Karaman v. Aviva Insurance Company of Canada, 2025 CanLII 18211

Citation: Karaman v. Aviva Insurance Company of Canada, 2025 ONLAT 22-014134/AABS

Licence Appeal Tribunal File Number: 22-014134/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:

Baris Karaman

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Robert Rock

APPEARANCES:

For the Applicant: Christina Trotta, Counsel

For the Respondent: Anthony Naples, Counsel

HEARD: By way of written submissions

OVERVIEW

1Baris C Karaman, the applicant, was involved in an automobile accident on January 3, 2022, 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 issues in dispute are:

i. Is the applicant entitled to $6,202.02 for chiropractic services, physiotherapy, massage therapy, nutritional counselling, and a gym membership, proposed by Scarborough South Physio and Rehab Centre Inc., in a treatment plan/OCF-18 (“plan”) submitted November 15, 2022, and denied November 30, 2022?

ii. Is the applicant entitled to $1,929.61 for assistive devices, proposed by Scarborough South Physio and Rehab Centre Inc., in a plan submitted February 6, 2023, and denied February 10, 2023?

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?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicant has not proven on a balance of probabilities that the proposed chiropractic services are reasonable and necessary.

4I find that the applicant has not proven on a balance of probabilities that the proposed assistive devices are reasonable and necessary.

5As there were no unreasonably withheld or delayed payment, no award is owing.

6As there are no overdue benefit payments, no interest is owing.

ANALYSIS

7To 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.

a. The applicant is not entitled to the treatment plan for chiropractic services.

8I find that the applicant has not met his burden to demonstrate on a balance of probabilities that the treatment plan for chiropractic services is reasonable and necessary.

9The chiropractic treatment plan seeks to provide an assessment, six sessions of multiple body site, naturopathic, eight physical rehab sessions, sixteen exercise sessions, eight massage sessions, and a gym membership.

10The goals for chiropractic services are pain reduction, increase in strength, return to activities of normal living, and return to pre-accident work activities.

11The applicant submits that the treatment plan for chiropractic services is reasonable and necessary to help him reach maximum medical recovery. The applicant relies on the clinical notes and records (“CNRs”) of his family doctor, Dr. Boyrazian, a chronic pain assessment from Dr. Gofeld, GP and chronic pain specialist, completed on November 3, 2022, and an affidavit from the applicant.

12I find that the CNRs of Dr. Boyrazian do not support chiropractic services are reasonable and necessary. The doctor continuously recommended home-based exercises and stretching to deal with the applicant’s complaints. The CNRs note continued improvement in mobility of neck/back/shoulders. All of the medical imagining included in the CNRs have produced unremarkable findings, including a cervical MRI. On September 19, 2023, the CNRs note a pain flair up, but do not attribute the source of this flair up. At the conclusion of the entry, the doctor notes chronic pain and refers to management, but there are no specifics on the strategies and no reference to chiropractic treatment were discussed.

13I also find that the applicant's affidavit does not establish that chiropractic services are reasonable and necessary. The affidavit does not address the need for chiropractic treatment and does not represent medical evidence in support of the treatment plan in question.

14I find that the chronic pain assessment by Dr. Gofeld diagnoses the applicant with chronic pain but does not establish that chiropractic services are reasonable and necessary. I have reviewed the assessment report and while it diagnoses the applicant with chronic pain, it does not recommend chiropractic treatment, naturopathic, or physical rehabilitation.

15The respondent submits that the chiropractic services are not reasonable and necessary. The respondent relies on several reports by Dr. Jugnunden, GP and medical consultant. A general practitioner’s report completed on January 12, 2023, and s general practitioner assessment report completed on August 3, 2023. Additionally, the respondent directs me to the CNRs of Scarborough South Physio and Rehab Centre.

16I find that the general practitioner’s report by Dr. Jugnunden, does not support chiropractic services as reasonable and necessary. The assessment notes that the applicant is independent with his activities of daily living, and that he shares chores with his wife. The physical examination was unremarkable, with noted mild pain back. Dr. Jugnunden notes that the applicant has been engaging in home exercise programs and noted that gym membership was not necessary to the applicant’s recovery. Also, when asked, the applicant reported eating a balanced regular diet with no issues.

17I find that the general practitioners report by Dr. Jugnunden, does not support chiropractic services as reasonable and necessary. Dr Jugnunden reassessed the applicant and did not note any changes to his original diagnosis, that the applicant’s physical injuries sustained in the subject accident were minor in nature. The physical examination produced unremarkable results other than the low back being tender under palpation.

18I find that the CNRs of Scarborough South Physio and Rehab Centre do not support chiropractic services as reasonable and necessary. The CNRs note on multiple occasions the recovery that the applicant was experiencing. These include, March 30, 2022, where the applicant notes “able to do most chores” and 60% improvement. May 24 and June 2, 2022, notes low back pain improvement. August 26, 2022, notes overall improvement. On November 29, 2022, notes, applicant lost weight and has made him feel better in the lower back. Overall, the CNRs show fairly consistent improvement by the applicant.

19I find that the applicant has not proven on a balance of probabilities that the treatment plan for chiropractic services is reasonable and necessary. The medical evidence reviewed does speak to ongoing pain reporting but does not recommend chiropractic treatment. Therefore, I find that the treatment plan is not corroborated by contemporaneous medical evidence.

20I find that the applicant has not proven on a balance of probabilities that the treatment plan for chiropractic service is reasonable and necessary.

b. The applicant is not entitled to the treatment plan for assistive devices.

21The applicant has not proven on a balance of probabilities that the treatment plan for assistive devices is reasonable and necessary.

22The assistive devices treatment plan seeks to provide TENS unit, yoga mat, lumbar support, back support, posture belt, exercise equipment, foam roller, heating pad, and Bio Freeze.

23The goals for assistive devices are pain reduction, increase in strength, increase in range of motion, return to activities of normal living, return to modified work activities, and return to pre-accident work activities.

24The applicant submits that the assistive devices are reasonable and necessary to achieve maximum recovery. The applicant does not direct me to any medical evidence to support the assistive devices as reasonable or necessary. In review of the submitted medical evidence, I do not find a recommendation or reference by the applicant’s family doctor, or any other treating practitioner that these assistive devices are reasonable and necessary.

25The respondent submits that the applicant has not proven on a balance of probabilities that these assistive devices are reasonable and necessary. The respondent relies on a general practitioner’s paper review by Dr. Jugnunden, completed on February 21, 2023.

26I find that the general practitioners paper review by Dr. Jugnunden, does not support assistive devices as reasonable and necessary. No new information was provided to Dr. Jugnunden as part of this paper review and was focused on the submitted treatment plan for assistive devices. Dr. Jugnunden noted that it was his medical opinion that the noted medical devices at issue would not be of any significant added benefit to the applicant’s regular home exercise and as such was not reasonable or necessary.

27I find that the applicant has not proven on a balance of probabilities that the treatment plan for assistive device is reasonable and necessary.

Interest

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefit payments, no interest is due.

Award

29The 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. As no benefit payments were unreasonably withheld or delayed, no award is due.

ORDER

30I find that:

i. The applicant is not entitled to the two treatment plans in dispute.

ii. There are no overdue benefit payments, so no interest is due.

iii. As no benefit payments were unreasonably withheld or delayed, no award is due.

iv. The application is dismissed.