Atwal v. Aviva Insurance Company of Canada, 2025 CanLII 116968

Citation: Atwal v. Aviva Insurance Company of Canada, 2025 ONLAT 24-001417/AABS

Licence Appeal Tribunal File Number: 24-001417/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:

Harjinder K Atwal Applicant

and

Aviva Insurance Company of Canada Respondent

DECISION

ADJUDICATOR: Jeff Chatterton

APPEARANCES:

For the Applicant: Hermia Leung, Paralegal

For the Respondent: Mark Vella, Counsel

HEARD: In Writing

OVERVIEW

1Harjinder Atwal, the applicant, was involved in an automobile accident on September 10, 2021, 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 in dispute are:

i. Is the applicant entitled to $1,231.25 ($3,426.25 less $2,195.00 approved) for physiotherapy services, proposed by Finchgate Physiotherapy in a treatment plan/OCF-18 (OCF-18) submitted March 30, 2022?

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

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

RESULT

3The applicant is entitled to the unapproved amount of $1,231.24 for physiotherapy services. The respondent is not liable to pay an award. The applicant is entitled to interest on the amount in dispute, as per the Schedule.

PROCEDURAL ISSUES

4The respondent argued that the Tribunal should not consider sections of the applicant submissions because the applicant was limited to six (6) pages for their written submissions, but broke their submission down into three separate sections of 2 pages, 6 pages and 1 page respectively, for a total of 9 pages.

5Having reviewed the applicant’s submission, I find Tabs A and Tabs C set out the background or relief requested, while the applicant’s legal arguments were limited to Tab B and limited to 6 pages.

6Considering that legal arguments, contained to tab (B) were limited to six pages, I find the applicant’s submission will be considered.

7Furthermore, if there is prejudice to the respondent by allowing the applicant’s submissions to be considered in full, I find that such prejudice would be limited, and outweighed by the prejudice to the applicant from limiting the applicant’s submission.

8For this reason, the applicant’s submission in its entirety will be considered by the Tribunal.

ANALYSIS

Is the applicant entitled to the unapproved amount for physiotherapy treatment?

9The applicant is entitled to the disputed amount for physiotherapy.

10To 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.

11The applicant argues that the full amount of physiotherapy services proposed in the OCF-18 of March 30, 2022 are reasonable and necessary. To support their claim, the applicant relies upon the Clinical Notes and Records(CNRs) of her family physician, Dr. Mandeep Wadhwa. In the CNRs, the applicant complains of pain to her leg, knee and shoulder as a result of the accident. There are multiple complaints of knee pain which continue throughout 2022 as well.

12Dr. Wadhwa recommended physiotherapy immediately after the accident, and recommended continued physiotherapy treatment approximately 10 days after the accident date.

13The respondent submits that only services related to the applicant’s shoulder are reasonable and necessary.

14To support their claim the respondent relies on a s.44 medical report from GP Dr. Pravesh Jugnundan, dated June 1, 2022. In the report, Dr. Jugnundan states that physiotherapy for the applicant’s shoulder is reasonable and necessary, but attributed the applicant’s knee pain to osteoarthritis. He stated that “active physiotherapy sessions would be indicated, but not passive.” He points out that the applicant was only prescribed passive physiotherapy.

15As a result of Dr. Jugnundan’s report, the applicant was removed from the MIG on the basis of a pre-existing condition. Specifically, Dr. Jugnundan stated that the applicant’s osteoarthritis would prevent maximal medical recovery were she to be held to the MIG. As a result, partial approval for physiotherapy, for her shoulder only, was granted.

16I find that the applicant has met the onus to establish the unapproved amount for physiotherapy is both reasonable and necessary.

17First, the applicant’s GP recommended physiotherapy before the OCF-18 was submitted.

18Second, Dr. Jugnundan’s report states on page 6, in regard to bilateral knee pain, “She stated rehabilitation did help, but since stopping, her pain has increased.”

19And finally, the report also states that the applicant did not sustain any impairment to her knee as a direct result of the motor vehicle accident, but that it’s likely “she sustained an exacerbation of her pre-existing issues.”

20I find this statement supports the applicant’s claim that they were receiving benefit from the various prescribed forms of physiotherapy. I find that the expert report from Dr. Jugnundan states that the applicant’s knee pain returned when physiotherapy treatments were stopped.

21For these reasons, I find physiotherapy – either active or passive - on the applicant’s knee both reasonable and necessary.

22I find, on the balance of probabilities, that the applicant has met the onus to establish the unapproved amount of the treatment plan is reasonable and necessary.

Interest

23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

Award

24The applicant sought an award under s. 10 of Reg. 664. 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.

25The applicant requested an award, stating “the respondent has prevented timely treatment for a person living daily with pain and physical impairment. In doing so, the respondent has failed to support maximal medical recovery.”

26While I find the respondent was mistaken by not funding physiotherapy services, I do not find their conduct rises to the level of an award. I find the insurer has provided services in a timely fashion, and willingly removed the applicant from the MIG based on their own expert reports. This indicates a ‘good-faith’ effort to adjust the file on a fulsome and timely basis. Therefore, while they were mistaken, I do not find the respondent’s conduct unreasonable.

ORDER

27The application is granted.

i. The applicant is entitled to the unapproved amount of $1,231.25 for physiotherapy services, proposed by Finchgate Physiotherapy in a treatment plan/OCF-18 submitted March 30, 2022.

ii. Interest is payable as per the Schedule.

iii. An award is not granted.