Licence Appeal Tribunal File Number: 24-010766/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:
Patricia Merriman-Marin
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR: Jim Zotalis
APPEARANCES:
For the Applicant: Peter White, Counsel Kristen Hamilton, Counsel
For the Respondent: Emily A. Schatzker, Counsel Kara Ramnaraine, Counsel
HEARD: In Writing
OVERVIEW
1Patricia Merriman-Marin, the applicant, was involved in an automobile accident on September 26, 2017, 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, Co-operators 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 $399.52 ($869.04 less $469.52 approved) for chiropractic services, proposed by Santin Chiropractic Services in an OCF-18/treatment plan (treatment plan) dated July 4, 2023?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant is not entitled to the disputed amount in the treatment plan for chiropractic services;
ii. No interest is owed to the applicant as there are no overdue benefits payable; and
iii. The application is dismissed.
ANALYSIS
Is the applicant entitled to the disputed amount for chiropractic services proposed by Santin Chiropractic Services in a treatment plan dated July 4, 2023?
4I find that, on a balance of probabilities, the applicant has not demonstrated that she is entitled to the disputed amount in the treatment plan for chiropractic services as it is not reasonable and necessary.
5To 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.
6The OCF-18 completed by Jason Taddeo, physiotherapist, dated July 4, 2023, lists the injury and sequelae information that are the direct result of the accident as whiplash associated disorder - II, with complaint of neck pain with musculoskeletal signs, headache, sprain and strain of hip, and injury of muscle and tender at hip and thigh level. The goals of the treatment plan are pain reduction and increase in strength/range of motion with a functional goal of a return to activities of normal living.
7The proposed services include 8 sessions of stimulation (muscles of the back) at $400.00, 8 sessions of physiotherapy (multiple body sites) at $399.04, documentation support at $70.00 for a total of $869.04. The respondent agreed to fund $469.52 of the proposed services but declined to fund the $399.52 which is the balance of the treatment plan.
8The applicant argued that s. 16(2) of the Schedule sets outs two distinct tests for whether a treatment plan is reasonable and necessary: (a) to reduce or eliminate the effects of any disability resulting from the impairment, or (b) to facilitate the insured person’s re-integration into his or her family or the rest of society and the labor market. The applicant further submitted that a claimant need only show that one of the tests apply to them.
9The applicant further submits that pain relief is a legitimate and rehabilitative goal of a treatment plan. I will address both points shortly.
10The respondent countered that the applicant has cited the incorrect test in her submissions. Specifically, the respondent argues that s.16(3) of the Schedule relates to activities and measures, listed in s.16(3), that are proposed for rehabilitation purposes as described under s. 16. Further, the respondent maintains that chiropractic services are not contemplated as a rehabilitation benefit, but rather as a medical benefit under s. 15 (1)(b) of the Schedule.
11I agree with the respondent that a chiropractic treatment plan is a medical benefit under s. 15(1)(b) of the Schedule and as such, the legal test that applies to such a plan is as set out at the outset of the analysis.
12While I agree with the applicant that pain relief is a legitimate and rehabilitative goal of a proposed treatment plan, the legal test of whether a treatment plan is reasonable and necessary encompasses an analysis of not only the goals of the treatment, but how the goals would be met to a reasonable degree, and whether the overall cost of achieving them is reasonable.
13The applicant attended physiotherapy treatment from December 2017 until May 2018 at Partners in Rehab and then began treatment at Santin Chiropractic in October of 2018 for her accident-related injuries.
14The applicant submitted that as a result of the accident she suffered among other injuries, a fracture to her sternum, requiring hospitalization for 12 days, followed by live-in health care at her home for about 2 months. The applicant also submitted that she was assessed by Bill Orr, physiotherapist, on November 11, 2017, and he charted that the applicant reported pain to her sternal and left regions with associated loss of range of motion and impaired muscle function in her cervical and thoracic spine, as well as her shoulders bilaterally.
15The applicant relies on the following medical evidence to support her position that the disputed amount of the treatment plan is reasonable and necessary.
i. An assessment by Dr. Myra McCormick, dated February 6, 2020, who opined that the applicant may have chronic pain syndrome which will definitely interfere with her recovery from the WAD II.
ii. A follow-up assessment by Dr. McCormick, with the report dated February 24, 2022, in which she diagnoses the applicant with persistent neck pain with daily headaches and pain between her shoulders. She advises the applicant to restrict her activities to avoid pain in those areas.
16The applicant submitted that she continues to experience pain and limitations in her shoulders and cervical spine as well as suffering from headaches. She further argues the chiropractic treatment provides pain relief and has allowed her to continue functioning at home and socially in her community.
17The respondent argued that the applicant has had a history of chronic back and neck pain secondary to spondylarthritis and for which she received narcotic analgesics and physiotherapy. The respondent further submitted that the applicant solely reported chest pain following the accident and denied back pain and cervical tenderness. Further, the respondent submitted that the applicant was admitted to hospital post-accident solely for pain management. The respondent further submits that Dr. Mathew Silvaggio who reviewed her diagnosis of a minimally displaced sternal fracture commented that she was likely opioid-seeking given her pain history and previous attendances at emergency for pain complaints. The respondent also argued that the applicant commenced physiotherapy at Partners in Rehab in November 2017, and by September 4, 2018, had reported a 95% decrease in her chest pain and had improved significantly and had virtually full strength and function in her cervical and thoracic spines and both shoulders.
18The respondent relies on the following medical evidence to support its position that the treatment plan is not reasonable and necessary:
i. An insurer examination report by Dr. Zietak, dated January 12, 2024, who opined that the only accident-related injury the applicant sustained was a sternal fracture.
19I find that the applicant has not persuaded me on a balance of probabilities that the disputed amount in the treatment plan for chiropractic services is reasonable and necessary for the following reasons.
20The respondent argued that the progress notes from Santin Chiropractic for the disputed treatment plan compared to those from October 2018 remain comparatively similar in that they list the same problems, treatment techniques, pain effects and goals. The respondent also submitted that there is no indication that the applicant received any significant improvements from the chiropractic techniques employed over the course of the 5 years.
21I agree with the respondent as I have not been directed to evidence within the progress notes to indicate that the applicant has received pain relief or has reported any of the other plan goals including an increase in strength or range of motion. I have not been directed to any compelling contemporaneous evidence in support of the balance of the treatment plan to consider it reasonable and necessary. The applicant has not directed me to any medical practitioner recommending any further chiropractic treatment for the applicant’s accident-related impairments.
22I find the applicant’s self-reporting to Dr. Philip De Muelenaere, orthopaedic surgeon, on February 13, 2023, that she had attended chiropractic treatment and physiotherapy on a regular basis without much success undermines the proposed goals of pain reduction in the disputed treatment plan.
23For the reasons stated above, I find the applicant is not entitled to the disputed amount in the treatment plan for chiropractic services.
Interest
24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found the applicant is not entitled to the disputed amount in the treatment plan for chiropractic services, the applicant is not entitled to interest.
ORDER
25The Order of the Tribunal is as follows:
i. The applicant is not entitled to the disputed amount in the treatment plan for chiropractic services;
ii. No interest is owed to the applicant as there are no overdue benefits payable; and
iii. The application is dismissed.
Released: April 14, 2026
Jim Zotalis
Adjudicator