Licence Appeal Tribunal File Number: 23-007028/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:
Lisa Chiandussi
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Nadia Mauro
APPEARANCES:
For the Applicant: Bernard Clint Cadden, Counsel
For the Respondent: Kristofer B Angle, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Lisa Chiandussi, the applicant, was involved in an automobile accident on June 20, 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
2The issues in dispute are:
i. Is the applicant entitled to $1,710.00 for chiropractic services, proposed by Tecumseh Chiropractic in a treatment plan (“OCF-18”) dated June 2, 2022?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
3The OCF-18 for chiropractic services dated as June 3, 2022, is incorrectly listed in the case conference report and order. The evidence indicates that the proposed treatment plan for chiropractic services was completed on June 2, 2022. This is reflected in issue (i) above.
RESULT
4The applicant is not entitled to the treatment plan, award, or interest.
ANALYSIS
The applicant is not entitled to the treatment plan for chiropractic services dated June 2, 2022
5I find that the applicant has not proven, on a balance of probabilities, that the proposed treatment plan in reasonable and necessary.
6To 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.
7The OCF-18 dated June 2, 2022, completed by Dr. Stephanie Zarins, chiropractor, sought funding for a total body assessment and 14 sessions of acupuncture, mobilization, and exercise. The OCF-18 identified treatment goals of pain reduction, increased range of motion, increase in strength, and to return to activities of normal living. The OCF-18 identifies injuries as a direct result of the accident to be whiplash associated disorder with complaint of neck pain with neurological signs, sprain/strain of the shoulder joint, injury of the median nerve at the upper arm level, and sprain/strain of the hip.
8The applicant submits that the accident has worsened her pre-existing condition and resulted in new injuries. The applicant submits that she was denied the proposed treatment plan based on the s. 44 physiatry assessment of Dr. Deborah Rabinovitch, dated September 13, 2022, which she believes to be incorrect and resulted in additional pain and setbacks.
9The respondent submits that Dr. Rabinovitch noted the applicant demonstrated normal active ranges of motion across all planes, and subsequently opined that the applicant had reached maximum medical improvement. The respondent submits that given the opinions and conclusions of Dr. Rabinovitch, the goals of the OCF-18 are not reasonable and necessary.
10The OCF-18 is not sufficient on its own to establish the need for the proposed treatment. The applicant bears the onus of proving, on a balance of probabilities, that the proposed treatment is reasonable and necessary. I find that applicant has not met her burden.
11While the applicant has seen a number of doctors and has undergone various treatment in the years following the 2019 accident, there must be compelling and contemporaneous evidence around the date that the disputed treatment plan was completed and submitted for consideration by the respondent that would endorse its reasonableness and necessity. As such, I give little weight to the clinical notes and records (“CNRs”) of Tecumseh Chiropractic & Wellness; the report of neurologist, Dr. Michael Winger, dated March 28, 2019; the reports of orthopedic surgeon, Dr. Trajkovski dated August 22, 2019, and December 12, 2019; and the s. 44 physician report of Dr. Paul Bradford, dated February 24, 2020. I find that these CNRs do not give an accurate account of the applicant’s medical status nor the need for rehabilitative treatment in 2022, because these CNRs predate the proposed treatment plan by over a year.
12The applicant also relies on an independent medical assessment completed by Dr. Gregory S. Jasey, orthopaedic surgeon, dated August 30, 2021. However, I do not find Dr. Jasey’s report to be persuasive because this opinion predates the proposed treatment plan by nearly a year. I do not find that this speaks to the applicant’s need for the proposed treatment plan in 2022. Moreover, while Dr. Jasey makes recommendations for “intermittent chiropractic treatments” and pain management strategies such as acupuncture, I do not find that this satisfies the reasonableness and necessity for a treatment plan submitted a year later.
13I am also unpersuaded by the CNRs of the applicant’s family practitioner, Dr. Lisa Jansen because the applicant has not directed me to contemporaneous evidence from Dr. Jansen that would support the need for the proposed treatment plan. While the CNRs of Dr. Jansen report the applicant attended with various complaints in the years 2021, 2022, and 2023, I have not been directed to a medical opinion or recommendation by Dr. Jansen for the proposed treatment at or around the date of the OCF-18.
14I also find that the report of Dr. Trajkovski dated November 27, 2023, does not support the need for the proposed treatment plan. While Dr. Trajkovski administered a single injection of NeoVisc to the applicant’s right knee for severe osteoarthritis during this visit, Dr. Trajkovski does not opine on nor recommend the need for chiropractic treatment as listed on the proposed OCF-18. Moreover, a right knee impairment is not identified on the subject OCF-18 as an accident-related injury.
15I am persuaded by the s. 44 physiatry assessment report of Dr. Rabinovitch given its proximity in time to the treatment plan in dispute and that this assessor was asked to specifically opine on the proposed treatment. Dr. Rabinovitch found that the proposed treatment plan was not reasonable and necessary because the applicant “reached maximum therapeutic benefit to further assessment and/or facility-based therapies as it relates to the accident.” Moreover, while the applicant alludes to the report of Dr. Rabinovitch being conducted virtually as opposed the in-person assessment of Dr. Jasey, the applicant does not make submissions as to why this virtual assessment should be afforded less weight than in-person assessments. The applicant has also not pointed me to any evidence to support that the assessment of the applicant was in anyway impacted by it being conducted virtually.
16Given the above, I find that the applicant has not proven, on a balance of probabilities, that the proposed treatment plan is reasonable and necessary.
Interest
17As there are no overdue benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
Award
18The applicant sought an award under s. 10 of Reg. 664. Under s. 10. As no benefits were unreasonably withheld or delayed, there is no award owing.
ORDER
19I find that:
i. The applicant is not entitled to the treatment plan for chiropractic services dated June 2, 2022;
ii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule;
iii. The respondent is not liable to pay an award; and
iv. The application is dismissed.
Released: February 14, 2025
__________________________
Nadia Mauro
Adjudicator