Citation: Hobson v. Aviva Insurance Company of Canada, 2025 ONLAT 24-002350/AABS

Licence Appeal Tribunal File Number: 24-002350/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:

Davin Hobson

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Roderick Walker

APPEARANCES:

For the Applicant:

Filipe Santos, Counsel

For the Respondent:

Jonathan White, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Davin Hobson, the applicant, was involved in an automobile accident on February 4, 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 Aviva Insurance Company of Canada, the respondent, 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. Are the applicant’s injuries predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to $1,525.84 for physiotherapy services, proposed by Mackenzie Medical in a treatment plan/OCF-18 (“plan”) dated February 10, 2023?

iii. Is the applicant entitled to $3,795.50 for physiotherapy services, proposed by Mackenzie Medical in a plan dated February 14, 2023?

iv. Is the applicant entitled to $2,223.02 for physiotherapy services, proposed by Mackenzie Medical in a plan dated November 7, 2022?

v. Is the applicant entitled to $1,780.00 for psychological services proposed by 101 Assessments in a plan dated June 8, 2022?

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

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

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

RESULT

3The applicant’s injuries are predominantly minor and are subject to treatment within the MIG.

4The treatment plan identified as issue iii for $3,795.50 for physiotherapy services, proposed by Mackenzie Medical is payable once incurred .

5Interest is awarded only to the treatment plan of $3,795.50 for physiotherapy services, proposed by Mackenzie Medical dated February 14, 2023.

6No award

ANALYSIS

MIG

7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

8An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

9The applicant in this case submits that he should be removed from the MIG on the basis of a chronic pain impairment and a psychological condition.

The applicant does not suffer from a Chronic Pain Impairment.

10I find that the applicant does not suffer from a chronic pain impairment which would remove him from the MIG.

11The applicant relies on an OCF-3, Disability Certificate dated February 9, 2022, prepared by Dr. C. Jakeer, D.C. which states injuries as: sprain and strain of the cervical spine, sprain and strain of thoracic spine, sprain and strain of sacroiliac joint, sprain and strain of other and unspecified parts of lumbar spine and pelvis and anxiety disorders. Also, he relies on two OCF-18s by Mackenzie Medical for physiotherapy services proposed in the amount of $1,525.84 and $3,795.50 dated February 14, 2023, and a plan for $2,223.02 for physiotherapy services, proposed by Mackenzie Medical dated November 7, 2022. Further, the applicant submits that there is constant pain in the mid and lower back. This pain has been constant and can be seen with complaints to the family doctor, Mackenzie Medical, and assessments completed by both s. 25 and s. 44 assessors.

12The respondent relies on the Clinical Notes and Records (“CNRs”) of the applicant’s family doctor, Dr. S. Kramer, G.P., as well as s. 44 assessor Dr. R. Moolla’s, G. P., report dated June 30, 2022. The respondent argues that the applicant has no chronic pain impairment and has not met his onus on proving that he is entitled to treatment above the MIG limits.

13It is the applicant's onus to prove on a balance of probabilities that his chronic pain injuries do not fall within the MIG. In this case the applicant has a family doctor, Dr. Kramer, and as I review his notes, it only reveals one visit for his physical injuries being on March 25, 2022, where Dr. Kramer noted mid and lower back pain and stiffness. On physical examination, Dr. Kramer observed “Pt has full flexion and full ROM at the mid and lower back with c/o some pain and tightness at the lower back.” Dr. Kramer diagnosed midback and lower back strain. He recommended physiotherapy treatment and prescribed only Vimovo. Also, I note that the OHIP summary, for the period February 4, 2019, to January 16, 2024, shows only three entries. All of the entries, except for the March 25, 2022, entry, are non-related accident visits. I find that there is no evidence that the applicant consulted Dr. Kramer or any other physician after March 25, 2022, about his accident-related physical injuries.

14The s. 44 assessor, Dr. Moolla concluded in his report dated June 30, 2022, that the applicant had full lateral flexion and lateral rotation on either side. The applicant reported that post-accident, he was able to complete all of his personal care tasks and all of his pre-accident indoor household chores except for lifting objects over 20 pounds. He continued to drive a vehicle, manage his finances, read, write and watch TV, and use a cell phone and computer. On or about May 2, 2022, he resumed full-time employment. Dr. Moolla concluded that the injuries were treatable within the MIG, and that the treatment plans were not reasonable and necessary. I find that Dr. Moolla corroborates the family doctor, Dr. Kramer, that the injuries suffered from the accident are minor and can be treated within the MIG. I find that the applicant has not met his onus to prove chronic pain as a result of the accident.

15For these reasons, and on a balance of probabilities, I find the applicant remains in the MIG for his chronic pain injuries.

The applicant does not suffer from a psychological condition that would warrant removal from the MIG.

16I find that the applicant does not suffer from a psychological condition that would remove him from the MIG.

17The applicant relies on a s. 25 assessment with Dr. K. Papazoglou, psychologist, and his report dated May 20, 2022. The applicant complained about experiencing psychological and emotional concerns as a direct result of the accident. The applicant stated that he felt sadness, low mood, guilt, and loss of interest, with irritability and a preference of socially isolating. The applicant also stated he had not fully resumed his pre-accident activities such as baseball, cricket, soccer, and basketball, citing low interest, motivation, and energy. The applicant underwent psychological testing which included, Beck Depression Inventory Second Edition (BDI-II), Beck Anxiety Inventory (BAI), Pain Catastrophizing Scale (PCS), Pain Disability Index (PDI), Pain Patient Profile (P3). Rey-15 Item memory test (Rey-15) and a travel anxiety questionnaire (TAQ). Dr. Papazoglou diagnosed the applicant with an adjustment disorder and six 1.5-hour sessions of psychological treatment were recommended. A treatment and assessment plan for psychological services in the amount of $1,780.00 for psychological services proposed by 101 Assessments dated June 8, 2022, and a plan in the amount of $2,460.00 for a psychological assessment, proposed by 101 Assessments dated July 11, 2022

18The respondent relies on its s. 44 assessor Dr. Z. Ladak, Psychologist and her report and addendum report dated June 30, 2022. Dr. Ladak reviewed the report of Dr. Papazoglou and noted that ,The June 2, 2022, Psychological Assessment Report submitted by Dr. Papazoglou indicates that Mr. Hobson reported experiencing periods of low mood, guilt, loss of interest, irritability, agitation, and social isolation. According to this report, psychological testing suggested minimal depression on the BDI-II and minimal anxiety on the BAI. In contrast, Mr. Hobson denied experiencing any of these difficulties during my assessment on June 13, 2022, which notably took place following his assessment with Dr. Papazoglou on May 20, 2022. Indeed, Mr. Hobson maintained that he was coping well emotionally. Psychological testing was also consistent with his narrative and presentation and was not indicative of any psychological distress.

19Upon review of the psychological assessments, I find Dr. Ladak’s report more persuasive than that of Dr. Papazoglou. Dr. Ladak critically reviewed the section 25 report prepared by Dr. Papazoglou and noted that while the applicant had reported symptoms such as low mood, guilt, loss of interest, irritability, agitation, and social isolation, the psychological testing conducted by Dr. Papazoglou indicated only minimal levels of depression (BDI-II) and anxiety (BAI).

20In contrast, during Dr. Ladak’s subsequent assessment on June 13, 2022, conducted after Dr. Papazoglou’s assessment on May 20, 2022, the applicant denied experiencing any psychological difficulties. Dr. Ladak’s findings were consistent with the applicant’s self-report and presentation, and the psychological testing did not reveal any signs of distress.

21Based on this, I conclude that the applicant was coping well emotionally at the time of Dr. Ladak’s assessment. The consistency between the applicant’s self-reporting and the objective testing supports the reliability of Dr. Ladak’s conclusions.

22I also find that in the CNRs of Dr. Kramer, family doctor, that there is no mention of any psychological complaint to him at anytime from March 25, 2022, and on going. For these reasons above, I find on the balance of probabilities that the applicant does not suffer a psychological condition that warrants him removal from the MIG.

23Given that I have found that the applicant’s accident-related impairments do not warrant removal from the MIG, it is not necessary for me to consider the reasonableness and necessity of the treatment plans.

24However, the applicant argues that the denial notices issued by the respondent did not comply with the requirements of section 38(8) of the Schedule and the disputed treatment plans are therefore payable pursuant to section 38(11).

Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well as the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary. If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

2. The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice

25The respondent asserts that the denials are complaint with the Schedule. The respondent argues that it is sufficient for the denials to say that the applicant’s injuries fall within the MIG, particularly because it had little medical documentation to refer to or base its reasons on. The respondent points out the applicant submitted the disputed OCF-18s without corroborating evidence to support his claim. As a result, of the limited amount of medical documentation provided by the applicant, the respondent submits that its medical reasons were sufficient. I agree.

26The standard for sufficient notice is contained in T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT), In her decision, Executive Chair Lamoureux states, at paragraph 19:

[…] an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. An insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.

OCF-18 dated February 10, 2023, for $1,525.84 of physiotherapy services

27The applicant argues that the February 27, 2023, Explanation of Benefits (EOB) for the plan of physiotherapy services for $1,525.84 dated February 10, 2023, is not compliant to s. 38(8). The EOB from the respondent states, “Upon review of the Treatment and Assessment Plan, we are unable to consider the proposed services. As previously advised your impairment is treatable within the Minor Injury Guideline and Aviva has already approved up to the limit of $3,500.00. An Insurer Examination was completed, and the report dated June 30, 2022, was provided to you along with the explanation of benefits. On review of your file today there has been no additional medical evidence provided to reconsider or reassess the determination. Please provide the clinical notes and records of your family physician for the period February 4, 2021, to the present date for our file and we can refer to the previous assessors for review and or assessment.”

28I find that the EOB identifies the February 13, 2023, treatment plan and advises that the insurer does not agree to pay for it. It provides a medical reason in stating the information that the insurer has to assess this case is treated within the MIG for the injuries sustained in the accident. In Zeitoun v Royal & Sun Alliance, 2020 CanLII 103701 (ON LAT) (“M.Z.”), who states: I do not agree…that citing the MIG in a denial fails to provide “medical reasons and all of the other reasons” for the determination as required by s. 38(8). For each of the treatment plans in dispute, the respondent explained that it had determined that M.Z. had “sustained a minor injury to which the Minor Injury Guideline applies.”

29I find that the reason provided by the respondent satisfies the requirement, well-established in the jurisprudence, that insurers provide a principled rationale, based fairly on the claimant’s file, to which an insured person can respond to. I find even with, that the insurer gave capable and a clear understand the applicant can understand that the insurer is relying on the MIG. I also find that the applicant received the Insurer’s Examination (“IE”) report dated June 30, 2022, which formed the basis for the opinion. Lastly, it refers to the two-year limitation period to dispute the denial and provides details on how to make an application for dispute resolution. I find that the denial notice is compliant with s. 38(8).

The OCF-18 for $3,795.50 for physiotherapy services dated February 14, 2023?

30The February 23, 2022 EOB for denial of the plan for psychotherapy services in the amount of $3,795.50, states, “Upon review of the file, Aviva Insurance believes there is no objective compelling evidence of pre-existing injuries or conditions and insufficient medical documentation to support that your accident-related injuries fall outside of the Minor Injury Guidelines (MIG), as such, subject treatment and assessment Plan (OCF-18) is denied and will not be referred to an Insurer Examination. In the interim, we request submission of a Treatment Confirmation Form (OCF-23) to avoid any delay in treatment. Your next steps If you have documented medical records indicating your injuries have changed, please forward them for consideration.”

31I find in this EOB does not comply with s. 38(8) of the Schedule. It does not clearly refer to the medical documents the respondent reviewed in reaching its decision. It also fails to identify any information about the applicant’s condition despite this information being provided in the initial plan submitted by the applicant. I also find that the respondent fails to provide a specific request for what medical records or provide an explanation as to why the additional medical records. Also, the respondent failed to provide any context or explanation for how it came to this conclusion or provide any context as it why it was relevant to its decision. I find this does not meet the minimal standard set out in T.F. v. Peel Mutual Insurance Company, as it is something that an unsophisticated person would not be able to understand. For these reasons, I find that the EOB dated February 23, 2022, does not meet the minimum standard required by the Schedule and the case law.

32The respondent breached its obligation under s. 38(8) and thus the consequences under s. 38(11) are triggered. I accordingly find that the treatment plan is payable once incurred and properly invoiced by the applicant.

The OCF-18 for$2,223.02 for physiotherapy services

33The EOB dated November 22, 2022, states, “It was the opinion of the physician assessor, Dr. Riaz Moolla on May 26, 2022, that you sustained uncomplicated strain injuries only without evidence of Orthopaedic or neurological complication, and that your accident-related injuries fall within the minor injury as per the Guideline. In addition, treatment has been provided up to the minor injury limits. Please note subject treatment plan is denied and will not be referred to an insurer examination.”

34I find that the EOB identifies the treatment plan dated November 7, 2022, and advises that the insurer does not agree to pay for the plan. The EOB provides a medical reason in stating Dr. Riaz Moolla on May 26, 2022, found that the applicant sustained uncomplicated strain injuries only, and that the accident-related injuries fall within the MIG. Further, as per Zeitoun v Royal & Sun Alliance this satisfies the requirement, well-established in the jurisprudence, that an insurer provide reasons capable of giving a claimant a principled rationale, based fairly on the claimant’s file, to which an insured person can respond to. Lastly, it refers to the two-year limitation period to dispute the denial and provides details on how to make an application for dispute resolution. I find that the notice is compliant with s. 38(8).

The OCF-18 for $2,223.02 for physiotherapy services

35The EOB dated August 9, 2022 for treatment plans dated July 11, 2022, in the amount of $2,460.00 and dated June 8, 2022, for the amount of $1,780.00 states, “Upon review of the file and the recently completed insurer examinations, it was the opinion of the assessors that from a psychological perspective you have not sustained a clinically significant impairment, additionally, you did not report any psychological difficulties; physically you sustained uncomplicated injuries only without evidence of Orthopaedic or Neurological complications, which would be considered a minor injury per the guidelines. Also be advised, the policy limit for a minor injury is $3500, which you have already reached. Therefore, no further funding is available.”

36I find the denial complies with s. 38(8) of the Schedule. In the EOB, it identifies the treatment plans dated July 11, 2022, and June 8, 2022. Also, the EOB advises that the insurer does not agree to pay for the plan. The EOB provides a medical reason clearly stating that, it was the opinion of the assessors that from a psychological perspective the applicant did not sustain a clinically significant impairment, additionally, the applicant did not report any psychological difficulties; Further, I reiterate, Zeitoun v Royal & Sun Alliance, 2020 CanLII 103701 (ON LAT). Lastly, it refers to the two-year limitation period to dispute the denial and provides details on how to make an application for dispute resolution. I find that the respondent has complied s.38(8).

37In summary, I find that the OCF-18 listed as issue iii for $3,795.50 for physiotherapy services, proposed by Mackenzie Medical in a plan dated February 14, 2023, payable once incurred. The other plans are not payable.

Interest

38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest will be awarded only to the treatment plan of $3,795.50 for physiotherapy services, proposed by Mackenzie Medical dated plan dated February 14, 2023. The other plans are not awarded interest.

Award

39The applicant sought an award under s. 10 of Reg. 664 because the respondent failed to provide the necessary medical reasons for denying the disputed OCF-18s. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that the insurer unreasonably withheld or delayed the payment of benefits. I find in this case that the respondent did not reasonably delay or withhold any benefits to the applicant, so I am not prepared to grant the applicant an award.

ORDER

40I find on the totality of the evidence that:

i. The applicant’s injuries fall within the MIG.

ii. I order that the treatment plan identified as issue iii for $3,795.50 for physiotherapy services, proposed by Mackenzie Medical is payable once incurred, as I find the respondent’s denial did not comply with s. 38(8) of the Schedule.

iii. The applicant is not entitled to the remaining treatment plans.

iv. Interest is payable only on the plan at issue iii under s. 51 of the Schedule.

v. The respondent is not liable to pay an award.