Citation and File Number
Licence Appeal Tribunal File Number: 22-008052/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.
Parties
Between:
Aaron John Pereira Applicant
and
Aviva General Insurance Respondent
Decision
VICE-CHAIR: Geneviève Painchaud
APPEARANCES:
For the Applicant: Maria Papadopoulos, Paralegal
For the Respondent: Kathleen Mertes, Counsel
HEARD: By way of written submissions
OVERVIEW
1Aaron John Pereira, the applicant, was involved in an automobile accident on May 12, 2021, 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 General Insurance, 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 chiropractic services proposed by Alma Rehab as follows: (i) $2,493.35 in an OCF-18/treatment plan (“plan”) submitted on February 23, 2022? (ii) $2,166.33 in a plan submitted on March 24, 2022? (iii) $2,912.56 in a plan submitted on April 29, 2022?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3Based on the totality of the evidence before me, and for the reasons that follow, I find that:
i. The applicant is not entitled to the disputed treatment plans. ii. The applicant is not entitled to interest.
PROCEDURAL ISSUE
4The respondent requests that two MRI reports provided by the applicant after the deadline for productions be struck from the evidentiary record, or in the alternative, that the Tribunal attributes no weight to them.
[5]
6The timeline of events is as follows:
i. July 21, 2022 Application is filed
ii. April 17, 2023 Case conference order (the “Order”) establishes the timetable for the exchange of documents
iii. May 11, 2023 Notice of written hearing for January 26, 2024
iv. June 20, 2023 Applicant’s MRIs are performed and reports drafted
v. July 17, 2023 Production deadline for the exchange of documents agreed upon
vi. July 26, 2023 Production deadline for other documents intended to be relied upon at the hearing
vii. August 15, 2023 Final production deadline, for anything responsive to what has been submitted
viii. August 21, 2023 MRI reports produced to the respondent
ix. January 2024 Submissions and written hearing
7The filing of the MRI reports did not comply with the Tribunal Order. As per the Common Rules, if a party fails to comply with an order with respect to disclosure or inspection of documents, that party may not rely on the document as evidence, without the consent of the Tribunal.
8The applicant submits that the delay in getting the MRIs done was due to the denial by the respondent of paying for them and therefore there was a delay in getting them done within the public system. The applicant argues that the respondent should have filed a motion to exclude the documents immediately upon receiving them or to ask for an adjournment of the hearing to allow time to order a report to respond to the new evidence. They also state that the MRI reports were not received for a few months after the MRIs and that the section 44 assessors’ reports should be given less weight since the respondent did not get addendum reports after receipt of the MRI reports as it would have been too late to submit them.
9The respondent submits that the MRI reports were completed before the production deadline, yet produced late, with no explanation. It argues that it could not get rebuttal reports done as it was past the timeline for productions, and therefore the reports should not be admitted, or in the alternative, not given any weight as it was in breach of the Order.
10I agree that the MRI reports were late-filed. I also note that the applicant provided no explanation for the late-filing of the report until their reply submissions.
11The MRI reports are not admitted because although the MRI reports were dated well before the production deadline, the applicant did not state the exact date the MRI reports were received, nor any efforts made to obtain them faster once completed in order to meet the production deadlines. The applicant was the party in breach of the Order and should have taken necessary steps if they wanted them admitted. Their suggestion that the onus of filing a motion should shift to the respondent is not appropriate. I also considered the relevance of the MRI reports and any prejudice to the parties and find that the applicant has failed to provide compelling evidence of how the findings in these reports would connect to the issues in dispute and help them meet their onus, especially without addendum reports from the parties.
ANALYSIS
The applicant is not entitled to the chiropractic treatment plans
12I find that the applicant has not demonstrated on a balance of probabilities that the treatment plans at issue were reasonable or necessary.
13To 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 because 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.
14The applicant submits that he suffered from fibromyalgia and chronic pain prior to the accident but that these conditions were manageable. According to the applicant, they were exacerbated by the accident. He submits that the respondent’s assessments should be given less weight as the applicant consistently reported the same symptoms to all doctors.
15The applicant submits he is entitled to three chiropractic treatment plans relying on clinical notes and records of Dr. Kodsi, his family doctor, that outline the applicant’s extensive medical issues pre-accident, including a history of fibromyalgia, chronic upper and lower back pain, carpal tunnel syndrome, and mental health issues. On June 4, 2021, the family doctor mentions a setback to the applicant’s health following the accident. The respondent argues that the prescribed medication and treatment were similar before and after the accident. I agree with the respondent and find that Dr. Kodsi’s recommendation for physical therapy and prescription medication have not significantly changed before and after the accident and that the applicant had a significant pre-existing health history with physical and mental health challenges. While there was one mention of a setback, it was mentioned 9 months prior to the treatment plans in dispute and I cannot conclude that there was still a setback in February to May 2022. They do not convince me that the treatment plans are reasonable and necessary in relation to the accident.
16The applicant also relies on a chiropractic assessment by Dr. Marco Curcio, chiropractor, describing a fair to poor prognosis and that, as of November 16, 2021, the applicant had not yet reached maximum medical improvement status and should continue in active and passive rehabilitation to increase range in motion and strength. He adds that the prognosis is fair to poor given that injuries have become chronic in nature. The respondent suggests that little to no weight should be put to this report since Dr. Curcio even diagnosed psychological issues which are outside of his scope of expertise, making his report less reliable. I find the chiropractic assessment by Dr. Curcio lacking information about the applicant’s pre-existing physical and mental state. It states that the applicant “has had some health issues overall prior to the subject motor vehicle accident… but has been diagnosed with fibromyalgia approximately one year ago.” The applicant described his pre-accident state as very physically active in sports and fails to mention the chronic back pain that is described in his family doctor’s clinical notes and records. I therefore accord it less weight as the assessor did not have a complete picture of the applicant’s pre-accident condition that coincides with other evidence.
17A chronic pain assessment was conducted by Dr. Michael Gofeld, chronic pain specialist, dated April 9, 2022, who concluded that the applicant suffers from chronic pain syndrome, fibromyalgia, chronic post-traumatic headaches, migraines, chronic neck pain, NOS, chronic shoulder pain, carpal tunnel syndrome, chronic low back and hip pain, mental health disorders, cannabis use disorder and post-concussion syndrome. He recommended the applicant participate in a chronic pain management program. The respondent submits that Dr. Gofeld did not make recommendations for the passive modalities such as chiropractic manipulations outlined in the disputed treatment plans and that the applicant suffered from chronic pain syndrome before the accident and not as a result of the accident. I agree with the respondent that the applicant suffers from chronic pain but the assessor did not convince me of which type of treatment was reasonable or necessary in relation to the accident because it lacked specificity.
18The respondent relies on a s. 44 musculoskeletal assessment by Dr. Irina Safir, physician, dated January 18, 2022 where she noted that the soft-tissue injuries sustained have a customary healing time of 8 to 12 weeks but due to the applicant’s pre-existing conditions, a more protracted recovery time would reasonably be anticipated but that the duration is difficult to estimate. She noted that the applicant reached maximum medical improvement related to soft-tissue injuries and advised the applicant to continue with self-directed and at-home exercises for general maintenance and conditioning purposes and that the treatment plans in dispute were not reasonable and necessary as there was no objectively valid musculoskeletal impairment. The applicant submits that Dr. Safir did not explain how the physician concluded maximum medical recovery and therefore less weight should go to it. The respondent submits that it has paid for one session with a chiropractor and one re-assessment for the purpose of education in order for the applicant to be provided with an in-home exercise program.
19I agree that Dr. Safir did not determine that the applicant needed treatment at a facility but could do at-home exercises. Although Dr. Safir stated that the recovery would be more than 8 to 12 weeks following the accident, I am not convinced recovery would extend to the time period of the proposed treatment plans because the treatment plans are months later and there was no objectively valid musculoskeletal impairment noted either. Instead, Dr. Safir noted that the applicant has achieved maximum recovery, I find that Dr. Safir’s report is clear in its recommendations and conclusion.
20The applicant points to the s. 44 neurological assessment dated June 28, 2023 by Dr. Nikneshan, who concluded that the applicant has not reached maximum medical improvement as he continues to have headaches. The respondent submits that Dr. Nikneshan’s assessment concluding that the applicant had not reached maximum medical improvement was solely from a neurological perspective and therefore not relevant to the treatment plans in dispute. I agree that this is not what the treatment plans in dispute had listed as a goal of the treatment.
21The respondent submits that the OCF-18s are flawed as they recommend overlapping yet similar treatment plans, which in itself makes them unreasonable. I note that the three treatment plans are all recommended by Alma Rehab for chiropractic and massage services. The first one is dated February 16, 2022 and recommends 7 weeks of treatment, noting one session completed. If this meant that 6 more weeks of treatment were needed, those would have concluded around March 30, 2022. However, the second treatment plan dated March 24, 2022 pre-dates the conclusion of the first treatment plan. This second treatment plan then recommended 8 weeks of treatments and noted one session had been completed. So, if this means even just another 7 weeks of treatment, these would have concluded around May 12th. But, the third treatment plan dated April 29, 2024 for an 8-week period then pre-dates the conclusion of the second treatment plan. Accordingly, I find that the treatment plans as proposed are not reasonable as the overlap in the OCF-18s demonstrate duplication of treatment over the same period, which also reduces the reliability of their content as I find there was likely a lack of attention paid in creating these treatment plans.
22Overall, the applicant has not directed me to medical evidence that substantiates that these treatment plans are reasonable and necessary in relation to the subject accident.
23As a result of the above and on a balance of probabilities, I find that the applicant has not met his onus in proving he meets the test to be entitled to the treatment plans in dispute.
Interest
24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.
ORDER
25For the reasons outlines above, I find that:
i. The applicant is not entitled to the treatment plans. ii. The applicant is not entitled to interest.
26The application is dismissed.
Released: October 3, 2024
Geneviève Painchaud Vice-Chair