Licence Appeal Tribunal File Number: 24-000549/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:
Niruja Lingeswaran
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR: Harouna Saley Sidibé
APPEARANCES:
For the Applicant: Aparajita Singh, Counsel
For the Respondent: Jonathan Charland, Counsel
HEARD: By way of written submissions
OVERVIEW
1Nijura Lingeswaran, the applicant, was involved in an automobile accident on August 18, 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 General 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 attendant care benefits in the amount of $908.21 per month from June 22, 2023, to date and ongoing?
ii. Is the applicant entitled to $4,040.00 for chiropractic services, proposed by Health Medica, Ranjit Sohal in a treatment plan/OCF-18 (“plan”) dated August 29, 2022?
iii. Is the applicant entitled to $1,690.35 ($4,257.50 less approved $2,567.15) for psychological services, proposed by Elite Specialist Group in a plan dated May 29, 2023?
iv. Is the applicant entitled to $1,859.38 ($4,764.69 less approved $2,905.31) for psychological services, proposed by Elite Specialist Group in a plan dated October 13, 2023?
v. Is the applicant entitled to $2,910.00 for chiropractic services, proposed by Health Medica, Ranjit Sohal in a plan dated November 30, 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
3For the reasons below, I find that:
The applicant is not entitled to attendant care benefits (“ACB”).
The applicant is not entitled to the disputed treatment plans or the outstanding amounts.
The applicant is not entitled to interest or an award.
ANALYSIS
Is the applicant entitled to the disputed treatment plans?
4To 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.
Chiropractic Services
August 29, 2022, Treatment Plan
5The applicant is not entitled to funding for the chiropractic treatment plan dated August 29, 2022.
6This plan, signed by chiropractor Ranjit Sohal, is for $4,040.00 and includes goals such as pain relief, increased strength, and a return to normal activities. It proposes a full-body assessment, documentation of support activities, 14 sessions of spinal manipulation, 24 sessions of therapy for multiple body areas, and one TENS unit.
7The applicant argues that the treatment plan is both reasonable and necessary and was wrongly denied by the respondent. The applicant emphasizes that the injuries identified by Dr. Ranjit Sohal in the plan are consistent with the injuries documented in all other medical evidence previously discussed.
8The respondent denied the OCF-18 on the basis that the Minor Injury Guideline (MIG) applied. The respondent advised the applicant on October 24, 2022, that treatment could proceed immediately within the $2,200 MIG limit upon submission of a pre-approved OCF-23.
9On October 26, 2022, the treatment provider submitted the OCF-23 as requested, and the insurer paid for treatment under that plan up to the MIG limit. There is no evidence that any treatment under the denied OCF-18 was incurred or remains outstanding. Accordingly, the dispute concerns a plan that was never implemented, as the provider chose to proceed under the approved MIG plan.
10The respondent submits that the August 29, 2022, OCF-18 is barred from review under sections 38(5) and 38(6) of the Schedule because the applicant was entitled to treatment under the MIG during the relevant period.
11The applicant did not address the respondent’s reliance on sections 38(5) and 38(6), and neither party provided the date on which the applicant was determined to be outside the MIG.
12I accept the respondent’s position. The applicant was appropriately classified under the MIG based on the initial diagnosis of soft-tissue injuries. The clinic submitted an OCF-23 and received payment for treatment under the MIG. There is no evidence that any treatment under the denied OCF-18 was incurred or remains outstanding, nor that it is reasonable and necessary. Accordingly, the August 29, 2022, plan is not subject to review under sections 38(5) and 38(6) of the Schedule.
November 30, 2023, Treatment Plan
13The applicant is also not entitled to funding for the chiropractic treatment plan dated November 30, 2023.
14This plan, valued at $2,910.00, was not submitted into evidence. As a result, I am unable to assess its goals, proposed services, or duration.
15The applicant argues that the treatment plan is both reasonable and necessary and was wrongly denied by the respondent. The applicant emphasizes that the injuries identified by Dr. Ranjit Sohal in the plan are consistent with the injuries documented in all other medical evidence previously discussed.
16The respondent denied the plan by letter dated January 2, 2024, and issued a request under section 33 of the Schedule for updated medical records. The applicant failed to comply, and the insurer suspended medical benefits effective January 23, 2024.
17Section 33(1) of the Schedule requires an applicant to provide any information reasonably requested by the insurer to determine entitlement to benefits. Section 33(6) provides that the insurer is not liable to pay benefits during any period of non-compliance.
18The applicant did not submit that she complied with the respondent’s section 33 request. The requested records remain outstanding.
19Additionally, Dr. Kruger’s Insurer’s Examination dated February 12, 2024, concluded that the applicant had reached maximum medical improvement (MMI) and that further treatment was neither reasonable nor necessary. He noted that progress over the past 16 months had been slow and temporary, and that continued treatment with the current providers did not appear to support recovery. The applicant did not point me to any objective evidence supporting this opinion.
20While Dr. Benmoftah diagnosed chronic pain and other conditions in his June 9, 2024, report, his conclusions appear to rely primarily on the applicant’s self-reported symptoms, and the report does not indicate any objective testing to confirm these findings. Further, there is no reference to corroborating evidence or recommendations from the applicant’s family doctor or other medical practitioners regarding the proposed chiropractic treatment.
21The onus is on the applicant to prove that the proposed treatment is reasonable and necessary. She has not met that burden. Accordingly, the November 30, 2023, plan is not payable due to non-compliance with section 33.
Psychological Services
22The applicant is not entitled to the outstanding amounts claimed under the two psychological treatment plans.
23The first treatment plan, dated May 29, 2023, is for psychological services totalling $4,257.50. The respondent approved $2,567.15, leaving $1,690.35 in dispute. The plan, signed by Dr. Jacqueline Brunshaw, a psychologist, includes 14 psychotherapy sessions, a progress or reassessment report, and the preparation of the OCF-18. The stated goals are to reduce psychological symptoms and support a return to normal activities.
24The second plan, dated October 13, 2023, is for $4,764.69, with $2,905.31 approved, leaving $1,859.38 in dispute. The plan was signed by Dr. Brunshaw and Corrado Recchiuli, a psychotherapist. The plan mirrors the structure and goals of the earlier plan, proposing 16 psychotherapy sessions, a progress or reassessment report, and the OCF-18 cost.
25The issue in dispute is whether the applicant is entitled to the outstanding balances of these two treatment plans.
26The applicant relies on Dr. Brunshaw’s psychological assessment dated May 29, 2023, which diagnosed Adjustment Disorder with Anxiety, Major Depressive Disorder, and Specific Phobia. She submits that the proposed treatment was reasonable and necessary, and that the respondent unreasonably restricted the hourly rate and declined to fund progress reports that were essential to effective care.
27The respondent approved treatment at an hourly rate of $99.75 for the psychotherapist, rather than the $224.42 in the treatment plan, which exceeds the Professional Services Guideline (PSG) rate of $58.19 for unregulated providers. The respondent requested justification for a higher rate, as the provider accepted the approved rate and billed accordingly. The respondent also declined to fund the progress reports, stating they were not reasonable or necessary, but indicated a willingness to arrange one if required.
28The PSG, issued under Superintendent’s Guideline No. 03/14, sets out the maximum hourly rates for various healthcare providers. While the PSG does not specify a rate for psychotherapists, it sets the maximum for unregulated providers at $58.19 per hour. In the absence of a defined rate for psychotherapists, the parties may negotiate a rate, and if they cannot agree, the Tribunal must determine what is reasonable.
29The applicant did not make submissions regarding the appropriateness of the $99.75 hourly rate, nor did she provide evidence that the psychotherapist possessed qualifications warranting the higher psychologist rate of $149.61. The provider accepted the approved rate, and no further justification was offered.
30The applicant has not met the burden of proving that a higher hourly rate for psychotherapy services is reasonable or necessary, as no submissions or supporting evidence were provided to justify the increased amount.
31I find the approved hourly rate of $99.75 to be reasonable. The applicant has not established that the remaining fees or the costs of the progress reports are reasonable or necessary.
32Accordingly, on a balance of probabilities, I find that the applicant is not entitled to the outstanding amounts claimed under both psychological treatment plans.
Is the applicant entitled to an ACB?
33The applicant is not entitled to an ACB.
34Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (ACBs) provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).
35The applicant relies on an Occupational Therapy In-Home Assessment by Varun Madan dated May 19, 2023, and an orthopaedic report by Dr. Osama Benmoftah dated June 9, 2024. She submits that she remained limited in performing personal care and housekeeping tasks and required assistance from her family, making the Form 1 reasonable and necessary.
36The respondent argues that the Form 1 was completed approximately ten months post-accident, after the applicant had completed her first year of university. No incurred expenses were submitted, and multidisciplinary insurer examinations conducted in early 2024 by occupational therapist Vinita Tandon, psychologist Dr. Rakesh Ratti, and physician Dr. Alan Kruger concluded that the applicant was independent in self-care.
37The applicant did not submit the Form 1 into evidence.
38Mr. Madan’s assessment identified needs in several areas, including grooming, toenail care, meal preparation, cleaning, changing bedding, medication management, and safety monitoring. However, this assessment was not supported by evidence of incurred expenses or corroborating clinical documentation.
39Dr. Benmoftah’s report noted that the applicant reported no difficulties with personal care tasks such as bathing, grooming, and dressing. While she stated that she now relies on her parents for assistance with certain tasks, including toenail care, hair styling, massages, and cooking, she also reported assisting with household chores. Although Dr. Benmoftah concluded that the applicant suffers from chronic pain and functional limitations, he did not establish that attendant care services were medically required or incurred.
40In contrast, Dr. Ratti’s psychological IE dated February 9, 2024, diagnosed Major Depressive Disorder with Anxious Distress but found no psychological impairment that would necessitate personal care assistance. He concluded that psychological factors did not result in functional limitations requiring attendant care.
41Based on the evidence, I find that the applicant has not demonstrated that attendant care services were either reasonable or necessary. The Form 1 was not submitted into evidence. The medical evidence does not support a need for attendant care, and the applicant’s own reports indicate a level of independence inconsistent with the claimed need for assistance.
42The applicant has not met the burden of proof. I am not persuaded that attendant care services are reasonable and necessary.
43Accordingly, on a balance of probabilities, I find that the applicant is not entitled to an ACB.
Interest
44Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits have been found payable beyond those already approved and paid by the respondent, there are no overdue amounts on which interest may accrue. Accordingly, the issue of interest is dismissed.
Award
45The 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.
46The applicant submits that the respondent acted unreasonably by relying on insurer examinations while disregarding her treating providers' opinions, resulting in undue delay and hardship.
47The respondent maintains that it acted in good faith, conducted timely insurer examinations, and provided clear reasons for each denial of benefits.
48An award under s. 10 requires proof that the insurer unreasonably withheld or delayed payment, which is a high threshold. The evidence indicates the respondent arranged section 44 assessments promptly and communicated its decisions without undue delay. A disagreement over medical interpretation, without more, does not amount to bad faith or unreasonable conduct. Further, as I have found that no benefits are payable, there is no basis to conclude that any payment was unreasonably withheld or delayed.
49Therefore, on a balance of probabilities, I conclude that there is no ground for an award.
ORDER
50For the above reasons, it is ordered that:
i. The applicant is not entitled to an ACB.
ii. The applicant is not entitled to the disputed treatment plans or the outstanding amounts.
iii. The applicant is not entitled to interest or an award.
Released: December 2, 2025
Harouna Saley Sidibé
Adjudicator