Francis v. Aviva General Insurance, 2025 CanLII 20848

Licence Appeal Tribunal

Citation: Francis v. Aviva General Insurance, 2025 ONLAT 23-005347/AABS

Licence Appeal Tribunal File Number: 23-005347/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:

Maria Tania Francis

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Kathleen Wells

APPEARANCES:

For the Applicant: Todd A. Reybroek, Counsel

For the Respondent: Jessica Telfer, Counsel

HEARD: By way of written submissions

OVERVIEW

1Maria Tania Francis, the applicant, was involved in an automobile accident on October 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 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:

1. Is the applicant entitled to a medical benefit and cost of examination expenses, proposed by Hydrohealth Evaluations Inc. in the following OCF-18/treatment and assessment plans: i. $880.61 for chiropractic treatment dated February 4, 2022; ii. $2,460.00 for a chronic pain assessment dated December 6, 2021; iii. $2,460.00 for a neurological assessment dated February 4, 2022; and iv. $1,950.00 for a concussion assessment dated June 1, 2023?
2. Is the applicant entitled to interest on any overdue payment of benefits?

3The parties agree that the preliminary issue identified in the Case Conference Report Order (CCRO) has been resolved.

4The applicant withdrew Issue 1 in the CCRO, as the applicant has been removed from the Minor Injury Guideline.

RESULT

5I find that:

1. The applicant is not entitled to the treatment plans in dispute.
2. The applicant is not entitled to interest.
3. The application is dismissed.

ANALYSIS

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 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.

8The applicant submits that the treatment plans are reasonable and necessary. The respondent counters that the applicant has not met her onus to prove on a balance of probabilities that the treatment plans are reasonable and necessary.

9The applicant relies on the treatment and assessment plan for chiropractic services, dated February 4, 2022, prepared by Dr. David Huang, chiropractor, the treatment and assessment plan for a chronic pain assessment, dated December 6, 2021, prepared by Dr, Michael Gofeld, physician, and submitted by Dr. Huang, the treatment and assessment plan for a neurological assessment, dated February 4, 2022, prepared by Dr. Lance Majil, physician, and submitted by Dr. Huang and the treatment and assessment plan for a concussion assessment, dated June 1, 2023, prepared by Dr. Huang.

10The applicant further relies on the clinical notes and records (CNRs) of the Queensway Health Centre, the CNRs of Dr. Afshan Rafay, physician, of New Best Care Medical Centre, and the CNRs of Dr. Richa Sharma, physician, of Square One Medical. Additionally, the applicant relies on the concussion assessment report of Dr. Huang, dated November 16, 2023, and the psychological assessment report of Dr. Erin Langis, psychologist, dated February 13, 2024.

11The respondent relies on the Insurer’s Examination (IE) report, dated August 21, 2021, and the Paper Review, dated January 10, 2022, of Dr. Ahmad Belfon, physician. The respondent further relies on the IE report of Insurer’s Examination Report by Dr. Nagib Yahmad, neurologist, dated January 29, 2024.

Is the applicant entitled to the chiropractic treatment plan dated February 4, 2022?

12I find that the applicant has not demonstrated on a balance of probabilities that the treatment plan is reasonable and necessary.

13The CCRO and the parties’ submissions refer to a “chiropractic treatment plan,” and the applicant’s submissions refer to “physical therapy.” For greater clarity, the OCF-18 in question, prepared by Dr. Huang, dated February 4, 2022, proposes an in-home exercise plan and fitness equipment, totalling $260.00, service preparation fees of $112.61 and documentation and reporting fees totalling $500.00.

14The goals of the treatment plan are: pain reduction, increased range of motion, and return to normal life.

15The applicant submits that the treatment plan is reasonable and necessary because the applicant requires further physical therapy for her accident-related soft tissue injuries and references recommendations by the applicant’s family doctor, Dr. Sharma, as well as from Dr. Langis, and Dr. Huang that the applicant continue with physical therapy. As the respondent notes, treatment of physical injuries is outside Dr. Langis’ area of expertise as a psychologist, and while Dr. Sharma has the necessary expertise, and recommended stretching exercises to the applicant, Dr. Sharma did not recommend in-home therapy or equipment, as specified in the treatment and assessment plan, to the applicant. Therefore, I find that the recommendation of Dr. Huang is not corroborated.

16Further, while the applicant identifies the goals of the treatment plan, the applicant’s submissions do not directly address the in-home treatment plan or exercise ball set out in the treatment plan. Further, the applicant does not address how the goals would be met or whether the cost of the plan is reasonable.

17For these reasons, I find the applicant has not met her onus to prove on a balance of probabilities that the treatment plan is reasonable and necessary. Accordingly, the applicant is not entitled to the chiropractic treatment and assessment plan dated February 4, 2022.

Is the applicant entitled to the chronic pain treatment and assessment plan dated December 6, 2021?

18I find that the applicant has not demonstrated that there are sufficient grounds to believe that a treatment plan for a chronic pain assessment, dated December 6, 2021, is warranted.

19The 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.

20The goals of the plan are pain reduction, to restore functional tolerance and endurance, and to assist with a return to the applicant’s activities of normal living.

21The applicant submits that she has experienced ongoing pain since the accident, and that a chronic pain assessment is needed to assist the applicant in identifying other treatments to alleviate her pain.

22The respondent counters that the applicant has not met her onus to substantiate that a chronic pain assessment is reasonable and necessary.

23In the treatment and assessment plan, Dr. Gofeld opines that the pain from the applicant’s accident-related soft tissue injuries has not resolved, more than two years post accident, and that the applicant was exhibiting symptoms suggestive of chronic pain syndrome.

24I agree with the respondent that the medical evidence does not corroborate Dr. Gofeld’s conclusions. The CNRs of the applicant’s family doctors, Dr Rafay and Dr. Sharma, reveal that the applicant complained of pain intermittently between the days following the accident in November 2019, and September 2022, when the applicant last reported back pain or headaches to Dr. Sharma. On May 14, 2021, the applicant requested a referral to a pain clinic. I note that the applicant’s submitted evidence is missing the last five lines of Dr. Rafay’s record of the applicant’s May 14, 2021 telephone consultation, but the respondent’s evidence reveals that Dr. Rafay told the applicant that he did not think a chronic pain assessment was needed. Neither Dr. Rafay nor Dr. Sharma referred the applicant for a chronic pain assessment. In his 2022 paper review of his 2021 IE report and subsequent medical documentation, Dr. Belfon opined that the applicant was experiencing residual myofascial pain as a result of the accident, and that a chronic pain assessment was not reasonably required at the time.

25For the reasons above, I find that the applicant has not met her onus to establish on a balance of probabilities that there are grounds to believe that a condition exists to warrant a chronic pain assessment. Accordingly, the applicant is not entitled to the treatment and assessment plan for a chronic pain assessment dated December 6, 2021.

Is the applicant entitled to the plan for a neurological assessment dated February 4, 2022?

26I find that the applicant has not demonstrated that there are sufficient grounds to believe that a treatment plan for a neurological assessment, dated February 4, 2022, is warranted.

27The goals of the plan are: pain reduction, to identify if there is an accident related neurological impairment, return to activities of daily living, and to get guidance on multidisciplinary care.

28The applicant submits that she requires a neurological assessment to determine whether there is a neurological explanation for her ongoing pain. The respondent counters that the applicant has not met her onus to establish that a neurological assessment is reasonable and necessary.

29I find that the evidence reveals that the applicant has complained of headaches to her family doctor’s intermittently since the accident, but neither Dr. Rafay, nor Dr. Sharma referred the applicant for a neurological examination. Dr. Sharma’s CNRs reveal that the applicant first complained of headaches to Dr. Sharma on June 30, 2022, and he diagnosed the applicant with “cervicogenic headaches/ tension headaches” on August 2, 2022. Dr. Sharma increased the applicant’s pain medication, and the applicant reported that her headaches were “much better,” at her follow-up appointment on September 6, 2022. Dr. Sharma’s CNRs reveal no reference to the motor vehicle accident with respect to the applicant’s headaches, nor do they reveal a recommendation of any further investigation of the applicant’s headaches.

30In his IE report, after a physical examination and review of the applicant’s medical records, Dr. Yahmad opined that the applicant had no neurological impairment as a result of the accident, and that the applicant’s headaches were likely cervicogenic and musculoskeletal in nature. He made no recommendation for further neurological investigation or treatment.

31Based on the evidence before me, I find that the applicant has not met her onus to establish on a balance of probabilities that there are grounds to believe that a condition exists to warrant a neurological assessment. Accordingly, the applicant is not entitled to the treatment and assessment plan for a neurological assessment dated, February 4, 2022.

Is the applicant entitled to the plan for a concussion assessment dated June 21, 2023?

32I find that the applicant has not demonstrated that there are sufficient grounds to believe that a treatment plan for a concussion assessment, dated June 21, 2023, is warranted.

33The applicant submits that she has experienced headaches and post-concussion symptoms since the accident. The applicant incurred the cost of this treatment and assessment plan, and Dr. Huang diagnosed the applicant with post-concussion syndrome in a report dated November 13, 2023.

34The respondent argues that the applicant has not provided sufficient objective medical evidence to support the treatment and assessment plan.

35I agree with the respondent. I find that in her section 44 examinations, the applicant reported that she had been diagnosed with a concussion following the accident to Dr. Belfon and Dr. Yahmad, however, the CNRs of the Queensway Medical Centre reveal that the applicant was diagnosed with whiplash on October 30, 2019, the date of the accident and there was no diagnosis of concussion. The CNRs reveal that the applicant was referred to Highmark Health for “concussion medicine” that day, but the applicant has not provided any evidence that the applicant took any action with respect to the referral, and the applicant has not directed me to any reference to a concussion or post-concussion symptoms by a qualified medical professional in the more than three years between the accident and the submission of Dr. Huang’s treatment plan on June 21, 2023.

36I place little weight on the November 23, 2023 concussion assessment report of Dr. Huang because it is not corroborated by other medical evidence. Additionally, Dr. Huang is a chiropractor, and a diagnosis of post-concussion syndrome is outside his scope of practice. I place more weight on the CNRs of the applicant’s family doctors, Dr. Rafay and Dr. Sharma. Dr. Rafay’s CNRs refer to migraine headaches, and Dr. Sharma’s CNRs indicate that Dr. Sharma opined that the headaches were likely cervicogenic or tension headaches, which is corroborated by the IE reports of Dr. Belfon and Dr. Yahmad, who opined that the applicant experienced cervicogenic headaches.

37For the reasons above, I find that the applicant has not met her onus to establish on a balance of probabilities that there were grounds to warrant the incurred concussion assessment. Accordingly, the applicant is not entitled to the treatment and assessment plan for a concussion assessment dated, June 21, 2023.

Interest

38As no payments are owing, no interest is due.

ORDER

39I find that:

1. The applicant is not entitled to the treatment plans in question.
2. The applicant is not entitled to interest.
3. The application is dismissed.