Citation: Griffith v. Aviva Insurance Company of Canada, 2026 ONLAT 24-011852/AABS

Licence Appeal Tribunal File Number: 24-011852/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:

Mary-Lyn Griffith

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Georgina Blanas

APPEARANCES:

For the Applicant: Jacob S. W. Aitcheson, Counsel

For the Respondent: Jeffrey Pasternak, Counsel

HEARD: By way of Written Submissions

OVERVIEW

1Mary-Lyn Griffith, the applicant, was involved in an automobile accident on November 24, 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 Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issue in dispute is:

i. Is the applicant entitled to $1,524.00 for chiropractic services, proposed by Family Health Options Inc., in a treatment plan/OCF-18 (“treatment plan”) dated April 24, 2024?

RESULT

3I find that applicant is entitled to $1,524.00 for chiropractic services, proposed by Family Health Options Inc., in a treatment plan dated April 24, 2024.

PROCEDURAL ISSUES

4The respondent submitted that the dash camera footage should be excluded on the basis that it was not properly served prior to the hearing.

5The applicant consented to the exclusion of the dash camera footage. The dash camera footage is excluded.

ANALYSIS

6The dispute concerns a treatment and assessment plan dated April 24, 2024, submitted by Dr. Steven Perry, Chiropractor, proposing 14 sessions of chiropractic treatment and 8 sessions of massage therapy. The treatment plan identifies goals of pain reduction, increased range of motion and increased strength. It proposes chiropractic services and massage therapy to focus on musculoskeletal impairments, involving the applicant’s shoulders and chest to improve functional capacity and daily activity.

7I find that the applicant is entitled to the cost of the treatment plan because it is reasonable and necessary.

8To 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.

9The applicant submits that the treatment plan is reasonable and necessary to address ongoing accident-related impairments, including persistent shoulder pain, chest pain and functional limitations. The applicant relies on diagnostic imaging and submits that the evidence links to the goals of the treatment plan.

10The applicant submits that the treatment plan is reasonable and necessary to address ongoing accident related impairments, including persistent shoulder pain, chest pain and functional limitations. In support, the applicant relies on the clinical notes and records (“CNRs”) of her family physician, Dr. Aric Sudicky; diagnostic imaging of both shoulders; the assessment of Dr. Ryan Arbeau, a sports medicine physician; and the April 24, 2024, treatment plan prepared by Dr. Steven Perry, chiropractor, which proposed chiropractic treatment for the ongoing accident conditions.

11Dr. Sudicky’s records support the applicant’s position. The applicant consistently reported shoulder and chest symptoms after the accident. A left shoulder ultrasound dated July 10, 2020, showed a suspected partial thickness tear of the supraspinatus tendon. On November 28, 2022, the applicant reported right shoulder symptoms, including a slipping sensation, and Dr. Sudicky referred her to the sports medicine physician for further assessment.

12Dr. Arbeau assessed the applicant on December 15, 2022. The applicant reported ongoing right should pain following the accident, including a popping sensation and pain with forward rotation. Dr. Arbeau ordered further imaging. A right shoulder ultrasound dated August 28, 2023, showed an intrasubstance tear of the supraspinatus tendon with coarse calcifications consistent with calcific rotator cuff tendinopathy and a suspected partial tear of the long heard of the bicep’s tendon.

13The respondent relies on the insurer’s examination conducted by Dr. Abdul Wahab Khan, a physiatrist, who assessed the applicant on July 17, 2024, and authored a report dated July 31, 2024. Dr. Khan opined that the applicant had reached maximum medical improvement and that the treatment plan was not reasonable and necessary. He diagnosed left shoulder girdle sprain/strain and right chest contusion as accident related injuries but concluded there were no significant objective accident related physical impairments or ongoing musculoskeletal pathology requiring further facility based therapy. He recommended a self directed home exercise program instead.

14I place less weight on Dr. Khan’s opinion. His conclusion does not reconcile with the diagnostic imaging and the longitudinal clinical record. The July 10, 2020, left should ultrasound and August 28, 2023, right shoulder ultrasound document structural shoulder findings. Dr. Khan’s report recorded on going pain and tenderness including superolateral left shoulder pain with orthopaedic testing and tenderness at the left acromioclavicular joint, left biceps tendon and right upper chest. Those findings are inconsistent with his opinion that further treatment was not required.

15I am satisfied that the applicant’s ongoing shoulder and chest symptoms are accident related. The records show complaints and treatment after the accident with left shoulder imaging and diagnosis in July 2020, before the fall referred to by the respondent, the later right shoulder complaints were referred for sports medicine assessment and imaging by Dr. Sudicky. Dr. Khan also accepted that the applicant sustained a left should girdle sprain/strain and right chest contusion as a result of the accident. I find that the applicant has established sufficient connection between the accident and the impairments addressed by the disputed treatment plan.

16The remaining issue is where the treatment plan is reasonable and necessary, and I find that it is. The plan’s goals of reducing pain, improving range of motion and increasing strength are reasonable and correspond to the impairments documented in the imaging, CNRs and Dr. Khan’s examination findings. The requested treatment is limited to 14 chiropractic sessions and 8 massage therapy sessions at a total cost of $1,524.00. I find that cost proportionate to the expected benefit and the nature of the applicant’s ongoing symptoms.

17I also find that the treatment goals to be supported by the diagnostic imaging Dr. Sudicky’s records, Dr. Arbeau’s assessment and Dr. Khan’s objective examination findings as the record continues to document ongoing pain and functional limitation. Considering the evidence as a whole, the applicant has met her burden of establishing that the treatment plan is reasonable and necessary.

ORDER

18I find the applicant is entitled to $1,524.00 for chiropractic services proposed by Family Health Options Inc., in the treatment plan dated April 24, 2024.