Citation: Macatangay v. Aviva General Insurance Company, 2025 ONLAT 23-012118/AABS

Licence Appeal Tribunal File Number: 23-012118/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:

Krystyn Macatangay

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Gary Marshall

APPEARANCES:

For the Applicant:

Cary Schneider, Counsel

For the Respondent:

Aleah Thomas, Counsel

HEARD:

By way of written submissions

1Krystyn Macatangay, the applicant, was involved in an automobile accident on September 8, 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.

ISSUES

2The issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (MIG) limit? Note: The parties agree that the MIG limits have been exhausted.

ii. Is the applicant entitled to $2,451.33 ($3,574.03 less $1,122.70 approved) for physiotherapy services, proposed by Hydrohealth Evaluations Inc. in a treatment plan dated November 1, 2023?

iii. Is the applicant entitled to $2,460 for a psychological assessment, proposed by Dr Steiner in a treatment plan dated November 21, 2023?

iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

v. Is the applicant entitled to interest on any overdue payment of benefits?

vi. Is the applicant entitled to costs?

3The applicant made a request for costs in her submissions. Pursuant to Rule 19.2 of the Licence Appeal Tribunal Rules, 2023 (Rules), I have added it to the issues in dispute listed above.

4The treatment plan of chronic pain is not an issue before me as during the case conference held on March 19, 2024, the insurer agreed to pay for the report of Dr. Ta, and by way of correspondence dated March 21, 2024, it confirmed the same.

RESULT

5For the reasons that follow, I find:

i. The applicant’s injuries are not predominantly minor, and thus, the MIG monetary limit does not apply.

ii. The applicant is entitled to the remaining balance of the November 1, 2023, treatment plan for physiotherapy services.

iii. The applicant is entitled to the November 21, 2023, treatment plan psychological assessment.

iv. The applicant is not entitled to an award under s. 10 of Reg 664.

v. The applicant is entitled to interest on overdue payments.

vi. The applicant is not entitled to costs.

ANALYSIS

Are the applicant’s injuries predominantly minor?

6I find that the applicant’s injuries are not primarily minor; therefore, the applicant is not held within the MIG monetary limit.

7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash-associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

8An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

9The applicant submits that she suffers from psychological impairments, including PTSD, depression, and anxiety, which are excluded from the minor injury definition under the Schedule. She relies on reports from Dr. Hien Ta, a chronic pain/anesthesiologist; Dr. Steven Steiner, a psychologist; and Dr. Ilana Horvath, a family doctor, to support her claim that her impairments fall outside the MIG. The applicant also submits that she suffers from chronic pain to support her claim that her impairments fall outside of the MIG.

10The respondent argues that the applicant sustained only soft tissue injuries, as confirmed by the assessments conducted by Dr. Alborz Oshidari, a pain management specialist / physical therapist, and Carlo DiNardo, a physiotherapist. It disputes the presence of any accident-related psychological impairment and asserts that the applicant failed to meet the American Medical Association (AMA) Guides for chronic pain or demonstrate the reasonableness of the treatment. The respondent argues that subjective pain, without functional impairment, does not establish grounds to remove the applicant from the MIG.

11The respondent notes limited visits to a family doctor, with normal findings, and an Insurer Examination (“IE”) psychological report concluding that no psychological impairments were found. The respondent emphasizes that the applicant continued to engage in work, social activities following the accident, while psychological complaints arose long after the applicant and her family doctor opined that no psychological intervention was warranted.

Psychological Impairment

12I find that the applicant has psychological impairments resulting from the accident that warrant removal from the MIG.

13Firstly, the CNRs from Dr. Horvath, the applicant’s family physician, indicate that the applicant experiences anxiety, triggering episodes a few times a month and mild PTSD (CNRs of April 7, 2020).

14Secondly, in Dr. Ta’s report dated November 19, 2021, he stated that the applicant suffers from chronic pain syndrome, central sensitization, depression, anxiety, PTSD, the greater occipital nerve neuritis causing headaches, left shoulder joint dysfunction, and sleep disturbance. Dr. Ta found that the applicant’s impairments are significant enough that they fall outside of the MIG.

15Additionally, I noted that during an assessment by Dr. Steiner on June 17, 2024, the applicant was diagnosed as suffering from chronic depressed mood, frequently cries, saddened by her limitations, and has become more socially withdrawn. Dr. Steiner adds that nearly five years post-accident, the applicant is diagnosed with suffering from PTSD, major depressive disorder, anxious mood, and chronic pain related to the accident. Dr. Steiner found that the applicant’s psychological impairments do not fall within the definition of minor injuries.

16I find that the above-noted evidence substantiates on a balance of probabilities that the applicant has been experiencing accident-related psychological difficulties.

17I place limited weight on Dr. Oshidari, physiatrist, IE assessment dated October 25, 2021, which found that the applicant “did not reveal any structural or psychological abnormality”. I agree with the applicant’s assertion that the opinion of Dr. Oshidari is outdated and compromised by the lack of complete records. Further, in the context of assessing the applicant’s psychological impairment, I put more weight on the evidence of Dr. Steiner, a psychologist, than that of Dr. Oshidari, who is a physiatrist. I find the reports of Dr. Ta, Dr. Steiner, and the family doctor’s CNRs more persuasive. These documents consistently document symptoms of anxiety, depression, sleep disturbance, and PTSD that emerged shortly after the accident and persisted despite treatment. Dr. Steiner's report provides a detailed psychological assessment that links these impairments to the accident and outlines a treatment plan aimed at functional recovery.

18I conclude that the applicant has met her onus to establish on a balance of probabilities that she has an accident-related psychological impairment. Therefore, the applicant’s injuries fall outside the MIG.

19As a result of finding the applicant to have escaped the MIG as a result of a psychological impairment, there is no need to consider whether the applicant has chronic pain that would remove them from the MIG.

Is the applicant entitled to the treatment and assessment plans?

20To 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 because 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.

a) Physiotherapy services

21I find the remaining balance of the treatment plan for physiotherapy services to be reasonable and necessary for the following reasons.

22The treatment plan dated November 1, 2023, outlines physiotherapy services from Hydrohealth Evaluations Inc. for $2,451.33 and is signed by David Huang, a chiropractor. The plan’s goals are to achieve pain reduction, increase the range of motion, improve strength, and facilitate a return to normal living activities and pre-accident work activities. The services proposed in the plan include 10 sessions of chiropractic/physiotherapy, 10 sessions of aqua therapy, 10 sessions of physical therapy and 10 sessions of massage therapy.

23The applicant submits that the physiotherapy treatment plan is both reasonable and necessary. She relies on Dr. Huang’s clinical findings and Dr. Horvath’s records.

24The respondent submits that the proposed physiotherapy is neither reasonable nor necessary, citing Dr. Oshidari’s assessment findings and asserting that the applicant’s symptoms are consistent with minor injuries. Furthermore, the respondent referenced a February 19, 2021, clinical note of physiotherapist Carlo DiNardo from Kick Physiotherapy Sports Medicine, who indicated a diagnosis of lumbar spine disc herniation from deadlifting. The respondent challenges the sufficiency of the applicant’s evidence, emphasizing that no objective impairments were identified.

25The applicant reported ongoing neck/shoulder, lower back and hip pain as documented in Dr. Horvath's clinical notes and records from April 2020 to July 2024. These symptoms have persisted despite prior treatment, and over time, her pain complaints (especially her back) have worsened. The applicant has provided contemporaneous corroborating evidence from multiple health care professionals that demonstrate the need for the remaining services that were not approved including, the CNRs of Dr. Babaloui, chiropractor, who reported that the applicant suffers from impairments to her neck, back, shoulder, headaches, anxiety, and problems with sleeping. Similarly, Dr. Huang’s report noted lumbago with sciatica, neck strain, back strain, dizziness, headaches, post-concussion syndrome, fatigue, and sleep problems. Physiotherapist Carlo DiNardo reported for 2021-2023 that the applicant suffers from pain when resting / active, hypersensitive, tightness, walking the stairs hurts her back, L/S disc herniation and related limitations. Dr. Ta by way of a report dated November 19, 2021, found that the applicant suffers from chronic pain syndrome, central sensitization, depression, anxiety, PTSD, left shoulder joint dysfunction and sleep disturbance. Finally, by way of a report dated June 17, 2024, Dr. Steiner found nearly five years post accident that the applicant is compromised in her ability to work at full duties and hours as personal trainer.

26Although the respondent argues that these physical complaints fall within the MIG, I find that the chronic nature and functional impact of the pain, particularly its interference with sleep and daily activities, support the need for continued physiotherapy.

27Furthermore, the treatment plan outlines specific functional goals, such as improved range of motion and pain reduction, which align with the applicant’s reported limitations. Based on a balance of probabilities, I am persuaded that the proposed physical treatment is reasonable and necessary under the circumstances.

28I have considered the cost-effectiveness and clinical appropriateness of the proposed treatment plan. The plan outlines 40 sessions of physiotherapy at a total cost of $2,451.33 ($3,574.03 less $1,122.70 approved), which is substantial, but is not excessive given the applicant’s ongoing symptoms and functional limitations as reported and assessed by numerous health care professionals. The treatment goals – such as pain reduction, improved range of motion, and restoration of daily functioning – are consistent with best practices in musculoskeletal rehabilitation and align with the applicant’s reported impairments. There is no indication that less intensive or alternative treatments would be equally effective at this stage. Accordingly, I find that the treatment plan is proportionate in cost and clinically justified, therefore, reasonable, and necessary under the Schedule.

29I find that the applicant has demonstrated her need for the unapproved elements of the disputed treatment plan through the corroborating and contemporaneous medical evidence provided by her treating practitioners.

30Consequently, based on a balance of probabilities, I conclude that the applicant is entitled to the remaining balance of the physiotherapy treatment plan, amounting to $2,451.33 ($3,574.03 less $1,122.70 approved).

b) Treatment plan for psychological assessment

31I find that the applicant is entitled to the treatment plan for the psychological assessment.

32The treatment and assessment plan, dated November 21, 2023, pertains to a psychological assessment from Dr. Steiner. The purpose of the assessment was to determine the nature of and extent to which she is suffering from psychological or emotional difficulties as a direct consequence of the subject accident, and to make treatment recommendations. The assessment included a clinical interview and the administration of psychological self-report questionnaires.

33The applicant submits that the proposed psychological assessment is both reasonable and necessary. Dr. Steiner’s report reinforces the necessity for further evaluation.

34The respondent submits that the psychological assessment is unnecessary and relies on Dr. Oshidari’s report to support this conclusion. The respondent contends that the applicant has not fulfilled her burden to demonstrate an impairment that justifies such an assessment.

35I find that the applicant is entitled to the proposed psychological assessment, as the available medical evidence indicates she has a psychological condition that warrant further investigation. The family doctor’s CNR found that the applicant suffers from anxiety including when driving; she was diagnosed with suffering from PTSD. As per the chronic pain assessment of Dr. Ta, she is suffering from chronic pain syndrome, moderate depression, moderate anxiety, and PTSD.

36As a result, and based on a balance of probabilities, I find that the applicant is entitled to the treatment plan for a psychological assessment amounting to $2,460.00.

Interest

37Interest is applicable on any overdue benefits in accordance with s. 51 of the Schedule.

38Consequently, the applicant is entitled to receive interest on the overdue payments.

Costs

39I find that the applicant is not entitled to costs.

40The LAT Rule 19 permits the Tribunal to award costs where a party has acted unreasonably, frivolously, vexatiously, or in bad faith. However, the threshold for such a finding is high. The Tribunal must consider factors such as the seriousness of the misconduct, whether it breached a Tribunal order, whether it interfered with the Tribunal’s ability to conduct a fair and efficient process, and whether it caused prejudice to the other party.

41The applicant is seeking costs, arguing that the respondent acted in bad faith and caused procedural unfairness. She is seeking costs in the amount of $1,000.00

42The respondent contends that its conduct does not meet the necessary threshold for a cost and denies any claims of bad faith.

43Although the respondent did not make disclosure in accordance with the Tribunal’s order, this did not impact the Tribunal’s ability to carry out the proceeding. I do not believe that this conduct meets the threshold for a cost award under Rule 19. The procedural unfairness was limited in scope and did not ultimately interfere with the Tribunal’s capacity to conduct a fair, efficient, and effective process. While the respondent’s delay breached the Tribunal’s production order, there is no evidence suggesting that the conduct was deliberate, persistent, or intended to obstruct the proceeding.

44In considering the factors under Rule 19, including the seriousness of the misconduct, the prejudice to the applicant, and the broader impact of a cost award on access to the Tribunal, I find that the respondent’s behaviour, while concerning, does not rise to the level of bad faith, vexatiousness, or unreasonableness required to justify entitlement to costs.

45Therefore, the request for costs is denied.

Award

46I find that the applicant is not entitled to an award.

47The applicant seeks an award due to the respondent’s repeated failures to comply with Tribunal orders, as well as unreasonable delays and denials of benefits. The applicant outlines the following reasons for an award. The respondent failed to provide its adjusting notes and the CNRs / and the draft reports of its one assessor as ordered in the April 11, 2024, case conference report and order. The applicant submits that the respondent placed the applicant in the MIG based on substantive grounds, resulting in a delay or worsening her ability to recover. The respondent was more that 1.5 years late denying the report of Dr. Ta. The respondent chose not to properly assess the OCF-18 of Dr. Steiner by way of a section 44 assessor. The respondent provided a denial of the psychological assessment of Dr. Steiner more than four months after the receipt of the OCF-18. Finally, the respondent acted unreasonably, frivolously, vexatiously, and / or in bad faith in the manner it has proceeded with settlement discussions.

48In response, the respondent denies any bad faith or unreasonable behaviour. It argues that the delays were not material and that there is no basis for an award.

49Although the respondent disclosed some documents late, I do not find that this conduct meets the threshold for an award under section 10. As outlined in paragraph 49, an award is justified only when the insurer’s conduct is unreasonable in terms of being excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. In this case, while the delay may have caused some inconvenience, there is no evidence to suggest that it was deliberate, persistent, or part of a broader pattern of obstruction. The respondent ultimately complied with its disclosure obligations, and the delay did not materially prejudice the applicant’s ability to present their case. Accordingly, I find that the conduct does not rise to the level of unreasonableness required to justify an award.

50In conclusion, although the respondent’s conduct in disclosing documents late was not ideal, it does not meet the high threshold of unreasonableness required for an award under section 10 of Reg. 664. The conduct was not excessive, immoderate, or indicative of bad faith. There is no evidence that the delay was intentional or that it significantly impaired the fairness of the proceeding. As such, I find that an award is not warranted in this case.

51Therefore, the applicant is not entitled to an award.

ORDER

52For the reasons outlined above, I find that: