Citation and File Number
Licence Appeal Tribunal File Number: 23-002299/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.
Parties
Between:
Wayne Villeneuve
Applicant
and
Aviva Insurance Company of Canada
Respondent
Decision
ADJUDICATOR: Bonnie Oakes Charron
APPEARANCES:
For the Applicant: Doina Marinescu, Paralegal
For the Respondent: Andrea L Bandow, Counsel
HEARD: In Writing
OVERVIEW
1Wayne Villeneuve, the applicant, was involved in an automobile accident on August 20, 2020, 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 issues to be decided in the hearing are:
Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from August 27, 2020 to date and ongoing?
Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by Q Medical in a treatment plan/OCF-18 (“plan”) submitted March 24, 2021?
Is the applicant entitled to the plans proposed by E Clinic United Healing, as follows:
(a) $1,160.00 for yoga services in a plan submitted June 24, 2021; and
(b) $850.00 for a nutritional assessment in a plan submitted July 6, 2021?
- Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to an IRB, the plans, or interest.
PROCEDURAL ISSUE
Non-compliance with CCRO – applicant
4The applicant’s submissions do not comply with the Tribunal’s order in the October 20, 2023 case conference report and order (“CCRO”). The CCRO indicated at paragraph 12 that the parties must file their evidence with their submissions, indexed, tabbed and page and paragraph numbered. Also, the parties were advised that the hearing adjudicator may choose not to review any evidence not so referenced.
5The applicant did not include pinpoint references in submissions to direct me to the supporting evidence for his claim as required by the CCRO. I agree with the respondent, who cites 16-004634 v Certas Home and Auto Insurance Company, 2017 CanLII 87549 (ON LAT) regarding the Tribunal’s practice to not take submissions into account where there are no references to the supporting evidence in relation to the facts claimed. It is not the role of the adjudicator to make the case for the applicant, see also, Dooman v TD Insurance Co., 2025 ONSC 184 at para. 50 (Div.Ct.).
ANALYSIS
Income Replacement Benefit
6I find that the applicant is not entitled to an IRB.
7To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
8The applicant made no submissions about his claim for an IRB.
9The respondent submits that apart from making no arguments regarding the IRB claim, the applicant also did not submit a disability certificate/OCF-3 (“certificate”) as required under s. 36 of the Schedule. Such a certificate is the foundation of a claim for the specified benefit, and a prerequisite before entitlement can be determined.
10The applicant did not include the certificate in his document brief and made no reply submissions.
11Therefore, the applicant has not demonstrated entitlement to an IRB.
The Treatment Plans
12I find that the applicant is not entitled to the plans in dispute.
13To 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.
14The applicant did not submit into evidence any of the OCF-18s for the plans in dispute, nor are they listed in the index to the document brief. The only OCF-18 included in the brief is for an occupational therapy services plan in the amount of $967.75 and dated October 27, 2020. This plan is not among the issues in dispute for this hearing.
15For its part, the respondent submits that it is the duty of the applicant to adduce all evidence at first instance. It observes that the applicant made none of the necessary submissions about the plans with regard to the goals of each, how the goals would be achieved, or how the benefits to be obtained are reasonable in the context of the cost.
16I find that it is the obligation of the applicant to submit the OCF-18s, as they are the basis for the claim. Without them, a determination cannot be made that a plan is reasonable and necessary, and therefore payable. While I reviewed the other evidence submitted by the applicant – two CNRs from his GP and four s. 25 reports – none contain an explicit recommendation for, or specific details about, the plans in dispute. As a result, they cannot serve as a substitute source of information about the plans in dispute.
17For its part, the respondent relies on two s. 44 assessments, one conducted by orthopaedic surgeon Dr. Jaroszynski on June 21, 2021, and the other by dietician Amanda Rolph R.D. on July 29, 2021. It submits that none of the plans are reasonable and necessary based on the results of the assessments, as follows:
i. Dr. Jarosynski found the applicant’s physical exam to be normal and found no ongoing traumatic musculoskeletal impairment attributable to the accident. He opined that the applicant had reached maximum medical recovery (“MMR”) and did not have a chronic pain issue that requires an assessment.
ii. Dietician Rolph found that upon arrival at the assessment, the applicant did not wish to proceed “as he felt a Registered Dietician assessment was unnecessary”. At his request, the assessor cancelled the planned evaluation.
18I agree with the respondent that the results of the s. 44 assessments demonstrate that the plans are not reasonable and necessary. Having reached MMR and with no chronic pain issue, neither the plan for yoga services or the plan for a chronic pain assessment is reasonable and necessary. Likewise, given the applicant declined a nutritional assessment, a plan for such services cannot be reasonable and necessary.
19The applicant made no reply submissions.
20For the reasons outlined above, the applicant is not entitled to the plans.
Interest
21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
22As no benefits are overdue, no interest applies.
Order
23I order that:
i. The applicant is not entitled to an Income Replacement Benefit.
ii. The applicant is not entitled to the treatment plans or interest.
Released: February 12, 2025
Bonnie Oakes Charron
Adjudicator