Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-015217/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:
Alisha Willis
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Jeff Chatterton
APPEARANCES:
For the Applicant: Terio Francis, Counsel
For the Respondent: Andrea L Bandow, Counsel
HEARD: In Writing
OVERVIEW
1Alisha Willis, the applicant, was involved in an automobile accident on June 10, 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 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 Chronic Pain Assessment, proposed by Richard Tutak in an OCF-18/treatment plan ("treatment plan") dated May 19, 2023?
ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to the Chronic Pain Assessment, as well as interest. The respondent is liable to pay an award.
ANALYSIS
Chronic Pain Assessment
4The applicant has met the onus to establish she is entitled to a Chronic Pain Assessment.
5To 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.
6The 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.
7The applicant argues that she has been suffering from chronic pain to her spine, shoulder, knee and ribs, which has led to dizziness, fatigue, disrupted sleep, emotional distress and impaired cognitive function. To support her claim, the applicant relies upon the OCF-18 submitted by Chiropractor Dr. Richard Tutak and dated May 19, 2023.
8The applicant is also relying upon:
i. Clinical notes and records from Family Physician Doctors Amar Patel and Preeti Wadhwa;
ii. Psychological Reports from Clinical Psychologist Dr. Michael Decaire and Psychotherapist Helen Ilios, dated October 6, 2021;
iii. Clinical notes and records from Amit Patel, Physiotherapist; and
iv. Clinical notes and records from Chiropractors Dr. Sekhon Ravdeep & Jessa Rahim.
9The respondent disagrees and states that the Chronic Pain Assessment is not reasonable or necessary. To support its position, it is relying on the expert medical report of Dr. Alborz Oshidari, general physician, dated July 13, 2023, with an addendum dated August 31, 2023. Dr. Oshidari assessed the applicant as part of a s.44 insurer's examination.
10I place more weight on the applicant's evidence. The applicant has provided evidence from multiple medical professionals who agree that the applicant is suffering from consistent and chronic pain. This evidence includes most recently, notes from her own family physician dated April 26, 2023 – approximately three weeks before visiting Dr. Tutak.
11The applicant also argues that Registered Massage Therapist Jaruti Patel documented pain in the applicant's shoulder, neck and lower back on April 6 of 2023 which would be consistent with the applicant's car accident injuries. Furthermore, Chiropractor Dr. Jessa Rahim observed pain associated with the applicant's cervical and lumbar spine on April 26, 2023.
12Furthermore, upon reading the respondent's evidence from Dr. Oshidari, he writes that the applicant "experiences constant pain in the left shoulder and stiffness in the left side of the neck" as well as "constant pain in the lateral aspect of the left pelvis." It is clear to me that while Dr. Oshidari claims the Chronic Pain Assessment is not reasonable or necessary, even Dr. Oshidari acknowledges that the applicant is living in a state of considerable pain or discomfort.
13I also note that the respondent argued at some length in their submissions that the patient does not suffer from Chronic Pain, as per the American Medical Association Guide to the Evaluation of Permanent Impairment (6th Edition.) While I can appreciate that the respondent argues that the applicant does not suffer from Chronic Pain, the legal test as to whether or not an assessment is reasonable and necessary is not whether the applicant conclusively suffers from Chronic Pain. The applicant bears the onus of demonstrating that there are grounds on which to believe a condition exists which would warrant further investigation. Based on the preponderance of evidence before me, I find that such grounds exist.
14In summary, the applicant has provided evidence from independent medical professionals who consistently state that the applicant is suffering from chronic pain. The respondent's own s.44 assessor also admits that the applicant is in considerable discomfort.
15For these reasons, I find the applicant has, on a balance of probabilities, established that there are reasonable grounds to believe that a condition exists which warrants further investigation. I find she is entitled to the Chronic Pain Assessment in question.
Interest
16Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies, as per the Schedule.
Award
17The 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.
18The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning "behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate." The onus is on the applicant to prove, on a balance of probabilities, that the respondent's conduct meets this criteria.
19The applicant submits that the insurer failed to approve the disputed treatment plan in a timely fashion and that the insurer caused delay which constitutes an unreasonably withheld payment contrary to s. 10 of Regulation 664.
20The applicant further submits that the respondent relied disproportionately on a 40 minute insurer's examination, and did so while ignoring the other medical evidence available. The applicant states that this has caused unnecessary suffering and also forced the applicant to bear the financial burden of ongoing treatment.
21The respondent submits that simply "getting it wrong" is not the basis for an award, and rather, an award is granted when an insurer demonstrates egregious misconduct. Further, the respondent submits that the Tribunal reserves an award of 50% of the disputed amounts as "reserved for intransigent or egregious conduct." The respondent submits that if the Tribunal were to grant an award, a modest quantum of 5% or less is more appropriate.
22Having taken both submissions into consideration, it is clear to me that the respondent has overly relied on a s.44 IE report in the face of significant contrarian evidence. Furthermore, this report acknowledged that the applicant was living in a state of ongoing chronic pain, yet the respondent still chose to maintain its position that a chronic pain assessment was not reasonable or necessary. I find this conduct stubborn and inflexible, given that respondent has an obligation to adjust the file using all available medical evidence. Having considered the submissions and evidence before me, I find an award of 25% of the disputed amounts to be appropriate.
23For this reason, I grant an award of 25% of the disputed amount to the applicant, plus interest in accordance with Regulation 664.
ORDER
24The application is granted.
i. The applicant is entitled to $2,460 for a Chronic Pain Assessment.
ii. Interest applies to the treatment plan as per s. 51 of the Schedule.
iii. An award of 25% of the disputed amount is granted to the applicant, plus interest in accordance with Regulation 664.
Released: December 5, 2025
Jeff Chatterton
Adjudicator