Licence Appeal Tribunal File Number: 21-007834/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:
Alysia Chance-Guppy
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
VICE-CHAIR:
Brett Todd
APPEARANCES:
For the Applicant:
Kateryna Vlada, Paralegal
For the Respondent:
Maggie Morgan, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Alysia Chance-Guppy (the “applicant”) was involved in a motor vehicle accident on May 5, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva General Insurance Company (the “respondent”) denied a treatment plan. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The following issues are in dispute:
Is the applicant entitled to $1,977.05 for physiotherapy proposed by Mackenzie Medical Rehabilitation Centre Inc. in a treatment plan/OCF-18 (“plan”) dated November 19, 2019?
Is the applicant entitled to interest on any overdue payment of benefits?
3In a Tribunal Motion Order dated December 13, 2022, it was confirmed that the applicant was withdrawing a claim to non-earner benefits (“NEB”) as noted on the Case Conference Report and Order (“CCRO”) released May 24, 2022 that set this matter down for a videoconference hearing. This order also converted that videoconference hearing to a written hearing. As a result, I have removed the substantive NEB issue and a related preliminary issue raised by the respondent regarding NEB entitlement from the list of issues in dispute here.
RESULT
4I find that the applicant is not entitled to the treatment plan for physiotherapy dated November 19, 2019. As no benefits are due, it follows that the applicant is also not entitled to interest.
ANALYSIS
5I find that the applicant is not entitled to this treatment plan, as she has not demonstrated it to be reasonable and necessary. Accordingly, she is also not entitled to interest.
6To be entitled to a treatment plan under ss. 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. The applicant should identify treatment goals, how these goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
7At issue is a treatment plan completed by Dr. Ayden Banibashar, chiropractor, of Mackenzie Medical Rehabilitation Centre that was dated November 19, 2019 and submitted to the insurer on November 20, 2019.
8Injuries and sequelae noted in this plan include radiculopathy, injury of muscle and tendon at neck level, sprain and strain of lumbar and thoracic spine, sprain and strain of shoulder joint, sprain and strain of other unspecified/knee, other anxiety disorders, other headache symptoms, and other sleep disorders. The plan features nine sessions each of chiropractic treatment, physical therapy, active therapy, and massage treatment, along with associated manual therapy, mobilization, acupuncture, and active therapy. Treatment goals include pain reduction, increased strength, increased range of motion, and a return to the activities of normal living.
9The applicant submits that this treatment plan is reasonable and necessary largely due to pain relief, as she has consistently reported symptoms with ongoing overall body pain and discomfort relating to unresolved accident-related injuries affecting her neck, back, shoulder, and lower extremities. She relies on two Tribunal decisions—16-003921 v. Certas Home and Auto Insurance Co., 2018 CanLII 141005 (ON LAT) (para. 9) and 17-003735 v. Certas Direct Insurance Company, 2018 CanLII 39445 (ON LAT) (para. 17)—in which it was found that pain reduction was a legitimate goal for physiotherapy treatment to address similar injuries and meet similar goals.
10The respondent counters that the treatment is not reasonable and necessary, largely due to the applicant’s failure to provide sufficient “contemporaneous evidence regarding any ongoing conditions arising out of the motor vehicle accident.” Further, the respondent argues that the applicant has not substantiated her claims to suffering from chronic pain and references the criteria for chronic pain as outlined in the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”). For these reasons, the respondent seeks the dismissal of this application.
11I largely agree with the respondent. Although I concur with the Tribunal decisions referenced above with regard to pain reduction being an accepted and legitimate goal of physiotherapy treatment, the applicant has not met her burden with regard to this specific physiotherapy treatment plan.
12Most notably, while the applicant claims that she has “consistently reported her physical impairment since the incident [the subject accident] on May 5, 2019,” she has not supported this assertion with adequate evidence. Much of the applicant’s written submissions address the totality of symptoms and sequelae that she alleges to have resulted from the accident, without including specific references to medical evidence that supports this treatment plan.
13For example, the first three pages of the applicant’s six-page written submissions detail a chronology of events before and after the accident, including extensive reference to psychological issues. Although the applicant attempts to tie all of this into making a case that this treatment is necessary, I fail to see the relevance of this information, largely because the treatment plan in dispute here involves physiotherapy, not anything relating to psychological impairments.
14Further, the applicant does not direct me to specific evidence. Instead, she details her medical history post-accident and concludes with the comment that she “relies on various clinical notes and records summarized above and submits that the proposed physiotherapy treatment plan is reasonable and necessary.” This reference to “various clinical notes and records” includes 222 pages from the applicant’s family physician, Dr. David Eisen, dating from 2016 to 2020, along with 27 pages of treatment records from Mackenzie Medical Rehabilitation Centre. The former is too expansive to navigate without the applicant’s guidance, and the latter is impossible to read as it is entirely handwritten. Regardless, an applicant cannot submit evidence in this fashion and expect an adjudicator to connect the dots and construct a case.
15I am also persuaded by the respondent’s submissions, which direct me to an insurer’s examination (“IE”) report and paper review completed by Dr. Jacqueline Auguste, orthopedic surgeon, dated December 9, 2019. As the result of both an orthopedic surgery in-person assessment to address the now-withdrawn NEB claim in the original CCRO (noted above in paragraph #3), and a paper review added to address the treatment plan in dispute here, Dr. Auguste concluded that the applicant had reached maximal medical improvement. Consequently, Dr. Auguste found that the treatment plan was not reasonable and necessary.
16With that said, I am not convinced by the respondent’s position regarding chronic pain and its application of the AMA Guides criteria. The applicant does not make any claims of chronic pain in submissions that would warrant the introduction of this diagnostic tool.
17Lastly, although the applicant passingly claims in submissions that the insurer did not deny this treatment plan until December 13, 2021, this argument is not advanced beyond a single sentence. The applicant also does not direct me to evidence regarding this claim. The respondent adduced an Explanation of Benefits/denial letter dated December 4, 2019 that would seemingly address any possible issues around the timing of the denial notice, as well, at least in the absence of any argument or evidence presented by the applicant.
18For the above reasons, the applicant is not entitled to this treatment plan, nor interest.
ORDER
19The applicant is not entitled to the treatment plan dated November 19, 2019, nor interest.
20The application is dismissed.
Released: February 26, 2024
__________________________
Brett Todd
Vice-Chair