Licence Appeal Tribunal File Number: 23-010386/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:
Jonathan Labalestra
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Nikisha Evans
APPEARANCES:
For the Applicant:
Nick Todorovic, Counsel
For the Respondent:
Deedra-Ann Lake, Counsel
HEARD:
In Writing
OVERVIEW
1Jonathan Labalestra, the applicant, was involved in an automobile accident on July 10, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (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 $2,456.20 for chiropractic services, proposed by Dr. Jason Mazzarella in a treatment plan/OCF-18 (“plan”) submitted January 26, 2021?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant is entitled to $2,456.20 for chiropractic services, proposed by Dr. Jason Mazzarella, in the plan submitted January 26, 2021.
ii. The applicant is entitled to interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule.
ANALYSIS
The applicant is entitled to chiropractic treatments
4I find that the applicant is entitled to the treatment plan for chiropractic treatment.
5To receive payment for a treatment plan under sections 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 that the goals of treatment are reasonable, how the goals would be met to a reasonable degree and that the overall cost of achieving them are reasonable.
6The applicant claims entitlement to $2,456.20 for chiropractic treatment, proposed by Dr. Jason Mazzarella, chiropractor. The goals of the treatment plan are pain reduction, improving the applicant’s range of motion, strength, coordination, movement patterns, short-term memory, movement recall, coordination, speed and proprioception, and to return the applicant to normal living activities.
7The applicant further relies on the clinical notes and records (CNRs) from Dr. Alireza Kachooie, Physiatrist, dated May 28, 2019, and a Future Care Report dated April 22, 2021, by Ms. Elaine Sandor, Rehabilitation Consultant. Dr. Kachooie’s report recommended the applicant continue with chiropractic treatments. Ms. Sandor recommended more chiropractic treatments to help the applicant manage his MVC-related physical injuries, which she says are substantially limiting.
8The respondent submits that the applicant is not entitled to the treatment plan on the basis that he failed to provide compelling medical evidence. Further, the respondent denied the treatment based on the Insurer’s Examination (IE) report from Dr. Alborz Oshidari that stated the OCF-18 dated January 26, 2021, for the chiropractic service is unreasonable and not necessary.
9The respondent also relied on V.L. v. Aviva Insurance Company, 2020 CanLII 14479 (ON LAT), citing that the adjudicator denied the additional treatment plans because the applicant did not report any improvement. Further, the respondent referenced 17-002689/AABS v Aviva Insurance Canada 2018 CanLII 2311 (ON LAT), asserting that the applicant’s treatment provider did not provide objective medical evidence to substantiate the OCF-18.
10I find that the applicant has established that the chiropractic treatment plan dated January 26, 2021, is reasonable and necessary.
11I disagree with the respondent, and I am persuaded by the applicant’s submissions. In reaching my conclusions, I have placed significant weight on the CNRs of Dr. Alireza Kachooie and the reporting of Ms. Sandor.
12I find that the applicant is entitled to the treatment plan because the applicant has demonstrated the chiropractic treatments help him to reach his goal for pain reduction, increase his strength and return to normal living activities.
13While the applicant points to OCF-18 submitted January 26, 2021, and February 4, 2021, it is well established that an OCF-18 on its own is not sufficient, there must be contemporaneous corroborating medical evidence. In this case, I find that CNR of Dr. Kachooie corroborated Dr. Mazzarella notes, which was recommended in his report dated May 28, 2019, that the applicant should be offered 10-12 chiropractic and massage sessions for each pain episode he encounters. I note that it is a continuing recommendation related to ongoing pain, and that Ms. Sandor also recommended chiropractic treatment in April 2021.
14Though I acknowledge the conclusion of Dr. Oshidari in the IE report of January 2021 that the treatment plan is not reasonable and necessary, as set out above, I find that both Dr. Kachooie and Ms. Sandor recommended chiropractic treatment for the applicant and that he derived benefit from the treatment for his accident-related injuries. Dr. Kachooie noted in his report that the applicant reported the chiropractic treatments from Dr. Mazzarella were “particularly helpful.” He also reported that the applicant claimed the chiropractic treatments helped with pain, range of motion, strengthening, and muscle activation. Dr. Sandor also reported that the applicant recovery progressed with chiropractic treatments.
15The applicant held as in Hoskins v Co-operators General Insurance Company, 2023 CanLII 4455 (ON LAT) that chiropractic treatment that provides temporary pain relief is considered reasonable and necessary under s. 15 of the Schedule.
16While the respondent relied upon V.L. vs. Aviva Insurance Company, 2020 CanLII 14475 (ON LAT) to claim that the applicant had no improvement and therefore, the chiropractic treatment plan must be denied, I find this is not supported by the IE report which indicates the applicant derived short term benefit from the treatment.
17In sum, I find the applicant has met his onus of demonstrating, on a balance of probabilities, that the disputed treatment plan is reasonable and necessary.
Interest
18Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
19I find the applicant is entitled to payment of interest on the treatment plan for chiropractic services.
ORDER
i. The applicant is entitled to $2,456.20 for chiropractic services, proposed by Dr. Jason Mazzarella, submitted January 26, 2021; and
ii. The applicant is entitled to interest pursuant to s. 51 of the Schedule.
Released: May 9, 2025
Nikisha Evans
Adjudicator