Citation: Subasic v Aviva General Insurance, 2025 ONLAT 23-005409/AABS

Licence Appeal Tribunal File Number: 23-005409/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:

Dinka Subasic

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Renee Reynolds, Counsel

For the Respondent:

Christina Chiu, Counsel

HEARD: By way of written submissions

OVERVIEW

1Dinka Subasic (“the Applicant”) was involved in an automobile accident on May 6, 2019, and sought benefits from Aviva General Insurance (“the Respondent”) 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided in the hearing are:

1. Is the Applicant entitled to a medical benefit in the amount of $2,456.20 for chiropractic services, proposed by Natural Touch Rehab in a treatment plan/OCF-18 (“plan”) dated January 27, 2022?

2. Is the Applicant entitled to a medical benefit in the amount of $1,553.72 for chiropractic services, proposed by Natural Touch Rehab in a plan dated January 26, 2022?

3. Is the Applicant entitled to a medical benefit in the amount of $4,273.00 (less $2,873.36 approved by the Respondent) for occupation therapy services, proposed by Lesya Dyk OT in a plan dated February 7, 2022?

4. Is the Applicant entitled to a medical benefit in the amount of $3,339.64 for chiropractic services, proposed by Natural Touch Rehab in plan dated February 17, 2022?

5. Is the Applicant entitled to a medical benefit in the amount of $2,486.00 for an in-vehicle driving assessment, proposed by Drive Lab in a plan dated April 19, 2023?

6. Is the Applicant entitled to a medical benefit in the amount of $2,898.14 for assistive devices, proposed by Lesya Dyk OT in a plan dated April 25, 2023?

7. Is the Applicant entitled to a medical benefit in the amount of $485.00 for prescription medication, submitted on an undated claim form (OCF-6)?

8. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?

9. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3The Respondent agreed to fund the plan seeking funding for a driving assessment. Thus, the plan in the amount of $2,486.00, dated April 19, 2023, is not in dispute.

4The Applicant is not entitled to the remaining benefits claimed.

5No interest or award is payable.

PROCEDURAL ISSUES

6The Applicant was late in disclosing a medical report by Dr. K. Hsu, physician, dated March 25, 2024. The disclosure occurred after the production deadline and the Applicant never sought permission from the Tribunal to introduce the evidence. In responding submissions, the Respondent objected to including the report and submits that it should be omitted because it was served after the production deadline and shortly before submissions were to be made.

7Typically, a report disclosed so far beyond the production deadline would be omitted from the written hearing due to the prejudice to the other side in their inability to have a healthcare provider review it prior to the hearing. In this case, the report was disclosed more than two months after the production deadline and the Applicant never sought permission to include it in evidence. This alone is sufficient to strike the report from the record.

8However, I find that the probative value of the report outweighs the prejudice to the Respondent and will allow the report into evidence. As I will address in greater detail, I find that Dr. Hsu’s report supports the Respondent’s position, and the Respondent is not prejudiced by its inclusion in the hearing record.

BACKGROUND

9The Applicant was the front-seat passenger of a vehicle which was struck on the passenger side by another vehicle while traversing a suburban intersection. She was transported from the scene of the accident to the hospital via ambulance. She was examined at the hospital and x-rays were administered. The examination and x-rays were unremarkable, and the Applicant was discharged without any medication being prescribed and was advised to follow up with her family physician. She met with her family physician about five days after the accident, and was referred to physiotherapy and given medication for pain.

10The Applicant next met with her family physician on December 3, 2020, about seven months later, with complaints of back pain once monthly. X-rays were ordered as a result of this visit and on December 14, 2020 an x-ray report found no fracture or bony injury and no significant degenerative changes.

11The Applicant was then referred to an MRI for her low back. The MRI report found moderate to severe degenerative disc disease, multilevel disc bulging and herniations, a small right posterolateral disc herniation that enters the right lateral recess and may contact the right L3 nerve root. Following this, the Applicant’s family physician referred her to physiotherapy, which it is noted that the Applicant declined, and was instead referred to a neurosurgeon. However, it is unclear if the Applicant ever consulted with a neurosurgeon as there are no records of such visit before me.

ANALYSIS

12The onus is on the Applicant to demonstrate entitlement to the benefits claimed. She must demonstrate that the plans in dispute, or the unapproved portion thereof, are reasonable and necessary as a result of the accident. Thus, it is incumbent upon her to demonstrate that her ongoing issues are related to injuries and impairments sustained in the accident.

13Regarding the prescription expenses for CBD oil, the Applicant must demonstrate that the expenses are reasonable and necessary as a result of the impairment sustained in the accident, and that it was prescribed by a regulated health professional as a result.

Causation

14Bubbling under the surface of this dispute is the cause of the Applicant’s back pain, as indicated in the January 29, 2021 MRI report. To the Applicant, the accident is the cause of her degenerative issues in her back. Alternatively, she submits that the accident exacerbated her back issues because she reports that she was asymptomatic with back pain at the time of the accident.

15The Respondent does not specifically address the multilevel disc bulges, potential issues with the L3 nerve root, and degenerative disc disease observed in the MRI report. However, its IE assessor, Dr. J. Gordon, physician, reviewed the reports and commented on the issues in an addendum report issued March 17, 2021. Dr. Gordon maintained that the Applicant sustained strains to her neck and back and did not connect the Applicant’s degenerative back issues to the accident. Specifically, Dr. Gordon noted that during a January 28, 2021 examination, the Applicant did not report any radiation of her low back pain and the physical examination performed for that assessment revealed normal neurological findings and straight leg test was negative. Dr. Gordon concluded that the MRI report did not provide any further clinical significance to the Applicant’s presentation at the assessment. However, Dr. Gordon also advised that an EMG/NCS may be obtained for further diagnostic clarity, given the MRI findings.

16I find Dr. Gordon’s conclusion to be compelling in light of the report by Dr. Hsu. Dr. Hsu assessed the Applicant and reviewed her medical records, including the January 29, 2021 MRI report, for the medico-legal report, issued March 25, 2024. Dr. Hsu diagnosed the Applicant with a lumbar strain and psychoemotional sequalae. Nowhere in Dr. Hsu’s report does it indicate that the Applicant’s degenerative lumbar issues are as a result of the accident. To me, this omission is an indication that the Applicant’s degenerative lumbar issues pre-date the accident and are not as a result of the accident. Building on this, it follows that treatment proposed to address the Applicant’s degenerative issues, or issues relating to the L3 nerve root, is not reasonable and necessary as a result of the accident.

17Further, I acknowledge that the Applicant tendered submissions indicating that her low back symptoms were asymptomatic prior to the accident, suggesting that the accident exacerbated or accelerated her degenerative issues. Yet, submissions are not evidence, and the Applicant has not provided any medical records for the period pre-dating the accident. Thus, I am unable to consider that the accident exacerbated or accelerated the Applicant’s degenerative issues because there is no evidence to support the claim.

18As a result of my findings on the cause of the Applicant’s ongoing lumbar pain, I conclude, in general, that the Applicant has not demonstrated that she is entitled to the benefits claimed, interest, or an award. My additional reasons are as follows.

Chiropractic treatment plans, dated January 26, 27, and February 17, 2022

19I find that the Applicant has not demonstrated that these plans are reasonable and necessary as a result of the accident.

20The Applicant submits that the goals of pain reduction, increasing strength and range of motion (“ROM”) and returning her to her activities of normal living are reasonable and necessary. She highlights that she suffers from disc herniations and has continually complained of back pain to her family physician. She submits that her pain is chronic and that, depending on the activity, it renders her bedridden and interferes with her normal activities such as grocery shopping, cleaning, bathing, dressing, and taking care of her children. The Respondent contends that there is no evidence indicating that ongoing treatment will reduce the Applicant’s pain, improve her quality of life, or allow her to resume her normal activities. It submits that she made no accident-related pain complaints after July 2022 and that the IE assessors concluded that she has functional ROM and reached maximal medical recovery, and that ongoing passive treatment is unlikely to provide any benefit.

21The Applicant has not addressed whether the goods and services proposed in the plans are reasonable and necessary as a result of the accident. For example, one plan, dated January 26, 2021, seeks funding for a functional abilities evaluation and related examinations, not chiropractic treatment. The Applicant’s submissions do not indicate how or why a functional abilities assessment will help reduce pain, increase strength and ROM, and return her to her activities of normal living, other than to say that it is required because no treatment had been rendered since February 2020. There is no medical rationale provided for the assessment and there are no additional comments in the plan to provide further insight as to the reason for it.

22Another plan, dated January 26, 2021, proposes spinal decompression treatment due to the Applicant’s disc herniation and nerve root contact at L3, which is not an accident-related injury, as discussed previously. Similarly, the plan dated February 17, 2022 proposes chiropractic, massage therapy, acupuncture, and physiotherapy treatments focused on the Applicant’s disc herniation and nerve root contact, which are not as a result of the accident.

23I find the opinion of Dr. Gordon to be the most compelling when considering whether these plans are reasonable and necessary as a result of the accident. Dr. Gordon identified no neurological impairments and observed that the Applicant demonstrated mostly normal ROM throughout her body, but for some limitations in her neck and low back. No neurological issues were identified in the examination. Following the examination, Dr. Gordon diagnosed the Applicant with cervical and lumbar strains/sprains as well as myofascial low back and head pain, and recommended that she engage in a home-based, self-directed exercise program and that further facility-based treatment is not expected to provide any additional benefit.

24I find Dr. Hasson’s recommendation for ongoing therapy to be less persuasive. Dr. Hasson regularly recommended physiotherapy to treat the Applicant’s ongoing low back pain, not chiropractic treatment. Dr. Hasson’s recommendation appears to be based on the Applicant’s overall presentation, as someone with degenerative issues in her low back and not due to her accident-related injuries. Further, I find no recommendation for spinal decompression or any similar treatment in Dr. Hasson’s CNRs. Likewise, Dr. Hsu’s recommendation for the Applicant is an active exercise regimen, and only recommended facility-based treatments be available for flares of pain and to facilitate function. None of the three chiropractic treatment plans fit this model suggested by Dr. Hsu.

25Accordingly, I find that the Applicant has not demonstrated that the chiropractic plans in dispute are reasonable and necessary as a result of the accident.

Occupational therapy plans, dated February 7, 2022 and April 25, 2023

26I find that the Applicant has not met her onus to demonstrate that the occupational therapy plans are reasonable and necessary as a result of the accident.

27The plan in the amount of $4,273.00, dated February 7, 2022, was partially approved up to $2,873.36. The unapproved balance relates to a shower transfer bench, long handled reacher and shoe horn, and a raised toilet. The Applicant submits that these items are required because she requires assistance with activities such as low body dressing and transfers in and out of the shower when her pain levels are severe. She directs me to the report of OT M. Bickell, dated February 7, 2022, to support her position.

28The plan in the amount of $2,898.14, dated April 25, 2023, seeks funding for an ergonomic chair and desk, as well as other ancillary fees such as delivery and education.

29The Respondent submits that the Applicant does not demonstrate the functional impairment that would warrant the items proposed in the February 7, 2022 plan. From the Respondent’s perspective, the Applicant is independent with her housekeeping and personal care and is able to independently perform transfers, reach, and dress herself. It submits that the Applicant demonstrated only a mild impairment in her lumbar spine range of motion (“ROM”), and that her ROM was still within normal limits.

30I find that the Applicant has not demonstrated that the goods proposed in the OT plans are reasonable and necessary as a result of the accident. I place greater weight on the IE report of Dr. J. Gordon, physiatrist, and OT A. Kaul, dated December 14, 2023 than I do on the report of OT Bickell, dated February 7, 2022. I prefer the report of Dr. Gordon and OT Kaul because this report is consistent with the balance of the Applicant’s medical record and considers the Applicant’s dynamic work schedule. The Applicant works in office administration with her husband’s company. According to the report by Dr. Gordon and OT Kaul, she works from home four out of five days of the week to accommodate her childcare needs and to permit her the space to stretch, as required. In contrast, the Bickell report concludes that the Applicant works most of her time in the office and that her workstation there is outdated and unsupportive. This led OT Bickell to focus on providing the Applicant with a more modern workstation with ergonomic equipment, such as a chair and adjustable desk. At home, the Applicant was observed working with a laptop computer at her dining table with a chair with a supportive cushion and back support, and usually maintained her posture at 90-degree positioning for her knees and hips.

31The Applicant has not demonstrated the functional impairments that warrant items such as a shower transfer bench, long handled reacher and shoe horn, and a raised toilet. I find the recommendation from OT Bickell to be unpersuasive because it is based on the Applicant’s reports that she requires assistance with lower body dressing and shower transfers when her pain levels are severe. There is no discussion on the frequency of the severe pain the Applicant submits she experiences, and it is not documented in her medical records. Accordingly, I find that the Applicant has not demonstrated that she exhibits the functional impairments that warrant these devices. Whereas Dr. Gordon and OT Kaul both concluded that the Applicant has functional range of motion throughout her body and is encouraged to participate in her pre-accident activities.

32Given the functionality exhibited by the Applicant, I find that the unapproved goods and services proposed in the OT plans are not reasonable and necessary as a result of the accident.

$485.00 for medicinal cannabis

33I find that the Applicant has not demonstrated that the medicinal cannabis was prescribed by a regulated healthcare professional, due to an accident-related impairment.

34The Applicant claims entitlement to the medical cannabis expenses on account of chronic back pain. She submits that she never suffered from back pain prior to the accident. She further submits that, if the degenerative disc disease identified in the January 29, 2021 MRI report was asymptomatic, if anything, it made her vulnerable to more serious symptoms from the lumbar strain sustained in the accident.

35The Respondent denied funding for the medicinal cannabis because the Applicant never provided a rationale for the cannabis. Specifically, it requested information regarding the healthcare practitioner who prescribed it and the reason for the prescription.

36I agree with the Respondent and find no medical basis for the cannabis. The Applicant never provided a prescription for the cannabis. While she submits that she was approved for it in March 2023, there is no indication in the medical records as to who approved her for it. Further, the evidence indicates that medicinal cannabis was first purchased in September 2022. To-date, the Applicant has not led any evidence to suggest who prescribed the medicinal cannabis and the reason for the prescription. Accordingly, I find that the Applicant has not met her onus to demonstrate that the cannabis expenses claimed are reasonable and necessary as a result of the accident.

Interest

37Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found that the Applicant is not entitled to the benefits claimed, it follows that she is not entitled to interest.

Award

38I find no award payable.

39Pursuant to section 10 of Regulation 664, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

40The Applicant tendered no submissions and led no evidence to address her claim for an award. This, when combined with my findings that the Applicant is not entitled to the benefits claimed, it follows that no benefits or payments were unreasonably withheld or delayed. Accordingly, no award is payable.

CONCLUSION AND ORDER

41The Applicant is not entitled to the benefits claimed, interest, or an award.

42The Application is dismissed.