Licence Appeal Tribunal File Number: 21-006975/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:
Nino Abasolo
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Matthew Frontini
APPEARANCES:
For the Applicant: Jane Conte, Counsel
For the Respondent: Yann Grand-Clement, Counsel
HEARD: In Writing
OVERVIEW
1Nino Abasolo, the applicant, was involved in an automobile accident on May 25, 2020, 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.
PROCEDURAL HISTORY
2This application was previously set down for a written hearing that was scheduled for February 10, 2023, with the applicant’s written submissions due on January 11, 2023.
3The applicant did not file its submissions in accordance with the Tribunal’s deadline and, on January 19, 2023, the respondent submitted a Notice of Motion seeking an order dismissing the applicant’s application as abandoned.
4The applicant responded by filing its written submissions, dated January 27, 2023 (the “January Submissions”) for the original application. The applicant also filed its brief of evidence with the January Submissions. Finally, the January Submissions also requested that the written hearing be adjourned to allow the respondent time to respond to the applicant’s late-filed January Submissions.
5In an order dated February 7, 2023 (the “Motion Order”), the Tribunal denied the respondent’s request to dismiss the application as abandoned and granted the applicant’s request to reschedule the date of the written hearing.
6The Tribunal rescheduled the written hearing for October 11, 2023.
7The applicant filed written submissions on September 11, 2023 (the “September Submissions”) but did not file any evidence with the September Submissions.
8The September Submissions and the prior January Submissions are identical except that the January Submissions contain six additional paragraphs setting out the applicant’s arguments for adjourning the original written hearing date. Both the January Submissions and September Submissions reference the same evidence that was originally filed with the January Submissions.
PRELIMINARY ISSUE
9The respondent takes an initial position that because the applicant did not re-file its evidence brief originally filed in January 2023, that the applicant has failed to provide any evidence in support of its submissions. The respondent argues that the applicant’s failure to attach records to its submissions is fatal to the application.
10The applicant filed a brief reply to this argument noting that the respondent was served with the evidence on January 30, 2023.
11It is noteworthy that the respondent’s submissions do not make any reference to the procedural history of this file or the fact that the respondent received all of the evidence and the submissions well in advance of the deadlines for the rescheduled written hearing. It is also telling that the respondent’s submissions do not indicate that it took the simple step of contacting the applicant about the respondent’s concerns regarding the evidence. A simple communication would have clarified this situation and avoided the applicant filling an otherwise unnecessary reply.
12I agree with the applicant. As set out above, the respondent has had the evidence and the applicant’s submissions in the form of the January Submissions well before the deadlines established by the rescheduling of the written hearing. The respondent has not identified any prejudice and I have evaluated the substantive issues in dispute with reference to the applicant’s evidence brief.
ISSUES
13The issues in dispute are:
a) Is the Applicant entitled to the assessments proposed by LV Rehabilitation, as follows:
i) $1,895.75 for physiotherapy services, in a treatment plan, submitted on July28, 2020, denied on August 7, 2020;
ii) $4,967.02 for physiotherapy services, in a treatment plan, submitted on October 14, 2020, denied on January 20, 2021;
iii) $2,200.00 for the assessment of attendant care needs, in a treatment plan, submitted on July 8, 2020, denied on July 10, 2020;
iv) $1,434.00 for assistive devices, in a treatment plan, submitted on February 3, 2021, denied on February 18, 202; and
v) $2,020.33 for driver evaluation, in a treatment plan, dated September 1, 2021, denied on September 7, 2021.
b) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
14The applicant is not entitled to the treatment plans for physiotherapy services, assistive devices or an attendant care assessment.
15The applicant is entitled to the treatment plan for a driver evaluation and interest in accordance with s. 51 of the Schedule.
ANALYSIS
The applicant is not entitled to the treatment plans for physiotherapy or assistive devices
16The applicant has failed to establish that the treatment plans for physiotherapy and assistive devices are reasonable and necessary.
17The applicant’s submissions grouped these the treatment plans together and the same evidence and arguments were presented in to establish that these disputed treatment plans are reasonable and necessary.
18In his submissions, the applicant claims to be suffering from various physical limitations because of his accident, including pain and functional limitations. In support of these claims, the applicant cites “clinical notes and records of LV Rehabilitation Clinic”. I note that contrary to the case conference report and order and the Rules, the applicant has failed to identify his evidence by tab and page number. As a result, the applicant has failed to identify the specific evidence within his 548-page evidence brief (which contains duplicate copies of documents as well as documents not referred to in the applicant’s submissions) to support of his submissions regarding ongoing pain and functional limitations.
19The applicant also refers to dizziness after sleeping in his car after a fight with wife and states that he was advised to return to the ER if certain complications arose. There is no evidence supporting these submissions and, in any event, the applicant does not claim that these symptoms were a result of the motor vehicle accident. Similarly, the applicant refers to a diagnosis of sleep apnea on September 27, 2022 and again there is no specific evidence cited in support of this and no submission that the diagnosis of sleep apnea is related to the motor vehicle accident.
20Finally, the applicant refers to an MRI that was undertaken on December 28, 2022 and apparently revealed: Grade 1 spondylolisthesis secondary to bilateral spondylolysis at L5-S1, secondary DDD at this level and large broad-based disc protrusion at L5-S1 resulting in a mild central spinal stenosis and severe bilateral neural foraminal compromise. This rote recitation of the findings of the MRI in the applicant’s submissions does not indicate whether these MRI findings are connected to the motor vehicle accident and there is nothing connecting this MRI to the disputed treatment plans.
21The respondent relies on the orthopaedic assessment of Dr. Saplys, dated January 12, 2021. Dr. Saplys’ assessment is that the applicant suffered soft tissue injuries that would be considered minor injuries and in the context of those injuries, the disputed treatment plans are not reasonable or necessary. The applicant’s submissions do not dispute any of the conclusions in Dr. Saplys’ assessment.
22The respondent also argues that, despite the applicant’s submissions to the contrary, this case is very similar to Kar v. Scottish & York, 2023 ONLAT 20-003059/AABS (“Karr”). In Karr, the Tribunal held that a treatment plan on its own is not compelling evidence in support of the requested treatment. There needs to be objective supporting evidence to establish that the proposed treatment is reasonable and necessary to address the applicant’s motor vehicle-related injuries. The respondent argues that the applicant has failed to identify any supporting objective evidence in support of the disputed treatment plans.
23I agree with the respondent. Even accepting the applicant’s submissions regarding the evidence of ongoing pain, the applicant’s submissions do not point to objective evidence that the requested assistive devices will assist with the pain and treatment of the applicant’s motor-vehicle related injuries. Instead, the applicant simply states that the proposed devices are all reasonably necessary for the purpose of relieving pain, allowing him to function and improve his sleep. These unsupported submissions are not evidence and do not meet the applicant’s burden of establishing that the proposed devices are reasonably and necessary.
24The applicant’s submissions do not explain how the disputed treatment plans for physiotherapy are supported by the evidence and simply state in a conclusory manner that that they are reasonable and necessary for relieving severe back pain and sleep issues.
25For these reasons, I find that applicant has failed to establish that the disputed treatment plans for physiotherapy treatment and assistive devices are reasonable and necessary.
The applicant is not entitled to the treatment plan for an attendant care needs assessment
26I find that the treatment plan for an attendant care needs assessment is not reasonable and necessary.
27In support of the reasonableness and necessity of the attendant care assessment, the applicant relies on statements made in the Psychological Report of Drs. Kozina and Imran, dated January 12, 2021. The applicant states that Dr. Kozina and Imran “confirm” that the applicant was experiencing a 50-percent loss in his ability to perform household chores due to pain and physical restrictions. However, this portion of the assessment merely reports the subjective self-reporting that the applicant provided to the assessors. The assessors did not make any findings regarding the applicant’s physical restrictions in the “Objective Findings”, “Diagnoses” or “Summary and Recommendations” sections of the psychological assessment. In this regard, although Drs. Kozina and Imran made recommendations for driving evaluation and neuropsychological assessments, they did not recommend an attendant care assessment or indicate that attendant care was needed.
28The applicant also submits that the neuropsychological assessment of Dr. Vitelli, date March 23, 2022 establishes that the disputed treatment is reasonable and necessary. As with the psychological report of Drs. Kozina and Imran, this neuropsychological report diagnoses the applicant with psychological conditions. It also recommends assessments for chronic pain and psychological adjustment treatment. However, it does not recommend or even mention the applicant requiring attendant care services.
29The applicant also claims that the medical evidence confirms that he has physical restrictions that prevent him completing his daily tasks of living. While there is some subjective self-reporting of this in Dr. Vitelli’s report, the applicant has not specifically identified any objective medical evidence in his 548-page evidence brief that support these submissions.
30The respondent again relies on the orthopaedic assessment of Dr. Saplys, dated January 12, 2021. Dr. Saplys’ assessment is that the applicant suffered soft tissue injuries that would be considered minor injuries and specifically opined that this treatment plan is not reasonable and necessary. As above, the applicant’s submissions do not take issue with any of Dr. Saplys’ findings.
31I agree with the respondent that the applicant has failed to meet his burden in establishing that the disputed treatment plan is reasonable and necessary. I also note that the applicant’s submissions regarding the reasonableness and necessity for an attendant care assessment plan are combined with his submissions regarding the driver evaluation treatment plan, discussed below. The applicant’s submissions conflate evidence relevant to the applicant’s mental state and need for a driver evaluation treatment plan with his claims regarding the need for attendant care services. Those portions of the applicant’s submissions that address the psychological and neuropsychological assessments and their findings on the applicant’s mental state and difficulty driving are not relevant to the issue of whether the attendant care benefit assessment is reasonable and necessary.
32The applicant has failed to link the reasonableness and necessity of the treatment plan to address the applicant’s functioning post-accident. I find it noteworthy that despite relying on two different assessment reports in support of this treatment plan, neither of these reports addresses the issue of attendant care or recommends attendance services or an assessment.
33For these reasons, I find that applicant has failed to establish that the disputed treatment plan for an attendant care assessment is reasonable and necessary.
The applicant is entitled to the driver evaluation treatment plan
34I find that the treatment plan for a driver evaluation assessment is reasonable and necessary.
35The applicant asserts that the proposed driver evaluation treatment is reasonable and necessary because psychologists, Dr. Kozina and Dr. Imran, recommended such an assessment in their report dated January 31, 2021. In their opinion, such an assessment would allow for proper treatment, including in-vehicle treatment, to be implemented to address the applicant’s diagnosed condition of Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia, Situational Type (driving and travelling as a passenger). I note that the respondent’s own assessment by Dr. Couperthwaite, dated January 12, 2021 made a similar diagnosis.
36The treatment plan in question identifies two individuals who will provide the assessment services, Erin D. Langis, a psychological associate, and Svetlana Kisilevhich, identified as “other”. The proposed purpose of the assessment is to prepare specialized treatment to specifically address the applicant’s driving anxiety, which has been “resilient to prior treatment”.
37The respondent asserts that applicant has failed to establish that a driver evaluation is reasonable and necessary because the applicant has already been assessed regarding his psychological state and that a driver evaluation would be duplicative of these assessments. The respondent cites the assessments of Drs. Kozima and Imran as well as Dr. Couperwaithe.
38The respondent’s arguments fail to address the specific recommendation made by Drs. Kozina and Dr. Imran that the applicant would benefit from a driving evaluation assessment. I note that the respondent has not provided any expert evidence to contradict the recommendation of Drs. Kozina and Imran or to comment on the reasonableness and necessity of the disputed treatment plan.
39The respondent also argues that the treatment plan is not reasonable and necessary because the assessment services proposed therein are to be provided by a chiropractor. This is incorrect. The OCF-18 itself was completed and signed by a chiropractor. However, as described above, the treatment plan in question indicates that the assessment services are to be provided by two individuals, one of which is a psychological associate. Neither of the named assessment service providers are chiropractors. The fact that a chiropractor completed the OCF-18 is not relevant in determining whether the services described therein are reasonable or necessary.
40Based on the evidence before me, specifically the unchallenged recommendations by Drs. Kozina and Imran regarding the benefit of a driving evaluation assessment, I find that the applicant has met their burden and is entitled to the disputed treatment plan.
Interest
41The applicant is entitled to applicable interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule.
ORDER
42I find:
i. The applicant is not entitled to $1,895.75 for physiotherapy services proposed by LV Rehabilitation, in a treatment plan submitted on July 28, 2020, denied on August 10, 2020.
ii. the applicant is not entitled to $4,967.02 for physiotherapy services proposed by LV Rehabilitation, in a plan submitted on October 14, 2020, denied on January 20, 2021.
iii. The applicant is not entitled to $2,200.00 for the assessment of attendant care needs proposed by LV Rehabilitation in a treatment plan submitted on July 8, 2020, denied on July 10, 2020.
iv. The applicant is not entitled to $1,434.00 for assistive devices proposed by LV Rehabilitation in a treatment plan submitted on February 3, 2021, denied on February 18, 2021.
v. The applicant is entitled to $2,020.33 for a driver evaluation proposed by LV Rehabilitation in a treatment plan dated September 1, 2021, denied on September 7, 2021.
vi. The applicant is entitled to any appliable interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule.
Released: July 22, 2024
__________________________
Matthew Frontini
Adjudicator