Citation: Santos v. Aviva General Insurance, 2025 ONLAT 22-010226/AABS

Licence Appeal Tribunal File Number: 22-010226/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:

Jerome Santos

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Robert Rock

APPEARANCES:

For the Applicant:

Maria Papadopoulos, Counsel

For the Respondent:

Laura Bassett, Counsel

HEARD:

By way of written hearing

OVERVIEW

1Jerome Santos, the applicant, was involved in an automobile accident on April 6, 2021, 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:

i. Is the applicant entitled to $2,151.10 for chiropractic services, proposed by E-Clinic United Healing, in a treatment plan/OCF-18 (“plan”) submitted March 16, 2022?

ii. Is the applicant entitled to $2,536.95 for chiropractic services, proposed by E-Clinic United Healing, in a plan submitted June 2, 2022?

iii. Is the applicant entitled to $2,600.64 for chiropractic services, proposed by E-Clinic United Healing, in a plan submitted August 9, 2022?

iv. Is the applicant entitled to $836.62 for cognitive devices (Android tablet and Luminosity subscription), proposed by Ontario Independent Assessment Centre, in a plan submitted January 5, 2022?

v. Is the applicant entitled to $1,388.62 for a driving reintegration assessment, proposed by Ontario Independent Assessment Centre, in a plan submitted January 20, 2022?

vi. Is the applicant entitled to $2,300.00 for a chronic pain assessment, proposed by Ontario Independent Assessment Centre, in a plan submitted March 4, 2022?

vii. Is the applicant entitled to $2,380.90 for a fitness membership assessment, proposed by Ontario Independent Assessment Centre, in a plan submitted May 6, 2022?

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

RESULT

3I find that:

i. The applicant has not met his onus on a balance of probabilities to demonstrate various treatment plans at issue are reasonable and necessary.

ii. As benefits are owning, no interest is due.

ANALYSIS

The treatment and assessment plans

4To 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 chiropractic treatment plans

5I find that the applicant has not met his onus to prove on a balance of probabilities that the three chiropractic treatment plans are reasonable and necessary.

6The goals of the treatment plans in question are pain reduction, increase in strength and increased range of motion, return to her activities of normal living, return to pre-accident work activities, and develop and teach strategies to reduce symptoms and decrease pain.

7The applicant argues that the three chiropractic treatment plans are reasonable and necessary based on his consistent reporting of pain to his doctors. The applicant relies on the clinical notes and records (CNRs) of Dr. Taylor, family doctor. These CNRs show that Dr. Taylor consistently diagnosed the injuries sustained from the accident as strain type injuries. In addition, the ordered diagnostic imaging of his spine included in the CNRs all came back unremarkable. The applicant has not directed me in the CNRs to Dr. Taylor directing the applicant to any type of treatment for his back pain. The CNRs note that the doctor specifically used the term “at your or per discretion regarding massage and physiotherapy.”

8The respondent argues that the three chiropractic treatment plans are not reasonable and necessary based on a s.44 examination completed by Dr. Moolla, general physician, completed on March 10, 2022. This was an in-person exam, and the diagnosis was that the applicant suffered strain injuries. Dr. Moolla added that the applicant’s examination did not reveal any objective evidence of musculoskeletal or neurological impairment as a result of the motor vehicle accident. I found this evidence persuasive that the treatment was not reasonable or necessary due to lack of impairment found during the examination.

9I find that the applicant has proven on a balance of probabilities that the proposed three chiropractic treatment plans are not reasonable and necessary. The CNRs of Dr. Taylor were not persuasive in supporting the claim that these treatments were reasonable and necessary as the doctor’s diagnosis was consistently strain type injuries and he did not directly prescribe ongoing treatment. A diagnosis of strain type injuries is corroborated by Dr. Moolla’s examination which diagnosed the same sprain type injuries. Additionally, the applicant has not demonstrated why three additional treatment plans for the same service are reasonable and necessary at the cost propose or how the goals of these three treatment plans would be met.

b) The applicant is not entitled to the cognitive devices

10I find that the applicant has not met his onus to prove on a balance of probabilities that the cognitive devices are reasonable and necessary.

11The goals of the treatment plans in question are pain reduction, increase in strength, return to his activities of normal living, and return to modified work activities.

12The applicant argues that the cognitive devices are reasonable and necessary based an occupational therapy cognitive assessment report completed by Mr. Amchislavsky, occupational therapist, on December 9, 2021. The assessment report by Mr. Amchislavsky finds that the applicant reports reduced memory function and that he often forgets and misplaces his personal items. Also, the applicant reports he finds it difficult to concentrate due to occasional pain. The recommendation in the report is for an android tablet and a two-year Lumosity subscription in order to attempt to increase his memory, attention, and concentration through cognitive training. The applicant does not direct me in this assessment as to how specifically the Lumosity subscription and tablet will help with the reported symptoms.

13The respondent argues that the cognitive devices are not reasonable and necessary based on a s. 44 examination report completed by Dr. Lawson, C. Psych, on April 5, 2022. The s. 44 report was an in-person assessment that included a clinical interview and psychometric testing. The diagnosis that Dr. Lawson delivers is that the applicant meets the criteria for a DSM-5 diagnosis of adjustment disorder with mixed anxiety and depressed mood. Dr. Lawson opined that the cognitive devices were not considered conventional treatments to address cognitive deficits and would not be deemed reasonable and necessary for the cognitive impairments sustained by the applicant.

14I find that the applicant has not proven on a balance of probabilities that the proposed cognitive devices are reasonable or necessary. The two assessments disagree on their diagnosis of the applicant. I was persuaded by the report by Dr. Lawson in her opinion that the android tablet and Luminosity subscription was not a conventional treatment approach to address the applicant’s cognitive deficits. Conversely, Mr. Amchislavsky did not provide a clear explanation of how the Luminosity service would address the applicant’s cognitive deficit to meet the goals of the treatment plan.

c) The applicant is not entitled to the driving reintegration assessment

15I find that the applicant has not met his onus to prove on a balance of probabilities that the driving reintegration assessment is reasonable and necessary.

16The goals of the treatment plan in question are pain reduction, return to his activities of normal living, and return to pre-accident levels of psychological functioning.

17The applicant argues that the driving reintegration assessment is reasonable and necessary based on an assessment completed by Ms. Romero, therapist, under the supervision of Ms. Langis, C.Psych completed on December 28, 2021. This indicates the applicant shows signs of adjustment disorder with mixed anxiety and depressed mood, and specific phobia situational vehicular travel. I place little weight on this assessment, as the applicant has not directed me to the objective testing to substantiate the diagnosis. The report itself notes that symptomatology is not sufficient to determine the severity of the psychological impairments or offer a complete understating of the applicant’s psychological injuries.

18The respondent argues that a driving reintegration assessment is not reasonable and necessary based on a s. 44 examination report completed by Dr. Lawson, C. Psych on April 5, 2022. The s. 44 report was an in-person assessment that included a clinical interview and psychometric testing. The diagnosis that Dr. Lawson delivers is that the applicant meets the criteria for a DSM-5 diagnosis of adjustment disorder with mixed anxiety and depressed mood. Dr. Lawson opined that it was her opinion that the applicant is able to drive and that from a psychological perspective, a driving reintegration assessment is not required at this time to address psychological impairments sustained.

19I find that the applicant has not proven on a balance of probabilities that the proposed driving reintegration assessment is reasonable and necessary. The applicant did not direct me to evidence that outlines the objective psychological testing to support Dr. Langis’ diagnosis. I contrast this with the assessment by Dr. Lawson outlined her testing and results to support her different diagnosis of the applicant. I was persuaded by her opinion that from a psychological perspective a driving reintegration assessment was not reasonable or necessary due to the applicant’s ability to drive at this time.

Is the proposed chronic pain assessment reasonable and necessary?

20I find that the applicant has not met his onus to prove on a balance of probabilities that the chronic pain assessment is reasonable and necessary.

21The goals of the treatment plan in question are pain reduction, return to his activities of normal living, and return to pre-accident levels of psychological functioning.

22The applicant argues that the chronic pain assessment is reasonable and necessary and relies on a general and pain assessment by Dr. Chan, physician, the CNRs of Dr. Barrett, a functional abilities evaluation by Dr. Curcio, chiropractor, and a chronic pain assessment by Dr. Gofeld, MD.

23A general and pain assessment was completed by Dr. Chan, physician, on September 30, 2022. Dr. Chan diagnoses the applicant with mechanical low back pain. Dr. Chan also notes in the assessment that blood work to screen for potential rheumatological caused myofascial pain, or other potential causes of pain. The doctor does not associate the low back pain to the accident in her assessment.

24The CNRs of Dr. Barrett show that applicant visited the doctor a few times between September 21, 2021, and February 2023. The doctor ordered an MRI on September 11, 2021 that showed a very small left paracentral annular tear, and mild bulging of the L5-S1 disc. In the June 2022 appointment, the doctor advises the applicant to attend a chronic pain clinic.

25Dr. Curcio, chiropractor, completed a functional abilities evaluation on November 27, 2021. The conclusion of the evaluation was to diagnose the applicant with multiple sites of chronic pain as well as multiple psychological disorders. The applicant has not directed me to how Dr. Curcio as a chiropractor is qualified to diagnose either chronic pain, or psychological disorders.

26Dr. Gofeld completed a chronic pain assessment on October 13, 2022. The doctor diagnosed the applicant with chronic neck pain and low back pain, along with posttraumatic headache. Dr. Gofeld’s conclusion is that a general prognosis for spontaneous recovery is guarded. I was not directed to how Dr. Gofeld derived his diagnosis based on the physical examination he performed. In addition, Dr. Gofeld indicated that the applicant should have an MRI, even though he reviewed the applicant’s MRI from a year previous that was unremarkable besides a very small annular tear and very mild disc bulge at the L5/S1.

27The respondent argues that the chronic pain assessment is not reasonable or necessary and relies on the s. 44 examination completed by Dr. Moolla, physician, completed on March 10, 2022. This was an in-person examination and the diagnosis on Dr. Moolla concluded that the applicant has suffered strain-based injuries. Dr. Moolla added, that his examination did not reveal any objective evidence of musculoskeletal or neurological impairment as a result of the motor vehicle accident. In addition, it was the opinion of Dr. Moolla that the applicant had reached maximal medical recovery.

28I find that the applicant has not proven on a balance of probabilities that the chronic pain assessment is reasonable and necessary. While the applicant has directed me to several reports that diagnose chronic pain. While Dr. Chan and Dr. Goefeld both diagnose the applicant with chronic pain, Dr. Chan does indicate that the possible source for the pain was rheumatology and Dr. Godeld’s diagnosis is not fulsome in its explanation of chronic pain based on the MRI results he reviewed and his physical examination. In contrast, Dr. Moolla did not find any object evidence of musculoskeletal or neurological impairment, and provides his opinion that the applicant has reached maximal medical recovery. I preferred Dr. Moolla’s diagnosis as it was consistent with medical imaging and the performed medical examination.

29The applicant has not proven on a balance of probabilities that the chronic pain assessment is reasonable and necessary.

Is the proposed fitness membership assessment reasonable and necessary?

30I find that the applicant has not met his onus to prove on a balance of probabilities that the fitness membership assessment is reasonable and necessary.

31The goals of the treatment plans in question are pain reduction, increased strength, and range of motion, improve muscular strength, endurance, improve mood and mental health, and return to his activities of normal living.

32The applicant argues that the fitness membership assessment is reasonable and necessary and bases their argument on the s.44 exam of Dr. Moolla. In the conclusion of the s.44 exam, Dr. Moolla notes that further symptomatic relief can be achieved by independent exercise regime.

33In reviewing the totality of the evidence, I find that the applicant has not proven on a balance of probabilities that the fitness membership assessment is reasonable and necessary. The applicant relies on the s.44 exam by Dr. Moolla that does discuss further independent exercise would help the applicant find symptomatic relief. The applicant has not directed me to how this treatment plan will specifically achieve these goals and that the cost is reasonable to achieve these goals.

34The applicant has not proven on a balance of probabilities that the fitness membership assessment is reasonable and necessary.

ORDER

35I find that:

I. The applicant has not proven on a balance of probabilities that the various treatment plans at issue are reasonable and necessary.

II. The applicant is not entitled to interest.

III. The application is dismissed.