Felix v. Aviva General Insurance Company, 2025 CanLII 1850

Felix v. Aviva General Insurance Company

Citation: Felix v. Aviva General Insurance Company, 2025 ONLAT 23-001556/AABS

Licence Appeal Tribunal File Number: 23-001556/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:

Renee Felix

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Bianca Pirrotta-Iaccino, Paralegal

For the Respondent: Rajesan Rajendran, Counsel

HEARD: By way of written submissions

OVERVIEW

1Renee Felix, (the “applicant”) was involved in an automobile accident on November 30, 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 Aviva General Insurance Company (the “respondent”) 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 $3,244.58 for chiropractic and massage services, proposed by Humber Civic Care Centre Inc. in a treatment plan/OCF-18 (“OCF-18”) dated February 3, 2021?

ii. Is the applicant entitled to $2,629.85 for chiropractic services, proposed by Humber Civic Care Centre Inc. in a OCF-18 dated August 3, 2021?

iii. Is the applicant entitled to $836.30 for cognitive devices, proposed by Ontario Independent Assessment Centre Inc. in a OCF-18 dated August 19, 2022?

iv. Is the applicant entitled to $2,350.00 for a physiatry assessment, proposed by Ontario Independent Assessment Centre Inc. in a OCF-18 dated November 9, 2022?

v. Is the applicant entitled to $2,350.00 for an orthopaedic assessment, proposed by Ontario Independent Assessment Centre Inc. in a OCF-18 dated February 24, 2023?

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

3I note that in the Case Conference Report & Order, released on October 28, 2023 for issues (i) and (ii), it was noted that the OCF-18s were for chiropractic and physiotherapy services respectively. Upon review of the OCF-18s, I note that the proposed services for issue (i) are chiropractic and massage services, and for issue (ii), chiropractic services. As such, I have reflected this above at issues (i) and (ii).

RESULT

4I find that:

i. The OCF-18 for cognitive devices is partially reasonable and necessary in the amount of $89.95 and the applicant is entitled to interest under s. 51 of the Schedule.

ii. The applicant is not entitled to the remaining OCF-18s in dispute, as she has not demonstrated that they are reasonable and necessary. The applicant is also not entitled to interest under s. 51.

ANALYSIS

The Treatment Plans

5To 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.

The applicant is not entitled to an OCF-18 in the amount of $3,244.58 for chiropractic and massage services

The applicant is not entitled to an OCF-18 in the amount of $2,629.85 for chiropractic services

6I find that the applicant has not established on a balance of probabilities that the proposed OCF-18s are reasonable and necessary.

7The goals of the OCF-18s are pain reduction, increased strength, increased range of motion, improve muscular strength and endurance, prevent chronicity of injuries, return to activities of normal living, return to pre-accident work activities, and return to modified work activities.

8The applicant argues that she has post traumatic cervical and lumbar spine dysfunction, chronic neck pain, chronic back pain, chronic right shoulder pain, chronic right hip pain, and chronic left foot pain. She further argues that she has consistently reported to all her health care providers that treatment at Humber Civic Care Centre Inc., was helpful, and that care which relieves physical pain and therefore improves function is a legitimate goal. To this end, she relies upon the CNRs of Appletree Medical Group, and a s. 25 chronic pain report by Dr. K. Efala, orthopaedic surgeon, dated October 20, 2023.

9The respondent argues that the applicant has only sought medical attention from her family physician Dr. Brooks on one occasion following the accident. The respondent further argues that the applicant reported to Drs. Paul Tepperman, physician, Riaz Moolla, physician and Efala that she only received an improvement of 20%, she had no improvement in her symptoms, and that her symptoms were getting worse.

10Neither Drs. Brooks nor Efala have recommended chiropractic and massage treatment. Indeed, in her submissions, the applicant argues that both Dr. Brooks and Efala have consistently recommended physiotherapy treatment to alleviate her pain. However, physiotherapy services are not in dispute, therefore it is immaterial that these doctors have recommended these services. The applicant has not referred me to evidence that demonstrates that the proposed chiropractic and massage treatment has been recommended by a health practitioner.

11In my view, this lack of a recommendation is significant because Dr. Efala in his report concluded that the applicant had reached maximum medical improvement (“MMI”) and that her condition has stabilized. The applicant further argues that significant weight should be placed on Dr. Efala’s report because he made a number of recommendations that were a reasonable alternative approach to treating her pain. In my view, it is difficult to reconcile this argument when Dr. Efala did not recommend either chiropractic or massage services. Moreover, Dr. Efala concluded that the applicant had reached MMI which was based on the applicant advising him that she was attending a physiotherapy clinic where she was receiving massage and acupuncture treatment, and that her symptoms were getting worse.

12In sum, I place significant weight on the lack of a recommendation from either Dr. Brooks or Efala. This is because Dr. Brooks is the applicant’s family physician, and therefore would have the most intimate knowledge of her treatment needs, and the applicant is relying heavily upon Dr. Efala’s opinion, yet he did not recommend the proposed services.

13Next, I acknowledge that a large part of the applicant’s case rests upon the argument that she reported that treatment was helpful in her recovery to all health care providers, and that since pain relief is a legitimate goal for treatment, then she is entitled to the proposed OCF-18s. However, upon review of the applicant’s self-reporting to Drs. Tepperman, Moolla and Efala, I note that she has reported varied levels of pain relief. For example, on November 15, 2021, she reported to Dr. Tepperman that she only received 20% improvement. On October 20, 2023, when the applicant described the treatment she had received to date to Dr. Efala, she also reported that her symptoms were getting worse. This was despite her attending twice a week for massage treatment. On December 14, 2023, the applicant reported to Dr. Moolla that she had no improvement in her symptoms to date, despite attending physiotherapy previously.

14I acknowledge that the applicant reported 20% improvement to Dr. Tepperman, however she has not tendered a copy of the records from her treatment provider. Without such evidence, I am unable to assess whether the applicant received any benefit from the treatment she received, or what her progress is with respect to pain relief. This information could have shed light on how much pain relief the applicant has received, and whether the goal of pain relief will be met to a reasonable degree, especially here where the applicant has reported varied levels of pain relief.

15While I further acknowledge that pain relief can be a legitimate goal for treatment, it does not follow that payment is automatically reasonable and necessary where the applicant has reported varied levels of pain relief, has not tendered a copy of the treatment records, and two assessors have concluded that she has reached MMI.

16Lastly, the applicant argues that the s. 44 reports of Dr. Tepperman and Dr. Moolla should be given less weight because they did not explain why the pain had not resolved despite the duration of time since the accident, and they did not propose alternative treatment, like Dr. Efala did.

17However, the onus rests on the applicant to prove the reasonableness and necessity of the plan, not on the respondent to disprove it. Here, the applicant has fallen well short of meeting her burden. This is because no health practitioner has recommended the proposed services, she has reported varied levels of pain relief, has not tendered a copy of the treatment records, and both Drs. Efala and Moola have concluded that she has reached MMI. Thus, I find that the applicant is not entitled to the proposed OCF-18s for chiropractic and massage services.

The applicant is partially entitled to the OCF-18 in the amount of $89.95 for cognitive devices

18On the balance of probabilities, I find that the applicant is partially entitled to the OCF-18 in the amount of $89.95 which is the cost of the subscription for the Lumosity application. I find that the remainder of the OCF-18 is not payable, for the reasons outlined below.

19The disputed OCF-18 proposes an Android Tablet- Samsung Galaxy, and a two year Lumosity subscription.

20The applicant argues that Mr. Julian Amchislavsky, occupational therapist, diagnosed her with severe deficiencies with her attention, concentration, and memory function as a result of the accident. The applicant further argues that Mr. Amchislavsky recommended the proposed services. To this end, she relies upon the s. 25 cognitive assessment report completed by Mr. Amchislavsky, dated July 29, 2022.

21Meanwhile, the respondent argues that the OCF-18 proposes a cost of $89.95 for an application called Lumosity and the remainder of the cost pertains to the Samsung Galaxy Tablet. It argues that it advised the applicant in an Explanation of Benefits, dated September 1, 2022, that the Samsung Galaxy tablet is not necessary to use the Lumosity application because it can be used on a cell phone. The respondent further advised that if the applicant opted to procure a subscription for the Lumosity application, reimbursement would be facilitated.

22I find that the applicant has fallen short of meeting her burden with request to establishing entitlement to the Tablet. Neither the applicant nor Mr. Amchislavsky have addressed why a Samsung Galaxy Tablet is required to access the Lumosity application. Indeed, the applicant’s submissions are silent on this point and Mr. Amchisalvsky noted that the sole purpose of the tablet was so the applicant could have access to Lumosity outside of the clinic. However, this does not address the respondent’s argument, which is that the application can be used on a cell phone for a much lower cost. Thus, I do not find that the applicant has established that the cost of a Samsung Galaxy Tablet is reasonable and necessary to address the applicant’s impairments.

23As the respondent has agreed to pay for the subscription costs of the Lumosity application, I find that this portion of the OCF-18 is reasonable and necessary. Accordingly, I find that the OCF-18 is partially reasonable and necessary.

The applicant is not entitled to an OCF-18 in the amount of $2,350.00 for a physiatry assessment

The applicant is not entitled to an OCF-18 in the amount of $2,350.00 for an orthopaedic assessment

24For the reasons outlined below, I find that the applicant is not entitled to the cost of a physiatry assessment and orthopaedic assessment.

25In determining whether an assessment is reasonable and necessary, I note that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing that there are grounds to suspect she has the condition for which she seeks the assessment.

26The applicant relies upon the OCF-18s and argues that they should be approved because they provide reasonable approaches in alleviating her ongoing physical injuries.

27First, it is well-settled that more than just the OCF-18 itself is required to show that the proposed assessments are reasonable and necessary. Indeed, there must be compelling contemporaneous evidence to support the proposed assessments, which the applicant has not referred me to.

28Second, both Drs. Brooks and Efala have not recommended the proposed assessments to treat the applicant’s accident-related injuries. Crucially, Dr. Brooks last saw the applicant for accident-related injuries on December 5, 2019 and recommended physiotherapy treatment. Likewise, Dr. Efala made recommendations to treat the applicant’s chronic pain, but he did not recommend a physiatry or an orthopaedic assessment.

29Finally, the respondent has approved the cost of the chronic pain assessment, which has similar goals, being to determine the applicant’s functional ability, and how to treat her injuries. I acknowledge the applicant’s argument that the goals of these assessments are not duplicative of the goals of the chronic pain assessment because different wording is used, and different specialities will be assessing her. However, I find in essence, all three assessments have the similar goals of determining the applicant’s functional ability and how to treat her physical injuries. I find that the evidence here is lacking to support that either assessment is reasonable and necessary because the applicant has not referred me to contemporaneous evidence, both Drs. Brooks and Efala have not recommended the proposed assessments and the goals are similar to the chronic pain assessment, which has been approved and completed. In short, I find that the applicant is not entitled to the cost of either the physiatry or orthopaedic assessment.

Interest

30Pursuant to section 51 of the Schedule, the applicant is entitled to interest for the subscription of the Lumosity application.

ORDER

31For the reasons outlined above, I find that:

i. The OCF-18 for cognitive devices is partially reasonable and necessary in the amount of $89.95 and the applicant is entitled to interest under s. 51 of the Schedule.

ii. The applicant is not entitled to the remaining OCF-18s in dispute, as she has not demonstrated that they are reasonable and necessary. The applicant is also not entitled to interest under s. 51.