Licence Appeal Tribunal File Number: 24-002471/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:
Princess Pinney
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Amar Mohammed
APPEARANCES:
For the Applicant:
Joshua Meshack, Counsel
For the Respondent:
Catherine H Zingg, Counsel
HEARD:
By Way Of Written Submissions
OVERVIEW
1Princess Pinney, the applicant, was involved in an automobile accident on September 1, 2020, 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, 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 $300.00 for a psychological pre-screen, proposed by Imperial Medical Assessments in a treatment plan/OCF-18 (“plan”) dated August 24, 2023?
iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Imperial Medical Assessments in a plan dated August 24, 2023?
iv. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Pivotal Rehab and Wellness Inc. in a plan dated September 11, 2023?
v. Is the applicant entitled to $2,200.00 for a physiatry assessment, proposed by Pivotal Rehab and Wellness Inc. in a plan dated September 12, 2023?
vi. Is the applicant entitled to $565.00 for a neurological consultation, proposed by Dr. Basile in a plan dated May 26, 2023?
vii. Is the applicant entitled to $2,486.00 for a neurological assessment, proposed by Dr. Basile in a plan dated May 26, 2023?
viii. Is the applicant entitled to $448.74 ($2,144.93 less $1,696.19 approved) for mental health assessment, proposed by Dr. Hewchuk in a plan dated December 31, 2021?
ix. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
x. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not subject to the MIG limit because the respondent acknowledged the applicant was removed from the MIG in 2021.
4The applicant is not entitled to payment under s. 38(11) of the Schedule, in the amount of $300.00 for a psychological pre-screen, and $2,200.00 for a psychological assessment.
5The applicant is entitled to $2,200.00 for a chronic pain assessment.
6The applicant is not entitled to $2,200.00 for a physiatry assessment.
7The applicant is not entitled to $565.00 for a neurological consultation and $2,486.00 for a neurological assessment.
8The applicant is entitled to payment under s. 38 (11) of the Schedule, in the amount of $448.74 ($2,144.93 less $1,696.19 approved) for a mental health assessment, once incurred and invoiced.
9The respondent is not liable to pay an award under s. 10 of Reg. 664.
10The applicant is entitled to interest on any overdue payment of benefits.
PROCEDURAL ISSUES
Applicant’s request for an extension of time to file submissions
11An extension for the applicant to file her initial submissions on March 18, 2025 and the respondent to file its responding submissions on March 27, 2025 is granted.
12A written hearing was scheduled for April 11, 2025. The Case Conference Report and Order (“CCRO”) sets the following deadlines for the parties to file and serve their material:
i. Applicant’s initial submissions, evidence and authorities due 30 calendar days prior to the hearing.
ii. Respondent’s submissions, evidence and authorities due 14 calendar days prior to the hearing.
iii. Applicant’s reply submissions or written notice that no reply submissions will be filed due 7 calendar days prior to the hearing.
13The applicant filed a Notice of Motion dated March 18, 2025, requesting “6 days extension for the filing of the submissions of the Applicant’s Response (“Response”) to the Respondent’s Written Hearing submissions.” The applicant included the respondent’s consent “to an extension of 6 days for [the applicant’s] written submissions running from March 17.”
14The framing of the applicant’s request together with the respondent’s consent leave it unclear if the applicant was seeking an extension for filing of the initial submissions due 30 calendar prior to April 11 or the reply submissions due 7 calendar days prior to April 11. Having the benefit of reviewing all of the parties’ materials and submissions, it seems the applicant, with the respondent’s consent, was seeking an extension of the applicant’s initial submissions that were filed March 18, 2025. The respondent then filed its reply submissions dated March 27, 2025. Accordingly, an extension to the original due dates is granted. I note that the applicant did not file reply submissions.
Clarification of the applicant’s filed evidence and authority brief
15The applicant’s initial submissions dated April 16, 2024, but filed March 18, 2025 include tabbed documents. I note that the references in the submissions to the included tabs are not accurate. I also note that there is no index for the documents and the applicant’s submissions are not double spaced, both are requirements set out in the CCRO. In any case, the applicant’s combined submissions and documents, as referenced in submissions, were considered at this hearing.
16The CCRO orders the parties not to file with the Tribunal any documents and things exchanged between them unless they are filed as part of the evidence and authority brief for the hearing. Further, among the requirements in the CCRO applicable to their filed materials the parties must follow, the parties must make specific reference to the evidence and authorities by tab and page number in their submissions.
17The applicant filed an initial brief dated August 21, 2024, and a final brief dated September 16, 2024. These documents seem to be documents exchanged between the parties that were not to be filed with the Tribunal according to the CCRO. In any case, as the applicant’s submissions do not make specific reference to these filed briefs, they were not considered at this hearing.
ANALYSIS
The applicant’s injuries are not predominantly minor as defined in s. 3 of the Schedule and therefore are not subject to treatment within the $3,500.00 MIG limit
18I find that the applicant’s injuries are not subject to the MIG.
19The applicant seeks a determination that the applicant’s injuries are not subject to the MIG. The respondent submits that the applicant was removed from the MIG, confirmed by correspondence dated February 16, 2021, and is therefore not subject to the MIG. The respondent submits that it has paid over $10,000.00 in medical and rehabilitation benefits and argues that this issue should not be in dispute before me.
20The applicant disputed application of the MIG on the application dated February 27, 2024. The parties had an opportunity at the case conference on June 27, 2024 to frame the issues in dispute that are now before me. I find that I must consider the issue in my decision because it is the applicant’s application, and she is disputing the issue. Based on the respondent’s correspondence dated February 16, 2021, I find that the applicant’s injuries are not subject to the MIG.
21For the reasons above, I find, on a balance of probabilities, that the applicant’s injuries are not predominantly minor as defined in s. 3 of the Schedule and therefore are not subject to treatment within the $3,500.00 MIG limit. The applicant was removed from the MIG in 2021.
Is the applicant entitled to $300.00 for a psychological pre-screen, and $2,200.00 for a psychological assessment, proposed by Imperial Medical Assessments in plans dated August 24, 2023?
22I find that the respondent’s denial notice relating to these proposed plans is compliant with s. 38(8) of the Schedule.
23Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the MIG applies.
24The applicant does not offer substantive arguments on her entitlement to these plans but rather argues that these proposed plans are subject to the shall pay provision of s. 38(11) of the Schedule due to the respondent’s non-compliance with s. 38(8). For this reason, it is not necessary to consider whether the proposed plans are reasonable and necessary.
25The applicant refers me to the requirement that the respondent’s denial must be timely. Upon review of the plan, I find that the plan is dated August 24, 2023, and was submitted on September 22, 2023. The respondent’s denial notice is provided in an Explanation of Benefits (“EOB”) dated September 27, 2023. Accordingly, I find that the respondent’s denial notice was issued within the timeframe in s. 38(8).
26The applicant argues that the respondent’s reasons do not comply with s. 38(8) of the Schedule. The respondent argues that its reasons are clear, unequivocal, and compliant with the Schedule.
27The applicant argues that if a denial notice fails to meet one of the aspects found in M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT) at para. 26, the shall pay provision is triggered:
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. Ultimately, 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.
28The applicant did not make submissions on how the respondent’s denial notice falls short in the context of the aspects referred to above. The respondent’s reasons for denying these plans are:
You have already attended for a psychological assessment and psychological treatment has already been approved by Aviva under Treatment Plan (OCF-18) dated February 25, 2022 submitted by General Med M Inc., and it’s our understanding that you continue to receive counselling. As such, the above OCF- 18 is considered a duplication of services.
29I find that the respondent’s position that the applicant has already undergone a psychological assessment and is continuing to receive psychological treatment are sufficient reasons explaining its conclusion that the proposed plans are being denied as a duplication of services. I find that the reasons are clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the denial.
30For the reasons above, on a balance of probabilities, I find, that the respondent’s denial notice is compliant with s. 38(8) of the Schedule.
Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Pivotal Rehab and Wellness Inc. in a plan dated September 11, 2023?
Is the applicant entitled to $2,200.00 for a physiatry assessment, proposed by Pivotal Rehab and Wellness Inc. in a plan dated September 12, 2023?
31I find that the applicant is entitled to the proposed plan for a chronic pain assessment. The applicant is not entitled to the proposed plan for a physiatry assessment.
32To 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.
33Notably, for an applicant to prove that an assessment is reasonable and necessary, it is not crucial for the applicant to prove the actual existence of a condition; rather, the applicant must prove that there is some objective evidence to suggest that some condition exists and warrants investigation via an assessment.
34The applicant makes essentially the same arguments and refers to largely the same evidence for both these proposed plans. The Tribunal has consistently found that a treatment plan itself is not sufficient medical evidence to prove entitlement, as contemporaneous corroborating medical evidence is required to support entitlement to proposed plans. The applicant’s submissions regarding entitlement to this plan largely refer to sections of the proposed plan. For example, the applicant argues that her assessment is reasonable and necessary based on her barriers to recovery identified within the proposed plan, which include, chronic pain in the neck, back, and left arm radiating into hand & fingers with paresthesia, numbness, and loss of grip.
35In support, the applicant refers to the clinical notes and records (“CNRs”) of the applicant’s family doctor, Dr. Gurleen Dhanoa, dated January 20, 2023 and December 3, 2024 which indicate as follows. The CNRs provide the following in Subjective, Objective, Assessment, and Plan (“SOAP”) format:
i. On January 20, 2023, the applicant complained subjectively of pain in her left upper and lower arm since the accident 3 years prior, and an exacerbation from the day prior due to increased workload. The notes suggest the applicant was tested on her right arm and not on her left arm. Although the parties did not address this, it is likely a typo as the applicant had not complained about her right arm during this visit. The objective observation was noted as mild swelling, tenderness of the bicep and decreased range of motion at the elbow. The assessment was that the applicant has post-accident left arm pain and that there was a question as to whether it may be radiculopathy.
ii. On December 3, 2024, the applicant complained subjectively of discomfort on the left side of her neck radiating down the left arm with a tingling sensation in all 5 digits. The doctor objectively noted swelling of the trapezius muscle and pain on turning towards the left side. The assessment was that the applicant had neck pain and was referred to Dr. Sanja Paleksic, physiatrist. The CNR also states: “advised physiotherapy” and “avoid repetitive movements with left side” and “increase amitriptyline to 75 mg”.
36Upon review of the CNRs from the family doctor between 2020 and 2022, as referenced by the applicant, I find that she consistently complained of left sided neck pain radiating down her left arm and into her hand. She has also consistently complained of tingling and numbness down her left arm, and decreased grip strength, since the accident and over the course of approximately 3 or more years.
37The respondent argues that the applicant has not provided compelling evidence of the need for a chronic pain assessment. The respondent refers me to a s. 44 medical physician assessment report of Dr. Ijaz Chaudhry explaining why these two assessments are not reasonable and necessary. Dr. Chaudhry states:
I found no evidence of any objective neurological or radicular findings related to the subject accident. I am of the opinion, strictly from a musculoskeletal perspective, that the claimant has suffered soft tissue
injuries. Moreover, at over [3 years] post-subject MVA, the claimant’s condition has plateaued and there is no evidence of any complicated injuries that would warrant chronic pain and physiatry assessments.
38I give more weight to the family doctor’s CNRs as they corroborate contemporaneous complaints and describe the applicant’s symptoms to be chronic a number of years post-accident. I note that the applicant’s family doctor did not refer the applicant for a chronic pain assessment. The applicant has been referred for an MRI, for an EMG and neurology consult, and as a result of the applicant’s symptoms being chronic and musculoskeletal in etiology, a physiatry referral was made.
39Based on the family doctor’s CNRs, I find the applicant has established that the medical record suggests that some condition exists and warrants investigation via a chronic pain assessment and a physiatry assessment. However, as the respondent argues, a physiatry assessment referral was made through OHIP. I do not have any submissions or evidence to consider as to what came of that physiatry referral through OHIP. In light of the physiatry referral having been made through OHIP, I find that the proposed plan for a physiatry assessment is not necessary as the referral establishes it is reasonably available to the applicant through OHIP.
40For the reasons above, on a balance of probabilities, I find, that the applicant is entitled to the proposed plan for a chronic pain assessment. However, the applicant is not entitled to the proposed plan for a physiatry assessment.
Is the applicant entitled to $565.00 for a neurological consultation, proposed by Dr. Basile in a plan dated May 26, 2023?
Is the applicant entitled to $2,486.00 for a neurological assessment, proposed by Dr. Basile in a plan dated May 26, 2023?
41I find that the applicant is not entitled to the proposed plans for a neurological consultation or a neurological assessment.
42The applicant argues that the consultation and assessment is necessary as a result of her complaints of pain from the left side of her neck into her left arms and numbness and tingling in the left arm and hand with a loss of grip. I have already found that the family doctor’s CNRs establish consistent complaints in this regard since the accident. The applicant also refers to experiencing headaches three times a week, dizziness, and balance issues. I was not referred to evidence to corroborate this and did not find mention of these symptoms in the applicant’s reference to the relevant CNRs of the family doctor.
43The applicant also argues that since she is experiencing sleep disturbance, she is entitled to be evaluated by a neurologist because this is a post concussive symptom. However, I am not persuaded by this framing of the applicant’s complaints. The applicant’s submissions do not explain why the question of a concussion is arising for the first time in a proposed treatment plan in May 2023 for an accident that occurred on September 1, 2020. Three types of practitioners are regulated in Ontario to make a diagnosis of concussion: a physician, nurse practitioner, or neuropsychologist. There is no record of the applicant being advised to follow a post-concussion protocol, and no referrals are noted. The applicant’s submissions also suggest that her sleep dysfunction is attributed to sleep apnea but no reference to evidence is provided.
44The respondent refers me to the s. 44 neurology assessment report of Dr. Roy Baskind dated September 20, 2023. Dr. Baskind opines that there is no neurological diagnosis. The treatment plans are not reasonable and necessary because the claimant reported no symptoms attributable to a concussion with both open and closed ended questioning. There was no head injury or loss of consciousness. Dr. Baskind further opined that the assertion she has ongoing symptoms of mild traumatic brain injury “is illogical, unreasonable, and specious”.
45The respondent also refers me to a June 27, 2022 report of Neurologist Dr. Gerald Tullio from the William Osler Health System confirming that the applicant underwent neurodiagnostic studies and a neurological exam. The results from a neurological perspective are normal. Dr. Tullio is of the view symptoms are musculoskeletal in etiology. It appears that this report flows from the family doctor’s referral for an EMG and neurology consult in February 2022.
46On the basis of the applicant having been assessed by two neurologists for her accident-related complaints, in June 2022 and in September 2023, I find that the proposed plans for a neurology consult, and assessment are not necessary.
47For the reasons above, on a balance of probabilities, I find, that proposed plans for a neurological consultation and neurological assessment are not reasonable and necessary.
Is the applicant entitled to $448.74 ($2,144.93 less $1,696.19 approved) for a mental health assessment, proposed by Dr. Hewchuk in a plan dated December 31, 2021?
48I find that $448.74 is payable by the respondent, once incurred and invoiced by the applicant, under s. 38(11) of the Schedule.
49The applicant argues that the applicant is entitled to approval of the proposed plan because Dr. Eugene Hewchuk, psychologist, has suggested a provisional diagnosis of adjustment disorder. The applicant also refers me to the s. 44 psychology assessment report by Dr. Rakesh Ratti dated February 16, 2022. Dr. Ratti opined that the applicant meets criteria for the DSM-V diagnosis of adjustment disorder with mixed anxiety and depressed mood in regard to the subject accident. The applicant also argues that the respondent did not provide sufficient reasons for the partial denial of this proposed plan.
50The plan proposed a psychological assessment by Dr. Hewchuk, as follows:
G/S Ref
Description
Estimated
Projected
Quantity
Cost
Total Count
Total Cost
1
Assessment, mental health and addictions
5.00
748.05
1
748.05
2
"Documentation, support activity"
8.00
1196.88
1
1196.88
3
Documentation, support activity for claim form (e.g. for insurance, third party payor, worker's compensation)
1.00
200.00
1
200.00
Estimated duration of this Plan: 2 Weeks
Sub-Total: 3
2144.93
51The respondent’s EOB dated February 17, 2022 provides the following reasons for denial:
Please review the enclosed insurer’s examination completed by Dr. Rakesh Ratti dated February 16, 2022 under section 44 of the Statutory Accident Benefits Schedule. The assessors reviewed the Treatment Plan (OCF-18) submitted by Dr. Hewchuk dated December 31, 2021 for a mental health assessment, and the medical information received to date. They determined the treatment recommended is partially reasonable and necessary from the injuries sustained in the motor vehicle accident. Therefore, Aviva will fund $1,696.10 treatment incurred relating to this treatment plan.
52The applicant argues that she searched for reasons relating to the partial denial within Dr. Ratti’s report but could not find them. The respondent argues the denial is clear and unequivocal in providing the basis for the insurer’s position, namely that it relies upon the opinion of Dr. Ratti. Further, that Dr. Ratti addressed in full what was considered reasonable and necessary in the February 16, 2022 report at page 8, paragraph 4.
53In the respondent’s submissions for this hearing, it argues that while the psychological assessment was warranted, the proposed goods and services were found to be excessive. The respondent submits:
In Dr. Ratti’s opinion a total of 10 hours was reasonable and sufficient for the proposed mental health assessment which included: 2 hours for the clinical interview; 2 hours for the testing; 3 hours for report writing; 1 hour for consultation with other professionals; 1 hour for document review; and 1 for feedback to the claimant. As well, the line proposing “Documentation, support activity for claim form” appeared reasonable and necessary. Therefore, the total cost should not exceed $1,696.10 (p.8).
54I could not find this opinion of Dr. Ratti in the evidence I was referred to. After having reviewed both the denial notice and page 8 of Dr. Ratti’s report, I find that the notice is not clear on what benefits the insurer agrees to pay for or not pay for. The denial refers to the partial approval amount being for the purpose of treatment while the plan proposes a psychological assessment rather than treatment. I further find that page 8 of Dr. Ratti’s report is addressing questions relating to an income replacement benefit rather than this proposed plan in dispute. Under the circumstances, I find that the denial does not engage with the specific details forming the basis for the denial. I find that, the respondent’s notice is not adequate to allow an unsophisticated person to understand the denial and make an informed decision in response.
55I find that the denial was not compliant, and the respondent has not referred me to a subsequent proper denial. The parties have proceeded to a hearing without a compliant denial, and it is well established that the respondent cannot cure a defective denial during or following a hearing. Accordingly, I find the partially denied amount payable under s. 38(11) of the Schedule, once it is incurred and invoiced.
56For the reasons above, on a balance of probabilities, I find, that $448.74 is payable by the respondent, once incurred and invoiced by the applicant, under s. 38(11) of the Schedule.
Interest
57The applicant is entitled to interest as it applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
58The 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.
59The applicant argues that an award for the maximum 50 per cent is warranted because the respondent did not seriously consider the proposed benefits sought by the applicant. The respondent argues that the applicant faces a stringent test and that she has not met her burden of proof.
60I note that an award is not granted simply because an insurer has made an error. Plowright v. Wellington, 1993 ONICDRG 66, provides that a special award arises because the delay or withholding of benefits by the insurer stems from behaviour that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. I was not pointed or directed to evidence before me suggesting the type of behaviour that would attract an award.
ORDER
61For the reasons above, I make the following orders:
i. The applicant is not subject to the MIG limit.
ii. The applicant is not entitled to payment under s. 38(11) of the Schedule, in the amount of $300.00 for a psychological pre-screen, and $2,200.00 for a psychological assessment.
iii. The applicant is entitled to $2,200.00 for a chronic pain assessment.
iv. The applicant is not entitled to $2,200.00 for a physiatry assessment.
v. The applicant is not entitled to $565.00 for a neurological consultation and $2,486.00 for a neurological assessment.
vi. The applicant is entitled to payment under s. 38 (11) of the Schedule, in the amount of $448.74 ($2,144.93 less $1,696.19 approved) for a mental health assessment, once incurred and invoiced.
vii. The respondent is not liable to pay an award under s. 10 of Reg. 664.
viii. The applicant is entitled to interest on any overdue payment of benefits.
Released: December 15, 2025
__________________________
Amar Mohammed
Adjudicator