Bernardo v. Aviva General Insurance, 2024 CanLII 97889
Licence Appeal Tribunal File Number: 22-010656/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:
Assunta Bernardo
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Adriano Pranzitelli, Counsel
For the Respondent:
Tefiney E. Scarlett, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Assunta Bernardo, the applicant, was involved in an automobile accident on October 21, 2019, 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 IN DISPUTE:
2The issues in dispute are:
i. Is the applicant entitled to $1,779.60 for physiotherapy treatments proposed by Ryan Pagnanelli of Mackenzie Medical Rehabilitation Centre, in a treatment plan submitted on September 21, 2022 and denied September 23, 2022?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find the applicant is not entitled to the treatment plan dated September 21, 2022. As there are no benefits owing, no interest is payable.
ANALYSIS:
PROCEDURAL ISSUE – LATE SUBMISSION OF MEDICAL DOCUMENTS
4I find that while the applicant has contravened the Tribunal Case Conference Report and Order (“CCRO”) dated June 9, 2023, due to the late production of the clinical notes and records of Mackenzie Medical Rehabilitation Centre and Dr. Abraham Cohen, I order that the records be admitted pursuant to Rule 9.4 of the Common Rules of Practice and Procedure.
5The respondent submits that the applicant failed to comply with the CCRO provisions on document exchange. It notes that the applicant agreed to a deadline of August 31, 2023 for the parties to disclose any items that have not been previously disclosed, but which they intend to present as evidence at the hearing. However, the respondent claims that the applicant provided the clinical notes and records of Mackenzie Medical Rehabilitation Centre and Dr. Cohen for the first time in her submissions, served on February 8, 2024. The respondent submits that it was not afforded the opportunity to review the medical records or given the opportunity to adequately respond.
6The applicant submits that it duly submitted a request for retrieval of the records from MedChart after the Case Conference. However, the medical records were only recently made accessible. She further submits that she does not have the ability to control the speed at which the medical records are made available on MedChart. The applicant submits that these medical records are necessary as they provide additional evidence to the nature and severity of the applicant’s injuries and symptoms.
7I agree with the respondent that the applicant did not meet the document exchange deadline as listed in the CCRO. However, the respondent has not demonstrated how it has been prejudiced by the late production of these documents. The respondent states that the late submission prevented it the opportunity to review the medical records from the parties and was not given the opportunity to adequately respond. However, the respondent has not provided any evidence that the late records included new information that would have necessitated changes as to how this file was being adjusted or that it was prevented from providing a defense in this hearing.
8As a result, I exercise my authority under Rule 9.4 Common Rules of Practice and Procedure and allow these documents to be entered into evidence. I also rely on s. 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 to admit these documents into evidence, as I find them relevant to the subject matter of this proceeding.
9For the above reasons, I deny the respondent’s request to exclude the medical records tendered with the applicant’s submissions.
SUBSTANTIVE ISSUES:
Entitlement to medical and rehabilitation benefits
10To 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.
11There must be objective medical evidence demonstrating a causal connection between the accident and injuries giving rise to a claim for benefits. A treatment plan on its own does not prove that the benefits sought are reasonable and necessary.
The applicant is not entitled to the treatment plan dated September 21, 2022
12The applicant has not established that the treatment plan, dated September 21, 2022, in the amount of $1,779.60 is reasonable and necessary.
13The treatment plan, dated September 21, 2022, was prepared by Ryan Pagnanelli, Chiropractor, of Mackenzie Medical Rehabilitation Centre and recommends chiropractic and massage therapy treatment, in the amount of $1,779.60. The goals of the treatment plan are listed as pain reduction, increase in strength, increased range of motion, return to activities of normal living and return to modified work activities.
14The applicant submits that she has sustained injuries to her lower back, shoulders, left arm, neck and head which have resulted in chronic pain. She submits that she began receiving treatment at Mackenzie Medical Rehabilitation Centre on November 4, 2019, and that the physiotherapy treatment received has contributed to reducing some of her pain. She further claims that physiotherapy has played an integral part in treating and managing her chronic pain. She states that the goal of the treatment plan proposed was return to her pre-accident level of function. She has gained a benefit from the treatment as her pain has been relieved without an inappropriate or indefinite dependency. The cost of this plan had regard to professional fee guidelines and protocols and the costs are inline with the guidelines.
15The respondent denied the treatment plan submitted September 21, 2022, based on the Insurer’s Examination Report, prepared by Dr. Ahmad Belfon, dated September 3, 2020. Dr. Belfon opined that based on the previous history of comprehensive facility-based therapy received by the applicant and the amount of time that has elapsed since the accident, additional facility-based therapy will likely not result in therapeutic or restorative gains beyond what the applicant could accomplish on her own with daily stretching and conditioning coupled with appropriate pharmacological management. The respondent submits that the applicant has not provided any contemporaneous evidence or proven on a balance of probabilities that the proposed treatment plan is reasonable and necessary.
16The applicant in her reply submissions disagrees with the findings in the IE Report of Dr. Belfon, dated September 3, 2020 and his assertion that physiotherapy will not provide therapeutic or restorative benefits. She submits that the treating physiotherapist strongly recommends the necessity of physiotherapy for the applicant’s rehabilitation.
17I find that the applicant has not met her onus of establishing entitlement to the proposed treatment plan for the following reasons.
18Firstly, aside from providing the clinical notes and records from Mackenzie Rehabilitation Centre, the applicant has not directed me to other corroborating medical evidence that supports or recommends the treatment proposed. The last clinical note from her family doctor, Dr. Cohen, is dated June 19, 2020. While the applicant submits that the family physician advocates for the necessity of physiotherapy treatment, there are no records after June 19, 2020 supporting this recommendation.
19Secondly, while the applicant submits that she suffers from chronic pain in her back and shoulders for many years, there is no mention of a diagnosis of chronic pain anywhere in the records.
20Thirdly, there are no records from Mackenzie Medical Rehabilitation Centre or any other medical practitioner for the period from August 10, 2020 to September, 2022 when the treatment plan is submitted. The applicant has not provided any medical evidence that she sought medical treatment or suffered any physical complaints during the period of August 10, 2020 and September, 2022. While there are clinical notes from the physiotherapist in September 2022, there are no particulars provided as to what led her to seek treatment two years later.
21Finally, the applicant has not provided me with evidence to counter the findings in Dr. Belfon’s IE Report that the applicant did not require any further treatment. Similarly, the applicant has not provided any details of how the applicant’s condition has changed since the date of the IE Report and the submission of the treatment plan on September 21, 2022.
22For all of the reasons set out above, I find that the applicant has not proven on a balance of probabilities that the treatment plan dated September 21, 2022 is reasonable and necessary.
Interest
23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s.51 of the Schedule.
ORDER
24For the reasons outlined above, I find that:
i. The applicant is not entitled to the treatment plan, dated September 21, 2022;
ii. The applicant is not entitled to interest; and
iii. The application is dismissed.
Released: October 10, 2024
Melanie Malach
Adjudicator