Sobczak-Bazangeya v. Aviva Insurance Company of Canada, 2025 CanLII 122661

Citation: Sobczak-Bazangeya v. Aviva Insurance Company of Canada, 2025 ONLAT 24-003197/AABS

Licence Appeal Tribunal File Number: 24-003197/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:

Elzbieta Sobczak-Bazangeya

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Jeff Chatterton

APPEARANCES:

For the Applicant: John Chui, Paralegal

For the Respondent: Branson Wong, Counsel

HEARD: In Writing

OVERVIEW

1Elzbieta Sobczak-Bazangeya, the applicant, was involved in an automobile accident on August 1, 2022, 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:

1. Is the applicant entitled to $1,828.10 for physiotherapy services, proposed by Complete Rehab Centre in a treatment plan/OCF-18 (“plan”) submitted December 6, 2023?
2. Is the applicant entitled to $117.07 ($1,351.10 less $1,234.03 approved) for physiotherapy services, proposed by Complete Rehab Centre in a plan submitted July 12, 2023?
3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is entitled to $1,828.10 for one physiotherapy treatment plan in dispute. The applicant is not entitled to $117.07 for the second physiotherapy treatment plan in dispute.

4Interest is payable as per section 51 of the Schedule.

ANALYSIS

Is the applicant entitled to the physiotherapy treatment plan dated December 6, 2023?

5The applicant is entitled to the physiotherapy treatment in dispute.

6To 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.

7The plan is proposed by Chiropractor Dr. Jessa Rahim. The treatment plan dated December 6, 2023 calls for 10 treatments of therapy over 10 weeks, as well as 10 acupuncture sessions. The goals are listed as pain reduction, increased strength and increased range of motion, with a functional goal of a return to activities of normal living and pre-accident work activities.

8The applicant submits that the treatment plan in dispute is reasonable and necessary. To support their claim, they are relying on the clinical notes and records of the applicant’s family physician, Dr. Myles Poitier, as well as a Chronic Pain Assessment Report conducted by Orthopaedic Surgeon Dr. Osama Benmoftah, dated September 25, 2023.

9The applicant also relies on Psychological Assessment Report / Progress Reports authored by Psychotherapists Nicole Presutti and Charmy Patel, authored June 5, 2023 and November 23, 2023.

10The respondent disagrees that ongoing physiotherapy is reasonable and necessary, and states that the applicant has already achieved maximal recovery. To support their argument the respondent relies upon a s.44 Insurers Examination report conducted by GP Dr. Ijaz Chaudhry, dated March 18, 2024.

11I put significant weight on the evidence of Dr. Poitier and Dr. Benmoftah. I place no weight on the psychological reports, because Ms. Presutti and Ms. Patel are psychotherapists and not qualified to diagnose or treat physical injuries.

12In the chronic pain report, while Dr. Benmoftah does not explicitly recommend a specific type or amount of physiotherapy, I do note he recommends “monthly sessions of Psychological Counselling, Massage Therapy, Chiropractic Care, Physiotherapy and intervention with a Social Worker.” I am alive to the fact that there are no recommendations regarding the type of treatments or specifics regarding length and treatment goal. That being said, I do note that Dr. Benmoftah is an Orthopaedic Surgeon, qualified to treat and diagnose physical injuries, and he does make a clear recommendation for physiotherapy which pre-dates the treatment plan in question.

13Having reviewed the clinical notes and records from Dr. Poitier, I see one reference in the March 21, 2023 note which states: “Plan: continue physiotherapy.” This also pre-dates the treatment plan, and therefore is contemporaneous to the issue in dispute.

14I have reviewed the evidence of Dr. Chaudhry. I place little weight on this evidence. Despite Dr. Chaudhry’s claim that the applicant has achieved maximal medical recovery, he does say “the claimant may have ongoing symptomatology.” In my opinion, this is indicative of the fact that the applicant continues to report pain.

15Furthermore, I note that Dr. Benmoftah is an orthopaedic surgeon, while Dr. Chaudhry is a General Practitioner.

16In summary, multiple medical professionals recommended physiotherapy for the applicant, and these recommendations are contemporaneous with the proposed treatment plan. It is well settled that pain relief is a legitimate goal for treatment, and the proposed treatment costs align with the Professional Services Guidelines.

17For these reasons, I find the applicant has, on the balance of probabilities, met the onus to establish that he is entitled to the treatment plan dated December 6, 2023.

Is the applicant entitled to $117.07 for physiotherapy services, dated July 12, 2023?

18The applicant is not entitled to the disputed amount remaining in the treatment plan for physiotherapy dated July 12, 2023.

19I note that the plan has been partially approved, leaving a balance of $117.07. However, neither the applicant or the respondent made submissions regarding the disputed amount, why it was disputed, or why this denied amount is reasonable or necessary.

20As the onus is on the applicant to prove entitlement, I find, on the balance of probabilities, that the applicant has not met the onus to establish entitlement to the disputed amount remaining ($117.07) in the physiotherapy treatment plan dated July 12, 2023.

Interest

21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies, as per the Schedule.

ORDER

22The application is granted in part.

i. The applicant is entitled to $1,828.10 for physiotherapy services, as per the treatment plan dated December 6, 2023.

ii. The applicant is not entitled to $117.07, the disputed amount remaining of the treatment plan dated July 12, 2023.

iii. Interest is payable as per section 51 of the Schedule.