Diceman v. Aviva Insurance Company of Canada, 2025 CanLII 111749

Citation: Diceman v. Aviva Insurance Company of Canada, 2025 ONLAT 23-015661/AABS

Licence Appeal Tribunal File Number: 23-015661/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:

Tim Diceman

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Tim Diceman, Self-Represented

For the Respondent: Aleah Thomas, Counsel

HEARD: By way of written submissions

OVERVIEW

1Tim Diceman, the applicant, was involved in an automobile accident on December 31, 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 Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issue in dispute is:

i. Is the applicant entitled to massage therapy, physiotherapy, and chiropractic services in the amount of $1,782.43, proposed by Maple Health Care & Rehab, in a treatment plan submitted on December 8, 2022?

RESULT

3The applicant is entitled to the treatment plan for massage therapy, physiotherapy and chiropractic services, dated December 8, 2022.

ANALYSIS

Were the applicant’s injuries caused by the December 31, 2019 accident?

4Before I address the substantive issue in dispute, I will address the issue of causation raised by the respondent.

5I find that the accident was a necessary cause of the applicant’s injuries.

6The appropriate test for determining causation in accident benefits cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al, 2019 ONSC 1121 (“Sabadash”). To satisfy the test, the applicant must prove on a balance of probabilities that “but for” the accident, he would not have suffered the physical impairments which form the basis of his application for the disputed benefits. The Court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability, and further, that the accident need only be a necessary cause, and not the only cause, of the impairment.

7The respondent submits that the applicant developed chronic back pain ten years pre-accident and was diagnosed with degenerative disc disease. It submits that he also suffered a rib injury in the year before the accident regarding which he complained of intermittent/recurring right-sided mid-back pain and was diagnosed with mechanical mid-back pain/strain. The applicant was referred for diagnostic imaging and physiotherapy in direct connection with the rib injury. The respondent submits that the applicant has not adduced independent, contemporaneous, expert medical evidence to support an inference that the accident-related sprain/strain injury directly caused his alleged ongoing impairment.

8In his reply submissions, the applicant submits that the respondent is confusing his pre-accident low back condition with his accident-related ongoing mid-back issues. The applicant submits that it has provided sufficient medical evidence regarding the injuries sustained in the accident. The applicant argues that while the burden of proof is on him, there is equally no evidence presented to refute that his injuries are accident related. The applicant states that the Insurer’s Examination (“IE”) report of Dr. Ida Cavaliere, physiatrist, dated February 23, 2023 does not state that his injuries are not accident-related.

9In analyzing the parties’ arguments about causation and in comparing the applicant’s pre- and post-accident medical documentation, I find that the subject accident is not the only cause of the applicant’s impairments, but it is a necessary cause, which is sufficient to meet the causation test as set out in Sabadash.

10I find that while the pre-accident medical documentation confirms that he had impairments prior to the accident, this documentation does not support that he experienced the same level of functional impairment that he clearly suffered post-accident. I find that the applicant’s post-accident complaints are consistently documented by multiple health practitioners following the accident and establish a nexus between the accident and the applicant’s impairments. It is clear from the medical documentation that the applicant continued to suffer ongoing functional impairments following the accident.

11On review of the medical documentation, I find that the preponderance of the evidence supports a finding that the accident is a necessary cause of the increase in the severity of the applicant’s impairments post-accident. I find that the applicant has consistently reported his accident-related symptoms and limitations post-accident, and these complaints are reflected in the clinical notes and records (“CNRs”) of his treating family physician, treatment providers, and the IE report of Dr. Cavaliere.

12For the reasons outlined above, I find that the applicant has established on a balance of probabilities that he would not have suffered the physical impairment underlying his claim but-for the accident.

The applicant is entitled to the treatment plan in dispute

13I find that the applicant is entitled to the treatment plan for massage therapy, physiotherapy, and chiropractic services dated December 8, 2022.

14To 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 that the goals of treatment are reasonable, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

15The applicant submits that he sustained neck and back injuries as a result of the accident. The applicant attended CBI Health from January to June 2020; Meridian Spine and Sport from June to October 2020; and Artline Holistic Centre from January to March 2021, where he claims to have achieved little result for his mid back injury.

16On March 8, 2021, the applicant was removed from the MIG. By email dated March 16, 2021, the respondent provided the applicant with a list of four premiere clinics close to his home. The adjuster advised the applicant to pick the clinic that was convenient for him. She further advised him that she could call the clinic on his behalf to update them on his injuries or he could call the clinic directly.

17The applicant began attending for treatment at Maple Health Care and Rehab (“MHCR”) on March 23, 2021. Treatment plans dated March 24, 2021, July 5, 2021, December 1, 2021 and July 4, 2022, were submitted and approved.

18On December 8, 2022, a treatment plan was submitted by MHCR diagnosing the applicant with spondylolysis, sprain and strain of thoracic spine, sprain and strain of ribs and sternum, sprain and strain of lumbar spine and sprain and strain of cervical spine. The goals of the treatment plan are pain reduction, increase range of motion, increase in strength and return to activities of daily living. The treatment plan recommends 5 sessions of physiotherapy: 10 sessions of chiropractic/acupuncture, and 10 sessions of massage therapy, for a total cost of $1,782.43. The treatment plan was denied by the respondent on December 13, 2022.

19The applicant claims that the treatment plan in dispute is similar in cost and scope to previously approved treatment plans submitted by MHCR. At the time the treatment plan in dispute was submitted, he had achieved slow but significant results with MHCR.

20The applicant relies upon the letter from Dr. Eric Vandergugten, chiropractor, at MHCR, dated January 20, 2025, to support his entitlement to the treatment plan in dispute. The letter notes that when he first began treating the applicant, the applicant continued to report flare ups of neck, midback and low back pain after minimal aggravation. He states that these flare ups would then result in increased pain, difficulty sleeping, difficulty sitting for prolonged periods of work, and difficulty with household chores such as walking the dog. He notes that the proposed treatment plan that was denied was reasonable and necessary to address the applicant’s flare ups of his neck, midback and low back pain and that the applicant reported improvements with the multidisciplinary care administered. He further notes that despite the denial of the treatment plan, the applicant continued to attend for treatment and has made significant progress to date with his accident-related injuries.

21The respondent submits that the applicant has failed to prove that the disputed treatment plan is reasonable and necessary. The respondent submits that the applicant took only two weeks off work before returning to his full-time hours and duties as a management consultant. It submits that he has never been diagnosed with accident-related chronic pain and he has never been prescribed medication or referred to any specialists in relation to his accident-related injuries. The respondent submits that there is no objective evidence of an ongoing accident-related injury, and the applicant has not been assessed by his family doctor for his accident-related complaints in over four years, despite attending on various occasions for unrelated conditions.

22The respondent relies upon the IE report of Dr. Cavaliere, dated February 23, 2023 where Dr. Cavaliere notes that the applicant reported complete resolution of his neck/hand pain, and 50-60% improvement in his mid-back pain which he rated as 2-4/10. Dr. Cavaliere notes that the applicant is independent with self-care and resumed pre-accident recreational activities including skiing, mountain biking, driving, walking, exercising and socializing. She diagnosed the applicant with thoracic spine strain/sprain, neck pain (resolved) and left-hand digit 3 sprain (resolved). She noted that as it has been over three years since the accident, the applicant has achieved maximum medical recovery. She found that given the amount of facility-based treatment to date, the described overall lack of sustained benefit, and the home-based exercise program, that no further facility-based treatment is required.

23The applicant submits that the process followed by the insurer’s medical examiner and the IE report itself was flawed and cannot be relied upon. The applicant submits that the report includes “misquotations, missing documentation, missing patient feedback, missing physical test observations and discrepancies.” The applicant argues that Dr. Vandergugten’s opinion that he has made observed improvements with treatment, undermines Dr. Cavaliere’s opinion that he had reached maximum medical improvement at the time of the assessment. He further submits that he has been diligent in following the prescribed protocols and in attending treatment on a regular basis.

24I find that the applicant has proven on a balance of probabilities that the treatment plan in dispute is reasonable and necessary for the following reasons.

25I find upon review of the treatment plan in dispute, the CNRs from MHCR, as well as the letter from Dr. Vandergugten dated January 20, 2025, that the applicant has provided evidence based on his self-reporting and objective evidence from a qualified medical practitioner, that he continued to suffer ongoing physical complaints as a result of the accident and required ongoing treatment of his injuries. I find that while the letter from Vandergugten post-dates the treatment plan by two years, the letter from Dr. Vandergugten is based on his ongoing treatment of the applicant and sets out the rationale for the recommendation for ongoing treatment. The letter further sets out the improvements made by the applicant with ongoing treatment which he continued to attend at his own expense despite the denial of the treatment plan in dispute.

26I find upon review of the CNRs of Dr. Alok Sood, family physician, that the applicant made ongoing physical complaints consistently post-accident and Dr. Sood made recommendations for ongoing physiotherapy and chiropractic treatment for his accident-related impairments.

27I give little weight to the IE report of Dr. Cavaliere relied on by the respondent. Upon review of the report, her conclusion is that as it has been over three years since the accident, the applicant has achieved maximum medical recovery. While her report states that the applicant described an overall lack of sustained benefit from treatment, she does not address that the applicant did sustain benefit when he switched to MHCR for treatment. I find that the applicant was clear that he did not find benefit at his previous rehabilitation facilities but that he was receiving significant benefit at MHCA. I further accept the applicant’s submission that the CNRs from MHCA support that he continued to benefit from ongoing therapy which is in contrast to Dr. Cavaliere’s report that he has reached maximum medical recovery.

28For the reasons outlined above, I find that the applicant has met his onus of demonstrating on a balance of probabilities that the treatment plan for massage therapy, physiotherapy and chiropractic therapy, dated December 8, 2022, is reasonable and necessary.

Interest

29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. While the issue of interest has not been listed as an issue in dispute, as I have found that the applicant is entitled to the treatment plan dated December 8, 2022, interest is payable in accordance with s. 51 of the Schedule, from the date payment became overdue to the date that payment was made.

ORDER

30For the reasons outlined above, I find that the applicant is entitled to the treatment plan for massage therapy, physiotherapy and chiropractic services, dated December 8, 2022, plus interest pursuant to s. 51 of the Schedule.