Cavalluzzo v. Co-operators General Insurance Company, 2025 CanLII 20838

Citation: Cavalluzzo v. Co-operators General Insurance Company, 2025 ONLAT 23-003531/AABS

Licence Appeal Tribunal File Number: 23-003531/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:

James Cavalluzzo

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Nathan Prince

APPEARANCES:

For the Applicant:

David Shellnutt, Counsel

For the Respondent:

Emily Schatzker, Counsel

HEARD:

By way of written submissions

OVERVIEW

1James Cavalluzzo, the applicant, was involved in an automobile accident on September 6, 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, Co-operators General Insurance Company, 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 $4,339.63 for occupational therapy (“OT”) services, proposed by Miranda Mo & Associates in a treatment plan/OCF-18 (“plan”) dated April 22, 2021?

ii. Is the applicant entitled to $2,787.31 for chiropractic services and orthotics, proposed by Wellcalm Health & Wellness Inc. in a plan dated September 23, 2021?

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

3The applicant is entitled to $3,392.00 plus interest for OT services.

4The applicant is not entitled to the plan for chiropractic services.

5The applicant is not entitled to an award.

ANALYSIS

The applicant is entitled the plan for OT services, in part

6I find that the applicant has demonstrated on a balance of probabilities that the plan for OT services is partially reasonable and necessary.

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.

8The plan completed by Angel Chan, Occupational Therapist, on April 21, 2021 seeks funding for the following services:

i. Eight OT therapy sessions - $1,596.00

ii. Provider travel time - $299.25

iii. Planning, service - $798.00

iv. Training, motor and living skills - $399.00

v. Training, cognition and learning (skills) - $399.00

vi. Documentation, support activity - $648.38

vii. Documentation, support activity for claim form - $200.00

9Mr. Chan identifies goals of treatment as pain reduction, increase in strength, and increased range of motion. Furthermore, the plan seeks to assess and develop a cognitive rehabilitation program; assist with activity activation and developing a daily routine; provide education on pain management, pacing, energy conservation; assist with sleep hygiene; facilitate reintegration into community; and increase participation in self-care/home maintenance activities.

10In the notes to the plan, Mr. Chan states that the applicant continues to suffer from cognitive difficulties such as diminished memory, reduced attention/poor ability to concentrate, slowed thought processing, difficulty with executive functions (e.g. planning, organizing, decision-making, problem solving), as well as psycho-emotional symptoms including severe depression, stress, and anxiety that significantly impact his ability to function. Mr. Chan opines that OT treatment is required to assess and address his cognitive difficulties that are impeding the majority of his pre-accident daily activities, such as difficulty with cooking, housekeeping, and engaging in his vocational and avocational activities.

11The applicant submits that the OT plan is reasonable and necessary and relies on the section 25 reports of Dr. Zohar Waisman, psychiatrist; Dr. Shariff Dessouki, physiatrist; and Dr. Nancy Yi Tsern Lin, psychiatrist.

12The applicant was intentionally struck by a vehicle while riding his bike. As a result of the accident, the applicant suffered undisplaced fractures of his L3 and L4 transverse process and a sprain/strain injury to his right wrist. In addition, the applicant reported the presence of lower back pain as well as cognitive and psychological impairments.

13Dr. Dessouki conducted an assessment of the applicant on January 16, 2024 and opined that an OT assessment would be beneficial to determine if there are any assistive devices or strategies to enhance the applicant’s function and quality of life. While I am alive to Dr. Dessouki’s recommendation, I place little weight on this report because it was completed nearly three years after the proposed plan for OT services. In any event, the recommendation from Dr. Dessouki is for an OT assessment to determine if OT services are warranted, and not for the provision of OT services themselves.

14Similarly, Dr. Waisman’s report dated January 23, 2024 was conducted nearly three years after the proposed treatment plan, and therefore I place little weight on his report. Regardless, while Dr. Waisman does confirm the presence of psychological and cognitive impairments, he does not make any recommendation for OT services.

15Turning to the section 25 report of Dr. Lin, dated May 26, 2021, I find it to be persuasive because it is contemporaneous with the proposed plan and is based on objecting testing. Dr. Lin conducted a clinical interview with the applicant in addition to several psychological tests including the Beck Depression Inventory-II (BDI-II), Beck Anxiety Inventory (BAI), and PTSD Checklist for DSM-5 (PCL-5) which resulted in diagnoses of Post-Traumatic Stress Disorder - severe, and Major Depressive Disorder - severe.

16Dr. Lin recommended occupational therapy for functional and cognitive rehabilitation noting that the applicant suffers from cognitive difficulties including poor attention, concentration, and memory. Dr. Lin opined that the subject accident is impacting the applicant’s ability to work as quickly and efficiently which is affecting his ability to complete tasks at home and at work.

17The respondent submits that I should assign less weight to Dr. Lin’s report because the applicant’s social media posts are inconsistent with the applicant’s reporting to Dr. Lin. The respondent points me to several Instagram posts throughout 2021, 2022, and 2023 which indicate that the applicant was engaged in DJing and producing music. I find that the applicant’s social media posts are not inconsistent with his reporting to Dr. Lin. While I agree with the respondent that Dr. Lin’s report indicates that the applicant has lost interest in music, at no time did the applicant report that he had stopped participating in DJing and recording music, despite reporting a lack of interest.

18The respondent further submits that the cause of any psychological impairment is a result of other factors including the applicant’s relationship breakup, the death of his roommate, the death of his father, and the death of his cat. I am not persuaded by this argument. The respondent’s own section 44 psychological report from Dr. Silverman, dated June 9, 2021, resulted in a diagnosis of Adjustment Disorder with Depressed Mood – Moderate and further noted that the applicant presented with features of Post-Traumatic Stress Disorder, and Dr. Silverman opined that these impairments would not be present but for the subject accident.

19With respect to the costs outlined in the plan, the respondent submits that the fees proposed are not reasonable and necessary. It highlights that no explanation is given regarding the reasonableness and necessity of one hour of preparation time for each OT session, two hours of communication, two hours of administration, and 5.5 hours of document review and writing letters. The respondent relies on Vila v. Aviva, 2023 CanLII 50529 [“Vila”] in which the adjudicator found that in the absence of an explanation as to why various ancillary line items were reasonable and necessary, the benefits in dispute are not payable. The applicant did not address the reasonableness or necessity of these line items in his reply submissions.

20I am not bound by prior decisions of the Tribunal and find that Vila is distinguishable from the case before. Specifically, in Vila, there were two line items which appeared to be duplicative - one for “planning” and one for “preparation”. There is no such duplication in the case before me. There is only one line item for preparation which I find to be an essential part of delivering the proposed OT services.

21However, the plan does not discuss why the line item for documentation, support activity is reasonable and necessary, and the applicant has not made any submissions with regards to this line item. Therefore, I find that the applicant has not met his onus to demonstrate that this line item is reasonable and necessary.

22Similarly, I am not persuaded that the line item for travel time is reasonable and necessary as no submissions were made regarding this line item and furthermore, the plan indicates that “travel time will be invoiced only as incurred during the COVID-19 pandemic”.

23Therefore, I find that the applicant is partially entitled to the plan in dispute in the amount of $3,392.00 ($4,339.63 less $947.63 for line items ii and vi).

The applicant is not entitled to the plan for chiropractic services

24I find that the applicant has not demonstrated on a balance of probabilities that the plan for chiropractic services is reasonable and necessary.

25The plan for chiropractic services was completed by Dr. Samira Razmy, chiropractor, on September 15, 2021. It seeks funding for the following:

i. Documentation, support activity for the claim form - $200.00

ii. 15 therapy sessions, multiple body sites - $1,604.96

iii. Assessment, total body - $53.41

iv. Custom orthotics/shoes - $500.00

v. Bosu Ball - $199.95

26Dr. Ramzy identifies the goals of treatment as pain reduction, increased range of motion, increase in strength, increased endurance, increased flexibility, and recovery of muscle tone, power, and co-ordination. The functional goals of treatment include a return to activities of normal living, pre-accident work activities, and pre-accident functional status.

27In the notes attached to the plan, Dr. Ramzy indicates that the applicant benefits from his therapy sessions. Dr. Ramzy notes that the applicant continues to suffer from ongoing pain in his lower back and is working modified duties as he is unable to do heavy lifting or twisting movements. Dr. Ramzy further indicates that prolonged standing, sitting, and walking increase the applicant’s pain and suggests that orthotics will help him by providing proper support.

28I find that the applicant has not demonstrated that the plan for chiropractic treatment is reasonable and necessary because I was not pointed to any contemporaneous medical evidence to support the proposed plan.

29The applicant relies on the report of Dr. Dessouki, which as previously noted, was authored in 2024 – over two years after the proposed plan for chiropractic services. As such, I put little weight on Dr. Dessouki’s report.

30The applicant further relies on a February 20, 2024 clinical notes from his family doctor, Dr. Michael Grasic, in which he advised the applicant to seek physiotherapy. The applicant did not provide me with any evidence that he followed up on Dr. Grasic’s recommendation despite noting that he believed that he had physiotherapy benefits available to him through his work. In any event, I do not find Dr. Grasic’s clinical note to be persuasive as it is again not contemporaneous with the proposed plan, nor does it recommend that the applicant engage in chiropractic treatment.

31The applicant did not point me to any other contemporaneous medical opinion that recommended chiropractic treatment. It is well established that, in the absence of corroborating medical evidence, a treatment plan in and of itself is insufficient to establish entitlement to a benefit: 17-002689/AABS v. Aviva, 2018 CanLII 2311.

32As a result, I find that the applicant has not met his onus of establishing that the plan for chiropractic services is reasonable and necessary.

The applicant is entitled to interest

33Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule.

34As I have found the applicant is entitled to payment in the amount of $3,392.00 for OT services, it follows that the applicant is entitled to interest on such in accordance with section 51.

The applicant is not entitled to an award

35The 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.

36A special award is only given where the delay or withholding of benefits by the insurer is unreasonable, meaning behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

37The applicant submits that the respondent acted unreasonably when it did not follow the opinion of its section 44 assessors who made findings that supported the plans.

38The respondent submits that they have continued to adjust the file in a fair, expeditious, and timely manner and that the applicant has failed to provide evidence that the benefits were unreasonably withheld or delayed.

39I agree with the respondent in that the applicant has not pointed me to any specific evidence which would warrant a special award. The applicant is not entitled to an award simply because the respondent did not approve a benefit in dispute. While I am alive to the fact that the insurer’s assessors acknowledged the presence of both physical and mental impairments, I was not pointed to any opinion from any section 44 assessors which ultimately endorsed the approval of the benefits in dispute. Furthermore, I was not pointed to any evidence which would suggest that the respondent ignored the findings of its assessors.

40As such, I find that the applicant has not demonstrated on a balance of probabilities that the benefits were unreasonably withheld or delayed and therefore no award is payable.

ORDER

1For the reasons outlined above, I find:

i. The applicant is entitled to $3,392.00 plus interest for OT services;

ii. The applicant is not entitled to the plan for chiropractic services; and

iii. The applicant is not entitled to an award.