Licence Appeal Tribunal File Number: 23-009767/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:
Antonio Maciel
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Aric Bhargava
APPEARANCES:
For the Applicant:
Alex Nikolaev, Counsel
For the Respondent:
Melanie Sousa, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Antonio Maciel, the applicant, was involved in an automobile accident on July 5, 2019, 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 Company, and applied to the Licence Appeal Tribunal — Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2On May 2, 2024, the applicant filed a Notice of Motion requesting that the Tribunal grant a motion order to combine the issues of the second application (24-004329/AABS) with the issues in Tribunal File No. 23-009767/AABS and that all issues in dispute be heard at the written hearing scheduled on October 18, 2024. The respondent consented to the motion.
3The Motion Order dated May 2, 2024, granted the motion.
ISSUES
4The issues in dispute are:
i. Is the applicant entitled to $3,224.52 for physiotherapy services, proposed by We Care Rehab Clinic in a treatment plan/OCF-18 (“plan”) submitted February 10, 2023?
ii. Is the applicant entitled to $4,711.65 for physiotherapy services, proposed by We Care Rehab Clinic in a plan submitted March 12, 2024?
iii. Is the applicant entitled to $2,778.00 for a raised toilet seat and lift chair, proposed by We Care Rehab Clinic in a plan submitted January 25, 2024?
iv. Is the applicant entitled to $632.79 for a massage chair, submitted on a claim form (OCF-6) dated August 15, 2023?
v. Is the applicant entitled to $995.94 for assistive devices, submitted on a claim form (OCF-6) dated November 1, 2023?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
5The applicant has advised that the claim for an award under s. 10 of Reg. 664 listed in the Case Conference Report and Order (“CCRO”) has been withdrawn.
RESULT
6I find the applicant is not entitled to $3,224.52 for physiotherapy services.
7I find the applicant is not entitled to $4,711.65 for physiotherapy services.
8I find the applicant is not entitled to $2,778.00 for a raised toilet seat and lift chair.
9I find the applicant is not entitled to $632.79 for a massage chair.
10I find the applicant is not entitled to $995.94 for assistive devices.
11I find the applicant is not entitled to interest as there are no overdue payments.
ANALYSIS
12To receive payment for an OCF-18 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 the goals of treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
Is the applicant entitled to $3,224.52 for physiotherapy services?
13I find the applicant has not demonstrated, on a balance of probabilities, that the physiotherapy services are reasonable and necessary. The applicant is not entitled to the disputed treatment plan.
14The physiotherapy treatment plan submitted February 10, 2023 was prepared by Zama Patel, physiotherapist with We Care Rehab Clinic. The plan is intended to address the applicant’s injuries including postconcussional syndrome, post-traumatic stress, sprain and strain of cervical spine, thoracic spine, lumbar spine, shoulder joint, headache, lumbar and other intervertebral disorders with radiculopathy, other sleep and anxiety disorders. The provider proposed 16 physiotherapy sessions, 8 chiropractic sessions, and 8 massage sessions over 18 weeks. The goals for this plan are pain reduction, increase in strength, increase in range of motion, strength, stability and proprioception, return to activities of normal living, and pre-accident work activities. The provider noted the applicant is not able to bend or rotate from the spine.
15The applicant submits the treatment helps and provides him with relief. The applicant relies on the clinical notes and records (CNRs) of his family doctor and We Care Rehab Clinic, including an MRI. The applicant states he did not have any ongoing complaints of back pain prior to the accident and back pain is one of his biggest issues after the accident.
16The respondent states the applicant sustained uncomplicated self-resolving soft tissue type injuries involving his lower back and neck and the applicant has reached maximal medical improvement based on the insurer examination of Dr. Pankaj Bansal, family physician, dated April 11, 2023. The respondent also states the applicant suffered pre-existing lower backpain and relies on the CNRs of the family doctor, the CNRs of Dr. Pierre Picard, neurologist, the CNRs of The Minerva Pain Group, and the s. 44 Musculoskeletal Assessment Report dated April 11, 2023, prepared by Dr. Pankaj Bansal, family physician.
17I find the CNRs from We Care Clinic and the CNRs of the family doctor do not support the applicant’s position that the treatment is reasonable and necessary for the applicant’s accident-related soft tissue injuries because the applicant’s pain was consistently rated at 6/10 or 7/10 from March 2021 to February 2023. The applicant relies on the CNRs of We Care Rehab Clinic that predominantly noted complaints of neck, middle and lower back pain from the period of February 6, 2023 to February 15, 2024.
18I find the family doctor’s CNRs do not support the applicant’s position that the treatment is reasonable and necessary. Dr. Haider Saeed, family doctor, noted on June 15, 2022, that “[the applicant] feels he needs massage” and the doctor provided the applicant a note on March 31, 2023, with no reference to the accident. The most recent note from the family doctor recommending physiotherapy was dated March 3, 2021, two years before this treatment plan was submitted.
19I assign greater weight to the CNRs of The Minerva Pain Group and the s. 44 report of Dr. Bansal for two reasons. First, Dr. Bansal assessed the applicant’s injuries as “uncomplicated self-resolving soft tissue type injuries involving his lower back and neck”. Dr. Bansal noted that the applicant showed no reason why he would have a physical impairment in relation to the accident four years after the accident. Second, Dr. Bansal reviewed the specific treatment plan and found it is not reasonable and necessary.
20I find the applicant has not met the burden of demonstrating on a balance of probabilities that the physiotherapy treatment is reasonable or necessary.
Is the applicant entitled to $4,711.65 for physiotherapy services?
21I find the applicant has not demonstrated, on a balance of probabilities, that the physiotherapy services are reasonable and necessary. The applicant is not entitled to the disputed treatment plan.
22The physiotherapy treatment plan submitted March 12, 2024 was prepared by Nileshkumar Patel, physiotherapist with We Care Rehab Clinic. It is intended to address the applicant’s injuries including postconcussional syndrome, post-traumatic stress, sprain and strain of cervical spine, thoracic spine, lumbar spine, shoulder joint, headache, lumbar and other intervertebral disorders with radiculopathy, other sleep and anxiety disorders.
23The provider proposed 28 sessions of therapy, 16 sessions of exercise, and 14 additional sessions of therapy over 12 weeks. The goals for this plan are pain reduction, increase in strength, increased range of motion, return to activities of daily living, pre-accident work activities, and increase core strength, stability and proprioception. The provider noted the applicant’s pain is nine out of ten on the visual analogue scale with reduced range of motion, strength and flexibility at the time of the submission.
24The applicant states the treatment helps reduce his pain. The applicant argues his “decision to incur treatment despite the denial shows how much he really needs” the treatment. The applicant relies on the CNRs of We Care Rehab, the family doctor CNRs, and his MRI imaging results in support of the treatment plan being reasonable and necessary.
25I find the treatment plan proposing “return to pre-accident work activities” is not a reasonable goal for the applicant who is retired and the combined 42 sessions of “therapy, multiple body sites” is not supported by any recommendation from the family doctor, the applicant has rated his pain at 6/10 or 7/10 for a period of three years, and the family doctor’s CNRs do not support the treatment as reasonable and necessary.
26I also find that Dr. Bansal’s s. 44 musculoskeletal assessment report dated April 11, 2023 is persuasive because it suggests the applicant responded well to previous treatment. The report noted “it is now coming up to four years post MVA when soft tissue type injuries would have long since healed” and “there would be no reason why [the applicant] would have a physical impairment in relation to the MVA from a musculoskeletal injury perspective.”
27I find the applicant has not met the burden of demonstrating, on a balance of probabilities, that the physiotherapy treatment is reasonable or necessary because he has not submitted evidence in support of his argument.
Is the applicant entitled to $2,778.00 for a raised toilet seat and lift chair?
28I find the applicant has not met the burden of demonstrating the toilet seat and lift chair is reasonable and necessary because he has not submitted evidence in support of this issue.
29The treatment plan submitted January 25, 2024, by Nileshkumar Patel, physiotherapist with We Care Rehab Clinic, is intended to address the applicant’s injuries including postconcussional syndrome, post-traumatic stress, sprains and strains of cervical, thoracic, and lumbar spine, as well as the shoulder joint, headaches, lumbar and other intervertebral disorders with radiculopathy, and various sleep and anxiety related disorders. The treatment plan proposed a lift chair recliner and raised toilet seat. The goals for this plan are pain reduction, increase in strength, increased range of motion, return to activities or normal living, return to pre-accident work, increase in core strength, stability and proprioception.
30I find the treatment plan is not reasonable and necessary for three reasons. First, proposing “return to pre-accident work activities” is not a reasonable goal for the applicant who is retired. Further, the applicant did not direct me to evidence in support of how this goal would be met. Under Plan Goals in Part 9b) of the treatment plan, it is noted: “[The applicant] is having severe pain and significant mobility limitations since accident … he has been advised by his doctor to use assistive devices …”. Second, the applicant directed me to the family doctor’s CNRs dated September 11, 2023, the doctor noted that the “pt requires letter for insurance company, trying to get an automated bed, automated chair, and an elevated toilet seat”. The doctor’s note states the applicant requires a letter for insurance, not that the applicant requires a raised toilet seat and lift chair. Third, the applicant did not submit the doctor’s letter and there is no compelling evidence before me that the family doctor prescribed or endorsed these devices specifically to treat pain caused by the accident.
31I find the treatment plan, including the raised toilet seat and lift chair, is not reasonable and necessary.
32I find the applicant has not satisfied the onus, on a balance of probabilities, to demonstrate the toilet seat and lift chair are reasonable and necessary.
Is the applicant entitled to $632.79 for a massage chair?
33I find the OCF-6 is not payable, in accordance with s. 38(2) of the Schedule.
34Pursuant to s. 38(2)(c) of the Schedule, the respondent is not liable to pay an expense in respect to a medical benefit that was incurred before the insured person submits a compliant treatment and assessment plan unless the expense is reasonable and necessary as a result of the impairment sustained by the insured person for (i) drugs prescribed by a regulated health professional, or (ii) goods referred to in clauses 15(1)(d) to (f) and 16(3)(h) to (j) with a cost of $250 or less per item.
35The applicant submits the massage chair provides him with relief and would “decrease his ongoing need of facility-based massage therapy”, however, I was not directed to evidence in support of the massage chair decreasing facility-based massage therapy.
36The respondent argues that under s. 38(2) of the Schedule it is not liable to pay for an expense that is incurred before an OCF-18 is submitted. Its position is that since the applicant did not discuss buying a massage chair, and no treatment plan was provided, it is not liable to pay for same.
37The applicant did not address s. 38(2) of the Schedule in his submissions and provided no reply submissions clarifying why the massage chair is reasonable and necessary.
38It is clear from the invoice the applicant incurred the massage chair on August 7, 2023. The corresponding OCF-18 is dated August 15, 2023. As such, I find that the cost of the massage chair was incurred prior to an OCF-18 being submitted.
39The applicant did not make any submissions whether the exceptions listed in s. 38(2) apply. Moreover, I note under s. 38(2)(c)(ii), the costs of home modifications and devices are to be the cost of $250.00 or less per item, which is not the case here. I find on a balance of probabilities that the OCF-6 is not payable.
Is the applicant entitled to $995.94 for assistive devices?
40I find the OCF-6 is not payable, in accordance with s. 38(2) of the Schedule.
41The applicant submits the assistive devices, including two toilets, four grab bars, lithium grease, plastic anchors, drill bit, masonry bit, batteries, safety bars, and safety mats, greatly assist with pain reduction, increased mobility and improved safety inside his home. The applicant submitted invoices for these items with dates of October 16, 2023, October 18, 2023, and October 23, 2023.
42The respondent submits that the applicant has not explained the purpose of each item and why it is reasonable and necessary.
43As I have outlined above, the applicant did not address s. 38(2) of the Schedule. The OCF-6 is dated November 1, 2023. The applicant did not direct me to a corresponding OCF-18. As such, I find that the cost of the assistive devices was incurred prior to an OCF-18 being submitted.
44The applicant did not make any submissions whether the exceptions listed in s. 38(2) apply. Again, I note under s. 38(2)(c)(ii), the costs of home modifications and devices are to be the cost of $250.00 or less per item, however, the applicant did not submit an explanation of the items and how they would assist with his recovery from his accident-related injuries or whether these items are exceptions to s. 38(2). I find on a balance of probabilities that the OCF-6 is not payable.
Interest
45Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue payments no interest applies.
ORDER
46The applicant is not entitled to:
i. $3,224.52 for physiotherapy services.
ii. $4,711.65 for physiotherapy services.
iii. $2,778.00 for the toilet seat and lift chair.
iv. $632.79 for the massage chair.
v. $995.94 for the assistive devices.
47As there are no overdue payments, interest does not apply.
48The application is dismissed.
Released: July 21, 2025
Aric Bhargava
Adjudicator