Di Giulio v. Aviva General Insurance, 2024 CanLII 108236

Citation: Di Giulio v. Aviva General Insurance, 2024 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: Melanie Malach

APPEARANCES:

For the Applicant: Kaitlyn MacDonell, Counsel

For the Respondent: 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”).

2The applicant was denied benefits by the respondent, Aviva General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

3Following a written hearing, the Tribunal released a decision in this matter on October 5, 2023. The Tribunal found that the applicant was not entitled to $1,800.00 for chiropractic services, interest or an award.

4On January 9, 2024, the Tribunal released a reconsideration decision finding that there was a material breach of procedural fairness in the initial decision: Di Giulio v. Aviva General Insurance, 2023 CanLII 91434 (ON LAT). Vice-Chair Logan ordered a rehearing of all the issues in dispute by a different adjudicator.

ISSUES

5The issues in dispute are:

i. Is the applicant entitled to $1,800.00 for chiropractic treatment, proposed by Dr. Sundeep Bhasin, of Power Flow Chiropractic, in a treatment plan dated February 4, 2021?

ii. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

iii. Is the respondent liable to pay an award under s.10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

6I find that the applicant is entitled to the proposed chiropractic treatment and interest.

7I find that the respondent is not liable to pay an award under s. 10 of Reg. 664.

ANALYSIS

Causation

8The applicant was involved in the subject accident on March 29, 2017 (“2017 accident”) and then involved in a subsequent accident on May 24, 2018 (“2018 accident”).

9I find that the applicant has satisfied the but-for test and demonstrated that the injuries addressed in the treatment plan in dispute, were caused by the 2017 accident.

10The test for establishing causation is the “but for” test, one that provides that causation is a factual determination made on a balance of probabilities: See Clements v. Clements, 2012 SCC 32. In order to demonstrate causation, an applicant must show that “but for” the accident, the applicant would not have suffered the injuries. In Sabadash v. State Farm, 2019 ONSC 1121, the Divisional Court held that the accident need not be the sole cause of the impairment, but it must be a “necessary” cause.

11The respondent submits that the applicant has not met his onus of proof in establishing causation. It is the respondent’s position that:

i. The applicant has not led evidence about his subsequent involvement in the 2018 accident; and

ii. The applicant has not proven on a balance of probabilities that the 2017 accident is the cause of the injuries he has cited in the treatment plan in dispute, rather than the subsequent 2018 accident.

12To support its position, the respondent relies on the report of Dr. Igor Steiman, chiropractor, dated February 13, 2020. In this report, Dr. Steiman notes that the applicant “had resumed driving, working, household chores and recreational activities and felt about 70% recovered from the accident by May 24, 2018, when the vehicle he was driving was sideswiped.” Dr. Steiman further notes that the applicant immediately felt neck pain and headaches as a result of the 2018 accident, after which the applicant was diagnosed with aggravated cervicothoracic strain.

13The applicant submits that the injuries listed in the treatment plan in dispute are in respect to the 2017 accident. The treatment plan lists the following injuries: subluxation complex (vertebral), cervical region, muscle strain, shoulder region and ongoing vertigo. He relies upon the Neuropsychological Assessment report of Dr. David Kurzman, dated October 15, 2020, which lists the post-accident diagnoses and the chronological history of treatment, diagnoses and pain complaints following the 2017 accident.

14The applicant further submits that the respondent consistently paid for the chiropractic treatment recommended by multiple assessors up until the denial of the treatment plan on February 17, 2021. The respondent was aware that he had been involved in a subsequent accident and acknowledged that the applicant did not commence an additional or separate accident benefits claim for the 2018 accident. The respondent did not communicate at any time that the treatment plans submitted by the applicant were not related to the injuries caused by the 2017 accident. There is no mention of an issue of causation in the correspondence between the parties provided. The first mention of an issue of causation was made in the respondent’s submissions.

15I find that the applicant has met his onus of proving causation. The disability certificate dated May 2, 2017, diagnosed the applicant with a concussion, cervical sprain (whiplash associated disorder II), fractured sternum and shoulder tendinitis. He was later diagnosed with positional vertigo and an adjustment disorder with depressed mood. The treatment plan in dispute lists the applicant’s injuries as subluxation complex (vertebral), cervical region, muscle strain, shoulder region and vertigo. While the 2018 accident may have exacerbated his neck pain and headaches, the medical documentation lists all of the injuries that were caused by the 2017 accident and his continued complaints that required treatment following the accident.

16Further, I find that Dr. Steiman’s report, is the only medical documentation that I have been directed to that refers to the 2018 accident. While Dr. Steiman diagnoses the applicant with an aggravated cervicothoracic strain at his assessment on May 26, 2018, his report on February 13, 2020, notes ongoing complaints in his right trapezius and neck region as well as the complication of persistent positional vertigo. The fact that the applicant aggravated his cervicothoracic strain in the 2018 accident, does not negate that the applicant suffered ongoing injuries from the 2017 accident.

17I also find it persuasive that the respondent knew of the applicant’s involvement in the 2018 accident as set out in the adjuster note dated February 19, 2019. The respondent was further aware that there was no Application for Accident Benefits submitted in respect to the 2018 accident. At no time did the respondent question causation with respect to the multiple treatment plans submitted and approved after the 2018 accident. I also find it difficult to accept the respondent’s position on causation because it had paid the applicant over $34,000.00 in medical benefits prior to submission of the treatment plan in dispute.

18I also find it compelling that the respondent does not raise causation in its Explanation of Benefits letters dated February 17, 2021 or April 14, 2021 regarding the treatment plan. There is no mention of a second accident or that there was concern that the treatment plan in dispute was not related to the injuries suffered in the 2017 accident.

19In his report, dated April 1, 2021, Dr. Oshidari, IE assessor, was not asked to comment on causation with respect to his analysis of the treatment plan in dispute. Dr. Oshidari did not question that the treatment plan in dispute was being assessed in respect to the injuries suffered in the 2017 accident.

20For the reasons set out above, I find that the applicant has satisfied the but-for test and demonstrated that the injuries addressed in the treatment plan in dispute, were caused by the 2017 accident.

The applicant is entitled to the treatment plan for chiropractic treatment dated February 4, 2021

21I find that the applicant has proven on a balance of probabilities that he is entitled to the February 4, 2021 treatment plan for chiropractic treatment.

22To receive payment for medical and rehabilitation benefits under s. 15 and 16 of the Schedule, the applicant has the onus of proving 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.

23The treatment plan proposes 40 chiropractic treatments in the amount of $1,800.00. At Part 6 of the treatment plan, the injuries described are subluxation complex (vertebral), cervical region and muscle strain, shoulder region. Under additional comments, it is noted that the “patient also suffers from vertigo”. At Part 9 of the plan, the goals of treatment are stated to be pain reduction, increase in strength, increased range of motion, the return to activities of normal living, and the return to pre-accident work activities. The progress on the goals were to be evaluated by “pain verbal re evaluation, Scans, Bilateral Weight Scales, ROM and blood pressure.”

24The applicant submits that he has been consistent in his complaints since the accident and has sought treatment accordingly. He received chiropractic treatment at Novo Healthnet from April 4, 2018 to March 5, 2019. He then received chiropractic treatment from Dr. Steiman from March 21, 2019 to October 8, 2020. The applicant also attended at Power Flow Chiropractic from October 15, 2020 to July 29, 2021. Specifically, from February 4, 2021 to July 29, 2021, the applicant attended for 53 sessions and incurred $2,285.00 in treatment at Power Flow Chiropractic.

25The applicant relies on the report of Dr. Steiman dated February 13, 2020, which sets out that the applicant had been receiving chiropractic treatment since the accident to address specific injuries from the accident, namely temporomandibular and cervical thoracic strains as well as cervicogenic headaches. Dr. Steiman notes that the applicant’s persistent positional vertigo contributes to a slower recovery and that the progress with treatment has assisted the applicant in being able to return to some of his activities of living because of the pain relief that the applicant receives from the chiropractic treatment. Dr. Steiman recommends that with further treatment, probably once every 2-3 weeks, the applicant will continue to improve slowly.

26The applicant relies on the report by Dr. Vojvodich, otolaryngologist, dated November 28, 2018, who he saw with respect to his history of recurrent vertigo. Dr. Vojvodich recommended vestibular rehabilitation physiotherapy. I note that throughout the clinical notes and records (“CNRs”) from Power Flow, there are multiple entries for treatment for the applicant’s ongoing complaints of vertigo.

27The applicant relies on the report of Dr. David Kurzman, neuropsychologist, report dated October 15, 2020, who provided a significant summary of the applicant’s post-accident diagnoses. The applicant submits that Dr. Kurzman completed an interview with the applicant’s wife as part of his assessment. The applicant’s wife reported that she sees her husband in pain every day, he is less physical around the house, and he tires quickly. The applicant told Dr. Kurzman that his biggest concern for his future is ongoing pain and that he wanted access to ongoing physical rehabilitation.

28The respondent submits that the treatment plan is not reasonable and necessary based on the April 1, 2021 IE Report of Dr. Oshidari, which concluded that the treatment plan in issue will have no rehabilitative benefit and is not reasonable and necessary. Dr. Oshidari did not recommend any formal physical intervention. The respondent further submits that the CNRs of Dr. Bhasin from Power Flow Chiropractic lack critical details including the areas of the body that were treated, along with evidence as to the methods of evaluation used and the results following evaluation in order to establish at least some positive outcome.

29I find that the applicant is entitled to the chiropractic treatment recommended in the treatment plan, dated February 4, 2021, for the following reasons.

30I find that the reports of Dr. Steiman, Dr. Vojvodich, and Dr. Kurzman all support the need for ongoing treatment and the benefit to the applicant of receiving the recommended treatment. Dr. Steiman recommended ongoing treatment and noted that the treatment received has contributed to his pain relief. Dr. Vojvodich recommended vestibular therapy to help with the applicant’s vertigo. Dr. Kurzman notes the applicant’s ongoing pain complaints and his request for ongoing therapy.

31The CNRs from Power Flow Chiropractic document the applicant’s ongoing complaints and his progress from the treatment he received from treatment dating back to October 15, 2020. The applicant submits that he continued to report improvement in his overall condition at a general pain index of 7/10. While the respondent submits that there is a critical lack of detail in the notes of Dr. Bhasin, I find that while there could be more detail provided by Dr. Bhasin, the notes do set out the areas of the applicant’s body that were treated and the pain ratings noted. In addition, as noted in the respondent’s submissions, there are “CoreScore” reports that appear to report on tests administered to determine the applicant’s neurological and spinal functions. While the respondent submits that these reports did not suggest improvement in the applicant’s condition over the course of treatment, this does not mean that the treatment was not reasonable or necessary.

32I give little weight to the report of Dr. Oshidari dated April 1, 2021 which concluded that the treatment plan in dispute for chiropractic treatment is not reasonable and necessary. I agree with the applicant’s submissions that Dr. Oshidari did not have Dr. Steiman’s report dated February 13, 2020, nor the CNRs from Power Flow Chiropractic when he assessed the applicant. Dr. Oshidari noted that the applicant complained of headaches on a daily basis and suffered dizzy spells with the headache. Dr. Oshidari further noted that the applicant experiences constant neck and shoulder pain with numbness and tingling in the arms. Dr. Oshidari notes that range of motion of the cervical spine is a major aggravating factor. Despite these complaints and findings, he concluded that due to the fact the applicant had received extensive treatment without any long-term benefit, he has reached maximum medical recovery and the treatment plan is not reasonable and necessary. Dr. Oshidari’s findings in his report of the applicant’s ongoing complaints are contradictory to his conclusions that he had reached maximum medical recovery.

33Despite the denial of the treatment plan, the applicant continued to attend for treatment. The goals of the treatment plan were pain reduction, increase in strength, the return to activities of normal living, increase in range of motion and a return to pre-accident work activities. I find that further treatment was reasonable in order to achieve the goals set out in the treatment plan.

34For the reasons set out above, I find that the applicant is entitled to the treatment plan, for chiropractic treatment dated February 4, 2021.

Interest

35I find that interest is payable on any overdue benefits pursuant to s. 51 of the Schedule.

Award

36I find that the respondent is not liable to pay an award under s. 10 of Reg. 664.

37Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that the respondent unreasonably withheld or delayed the payment of benefits. The test for a s.10 award is whether the respondent’s behaviour is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

38While I find that the treatment plan in dispute is reasonable and necessary, the applicant has not demonstrated that the respondent’s conduct meets the high threshold to warrant a s.10 award.

39The applicant submits that the respondent has unreasonably withheld his access to benefits. The applicant claims that the respondent did not provide all records in its possession to Dr. Oshidari who prepared the IE report. It further claims that the respondent was biased, as the adjuster notes did not make note of the treatment and rehabilitation records relating to the applicant’s care.

40The respondent submits that there is no evidence that the respondent unreasonably denied the applicant’s claim. It further submits that there is no evidence in the adjuster notes that the respondent intentionally withheld medical records.

41The respondent’s denial does not alone suggest that the respondent unreasonably withheld or delayed the benefits. I find that the respondent followed the opinions of its assessors in making its determination of the treatment plan in dispute. Where a party may disagree with a determination made by an insurer, this is not grounds for an award. I further find that there is no evidence before me to support that the respondent intentionally withheld medical documentation from Dr. Oshidari. The applicant has not persuaded me that the respondent was excessive, imprudent, stubborn or immoderate in withholding the benefit. As such, an award is not payable.

ORDER

42For the reasons outlined above, I find:

i. The applicant is entitled to the proposed chiropractic treatment and interest.

ii. The respondent is not liable to pay an award under s. 10 of Reg.