Casilda Dorsett v. Aviva Insurance Company of Canada, 2024 CanLII 79217

Licence Appeal Tribunal

Citation: Dorsett v. Aviva Insurance Company of Canada, 2024 ONLAT 22-006142/AABS

Licence Appeal Tribunal File Number: 22-006142/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:

Casilda Dorsett

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: David Carranza, Paralegal

For the Respondent: Nabila Majidzadeh, Counsel

HEARD: In Writing

OVERVIEW

1Casilda Dorsett, the applicant, was involved in an automobile accident on January 19, 2022, 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.

2There was a priority insurance dispute on this application. Priority was accepted by the respondent from Intact Insurance.

ISSUES

3The following issues are to be decided:

i. Is the applicant entitled to $4,948.16 ($6,195.76 less $1,247.60 approved) for chiropractic treatment, proposed by Physio Fix and Fitness in a treatment plan submitted February 18, 2022?

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

iii. As per the applicant’s submissions the issues in the Case Conference and Report [2] 2 and [2] 4 dated March 10, 2023, are withdrawn.

RESULT

4I find that the applicant is not entitled to:

i. chiropractic treatment; and

ii. interest.

ANALYSIS

Is the treatment plan reasonable and necessary?

5Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

6The applicant bears the onus of proving entitlement to the proposed treatment by proving that the treatment plans are reasonable and necessary on a balance of probabilities.

Chiropractic treatment in the amount of $4,948.16 in treatment plan

7I find that the remaining balance of the chiropractic treatment plan completed by Mr. James Tran, chiropractor, at Physio Fix and Fitness is not reasonable and necessary.

8The treatment plan was submitted in the amount of $6,195.76. The treatment plan was partially approved in the amount of $1,247.60, leaving an outstanding balance of $4,948.16. The approved portion of the treatment plan covered item 6 exercise, multiple body sites, and item 11, documentation support activity for claim form. The remainder of the items on the treatment plan were denied, including physical rehabilitation, assessment, transportation to treatment, knee brace and bio-freeze.

9The goals of the proposed treatment plan are to achieve pain reduction, increase strength and range of motion to allow the applicant to return to activities of normal living.

10The applicant submits that the injuries sustained in the accident have directly contributed to the aggravation of her pre-existing condition, including knee pain from a previous motor vehicle accident, high blood pressure, high cholesterol and diabetes, which together are impacting her recovery. The applicant relies on the recommendations of Dr. Lisa Chiang, family physician, Dr. Vincenzo Basil, neurologist, Mr. James Tran, chiropractor, and Ms. Christina Low, occupational therapist.

11The clinical notes and records (“CNRs”) of Dr. Chiang reveal strain and sprain injuries, the applicant was prescribed Tylenol 500, and Flexeril 10 mg, and was recommended to continue with physiotherapy. Dr. Chiang referred the applicant for an x-ray, results dated March 8, 2022, reveal the applicant had mild surrounding fluid in the biceps, bursa mild bursal thickening, and mild degenerative change to the right shoulder.

12The applicant submits that she reported consistent pain and bending, twisting limitations to Mr. James Tran dated January 26, 2022, and February 22, 2022, and Ms. Christina Low, dated February 22, 2022. I note that Disability Certificate of Mr. Tran, dated January 26, 2022, opined that the applicant had sprain and strain injuries. Lastly, the applicant relies on the neurological assessment of Dr. Vincenzo Basile, dated February 22, 2023, that diagnosed the applicant with meeting the American academy of neurology criteria, post traumatic headaches, and chronic pain syndrome. Dr. Basile opined that the applicant suffered primarily musculoskeletal soft tissue injuries and recommended massage, physical therapy and chiropractic treatments 2-3 times per week.

13The respondent submits that the applicant has failed to meet the onus under section 15 and 16 and adduce any evidence contemporaneous to the treatment plan in dispute, specifically failing to provide evidence supporting the need for chiropractic treatment as reasonable and necessary. The respondent submits that the CNRs of Dr. Chiang does not recommend chiropractic treatment, or any of disputed the assessments proposed in the treatment plan, and neither does the Insurer Examiner Musculoskeletal Assessment dated March 22, 2022, of Dr. Michael Hanna, general practitioner.

14Dr. Hanna who reviewed the disputed treatment plan and although he diagnosed the applicant with sprain and strain injuries, he concluded that the applicant would benefit from further facility-based active treatment and partially recommended approval of the treatment plan. Dr. Hanna held that the remainder of the treatment plan was not reasonable and necessary as further passive modalities were unlikely to provide further benefit at this junction.

15I agree with the respondent. I specifically rely on the CNRs of Dr. Chiang and Dr. Hanna that there are no recommendations for chiropractic treatment or other modalities, and a consistent recommendation by both encouraging the applicant to exercise. In determining whether the treatment plan is reasonable and necessary I prefer the opinion of Dr. Hanna who reviewed the applicant’s treatment plan over Dr. Basile and Ms. Low, as their respective reports did not address the treatment plan. I find that the applicant fails to make compelling submissions or provide evidence on why the disputed portions of the treatment plan are reasonable and necessary, including physical rehabilitation, assessment, transportation to treatment, knee brace and bio-freeze.

16I find that a treatment plan for a medical benefit without more is not enough to establish entitlement. Accordingly, I find that the applicant has not met the onus to demonstrate that the denied portion of the treatment plan is reasonable and necessary.

INTEREST

17Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments. There being no overdue benefits payments, no interest is payable.

ORDER

18I find that the applicant is not entitled to:

i. chiropractic treatment; and

ii. interest.