Citation: Rose v. Aviva Insurance Company of Canada, 2024 ONLAT 21-006269/AABS
Licence Appeal Tribunal File Number: 21-006269/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:
Lisa Rose
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Lisa Yong
APPEARANCES:
For the Applicant: Avneet Kaur, Counsel
For the Respondent: Jonathan White, Counsel
HEARD: In Writing
OVERVIEW
1Lisa Rose, the applicant, was involved in an automobile accident on November 10, 2018, 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 Insurance Company of Canada, 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 chiropractic services proposed by Whitby Physiotherapy and Rehab Centre, as follows:
a. $3,069.66, in a treatment plan/OCF-18 (“plan”) submitted July 9, 2019 and denied July 10, 2019; and
b. $3,483.04, in a plan dated September 2, 2020 and denied September 8, 2020?
ii. Is the respondent liable to pay an award under s. 10 of O. Reg. 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 the treatment plans in dispute because they are not reasonable and necessary.
4As no benefits are owing or unreasonably withheld or delayed, no interest is payable, and no award is payable.
ANALYSIS
5To 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.
The applicant is not entitled to the treatment plans for chiropractic services for $3,069.66 and $3,483.04
6I find the applicant is not entitled to the disputed treatment plans for chiropractic services as they are not reasonable and necessary.
7The applicant generally repeated the goals and barriers of treatment as listed in the plans as part of her submissions that the plans are reasonable and necessary. The applicant submits that she sustained injuries including cervical discopathy, injury to her shoulder joint, lumbar spine, thoracic spine and knee as a result of the accident and relies on the clinical notes and records (“CNRs”) of Dr. Steven Dawood, family physician, Dr. Ramy Khalil, rheumatologist, and Dr. Matthew Tsuji, orthopaedic surgeon, and diagnostic imaging results of her spine and left knee in support of her claim.
8The respondent submits that the applicant’s medical evidence is not compelling and does not support the disputed treatment plans. It relies on the s. 44 Insurer’s Examination report dated November 4, 2019, by Dr. Pravesh Jugnundan, physician.
9The applicant relies on the CNR of Dr. Tsuji dated April 8, 2020, where Dr. Tsuji noted the applicant’s report of prolonged knee pain resulting in episodes of swelling, feeling of instability, difficulty with stairs, bending, squatting and kneeling. However, on my review, the fact that there were no complaints or diagnosis of any knee injury post-accident is evidence which supports the respondent's position that the subsequent complaints of knee pain are unrelated to the accident but related to degenerative changes which were identified in diagnostic imaging results dated April 3, 2019.
10The applicant also relies on Dr. Khalil’s CNRs as evidence that the applicant has experienced ongoing neck pain, shoulder and knee pain which was caused by the accident. However, I note that Dr. Khalil started treating the applicant only after March 1, 2021 (over 2 years post-accident) and his CNRs consisted of only two brief letters addressed to Dr. Dawood, reporting on the applicant’s non-accident-related medical condition together with his recommended plan of treatment. I find that there is a minimal mention of the applicant’s accident-related injuries, and it is unclear whether Dr. Khalil was provided with the applicant’s medical documents sufficient to enable a fulsome understanding of the applicant’s medical condition at the time of his assessment. Further, it appears that Dr. Khalil focused solely on the particular non-accident-related medical condition in question and was not asked to examine or assess the applicant’s accident-related injuries. Overall, I do not find Dr. Khalil’s CNRs to be helpful in providing compelling or contemporaneous evidence of the applicant’s accident-related injuries or evidence to support the applicant’s claim for