Licence Appeal Tribunal File Number: 23-008934/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:
Yuliesky Villegas Garcia
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR: Caley Howard
APPEARANCES:
For the Applicant: Alison Delgado, Counsel
For the Respondent: Hodson Harding, Counsel
HEARD: By way of written submissions
OVERVIEW
1Yuliesky Villegas Garcia, the applicant, was involved in an automobile accident on June 23, 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, TD 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 $3,795.50 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) dated July 29, 2021?
ii. Is the applicant entitled to $2,026.55 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre in a plan dated January 3, 2022?
iii. Is the applicant entitled to $2,851.68 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a plan dated June 22, 2022?
iv. Is the applicant entitled to $2,851.68 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre in a plan dated May 4, 2023?
v. Is the applicant entitled to interest on any overdue payment of benefits?
3The parties resolved issue number 5 as listed in paragraph 4 of the Case Conference Report and Order dated February 14, 2024.
RESULT
4I find:
i. The applicant is entitled to the treatment plan for chiropractic services dated July 29, 2021, plus interest;
ii. The applicant is entitled to the treatment plan for physiotherapy services, dated January 3, 2022, plus interest;
iii. The applicant is entitled to the treatment plan for chiropractic services dated June 22, 2022, plus interest; and
iv. The applicant is entitled to the treatment plan for physiotherapy services dated May 4, 2023, plus interest.
PROCEDURAL ISSUE
5The respondent submits that the applicant failed to produce a complete set of clinical notes and records (CNRs) by March 30, 2024 as set out in the Case Conference Report and Order dated February 11, 2024. The respondent submits that the applicant did not provide unspecified CNRs until August 16, 2024, which prevented the respondent from having a fair and reasonable opportunity to respond to the applicant’s case.
6I decline to exclude the CNRs because I find that the respondent did not seek any specific relief in respect of the allegedly late-produced documents and the respondent’s submissions are not clear about which documents were produced late. I further find that the respondent does not explain how it was prejudiced by the production of the unspecified documents on August 16, 2024 or how this prevented the respondent from having a reasonable opportunity to respond.
ANALYSIS
Entitlement to treatment plans
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.
A) Entitlement to treatment plan for chiropractic services dated July 29, 2021
8I find that the applicant is entitled to the treatment plan dated July 29, 2021.
9The treatment plan submitted on July 29, 2021 was completed by Dr. Na Ryung Kim, chiropractor, and sought funding of $3,795.50 for chiropractic and massage therapy treatment. The goals of the treatment plan were pain reduction, increase in strength, increased range of motion, return to activities of normal living and return to modified work activities.
10The applicant submits that the treatment plan was reasonable and necessary because of their accident-related injuries, which included soft-tissue injuries to the neck, back and shoulder. The applicant relies on the treatment plan, the OCF-3 completed by Dr. Kim, dated July 28, 2021 and the CNRs of MCI the Doctor’s Office on Bloor Street (the “walk-in clinic”) for the period between July 2021 and December 2023.
11The respondent submits that the applicant has not provided sufficient evidence to show that the treatment plan is reasonable and necessary. The respondent relies on the Insurer’s Examination report of Dr. Andrzej Gwardjan, physiatrist, dated September 16, 2021. The respondent further submits that it is not required to pay for any treatment for the applicant because the applicant’s physical injuries would fall under the MIG, despite the fact that the applicant was removed from the MIG. In support of this submission, the respondent relies on the decisions of R.K. v. Unifund Assurance Company, 2019 CanLII 101709 (ON LAT) and Applicant v. Aviva, 2020 CanLII 14484 (ON LAT).
12Dr. Kim diagnosed the applicant with sprain and strain of the cervical spine, thoracic spine, lumbar spine, shoulder and headaches, in addition to psychological injuries, and recommended six weeks of chiropractic and massage therapy treatments.
13I find that the CNRs of the walk-in clinic confirm that the proposed chiropractic and massage therapy treatment is reasonable and necessary because they confirm the diagnoses made by Dr. Kim and confirm the applicant’s need for chiropractic and physiotherapy treatment as a result. Specifically, I note that Dr. Allan Tam, on August 5, 2021, saw the applicant for his recurring neck pain caused by the accident, and recommended that the applicant “continue physio, chiro.” I also find that the CNRs demonstrate that applicant continued to report neck, shoulder and back pain due to the accident to various doctors at the clinic between June 2021 and December 2023.
14I give little weight to the opinion of Dr. Gwardjan that the treatment plan was not reasonable and necessary because I find that Dr. Gwardjan did not explain his opinion in light of his examination findings. Dr. Gwardjan assessed the applicant as having sustained soft tissue injuries including whiplash, thoracolumbar sprain and right shoulder sprain and acknowledged that the applicant continued to report residual myofascial pain. However, Dr. Gwardjan opined that the treatment plan was not reasonable and necessary because the applicant’s ongoing symptoms did not “represent any active progressive or ominous soft tissue pathology.” I find that Dr. Gwardjan did not explain what this meant or why the lack of active progressive or ominous soft tissue pathology rendered the proposed treatment not reasonable and necessary. I further find that Dr. Gwardjan’s report supports the diagnoses set out in the treatment plan, specifically, that the applicant injured his neck, back and shoulder in the accident.
15I do not accept the respondent’s submission that the applicant is required to prove that his physical injuries are not predominantly minor in order to prove his entitlement to the treatment plans for chiropractic and physiotherapy treatment. The parties agree that the applicant has been removed from the MIG. The fact that he was removed for psychological injuries does not preclude him from receiving treatment for his physical injuries. I am not bound by other LAT decisions and, in any event, I find that the decisions relied on by the respondent are factually different from the applicant’s situation and therefore distinguishable.
16For the reasons set out above, I find that the applicant has proven, on a balance of probabilities, that he is entitled to the treatment plan submitted July 29, 2021.
B) Entitlement to the treatment plan for physiotherapy services dated January 3, 2022
17I find that the applicant is entitled to the treatment plan for physiotherapy services dated January 3, 2022.
18The treatment plan submitted on January 3, 2022 was completed by Ryan Pagnanelli, chiropractor, and sought funding of $2,026.55 for physiotherapy treatment. The goals of the treatment plan were pain reduction, increase in strength, increased range of motion, improved sleep, return to activities of normal living, and return to modified work activities.
19The applicant submits that the treatment plan is reasonable and necessary as a result of his ongoing pain and reduced range of motion in his neck. The applicant relies on the treatment plan and the CNRs of the walk-in clinic. Both the applicant and the respondent referred me to the Functional Capacity Evaluation Report dated October 8, 2021, performed by Dr. Andrew Holland, chiropractor.
20The respondent again submits that the applicant has not provided sufficient evidence to show that the treatment plan is reasonable and necessary. The respondent relies on the Insurer’s Examination assessment of Dr. Andrzej Gwardjan, physiatrist, dated September 16, 2021. The respondent further submits that it is not required to pay for any physiotherapy treatment for the applicant because the applicant’s physical injuries would fall under the MIG.
21I find that the additional comments attached to the treatment plan indicate that the applicant reported to Dr. Pagnanelli that he continued to feel ongoing pain and that Dr. Pagnanelli’s examination of the applicant revealed range of motion restrictions in the applicant’s neck, lumbar spine and right shoulder.
22I find that these comments by Dr. Pagnanelli on the treatment plan are corroborated by the CNRs from the walk-in clinic from the period of time closest to the submission of the treatment plan, specifically: on November 26, 2021, the applicant reported to Dr. Allan Tan, physician, that his neck, upper back, shoulder and lower back all continued to be sore and that he was attending weekly physiotherapy and chiropractic treatments; on February 23, 2022, the applicant reported to Dr. Patrick Gonsalves that he continued to suffer soft tissue pain; on April 5, 2022, the applicant had a telephone consultation with Dr. Speranza Dolgetta, physician, respecting the results of his cervical MRI, which revealed C5-C6 severe myelomalacia and multilevel degeneration. Dr. Dolgetta assessed the applicant with cervicalgia and referred him to neurosurgery; on April 19, 2022 the applicant saw Dr. Paul Yee, physician, for a refill of medication for chronic neck and back pain and requested an MRI for his lower back. I also give weight to the September 1, 2022 note of Dr. Brian Sum, physician, which states that the applicant requires further physio for chronic neck, shoulder and lower back pain.
23I give little weight to the report of Dr. Holland, who was asked to give an opinion on whether the applicant demonstrates a substantial inability to perform the essential tasks of his pre-accident employment, because an Income Replacement Benefit (IRB) is not at issue in this hearing and Dr. Holland did not express an opinion on entitlement to an IRB in any event. I find that Dr. Holland was able to confirm that the applicant suffered some deficits despite what he found to be sub-maximal effort in certain areas of testing, which he stated may be due to fear of pain or fear of symptom exacerbation.
24For the reasons stated above, I give little weight to the opinion of Dr. Gwardjan that the treatment plan was not reasonable and necessary.
25For the reasons stated above, I do not accept the respondent’s submission that the applicant is required to prove that his physical injuries are not predominantly minor in order to prove his entitlement to the treatment plans for chiropractic and physiotherapy treatment. For the reasons set out above, I find that the applicant has proven, on a balance of probabilities, that he is entitled to the treatment plan submitted January 3, 2022.
C) Entitlement to treatment plan for chiropractic services dated June 22, 2022
26I find that the applicant is entitled to the treatment plan for chiropractic services dated June 22, 2022.
27The treatment plan submitted June 22, 2022 was proposed by Dr. Pagnanelli and sought funding of $2,851.68 for chiropractic and massage therapy services. The goals of the treatment plan were again pain reduction, increase in strength, increased range of motion, improved sleep, return to activities of normal living and return to modified work activities.
28The applicant submits that the treatment plan is reasonable and necessary as a result of his ongoing pain and reduced range of motion. The applicant relies on the treatment plan and the CNRs from the walk-in clinic. Both the applicant and the respondent referred me to the Functional Capacity Evaluation Report dated October 8, 2021, performed by Dr. Andrew Holland, chiropractor.
29The respondent again submits that the applicant has not provided sufficient evidence to show that the treatment plan is reasonable and necessary. The respondent relies on the Insurer’s Examination assessment of Dr. Andrzej Gwardjan, physiatrist, dated September 16, 2021 and the surveillance report dated August 17, 2022. The respondent further submits that it is not required to pay for any physiotherapy treatment for the applicant because the applicant’s physical injuries would fall under the MIG.
30I place significant weight on the September 1, 2022 note of Dr. Brian Sum, which recommends further physiotherapy for the applicant’s chronic neck, shoulder and lower back pain secondary to the accident. This note is supported by the remaining CNRs of the walk-in clinic leading up to that date, in which the applicant consistently reports pain in his neck, low back and shoulder as a result of the accident, as well as the cervical MRI results which Dr. Dolgetta discussed with the applicant on April 5, 2022 and which led to a recommendation for a neurosurgery consultation.
31I find that the surveillance report dated August 17, 2022 shows the applicant driving to a grocery store on two occasions, shopping for groceries and attending a job site on one occasion. I find that the investigator reports seeing the applicant tilting his head back to drink from a thermos, bending at the waist and knees to pick up tool boxes on the ground, operating a circular saw and operating a sky jack. I find that this evidence does not conflict with the evidence presented by the applicant as the applicant had reported to both Dr. Gwardjan and Dr. Holland that he had returned to work, albeit with some modified duties and hours. I therefore give limited weight to the surveillance report of August 17, 2022.
32I also give little weight to the September 16, 2021 physiatry assessment report of Dr. Gwardjan for the reasons expressed above and also because Dr. Gwardjan’s report was nearly a year old by the time the treatment plan was submitted and Dr. Gwardjan did not have the benefit of the applicant’s MRI results or the CNRs of the walk-in clinic when he wrote his report.
33For the reasons set out above, I find that the applicant has proven, on a balance of probabilities, that he is entitled to the treatment plan submitted June 22, 2022.
D) Entitlement to the treatment plan for physiotherapy services submitted May 4, 2023
34I find that the applicant is entitled to the treatment plan submitted May 4, 2023.
35The treatment plan submitted May 4, 2023 was proposed by Dr. Brett Dykstra, chiropractor and sought funding of $2,851.68 for physiotherapy services. The goals of the treatment plan were pain reduction, increase in strength, increased range of motion, return to activities of normal living, return to modified work activities and return to pre-accident work activities.
36The applicant submits that the treatment plan is reasonable and necessary as a result of his ongoing pain and reduced range of motion. The applicant relies on the treatment plan and the CNRs of the walk-in clinic. The applicant also refers me to the November 14, 2023 physiatry assessment report of Dr. Gwardjan, which was based on an assessment performed on October 31, 2023.
37The respondent submits that the applicant has not provided sufficient evidence to show that the treatment plan is reasonable and necessary. The respondent relies on the Insurer’s Examination assessment of Dr. Gwardjan, dated September 16, 2021 and the surveillance report dated September 16, 2023. The respondent further submits that it is not required to pay for any physiotherapy treatment for the applicant because the applicant’s physical injuries would fall under the MIG.
38I find that Dr. Dykstra’s additional comments attached to the treatment plan indicate that the applicant continued to report pain in his neck and back and showed limited range of motion in both his cervical and lumbar spine. I find that the CNRs of the walk-in clinic corroborate Dr. Dykstra’s comments, specifically the April 24, 2023 note of Dr. Patricia LeBlanc, who renewed the applicant’s prescriptions and referred him to a pain clinic for his chronic neck, back and shoulder pain.
39I give significant weight to both the September 1, 2022 note of Dr. Brian Sum recommending further physiotherapy and the December 20, 2023 notes of Dr. Patrick Gonsalves recommending physiotherapy and massage therapy for lumbar strain and lumbar disk herniation, which was diagnosed based on an MRI on December 6, 2023. I find that the recommendations of Dr. Sum and Dr. Gonsalves are based on the applicant’s consistent complaints of back, neck and shoulder pain at the walk-in clinic for over two years after the accident and the results of a cervical MRI and a lumbar MRI, both of which showed irregularities.
40The second surveillance report related to surveillance performed on September 5, 6 and 7, 2023. I find that the investigator reports observing the applicant working at a job site during this period, which involved bending over and picking up tools, using a hammer and chisel to remove brick siding, using a corded jackhammer with both hands, climbing on and off scaffolding, moving scaffolding with the assistance of a co-worker and squatting on both knees. I find that the range of activities performed by the applicant in September 2023 makes it likely that certain goals set out in the treatment plan, specifically a return to modified work activities and a return to pre-accident work activities, have already been met. However, I find that the surveillance report does not provide any insight into the pain experienced by the applicant while he is working or to range of motion deficits because the investigator did not assess these things.
41I give little weight to the September 16, 2021 physiatry assessment report of Dr. Gwardjan for the reasons stated above and also because Dr. Gwardjan’s report was over a year old by the time the treatment plan was submitted and Dr. Gwardjan did not have the benefit of the applicant’s MRI results or the CNRs of the walk-in clinic when he wrote his report.
42For the reasons set out above, I find that the applicant has proven, on a balance of probabilities, that he is entitled to the treatment plan submitted May 4, 2023.
Proper denial of treatment plans
43The parties made submissions respecting whether the respondent’s denial of each treatment plan met the requirements of s. 38 of the Schedule. As I have found the treatment plans were reasonable and necessary, it is not necessary to address these submissions.
Interest
44Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found the applicant is entitled to each of the four treatment plans in dispute, interest applies to each treatment plan.
ORDER
45I find:
i. The applicant is entitled to the treatment plan for chiropractic services dated July 29, 2021, plus interest;
ii. The applicant is entitled to the treatment plan for physiotherapy services, dated January 3, 2022, plus interest;
iii. The applicant is entitled to the treatment plan for chiropractic services dated June 22, 2022, plus interest; and
iv. The applicant is entitled to the treatment plan for physiotherapy services dated May 4, 2023, plus interest.
Released: May 7, 2025
Caley Howard
Adjudicator