Licence Appeal Tribunal File Number: 21-014899/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:
Martina Ferraro
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Gareth Neilson
APPEARANCES:
For the Applicant:
Martina Ferraro, Applicant
Adriano Pranzitelli, Counsel
For the Respondent:
Aviva Insurance Canada, Respondent
Karanveer Padda, Counsel
Written Hearing:
Heard by way of written submissions
OVERVIEW
1Martina Ferraro, the applicant, was involved in an automobile accident on January 20, 2019, 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 Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The respondent has raised a preliminary issue regarding the applicant’s inclusion of an article in their initial submissions, which suggests that the respondent’s expert, Dr. Oshidari, is biased in favour of insurance companies. The respondent submits that the article should be excluded from the evidentiary record and given no weight in this proceeding.
3I agree with the respondent that this article should be excluded from the evidence in this proceeding. Dr. Oshidari is a member in good standing with the College of Physicians and Surgeons of Ontario. Dr. Oshidari’s opinions have been accepted without prejudice by the LAT on previous occasions. The article referenced by the applicant offered an opinion by an author who was not available for cross-examination. Additionally, the opinion expressed in the article has not been peer reviewed and no investigation of any biases has taken place. This article cannot be taken at face value as I have no way of knowing whether or not this is a fair representation of Dr. Oshidari or of his report. Accordingly, I will be excluding the article from the evidentiary record.
ISSUES
4The issues in dispute are:
a. Is the applicant entitled to $2,888.13 for chiropractic services, proposed by Vaughan Wellness Clinic in a treatment plan/OCF-18 (“plan”) submitted October 7, 2021 and denied October 21, 2021?
b. Is the applicant entitled to $3,245.78 for physiotherapy services, proposed by Health Pro Wellness in a plan submitted November 5, 2020 and denied November 19, 2020?
c. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5The applicant is not entitled to $2,888.13 for chiropractic services as they are not reasonable or necessary.
6The applicant is not entitled to $3,245.78 for physiotherapy services as they are not reasonable and necessary.
7The applicant is not entitled to any interest for any overdue payments.
ANALYSIS
8To 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.
9The applicant was removed from the Minor Injury Guideline for psychological reasons. The applicant needs to demonstrate that the treatment plans in dispute, which are physical in nature, are reasonable and necessary as a result of the accident. The applicant has applied for chiropractic treatment based on back and lumber issues which did not exist prior to the accident. The applicant has also applied for physiotherapy due to shoulder and neck pain which were not prevalent prior to the accident.
10The applicant has not been able to demonstrate that the physical injuries are related to the accident, that the plans in dispute are reasonable and necessary and whether or not the applicant continued to gain benefit from the recommended treatment.
Is the applicant entitled to $2,888.13 for chiropractic services proposed by Health Pro Wellness in a treatment plan/OCF-18 (“plan”) submitted November 5, 2020 and denied November 19, 2020?
11The applicant is not entitled to this plan for chiropractic services as the plan is not reasonable or necessary.
12The applicant did not prove that the plan prescribed was beneficial to their recovery, nor did they provide evidence that the plan was necessary because of injuries sustained during the motor vehicle accident. While the applicant was able to identify the goals of the treatment plan, the applicant has failed to show that how this treatment plan would help achieve the required goals.
13On December 10, 2021, the applicant communicated during the assessment with Dr. Oshidari that she experienced a 20% improvement with the chiropractic treatment that she had received. As opined by Dr. Oshidari and based on the evidence provided, it is probable that the applicant has reached maximum recovery. The applicant has also failed to prove that on a balance of probabilities that the treatment plan is reasonable and necessary as a result of the accident.
14Dr. Oshidari’s examination of the applicant twice concluded that the treatment plans in dispute are not reasonable and necessary based on the physical injuries sustained. I do not find the evidence provided by the applicant compelling enough to disagree with Dr. Oshidari’s findings. I find that, on the balance of probabilities the applicant has achieved maximum recovery, the treatment plan requested is not necessary based on injuries sustained in the motor vehicle accident and that the cost of the treatment plan in dispute is not reasonable based on the injuries sustained.
15I find that the applicant has failed to prove that the plan in dispute is reasonable and necessary and therefore I find that the applicant is not entitled to $2,888.13 for chiropractic services.
Is the applicant entitled to $3,245.78 for physiotherapy services, proposed by Health Pro Wellness in a treatment plan/OCF-18 (“plan”) submitted November 5, 2020 and denied November 19, 2020?
16The applicant is not entitled to $3,245.78 for physiotherapy services as the plan is not reasonable and necessary.
17The plan goals are well defined: to return to a pre-accident state of health. However, the applicant has failed to prove that on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident.
18The applicant attended for extensive physiotherapy treatment from a provider and it is clear from the clinical notes and records provided that the treatment was of limited value. The applicant stated that she received temporary relief from the treatment provided. The applicant switched treatment providers but failed to prove on a balance of probabilities that the treatment received helped the applicant towards the stated recovery goals.
19The applicant has not been able to prove that on a balance of probabilities that this treatment plan is reasonable or necessary based on the accident. The applicant complained of neck and back pain after the accident. The CNRs provided indicate that the treatment received offered the applicant either slow improvement or limited improvement. Based on the contemporaneous evidence provided, the applicant opined that the relief from physiotherapy provided temporary relief and the pain came back the next day. The applicant has not made a persuasive argument that, based on the balance of probabilities, they have not achieved maximum recovery based on the goals of the treatment plan in dispute.
20I find that the applicant has failed to prove that the treatment plan in dispute is reasonable and necessary and therefore the I find that the applicant is not entitled to $3,245.78 for physiotherapy services.
Interest
21The treatment plans in dispute are denied and therefore not overdue, so no interest pursuant to s. 51 of the Schedule is due.
ORDER
22I order the following:
i. The applicant’s claim of $2,888.13 for chiropractic services is denied.
ii. The applicant’s claim of $3,245.78 for physiotherapy services is denied.
iii. Interest is not applicable.
Released: February 21, 2024
Gareth Neilson
Adjudicator