Binger v. Aviva Insurance Company of Canada, 2025 CanLII 125922

Licence Appeal Tribunal

Citation: Binger v. Aviva Insurance Company of Canada, 2025 ONLAT 24-004570/AABS

Licence Appeal Tribunal File Number: 24-004570/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:

Nadine Paula Binger

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Jeff Chatterton

APPEARANCES:

For the Applicant:

Suganiya Sivabalan, Counsel

For the Respondent:

Kathleen Mertes, Counsel

HEARD:

In Writing

OVERVIEW

1Nadine Paula Binger , the applicant, was involved in an automobile accident on September 26, 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 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 $2,460.00 for a psychiatrist assessment, proposed by 101 Assessments in a treatment plan/OCF-18 ("plan") dated June 29, 2022?

ii. Is the applicant entitled to $2,460.00 for an orthopaedic assessment, proposed by 101 Assessments in a treatment plan dated July 11, 2022?

iii. Is the applicant entitled to $3,601.23 for physiotherapy services, proposed by 101 Physio Clinic Rehabilitation Centre in a treatment plan dated September 13, 2022?

iv. Is the applicant entitled to $2,460.00 for a functional abilities evaluation assessment, proposed by 101 Assessments in a treatment plan dated October 11, 2022?

v. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments in a treatment plan dated May 31, 2023?

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

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

RESULT

3The applicant is not entitled to any of the assessments in dispute (issues (i, ii, iv, v).

4The applicant is entitled to $2,487.53 for physiotherapy services (issue iii).

5Interest applies on the outstanding payment for the physiotherapy treatment plan, as per the Schedule.

6No award is granted.

PROCEDURAL ISSUES

7The respondent has raised an issue with the applicant's submission. According to the Case Conference Report and Order, dated August 12, 2024, the applicant's submission was to be 10 double-spaced pages. The applicant's submission is approximately 12 pages with spacing at 1.5 lines.

8The respondent submits that allowing a full submission presents unfair prejudice to the respondent, who restricted their submission to the allowed 10 pages.

9Rule 9.3 states that if a party fails to comply with any order with respect to documents, they may not give evidence without permission of the Tribunal. When making that determination, the Tribunal may consider any relevant factor, including whether a party will be prejudiced by the exclusion of evidence.

10The respondent has not identified any specific prejudice it would face from allowing the submission. Further, I find the respondent had an opportunity to respond to the applicant's submissions in full. I subsequently find that the applicant would be prejudiced by disregarding all or parts of their submissions. Therefore, I will allow the full applicant's submission to be entered into evidence.

ANALYSIS

Is the applicant entitled to both Psychiatric and Psychological Assessments (issues i and v identified above)?

11The applicant has not met the onus to demonstrate she is entitled to either the Psychiatric or Psychological Assessments.

12To 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.

13The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

14To support her claim, the applicant relies upon a s. 25 Psychological Assessment dated May 8, 2020 by Psychological Associate Lital Grinberg, a further s.25 assessment conducted October 13, 2021, as well as progress reports from Psychotherapist Tabassum Kazmi, dated June 28, 2022 and January 2, 2023. The assessment of October 13, 2021 is handwritten, difficult to read, and does not appear to note who wrote it, although I can assume it may have been Dr. Peter Waxer, a Psychologist, who was identified through the respondent's submissions and is identified as the supervisor on the initial May 8, 2020 report.

15The respondent argues that the applicant had already received a diagnosis, was receiving treatments, and further psychological and psychiatric assessments are duplicative and unnecessary. To support its claim, the respondent submits the findings expressed by s.44 IE Assessor, Psychologist Dr. Louise Koepfler, in a Psychological Report dated January 22, 2021.

16The respondent also relies upon the clinical notes and records (CNR's) from family physician Dr. Steven Macdonald, which indicate that the applicant's first mention of anxiety was in January 2021. This complaint, 15 months after the accident occurred, was job related, with no mention of an MVA. Furthermore, the only other time the applicant mentions anxiety is in July 2021, when the applicant's son was experiencing homelessness and mental health issues.

17On review of the available evidence, I find the Progress Reports from Psychotherapist Kazmi do not indicate a need for further psychiatric/psychological assessments. I place less weight on the earlier s.25 reports because they would not be contemporaneous with the OCF-18 in question.

18Although the onus is on the applicant to demonstrate entitlement to the assessments, I was not presented with further supportive evidence to indicate why it is reasonable and necessary to conduct further psychological / psychiatric assessments or why they were warranted.

19In summary, the applicant had already been formally diagnosed by Dr. Waxer, and has been receiving psychological treatments, but the supportive medical evidence does not indicate a need or request for further assessments. I am not convinced that the applicant has demonstrated that further assessments are reasonable or necessary to determine whether or not a condition exists.

20I find, on the balance of probabilities, that the applicant has not met the onus to prove she is entitled to either a psychological or psychiatric assessment.

Is the applicant entitled to an Orthopaedic Assessment?

21The applicant has not met the onus to demonstrate the need for an Orthopaedic Assessment.

22The applicant argues she requires an orthopaedic assessment due to chronic pain in her knees, legs, shoulder, neck, hips, back and groin. To support her claim, she relies on the Chronic Pain Assessment report conducted by orthopaedic surgeon Dr. Tajedin Getahun.

23The respondent disagrees, and argues that none of the supportive medical evidence indicates a need or request for an orthopaedic assessment.

24I am also unclear why the applicant requires an Orthopaedic Assessment, when she had already received a Chronic Pain Assessment.

25I note that while Dr. Getahun recommends an Occupational Therapy Assessment, he does not make any reference to an orthopaedic assessment.

26Having reviewed the applicant's submissions, I was not led to any other supportive medical evidence which indicates an orthopaedic assessment was requested and/or reasonable or necessary.

27For this reason, I find on the balance of probabilities that the applicant has not met the onus to demonstrate that she is entitled to an orthopaedic assessment.

Is the applicant entitled to physiotherapy?

28The applicant has demonstrated partial entitlement to the treatment plan for physiotherapy services.

29The applicant argues that she requires ongoing physiotherapy, and has submitted an OCF-18 by Chiropractor Dr. Wayne Coghlan. The Treatment Plan, in the amount of $3,601.58, calls for 15 sessions of physical rehabilitation, 8 acupuncture sessions, and 7 sessions of multiple body site therapy. The stated goals are pain reduction, increased strength and range of motion, in order to return to the activities of normal living.

30The applicant relies on the reports of multiple medical professionals, specifically family physician Dr. McDonald and Orthopaedic Surgeon Dr. Getahun, who have recommended ongoing physiotherapy treatments.

31The respondent disagrees, saying further physiotherapy is not necessary because the applicant has already achieved maximal medical recovery. To support its claim, the respondent relies on the s. 44 Physiatry report of General Practitioner Dr. Sukhinder Bhangu, dated November 25, 2022. Dr. Bhangu reports that the applicant is still in considerable pain and discomfort, but believes that passive physiotherapy is unnecessary because the applicant has already achieved maximal medical recovery.

32I note that the applicant has provided evidence of continuous reports of pain to her family physician, Dr. MacDonald. I further note that Dr. MacDonald and Dr. Getahun have both recommended physiotherapy for chronic pain reduction. The Tribunal has a long established that pain reduction and pain relief are legitimate goals for treatment.

33However, upon review of the OCF-18, I note that it allocates $550 for Orthotic devices. The respondent argues that not only has the applicant not indicated ongoing MVA-related foot issues, she has a well documented history of foot issues related to corns and calluses, which are not accident-related and not eligible for coverage.

34I find the applicant has demonstrated that at least some physiotherapy is reasonable and necessary, however, she is not entitled to the orthotic devices. As such, I deny the $550 for orthotic devices. The approved amount ($3,601.58, minus $550 for orthotics) is $3,051.58.

35The applicant has, on the balance of probabilities, met the onus to demonstrate she is entitled to the physiotherapy treatment plan in the partial amount of $3,051.58.

Is the applicant entitled to a Functional Abilities Evaluation?

36The applicant is not entitled to a Functional Abilities Evaluation.

37The applicant states that a Functional Abilities Evaluation (FAE) is necessary to investigate potential cognitive defects reported during the psychological / neurological assessment, and to determine future planning.

38The applicant relies on the May 8, 2020 Psychological Assessment Report by Lital Grinberg, where it states: "A Cognitive Assessment is recommended for Ms. Binger to address her reported cognitive difficulties."

39However, the respondent points out that the applicant has failed to make any submissions regarding a Functional Abilities Evaluation. In paragraphs 49-56 of her submissions, the applicant refers on multiple occasions to a "Cognitive Assessment", which is not in dispute.

40Having reviewed the OCF-18 prepared by Chiropractor Dr. Roya Salehoun, I note that the testing involves physical functional abilities, such as grip strength and range of motion. There is no reference to cognitive function or cognitive testing, and as such, I am not convinced by the applicant's submissions that this particular OCF-18 is reasonable and necessary or would accomplish the stated goals at the cost proposed.

41For this reason, I find the applicant has not, on the balance of probabilities, met the onus to demonstrate that a Functional Abilities Evaluation is reasonable or necessary.

Interest

42Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies on the amended physiotherapy treatment plan amount of $3,051.85, as per the Schedule.

Award

43The 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.

44The applicant argues they deserve an award due to the respondent's "excessive, imprudent, stubborn, inflexible, unyielding and immoderate behaviour."

45The respondent did not provide a submission on the issue of an award.

46While I disagree with the respondent's position on the issue of physiotherapy, I find the insurer has not unreasonably withheld or delayed the payment of benefits and the conduct in adjusting this matter does not rise to the level of an award simply because the Tribunal disagrees on entitlement to a benefit. The applicant's submissions do not explain why the respondent's conduct rises to the high level of excessive, imprudent, stubborn, inflexible, unyielding or immoderate. No award is granted.

ORDER

47The application is granted in part.

i. The applicant is not entitled to any of the assessments in dispute.

ii. The applicant is entitled to an amended amount of $3,051.85 for physiotherapy.

iii. Interest applies on the overdue payment of benefits, as per the Schedule.

iv. No award is granted.