Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-015043/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:
Giovanni Valente
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR: Amar Mohammed
APPEARANCES:
For the Applicant: Shahzad Ayub, Counsel
For the Respondent: Christopher Lupis, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Giovanni Valente, the applicant, was involved in an automobile accident on February 12, 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, 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 $2,200.00 for the cost of a psychological assessment, proposed by Dr. Maneet Bhatia in a treatment plan/OCF-18 ("plan") dated June 16, 2022?
ii. Is the applicant entitled to $2,200.00 for the cost of a functional abilities evaluation, proposed by Tim Damaso in a plan dated January 16, 2023?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3The parties' submissions indicate that issue 3 as listed in the Case Conference Report and Order and listed below is no longer in dispute:
i. Is the applicant entitled to $1,466.53 for exercise treatment services, proposed by Tim Damaso in a plan dated January 18, 2023?
RESULT
4The applicant is not entitled to $2,200.00 for the cost of a psychological assessment, proposed by Dr. Maneet Bhatia in a plan dated June 16, 2022.
5The applicant is not entitled to $2,200.00 for the cost of a functional abilities evaluation, proposed by Tim Damaso in a plan dated January 16, 2023.
6The respondent is not liable to pay an award under s. 10 of Reg. 664.
7The applicant is not entitled to interest.
PROCEDURAL ISSUES
Extension of time to file reply submissions
8I am not granting an extension of time for the filing of the applicant's reply submissions.
9The applicant filed a Notice of Motion dated February 4, 2025. The applicant submitted the following for consideration. The written hearing was scheduled for February 7, 2025. The respondent's submissions, which were due 14 days before the scheduled hearing, were delivered via email on January 16, 2025 but went to a spam folder. Since the applicant was under the impression that no responding submissions had been filed, the applicant did not file any reply submissions 7 calendar days prior to the scheduled hearing as required by the Case Conference Report and Order.
10The applicant sought "an extension of the date of the Written Hearing and a few days to be provided to the Applicant to file the Reply submissions". The applicant indicated that he was not seeking to have the motion heard at the next scheduled event. Under LAT Rule 15.1 and 15.2, the Tribunal determined the format of the motion hearing and ordered that it be heard at the next scheduled event. The Tribunal issued the first Notice Of Motion To Be Heard At Scheduled Event on February 5, 2025. The Tribunal sent an amended notice, issued June 24, 2025 resolving an issue with the deadlines set in the previous notice for the responding submissions and reply submissions on the motion.
11The relief sought before me is limited to an extension of time by a few days to file reply submissions for the substantive hearing. As far as the applicant was seeking an extension of the Written Hearing date, the Tribunal treated that as an adjournment request and noted the applicant's failure to request an adjournment in the manner set out in Rule 16 of the Licence Appeal Tribunal Rules ("Rules"). I do not need to deal with any adjournment requests because there is not one properly before me.
12On February 11, 2025, the respondent indicated that it was unopposed to the applicant's motion. The notice from the Tribunal issued February 5, 2025 and the amended notice issued June 24, 2025 noted that the applicant had not filed any reply submissions at the time, but will do so. On September 8, 2025, the Tribunal reached out to the parties and requested from the applicant the following within 7 calendar days for consideration:
i. a copy of the applicant's reply submissions, and
ii. proof of the first instance this was sent to the Tribunal along with the corresponding Certificate of Service.
13I note that the applicant did not file any reply submissions. I am not opposed to granting the applicant a few additional days to file reply submissions on an unopposed motion. However, I find that the applicant has had sufficient time from February 4, 2025, the date of his Notice of Motion, to file his reply submissions. Also, despite notices delivered by the Tribunal reminding the applicant that the reply submissions had not been filed in February and June of 2025, they remain unfiled. The applicant was provided an additional 7 calendar days from September 8, 2025 to file them but did not do so.
14For the reasons above, I find the applicant has had a fair and reasonable opportunity to file reply submissions beyond the extension of a few days originally sought by the applicant. In order to ensure an efficient, proportional, and timely resolution of this hearing, there should be no further delay.
15For the reasons above, I am not granting any further time for the filing of the applicant's reply submissions and have conducted this written hearing on the materials filed as of September 15, 2025.
ANALYSIS
Is the applicant entitled to $2,200.00 for the cost of a psychological assessment, proposed by Dr. Maneet Bhatia in a plan dated June 16, 2022?
16The applicant is not entitled to the plan because the shall pay provision of s. 38(11) is not triggered.
17The applicant does not offer substantive arguments on his entitlement to this plan but rather argues that this plan is subject to the shall pay provision of s. 38(11) of the Schedule due to the respondent's non-compliance with s. 38(8). The applicant supports his position with a number of arguments related to the shall pay provision:
i. That the insurer examination ("IE") report dated February 18, 2021 by Dr. Rubenstein ("Psychology IE Report") relied upon in the denial of this plan was improperly procured and its results are void ab initio.
ii. That the Psychology IE Report is flawed and dubious.
iii. That the respondent failed to consider the plan on its merits in the context of fresh evidence.
18The applicant argues that the Psychology IE Report of Dr. Rubenstein was improperly procured because the respondent's underlying November 27, 2020 notice of examination ("NOE") scheduling the s. 44 IE was defective, and therefore, the results are void ab initio. I am referred to tab 18 of the applicant's material for a review of the NOE. I could not locate the alleged defective NOE at tab 18 and instead found unrelated correspondence dated November 27, 2020 addressing a proposed plan for chiropractic therapy which was denied because the applicant was not removed from the Minor Injury Guideline ("MIG") at that time, and the MIG limit had already been exhausted.
19Further, the General Practitioner IE referenced in this NOE is unrelated to procuring the Psychology IE Report. I could not locate in the applicant's materials the alleged defective NOE dated November 27, 2020 procuring the Psychology IE Report. For this reason, the applicant has not established, on a balance of probabilities, that the Psychology IE Report was improperly procured due to a defective NOE. I note that the applicant attended the IE without evidence before me of any protest to preserve his right to later object about the sufficiency of the NOE.
20I further note that the obligations of the respondent regarding NOEs are governed by s. 44(5) of the Schedule and there is no shall pay provision found in s. 44 that could have applied to the applicant's position. It is noncompliance with s. 38(8) that triggers the shall pay provision in s. 38(11).
21The applicant also alleges that the Psychology IE Report is "flawed from an objective standpoint" and "its results are correspondingly dubious". I could not locate in the applicant's materials the Psychology IE Report. However, I did find the Psychology IE Report in the respondent's material. I find that even if I was to accept the applicant's position that the report is flawed, this does not trigger the shall pay provision of s. 38(11) of the Schedule because it is noncompliance with s. 38(8) that triggers the shall pay provision. My decision on the contents of the IE report is not relevant to the notice requirements of s. 38(8) which is the basis for the applicant's position at this hearing as he is relying on the shall pay consequence.
22Lastly, the applicant further argues that the respondent's denial of the plan is not principled or based fairly on the applicant's file, a requirement referred to in the reconsideration decision 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 ("16-003316"). The applicant argues that the respondent's denial does not meet this threshold because it ignores overwhelming evidence of accident-related psychological injury, including psychological diagnoses. The applicant refers me to the Psychological Assessment Report dated November 27, 2020 prepared by Edgar Prudcoi and Dr. Maneet Bhatia, supervising Psychologist. The applicant was diagnosed with Major Depressive Disorder, Moderate, Single episode without psychotic symptoms, Somatic Symptom Disorder, Moderate, persistent with predominant pain, and Specific Phobia-Situational type (automobile anxiety-driver, passenger).
23To be proper, the respondent's reasons should engage the specific details about the applicant's condition forming the basis for the respondent's decision and be adequate to allow an unsophisticated person to understand them and make an informed decision to either accept or dispute the denial. The applicant referred me to the Explanation of Benefits ("EOB") dated June 17, 2022 which provides the following reasons for denial of the subject plan:
Base [sic] on the insurer examination report by Dr Arnold H. Rubenstein dated Feb 18, 2021 you have not sustained any diagnosable psychological impairment as a direct result of the subject accident.
24In this instance, the applicant obtained a report providing psychological diagnoses as a result of the accident. This report is dated November 27, 2020. The respondent then obtained its Psychology IE Report dated February 18, 2021 and relied on it to deny the plan. The applicant argues that the November 27, 2020 report and diagnoses are not referenced in the Psychology IE Report or in the respondent's reasons for denial. I find that the respondent is entitled to rely on the medical opinions of its assessors and the weight I would assign to that report based on the documents that were reviewed or not reviewed, is not related to the question of sufficiency of the reasons for denial.
25A lack of reference to the applicant's evidence in the respondent's denial is not evidence that the respondent did not consider it. The respondent is not required to reference the applicant's evidence or contrast the applicant's evidence in its reasons for the denial notice to be sufficient. I refer back to 16-003316 at para. 22:
In evaluating the sufficiency of such notice, the Tribunal should be mindful of those who adjust insurance files. It would be naïve or impractical or [sic] to expect them to articulate something resembling a medical opinion. Likewise, their reasons should not be measured by the inch or held to a standard of perfection. Moreover, reasonable minds may disagree about the content of an insured's file. Those allowances should be made. If it offers a principled rationale based fairly on an insured's file, an insurer will have satisfied its obligation under s. 38(8).
26In this case, the respondent drew the applicant's attention to the specific Psychology IE Report, along with the relevant point relied upon therein: that the assessor opined no accident-related psychological diagnosis was appropriate. I find that the respondent offered a principled rationale based fairly on the applicant's file to satisfy its obligation under s. 38(8) of the Schedule by referring to the specific opinion of the IE assessor that was relevant to the denial. I find that the denial allows an unsophisticated person to understand the denial and make an informed decision to challenge the respondent's position, or not.
27I find that, on a balance of probabilities, the applicant is not entitled to payment of this plan pursuant to s. 38(11) because the denial was compliant with s. 38(8).
Is the applicant entitled to $2,200.00 for the cost of a functional abilities evaluation, proposed by Tim Damaso in a plan dated January 16, 2023?
28The applicant is not entitled to the plan because the shall pay provision of s. 38(11) is not triggered.
29The applicant does not offer substantive submissions on entitlement to this plan but rather argues that this plan is subject to the shall pay provision of s. 38(11) of the Schedule. The applicant supports his position with a number of arguments related to the shall pay provision:
i. That the insurer improperly procured two IE reports and their results are void ab initio.
ii. That the respondent failed to consider the plan on its merits in the context of developments in the file between January 11, 2021 and January 18, 2023.
30Similar to the arguments made regarding the previous plan, in so far as the applicant is arguing that the NOE was defective for not complying with s. 44 of the Schedule, this does not trigger the shall pay provision of s. 38. I also note that the applicant attended the IE without evidence before me of any protest to preserve his right to later object about the sufficiency of the NOE.
31The applicant refers me to the plan, submitted by Tim Damaso, Chiropractor, for a functional abilities evaluation providing the following under Additional Comments:
This OCF 18 for a Functional abilities evaluation will comprehensively detail the patient's on-going functional impairments which will provide a baseline and patients current functional abilities. This will allow us to further address return to normal activities of daily living and work duties, so that the client does not get injured and is able to continue doing pre-accident Activities of Daily Living safely and work duties and feels safe in his home and work environment.
32The applicant argues the respondent did not consider this plan on its merits in a fair and principled manner, advancing the position that the denial is defective. The applicant points me to a denial letter dated February 1, 2023. The denial relies on a previous IE conducted by Dr. Howard Platnick in January 2021. The denial notes the following from that IE: that the applicant was off work for eight months, returned to light duties for three weeks but was back to work on full hours and duties at the time of the assessment. Dr. Platnick also opined that the applicant's pre-existing chronic neck pain was temporarily exacerbated post-accident, but all accident-related soft tissue injuries had resolved at the time of the assessment and the applicant was back to his pre-accident state. The respondent also added that the length of time since the accident led it to the opinion that the proposed assessment in the plan was not reasonable and necessary.
33In so far as the applicant alleges the denial ignores the applicant's recent medical history, between January 11, 2021 and January 18, 2023, I am referred in submissions to pages 32, 33-34, 35, 38, 45 and 61 of the applicant's tab 26, Dr. Urback's clinical notes and records ("CNRs"). All of these references are to records from 2019, between February and December, except that page 61 contains an entry from January 2020. I have not been referred to any evidence that the respondent ignored the applicant's more recent relevant medical history in the period alleged in submissions such that it would invalidate the denial.
34I find that the respondent's reasons clearly identified the plan being denied. The denial engaged the specific details about the applicant's condition, that his physical injuries had resolved and he had been back to his full duties at work, at the time of the January 2021 IE. I find that this formed the basis for the respondent's decision in February 2023 and is adequate to allow an unsophisticated person to understand the reasons and make an informed decision to either accept or dispute the denial.
35I find that, on a balance of probabilities, the applicant is not entitled to payment of this plan pursuant to s. 38(11) because the denial is compliant with s. 38(8).
Interest
36The applicant is not entitled to interest because there are no payments of overdue benefits to which interest would apply pursuant to s. 51 of the Schedule.
Award
37The applicant is not entitled to an award. The applicant sought an award under s. 10 of Reg. 664 for the maximum amount of 50 per cent. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
38The applicant seeks an award on the basis that the plans were improperly denied, the reasons provided in notices governed by s. 44 and s. 38 of the Schedule were defective, that the applicant's recent medical history was ignored, that the applicant was subjected to inherently intrusive IEs based on defective reasons, that the respondent relied upon those improperly compelled IEs, including compelling an IE for the sole reason of curing an earlier defective denial, and that the respondent failed to deny the plans within 10 business days.
39Since there are no benefits to which the applicant is entitled that were unreasonably withheld or delayed, no award is payable.
ORDER
40For the reasons above, I make the following orders:
i. The applicant is not entitled to $2,200.00 for the cost of a psychological assessment, proposed by Dr. Maneet Bhatia in a plan dated June 16, 2022.
ii. The applicant is not entitled to $2,200.00 for the cost of a functional abilities evaluation, proposed by Tim Damaso in a plan dated January 16, 2023.
iii. The respondent is not liable to pay an award under s. 10 of Reg. 664.
iv. The applicant is not entitled to interest.
Released: October 28, 2025
Amar Mohammed
Adjudicator