reasons and my findings on the first issue apply to the third issue here.

26I find the applicant has not met her onus in explaining why the treatment plan is reasonable and necessary. As a result, I do not find the treatment plan to be reasonable and necessary.

The applicant is not entitled to $2,200.00 for a biopsychological assessment in a treatment plan dated April 26, 2022.

27In a visit to her family doctor, on June 10, 2021, the applicant complained of anxiety, depression, and difficulty sleeping, having to get up earlier due to work. She was diagnosed with anxiety and prescribed medication. She submits that she had suffered from anxiety and depression previously. She was referred by her family doctor for a psychological assessment on April 11, 2021.

28The applicant was assessed by Dr. Konstantine Papaglozou on December 22, 2021, and in his report of January 4, 2022, he reported that the applicant suffered from severe anxiety and depression, and adjustment disorder, together with mixed anxiety and depressed mood. He provided follow up reports dated September 19, 2022, and February 21, 2023.

29The applicant was assessed by Dr. Kerry Lawson, a clinical psychologist, retained by the insurer, who provided a diagnosis of mixed anxiety and moderate depressed mood. In her opinion however, she found that the biopsychological assessment was not necessary because the applicant was already receiving weekly therapy sessions, and an additional evaluation was not necessary.

30I find that the applicant has not shown how the biopsychological assessment is reasonable and necessary. She has already had an assessment and it was shown the applicant is already receiving psychological treatment. There are no further submissions from the applicant to explain why another assessment is required so I have no reason to doubt the opinion of Dr. Lawson that the assessment is not necessary.

31The applicant has not met her onus in showing how the treatment plan is reasonable and necessary. I find that the treatment plan is not reasonable and necessary.

The applicant is not entitled to $1,388.62 for a driving evaluation assessment, in a treatment plan dated April 26, 2022.

32The applicant submitted that Dr. Shilash, Dr. Papazoglou and a social worker Ulviya Javanshir all confirm that the applicant has anxiety due to driving, and that it has a negative impact on her life. The applicant submits that more weight must be given to their opinion than to Dr. Lawson, who submitted that the applicant reported she was capable of driving a car and is working. In the visit to Dr. Shilash of June 10, 2021, the applicant complained that it worsened because of the accident, but there is no further medical evidence about it, and whether this was an issue from before.

33The respondent notes that Dr. Papazoglou has not recommended this assessment and that the treatment plan was actually submitted by Dania Liobimova, a registered practical nurse. The applicant did not provide any recommendations about this from her family doctor or her psychologist. As a result, I have given less weight to this treatment provider, as she is not her family doctor, or her psychologist.

34Based on the fact that the applicant is capable and is actually driving, and her doctors have not recommended this treatment plan, I find that the applicant has not met her onus in showing how this treatment plan would be reasonable and necessary.

35I find the treatment plan is not reasonable and necessary.

The applicant is not entitled to $2,300.00 for a chronic pain assessment, in a treatment plan dated April 26, 2022.

38The applicant complained of pain to her family doctor after May 18, 2021, in relation to a slip and fall, and an injury that occurred while at work. These incidents were not related to the accident in question.

40The applicant had been assessed by Dr. Curcio on April 18, 2023, and had provided a report on April 24, 2023, which showed the applicant had continuing pain.

41The respondent submitted that any pain the applicant suffered from was not related to the motor vehicle accident and therefore the chronic pain assessment is not reasonable and necessary.

42I find that the applicant has not met her onus of showing how this treatment plan is reasonable and necessary and how it relates to the accident.

43I find the treatment plan is not reasonable and necessary.

Interest

36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue payments, there is no interest due.

ORDER

37In conclusion, I find:

i. The applicant is not entitled to the treatment plans in dispute.

ii. The applicant is not entitled to interest.