Oliveira v. TD Insurance Meloche Monnex, 2024 CanLII 2635

Citation: Oliveira v. TD Insurance Meloche Monnex, 2024 ONLAT 21-008858/AABS

Licence Appeal Tribunal File Number: 21-008858/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:

Steven Oliveira

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION

ADJUDICATOR: Harry Adamidis

APPEARANCES:

For the Applicant: Gerald Sternberg, Counsel

For the Respondent: Oliver Gorman-Asal, Counsel

HEARD: By written submissions

OVERVIEW

1Steven Oliveira, the applicant, was involved in an automobile accident on June 17, 2016, 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, TD Insurance Meloche Monnex, 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 $4,259.49 for chiropractic services, proposed by HealthMax in a treatment plan/OCF-18 (“plan”) dated March 6, 2019?

ii. Is the applicant entitled to $2,075.00 for other goods and services, proposed by Jean-Marie Fiala in a plan dated March 4, 2020?

iii. Is the applicant entitled to $1,400.00 for medical services, proposed by Dr. Karatanevski in a plan dated February 17, 2021?

iv. Is the applicant entitled to $2,960.00 for physiotherapy services, proposed by Dr. Karatanevski in a plan dated May 7, 2021?

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

RESULT

3The applicant is not entitled to the treatment plans, nor interest.

ANALYSIS

4To 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.

Issues 1, 3, and 4: Chiropractic and Physiotherapy Services

5The applicant is not entitled to these three treatment plans.

6The applicant submits that the treatment plans clearly identify the goals of pain reduction, increased range of motion, increase strength and a return to activities of normal living. The applicant also submits that physiatrist Dr. Veronica Kekosz, orthopedic specialist Dr. Michael West, and medical consultant Dr. Steve Blitzer all recommend the proposed treatment in their respective reports. Additionally, according to the applicant, the applicant’s chiropractor, Dr. Karatanevski, opines that the treatment sought by the applicant is helpful to him. For these reasons, the applicant submits that these treatment plans are reasonable and necessary.

7The respondent relies on the Insurer’s Examination (“IE”) of Dr. Shariff Dessouki, physiatrist, dated May 27, 2019 which opines that the chiropractic treatment proposed in issue 1 is not reasonable and necessary. The respondent also submits that this opinion applies to all three treatment plans and that none of the plans are reasonable and necessary.

8Dr. Dessouki performed a physical examination. For the squat test, the applicant’s left knee was limited to 70 degrees due to discomfort. The cervical spine had a range of motion within normal limits with no pain reported. Left elbow had full range of motion. Right hand and wrist had full range of motion with no pain on palpitation. Left knee flexion was limited to 110 degrees, as opposed to 140 degrees on the right, due to pain. Palpation was non-tender. The left knee did have a full active range of motion and the applicant demonstrated a normal gait pattern.

9He diagnosed the applicant with a right wrist fracture/dislocation, left elbow dislocation and fracture, and left knee internal derangement. All three conditions required surgery which had already been completed by the time of the IE. He concluded that the proposed chiropractic treatment referenced in issue 1 was not reasonable and necessary because the applicant had already benefited from facility based treatment and further treatment was not expected to provide any rehabilitative benefit. Dr. Dessouki encouraged the applicant to engage in a home-based, self-directed exercise program for further improvement.

10The applicant submits that Dr. Dessouki’s opinion is not definitive because he merely expects that chiropractic treatment will not have a rehabilitative benefit. More weight should be given to the medical reports of Dr. Kekosz, Dr. West, and Dr. Blitzer.

11In her report dated January 21, 2021, Dr. Kekosz states that the applicant should have access to chiropractic and acupuncture for control of his headaches and myofascial pains.

12Dr. Kekosz documents pain complaints in the applicant’s right wrist, left elbow, left knee, lower back, and neck. She also notes that the applicant takes advil and up to 4 percocets per day for headaches. Dr. Kekosz recommends chiropractic treatment for pain relief. According to the applicant, pain relief is one of the goals of the disputed treatment plans.

13Dr. Kekosz did not physically examine the applicant but determined that he had pain in his right wrist, left elbow, left knee, lower back, and neck that required chiropractic treatment. I prefer the findings of Dr. Dessouki because he physically examined the applicant. Dr. Dessouki notes that during the physical examination the applicant only reported pain in his left knee, and that the knee has a full active range of motion and that the applicant walks with a normal gait. Consequently, Dr. Dessouki’s opinion, that the applicant does not require chiropractic treatment, is more persuasive because, unlike Dr. Kekosz, his opinion is based on the applicant’s pain experience during a physical examination.

14Dr. West physically examined the applicant. The right wrist had a full range of motion. He notes tenderness on palpation. No pain is noted in the left elbow which had a full range of motion. There was localized tenderness in the cervical spine and also a full range of motion. There was moderate pain in the lumbosacral spine at the extremes of movement. The left and right knee had an identical 135 degrees of flexion. The left knee had 15 degrees of hyperextension, while the right had 10 degrees hyperextension. No pain in the left knee is noted.

15Dr. West recommends “periodic intermittent physical therapy” which he itemizes as deep heat and ultrasound therapy, active and passive stretching exercises, and muscle strengthening exercises. As no treatment plans are in evidence, it is not possible to know whether deep heat and ultrasound therapy fall within the scope of the disputed plans.

16Dr. West recommended facility based stretching and muscles strengthening exercises, but does not explain why he made this recommendation. He did not provide any comments or opinions on if there will be a rehabilitative benefit, nor what that benefit will be.

17Dr. Blitzer also physically examined the applicant. Dr. Blitzer noted pain in the applicant’s left knee. Dr. Blitzer also notes a slight range of motion restriction and pain with extreme movements of the cervical spine, pain and range of motion restrictions on the right shoulder, and tenderness on the right wrist. Dr. Blitzer opines that the applicant “should attend additional physical rehabilitative therapies.” However, this report provides no insight into the expected rehabilitative benefits of the facility based physical therapy.

18The applicant also submits that Dr. Karatanevski opines that the treatment sought by the applicant is helpful to the applicant. There is one report from Dr. Karatanevski in the applicant’s brief, but the subject of this document cognitive testing. It does not mention physical therapy.

19I give more weight to the IE than the reports of Dr. West and Dr. Blitzer because Dr. Dessouki directly addresses whether a there will be a rehabilitative benefit from the chiropractic services in issue 1. He explains that the applicant has already had facility based treatment and that he does not expect further improvements from this type of therapy. The evidence sited by the applicant merely lists the recommended physical treatment and stops there. In my view, this evidence is less persuasive than the IE and does not establish, on a balance of probabilities, that the disputed plans are reasonable and necessary.

20I further note that there are no treatment plans in evidence. As such, there is no evidentiary basis to identify the treatment goals of the plans. Moreover, the applicant makes no submissions on how the treatment goals, if they could be identified through evidence, would be met to a reasonable degree, nor on the overall costs being reasonable. Consequently, I further find that the three treatment plans are not reasonable and necessary because the applicant has not addressed the essential elements for assessing entitlement to treatment plans.

Issue 2: Brain SPECT Scan

21According to the applicant, the brain SPECT scan report of Dr. Yin-Hui Siow, Director of Nuclear Medicine at Southlake Regional Health Centre, dated November 27, 2021 confirms, on a balance of probabilities, that the applicant previously had a traumatic brain injury. Dr. Felix Yaroshevsky, psychiatrist, also reviewed the scan and opined that psychiatric treatment is necessary. As such, the applicant submits that this treatment plan is reasonable and necessary.

22The respondent submits that this treatment plan was denied on March 6, 2020 as there was no medical evidence to support that this plan was reasonable and necessary.

23This treatment plan is not in evidence. It is not possible to identify the treatment goals of this plan. Moreover, there are no submissions on how the treatment plan goals would be met to a reasonable degree, nor on the overall costs being reasonable. The applicant’s argument is incomplete, and therefore, I find that he is not entitled to this treatment plan.

24As well, the applicant cites the medical evidence of Dr. Siow and Dr. Yaroshevsky. He points out that the scan was reviewed by both doctors, but he makes no submissions that tie these events to the treatment plan. As such, there is no clear nexus between the medical evidence cited by the applicant and the legal test to determine whether a treatment plan is reasonable and necessary. For this reason, I further find that the medical evidence referenced by the applicant does not establish that this plan is reasonable and necessary.

Interest

25As there are no overdue benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

26The applicant is not entitled to the treatment plans, nor interest.