Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 24-007129/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:
Dustin G Kwiatkowski Applicant
and
Aviva General Insurance Company Respondent
DECISION
ADJUDICATOR: Jim Zotalis
APPEARANCES:
For the Applicant: Serena Rhyman, Paralegal
For the Respondent: Nabila Majidzadeh, Counsel
HEARD: In Writing
OVERVIEW
1In his submissions Dustin Kwiatkowski, the applicant, indicates that he was involved in an automobile accident on June 19, 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 General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
2The respondent made submissions that the accident occurred on June 1, 2020.
3I have reviewed the Application for Accident Benefits Form, Ontario Claim Form 1 ("OCF-1") and that document identifies the date of the accident as June 1, 2020, and not June 19, 2020. The OCF-1 is signed by the applicant and dated May 7, 2021. The Case Conference Report and Order dated September 26, 2024 ("CCRO") also indicates the date of accident as June 1, 2020. The applicant and his representative attended the case conference on September 25, 2024, and have not disputed the date in the CCRO, which is consistent with the date in his application to the Licence Appeal Tribunal.
4As the applicant has not provided any reply submissions including evidence to establish a different date of the accident apart from what appears in the OCF-1, his application to the Tribunal, and in the CCRO, I find that the date of the accident is June 1, 2020, as indicated in the OCF-1, his application to the Tribunal, the CCRO and in the respondent's submissions to the Tribunal.
ISSUES
5The issues in dispute are:
i. Is the applicant entitled to the assessments and treatments proposed by Whitby Wellness Centre, as follows:
$2,195.00 for a chronic pain assessment, in an OCF-18/treatment plan (treatment plan) submitted July 13, 2023; and
$2,956.20 for chiropractic services, in a treatment plan submitted July 13, 2023?
ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6The applicant is entitled to a chronic pain assessment in a plan submitted by Whitby Wellness Centre, plus interest.
7The applicant is not entitled to chiropractic services in a plan submitted by Whitby Wellness Centre.
8The respondent is not liable to pay an award under s. 10 of Reg 664.
ANALYSIS
Legal test for a treatment and assessment plan under the Schedule
9To 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 the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
Is the applicant entitled to a chronic pain assessment as proposed by Whitby Wellness Centre?
10The applicant is entitled to a chronic pain assessment in a plan proposed by Whitby Wellness Centre in the amount of $2,195.00.
11The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
12The OCF-18 for a chronic pain assessment proposes an assessment cost of $1995.00, plus $200.00 for documentation for a total of $2,195.00. The plan lists the goals as pain reduction and to obtain necessary clinical information to formulate the most appropriate treatment plan in response to present complaints. The functional goals are listed as a return to activities of normal living and pre-accident work activities as well as to prevent the injuries from becoming permanent.
13The applicant made submissions that he suffers from a pre-existing shoulder injury, an intrasubstance tear in the supraspinatus muscle as shown on an ultrasound performed on February 11, 2014. Further, the applicant made submissions that his previous rotator cuff injury from 2014 was exacerbated by the accident of June 1, 2020. As a result, the applicant submits that Dr. Ian Harrington, orthopedic surgeon assessor, has determined that his pre-existing injuries will prevent him from achieving full recovery from his accident-related injuries.
14The applicant also submits that he attended sessions beginning on December 1, 2020, with respect to his drug addiction, pain complaints for chronic shoulder and back pain, as well as anxiety and requested to be assessed by a psychiatrist.
15The applicant relies on an addendum report by Dr. Ian Harrington, orthopedic surgeon, (s.44 assessor), as well as the clinical notes and records ("CNRs") of Dr. Isabelle Dion to support the chronic pain assessment as reasonable and necessary.
16The respondent submits that the accident occurred on June 1, 2020, (as opposed to June 19, 2020) and that on June 6, 2020, the applicant's only reported injury was his shoulder and that he wanted to see a doctor. The respondent made further submissions that on August 11, 2020, the applicant reported to Dr. Dion that he hurt his shoulder, and that the clinical notes and records indicated there was no swelling and full range of motion was also noted. The respondent also made submissions that the applicant has not provided any contemporaneous medical evidence in support of the chronic pain assessment as being reasonable and necessary. Further, the respondent argues that if the applicant has suffered from any injuries post-accident, these are not related to the accident in question and any evidence of a shoulder joint and an intrasubstance tear are due to arthritic changes or degeneration, and not because of the subject accident.
17The respondent relies on the s.44 IE conducted by Dr. Alborz Oshidari, physical medicine and rehabilitation specialist, dated August 29, 2023, to support its position that the chronic pain assessment is not reasonable and necessary.
18I am persuaded on a balance of probabilities that the applicant has demonstrated that the chronic pain assessment is reasonable and necessary for the following reasons.
19I find that there are grounds to believe a chronic pain condition exists that warrants a further investigation. I say this for the following reasons. The applicant's pain complaints have persisted for at least several years post-accident and have not resolved. I find the report of Dr. Oshidari, physical medicine and rehabilitation specialist, dated August 29, 2023, to contain an unsupported claim when he states, in part, "There is no diagnosis of somatic pain disorder. Due to the nature of the accident, in my opinion a chronic pain assessment in this case does not have any rehabilitation benefit...". Dr. Oshidari, however, does not elaborate as to why he takes this position. There is no further analysis to help the reader understand his conclusion. The report also does not include a review of the CNRs of Dr. Isabelle Dion to whom the applicant has made pain complaints. In reviewing the documentation listing of the report, I find this omission renders the report less persuasive. Additionally, I find that given the applicant has not been provided any treatment from healthcare providers while in jail for six months, this demonstrates a greater need for the applicant to obtain a chronic pain assessment.
20For the reasons stated above, I find on a balance of probabilities that the applicant has demonstrated that he is entitled to a chronic pain assessment as proposed in the plan submitted by Whitby Wellness Centre.
Is the applicant entitled to chiropractic services as proposed by Whitby Wellness Centre?
21The applicant is not entitled to chiropractic services as proposed by Whitby Wellness Centre.
22The OCF-18 for chiropractic services proposes 20 sessions of manipulation and stimulation, as well as an education component, promoting health and preventing disease as well as documentation, for a total cost of $2,956.20. The plan goals are listed as pain reduction, increase in strength and range of motion and return to activities of normal living.
23The applicant submits that an MRI of the cervical spine shows significant narrowing more so on the right side of C5-6 and C6-7 from posterior lateral disc herniation which are acute on chronic. The applicant further submits that he has done everything possible to recover, including seeing a pain and shoulder specialist and a psychiatrist and submits that further chiropractic treatment will reduce his pain, increase strength and return him to activities of normal living and pre-accident work activities.
24The respondent submits that the applicant has not adduced any evidence contemporaneous to the treatment plan in dispute supporting that chiropractic services are reasonable and necessary. Further, although the applicant was referred to Dr. Ibrahim, an orthopaedic surgeon, for right shoulder pain, and treated with physiotherapy, the respondent submits that there has been little improvement with physiotherapy treatment, and this is evident that the goal of the plan is not being met. The respondent also argues that Dr. Ibrahim and Dr. Dion, the applicant's own treating doctors, do not recommend chiropractic services nor does the IE assessor, Dr. Oshidari.
25I am not persuaded on a balance of probabilities that the proposed treatment plan is reasonable and necessary for the following reasons. As there is no recommendation from either Dr. Gally, Dr. Dion or Dr. Ibrahim for chiropractic treatment, I find that this plan is not reasonable and necessary as it is not supported by contemporaneous corroborating medical evidence. It has not been endorsed by the applicant's treating practitioners. Reliance on an OCF-18 alone is insufficient medical evidence to find a plan reasonable and necessary. An applicant must demonstrate through contemporaneous medical evidence that they are entitled to the plan because of an impairment suffered as a direct result of the accident. Further, where the applicant has received recommendations from his treating practitioners it has been to trial acupuncture and for further pain management including nerve root injections by a pain specialist. I have not been directed to any referrals in the medical evidence that deal with proposed chiropractic treatment services.
26For the reasons stated above, I find on a balance of probabilities that the applicant has not met his onus to demonstrate that the plan is reasonable and necessary and thus he is not entitled to the chiropractic services proposed by Whitby Wellness Centre.
Interest
27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found the applicant is entitled to a chronic pain assessment, interest applies on that treatment plan.
Award
28The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
29As the applicant did not provide submissions with respect to an award for unreasonably withheld or delayed payment of benefits even though he made a claim, I find there is no basis to make such an award in this case.
ORDER
30The Order of the Tribunal is as follows:
i. The applicant is entitled to a chronic pain assessment in a plan submitted by Whitby Wellness Centre, plus interest.
ii. The applicant is not entitled to chiropractic services in a plan submitted by Whitby Wellness Centre.
iii. The respondent is not liable to pay an award under s. 10 of Reg 664.
Released: December 15, 2025
Jim Zotalis Adjudicator