Citation: Anibuali v. Aviva General Insurance, 2025 ONLAT 23-011620/AABS

Licence Appeal Tribunal File Number: 23-011620/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:

Abiola Anibuali

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Yanick Charbonneau

APPEARANCES:

For the Applicant:

Naman Nanda, Counsel

For the Respondent:

Ibrahim Farag, Counsel

HEARD:

In Writing

OVERVIEW

1Abiola Anibuali, the applicant, was involved in an automobile accident on December 3, 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, 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 $1,274.95 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation in a treatment plan/OCF-18 (“plan”) dated August 10, 2022?

ii. Is the applicant entitled to $1,845.00 ($3,641.10 less $1,796.00 approved) for a psychological service, proposed by Prime Health Care Inc. in a treatment plan dated January 5, 2023?

iii. Is the applicant entitled to $1,198.04 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation in a treatment plan dated October 13, 2023?

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

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

RESULT

3I find that the treatment plans i to iii referenced above, are not reasonable and necessary.

4The respondent is not liable to pay an award under Regulation 664.

5As no benefits are owing, no interest is payable.

ANALYSIS

6Sections 14 and 15 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by and on behalf of an insured as a result of an accident.

7The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit of treatment.

Are the physiotherapy treatments proposed by Mackenzie Medical Rehab., treatment plans numbers i) and iii) above, reasonable and necessary?

8I find that the applicant did not adduce any medical evidence that the treatments proposed would be effective and improve her level of functionality. Further, the efficacy of the devices or equipment listed in the treatment plan are not supported by any medical diagnosis from the medical professionals at the Urgent Clinic attended by the applicant.

9Both of the McKenzie treatment plans for physiotherapy services proposed goals of: Pain reduction, increase in strength, range of motion, return to activities of normal living and return to pre-accident work activities. Devices are also proposed, namely: Thumper, Tempurpedic pillow, Obus Forme backrest, electric healing pad, exercise ball, and Cryoderm heat gel.

10The applicant submits that she was diagnosed by her family physician (at the Urgent Care Clinic, or “Urgent Clinic”), with chronic lumbar back pain and chronic neck pain. The applicant submits that she consistently reported her ongoing back pain and her physical limitations to her family doctors at the Urgent Clinic and to the respondent’s Insurer’s Examination (IE) assessors. She argues that she was noted to be suffering from chronic pain by her family doctors at Urgent Care Clinic numerous times, including on December 28, 2022, August 22, 2023, November 2, 2023, December 5, 2023, and January 16, 2024. The s.25 psychological assessor Dr. J. Brunshaw opined that the applicant is unable to engage in many of her pre-accident activities on account of her ongoing pain.

11Dr. P. Porco, Chiropractor, completed a Disability Certificate (OCF-3), which states that she sustained various impairments such as: radiculopathy; dislocation, sprain (of) strain of joints and ligaments at: neck level, lumbar spine and pelvis, shoulder girdle; sprain and strain of: thoracic spine and sacroiliac joint; other headache syndromes; dizziness and giddiness; insomnia; other anxiety disorders; nervousness; depressive disorder.

12The respondent submits that the applicant was diagnosed by Dr. P. Howard, GP, IE Assessor with only a myofascial strain to the lower back, and that Dr. Howard confirmed that the applicant was engaging in all her pre-accident activities at the time of the assessment, that is that she returned to work full-time as a Personal Support Worker, and that she confirmed that she was able to complete the housekeeping tasks independently, for her three children and her husband. It also submits that the applicant has failed to demonstrate that her injuries are linked to the accident. In support of its position, the respondent relies upon an IE report dated May 9, 2022 of Dr. P. Howard, GP, and Rod Prichett, OT.

13Further, the respondent argues that the applicant has received over $15,000.00 in physiotherapy, massage, and chiropractic treatment to date, and; that she has received maximum medical recovery with respect to her accident-related soft-tissues injuries, as opined by Dr. Alikhan in an IE report dated December 7, 2023.

14I agree with the respondent, that the applicant has received maximum medical recovery, given that she has sustained soft-tissues injuries, and given also, the duration and the frequency of the physiotherapy treatments that she has received. To this end, I am not persuaded that the treatments plans in dispute are reasonable and necessary, for the following reasons:

15Of all the Urgent Clinic Medical Professionals, I refer to the CNRs of Dr. I. Maxwell, who has documented the decreased range of motion of the back, albeit noted as being “tender paraspinally in the low back”. Dr. Maxwell has also noted that the applicant had complained of back pain “on and off”, and that it had been “bothering her a little bit lately”. As of November 2, 2023, Dr. Maxwell opined that the applicant needed to be on some anti-inflammatories and continue the physiotherapy.

16I also note that the applicant’s Doctors’ notes from the Urgent Clinic do not document a referral to a chronic specialist, or for imaging, save for an unrelated cardiac condition.

17To the point, aside from the referrals for physiotherapy and prescriptions for anti-inflammatory medicine at the Urgent Clinic, the applicant did not direct me to any entries in the CNRS of the Urgent Clinic, as to whether the physiotherapy treatments are effective, in a way that they improve her level of functionality.

18As to the devices proposed in one of the two McKenzie treatment plans, the CNRs of the Urgent Clinic do not recommend any such devices.

19In further consideration of the CNRs of the Urgent Clinic, where the word “chronic” likely conveys the meaning of ongoing pain, the use of the terms “chronic pain”, in my view, does not clearly document a diagnosis of chronic pain disorder or chronic pain syndrome.

20I note that these diagnoses of chronic lumbar back pain are few and far between, having been documented more than 18 months and 2 years after the accident, respectively. At least one of these two diagnoses is qualified, as the Doctor states that: (it) “sounds like chronic pain”, in the context of the medical plan. In this respect, the assessment of Dr. J. Ku as of December 5, 2025, is that of Lower back pain, or LBP.

21In alignment with the fact that the applicant was not referred to a chronic pain specialist or a chronic pain clinic, and that the applicant has complained of pain “on and off”,” the CNRs of the Urgent Clinic also state that the applicant’s injuries are soft-tissue injuries documented as myofascial sprain. For instance, the applicant had been diagnosed with muscular strain on June 9, 2022, more than six months after the accident, and, on August 2, 2023, she was prescribed acupuncture for post-accident myofascial strain.

22Accordingly, despite the applicant’s ongoing pain complaints, I find that the medical professionals at the Urgent Clinic have not expressed an unequivocal opinion, or a diagnosis of chronic pain syndrome related to the applicant’s injuries resulting from the accident. Further, I also find that the applicant did not direct me to an opinion from the Urgent Clinic professionals regarding the applicant’s prognosis for rehabilitation in alignment with her need for continued physiotherapy, let alone the effectiveness of the devices proposed in the treatment plan.

23Finally, the applicant has returned to work as a Personal Support Worker, albeit with some adaptations, given that she does not do any lifting.

24Overall, I find that the applicant has reached maximum medical recovery, having undertaken two years of massage and physiotherapy funded by the respondent, and that the applicant did not adduce any evidence in the medical records as to the duration of the need for physiotherapy, or the improvement, if any, of her decreased range of motion. Ultimately, the applicant has returned to work, albeit on modified duties. Therefore, I find that the physiotherapy treatments sought by the applicant are not reasonable and necessary.

Is the denied portion of the treatment plans for psychological treatment proposed by Prime Healthcare Inc., reasonable and necessary?

25In my view, the applicant did not adduce any evidence that the denied portion of the treatment plan for psychological treatment, is reasonable and necessary.

26The applicant submits that she was diagnosed with Adjustment Disorder with Anxiety, Major Depressive Disorder, and Specific Phobia Situational. The assessor Dr. Brunshaw recommended 14 counselling sessions, opining that the applicant is currently unable to engage in many of her pre-accident activities. The applicant also relies on an OCF-18 submitted by psychotherapist T. Klopina on January 5, 2023. The goals of this treatment plan are to return to activities of normal living.

27In support of her position, the applicant also submits that her psychological impairments are corroborated by the medical records above.

28The respondent asserts that the treatment plan was partially approved, accounting for the hourly rate for a psychotherapist is paid at $99.75, rather than the requested $149.61 an hour, the rate for a psychologist. It cites the decision in Kane v. Aviva Insurance Company, 2021 CanLII 55137 (ON LAT) (“Kane”) in support of this position.

29Although the respondent points to the narrow issue in dispute, that is the applicable rate, which is outside the Guideline, I note that the applicant did not, reply or provide submissions on the applicable rate, the nature of the counselling services, or the qualifications of the psychotherapist.

30I find that the Kane decision is persuasive, because the OCF-18 in the matter before me also does not recommend CBT Psychotherapy.

31Accordingly, I also find that the applicant has not demonstrated that the hourly rate proposed is reasonable and necessary. Therefore, the applicant is not entitled to the payment of the balance of $1,845.00, pursuant to the psychological services proposed by Prime Health Care Inc. in a treatment plan dated January 5, 2023.

Interest

32As no payments for benefits are owed, the payment of interest does not apply.

Award

33The 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.

34I find that the respondent’s denials are based on the medical records and therefore, I decline the request for an award as no benefits are owing.

ORDER

35For the reasons outlined above, I find that:

i. The applicant is not entitled to the disputed treatment plans.

ii. The respondent is not liable to pay an award under Regulation 664.

iii. The applicant is not entitled to interest.