Citation: Druet v. Aviva Insurance Canada, 2025 ONLAT 23-008274/AABS

Licence Appeal Tribunal File Number: 23-008274/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:

Derrick Druet

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Tami Cogan

APPEARANCES:

For the Applicant: Robert Verta, Counsel

For the Respondent: Yann Grand-Clement, Counsel

HEARD: By written submissions

OVERVIEW

1Derrick Druet, the applicant, was involved in an automobile accident on December 19, 2017, 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 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 $1,696.00 for physiotherapy services, proposed by Dynamic Balance Physiotherapy & Sports Injuries Centre in a treatment plan/OCF-18 ("plan") dated July 8, 2021?

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

RESULT

3For the reasons that follow, I find:

i. The applicant is not entitled to $1,696.00 for physiotherapy services, in a plan dated July 8, 2021.

ii. The applicant is not entitled to interest on any overdue payment of benefits.

ANALYSIS

4For the reasons that follow, the applicant is not entitled to the treatment plan for $1,696.00 of physiotherapy services.

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.

6I have reviewed the treatment plan prepared by Dave Rambukkana, physiotherapist, and I find the goals of pain reduction and return to activities of normal living are reasonable. Evaluation of treatment progress will be by use of the Roland Morris lower extremity functional scale goniometer functional ability. The proposal is for a one-hour total body assessment and sixteen sessions of physical rehabilitation. I note that there are no details provided describing the physical rehabilitation modalities or how the goals will be achieved.

7The applicant submits that the ongoing physical rehabilitation was beneficial and thereby the disputed treatment plan is reasonable and necessary. The Insurer's Examination assessor, Dr. Oshidari, Physical Medicine and Rehabilitation Specialist, opined in his assessment report dated August 27, 2021, that the applicant would benefit from a few sessions of physiotherapy, however the respondent denied the treatment plan.

8The respondent submits that the medical evidence does not support the physiotherapy treatment plan is reasonable or necessary. Furthermore, Dr. Oshidari recommendations were for aquatic therapy.

9I note that beyond a prescription on March 19, 2019 for a compression stocking, there are no treatment recommendations for the applicant's accident-related injuries documented in the Urgent Care clinic records. According to the records of Dynamic Balance Physiotherapy, the applicant continued physical treatment, including physiotherapy, massage, and acupuncture, until October 2021 and reported receiving benefits from physiotherapy treatment. However, it is well established that a treatment plan must be supported by medical recommendation or documentation, from sources beyond the treatment provider.

10In my view, the report of Dr. Oshidari is very clear. Dr. Oshidari opined that three years post accident, modalities such as acupuncture, ultrasound, laser, or TENS do not have any rehabilitation benefits and due to the applicant's discomfort, pain, and the pre-existing spinal fusion the applicant is not able to be involved in active therapy. It was for this reason Dr. Oshidari concluded that the disputed treatment plan was not reasonable or necessary. Dr. Oshidari went further to recommend a new modality for treatment, aquatic therapy with oversight from a physiotherapist.

11I do not agree with the applicant that Dr. Oshidari's recommendation supports the disputed treatment plan, because Dr. Oshidari's recommendations are specific to aqua therapy with oversight of a physiotherapist. Meanwhile, the treatment plan in dispute is void of any details as to what physical treatment modalities would be used, how the treatment plan goals would be met to a reasonable degree, or that the overall costs of achieving the goals are reasonable.

12For the reasons above, I find the applicant has not proven on a balance of probabilities that the treatment plan is reasonable and necessary.

Interest

13As there is no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

14For the reasons above:

i. The applicant is not entitled to the treatment plan.

ii. Interest is not owing.

iii. The application is dismissed.