Citation: Rajaratnam v. Aviva Insurance Company of Canada, 2025 ONLAT 24-004965/AABS

Licence Appeal Tribunal File Number: 24-004965/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:

Jeyatheesan Rajaratnam

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Naman Nanda, Counsel

For the Respondent:

Meredith Harper, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Jeyatheesan Rajaratnam, the applicant, was involved in an automobile accident on July 2, 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 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 $3,376.51 for physiotherapy services, proposed by Scarborough Health and Wellness Centre, in a treatment plan submitted on February 16, 2023?

ii. Is the applicant entitled to the services and assessments proposed by HM Medical as follows:

(a) $1,857.67 for psychological services, in the treatment plan submitted July 27, 2023;

(b) $480.00 ($3,228.40 less $2,748.00 approved) for a chronic pain assessment, in a treatment plan dated July 27, 2023;

(c) $7,357.16 for a chronic pain management program, in a treatment plan dated January 16, 2024; and

(d) $200.00 ($3,138.00 less $2,938.00 approved) for a neurological assessment, in a treatment plan dated March 19, 2024?

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

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

RESULT

3I find that the applicant is not entitled to the treatment plan for physiotherapy services, proposed by Scarborough Health and Wellness Centre, submitted on February 16, 2023.

4I find that the applicant is not entitled to balance of the treatment plans proposed by HM Medical for psychological services, dated July 27, 2023 or a neurological assessment dated March 19, 2024.

5I find that the applicant is partially entitled to the balance of the treatment plan proposed by HM Medical for a chronic pain assessment, dated July 27, 2023. I find that the applicant is entitled to the balance of $300.00 for interpretation services, plus interest. I find that the applicant is not entitled to the cost of transportation expenses.

6I find that the applicant is not entitled to the treatment plan proposed by HM Medical for a chronic pain management program, dated January 16, 2024.

7I find that the respondent is not required to pay an award.

PROCEDURAL ISSUES

8The respondent requests that the Tribunal draw an adverse inference against the applicant for failing to comply with the documentary disclosure ordered by the Tribunal in the Case Conference Report and Order (“CCRO”), dated September 6, 2024. At paragraph 10 of the CCRO, the applicant was ordered to provide the respondent with:

(a) Clinical notes and records from all section 25 assessors from the date of loss to date.

(b) Clinical notes and records of all section 25 examiners with copies of CVs and complete file of all assessors, with necessary redactions and the basis for the redactions indicated, from the date of loss to the date of the case conference.

(c) Complete communications between section 25 assessors and applicant’s representatives including all letters, faxes, emails, notes from date of loss to the date of the case conference, with necessary redactions and the basis for the redactions indicated, from the date of loss to the date of case conference.

9The respondent submits that the applicant has failed to comply with the Tribunal’s order to produce the Clinical Notes and Records (“CNR”), instruction correspondence, and the complete files of multiple s. 25 assessors. It submits that an adverse inference should therefore be drawn against the applicant for failing to provide the relevant records as ordered by the Tribunal. The respondent further submits that the applicant has not addressed his failure to produce various records as ordered in the CCRO, despite having an opportunity to do so, and therefore has provided no reasonable explanation for the failure to comply.

10The applicant has not provided any submissions to address his failure to comply with the CCRO.

11I grant the respondent’s request that I draw an adverse inference against the applicant for failing to provide the relevant records as ordered by the Tribunal. The Tribunal has the discretion to draw an adverse inference where, in the absence of a reasonable explanation, a party fails to produce evidence that is within its control, and such evidence is material to the dispute. In the present case, the applicant did not comply with the Tribunal’s order as he failed to provide the requested records, and the applicant has not provided an explanation as to why he failed to comply with the Tribunal’s order.

ANALYSIS

Medical and Rehabilitation Benefits

12To receive payment for a treatment 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 that the goals of treatment are reasonable, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

13In the context of an assessment, while the applicant does not need to prove the condition exists, he must prove with persuasive evidence that there is some accident-related condition that warrants investigation via the proposed assessment.

Entitlement to the treatment plan for physiotherapy services

14I find that the applicant is not entitled to the treatment plan recommending physiotherapy services, submitted on February 16, 2023.

15The applicant claims entitlement to $3,376.51 for physiotherapy services, proposed by Scarborough Health and Wellness Centre, in a treatment plan submitted on February 16, 2023. I note that the date on the treatment plan is December 7, 2022. Specially, the treatment plan recommends the following:

Completion of OCF-18: $200.00 20 Multidisciplinary rehabilitation sessions: $2,256.20 18 Massage therapy sessions: $607.50 File and medical documentation review: $112.81 Progress report: $200.00

The goals of the treatment plan were noted to be pain reduction, increase range of motion, increase in strength, return to activities of normal living, and return to pre-accident work activities.

16The applicant submits that the respondent denied the treatment plan in dispute by letter dated February 21, 2023, citing that his injuries were minor in nature due to a lack of objective, demonstrable, definable and clinically relevant evidence to substantiate treatment outside of the minor injury guideline (“MIG”) limits. He argues that he was eventually removed from the MIG, but the respondent did not go back and review its prior denial and provide an updated response. As his injuries are no longer minor in nature, the treatment plan in dispute is reasonable and necessary.

17The respondent submits that the complete CNRs from Scarborough Health and Wellness Center have not been provided despite the applicant agreeing to produce these records at the case conference. The respondent submits that the treatment plan in dispute is neither signed nor initialized by the applicant. In addition, the respondent submits that the treatment plan contains no information about an American Sign Language Interpreter or a Deaf Interpreter being present to accurately obtain a preliminary assessment of the applicant, to assist in explaining the treatment being recommended and to obtain the consent of the applicant to submit the information and recommendations to the respondent. The respondent argues that the CNRs have not been produced to verify this. Further, while the treatment plan acknowledges the need for an American Sign Language Interpreter, there is no recommendation for such a cost under part 12 of the treatment plan.

18I find that the applicant has not proved that he is entitled to the treatment plan in dispute.

19I find that the applicant has provided submissions on the content and recommendations listed in the treatment plan in dispute. However, I find that he has not directed the Tribunal to any other medical evidence within his submissions on this issue to support that the treatment plan in dispute is reasonable and necessary. In my view, it is not the Tribunal’s role to sort through the applicant’s medical evidence, or to search for support for the applicant’s position in the reports provided: see Dooman v. TD Insurance Co. 2025 ONSC 184 at para. 50.

20I find that the Tribunal has long held that a treatment plan in itself does not prove that a treatment plan is reasonable and necessary and must be supported by objective medical evidence. In the present case, the applicant relies solely on the treatment plan itself and has not directed me to supporting medical evidence, contemporaneous to the submission of the treatment plan, to support that it is reasonable and necessary. Upon review of the applicant’s submissions, in his summary of the medical evidence, I find that he referred to a CT scan of his head and spine on September 7, 2022. The next CNR referred to by the applicant is from Scarborough Health Network, dated December 7, 2023, a year after the treatment plan in dispute is prepared. I find that there is no recommendation in this CNR for any treatment.

21While the applicant claims that he is entitled to this treatment plan because he was subsequently removed from the MIG, the applicant has not advised the Tribunal of the date he was removed from the MIG or on what basis he was removed from the MIG. Therefore, he has not provided sufficient evidence to support that the respondent was required to reassess this treatment plan upon his removal from the MIG.

22For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that he is entitled to the treatment plan for physiotherapy services submitted February 16, 2023.

Entitlement to the balance of the treatment plan for psychological services

23I find that the applicant has not proved entitlement to the balance of the treatment plan for psychological services dated July 27, 2023.

24The applicant claims entitlement to $1,857.67 ($7,581.19 less $5,723.52 approved) for psychological services, proposed by Dr. Cody Erikson, psychologist, of HM Medical, in a treatment plan dated July 27, 2023.

25According to the respondent’s letter dated August 15, 2023, the respondent partially approved the treatment plan, with the following explanation:

Aviva is agreeable to fund:

Therapy in the amount of $3,590.72 Documentation in the amount of $200.00 Interpretation in the amount of $1,600.00

Aviva will not fund the following:

Testing/scoring/interpretation: $224.42 – this is included in part of the therapy Treatment planning: $224.42 – not covered under the policy Progress report: $448.83 – not required at this time

26I find that the issue in dispute is that the respondent denied the cost of testing/scoring/interpretation, treatment planning as well as a progress report.

27The applicant submits that the denied components of the treatment plan are reasonable and necessary to achieve the psychological recovery and access the level of recovery that is achieved at the end of the treatment.

28The respondent submits that the treatment plan was partially approved and provides the particulars of the Explanation of Benefits for the basis of the denial.

29The Professional Services Guideline, Superintendent’s Guideline No. 03/14, (the “Guideline”) states,

Expenses related to professional services as referred to in the SABS and Professional Services Guideline include all administrative costs, overhead, and related costs, fees, expenses, charges and surcharges. Insurers are not liable for any administration or other costs, overhead, fees, expenses, charges or surcharges that have the result of increasing the effective hourly rates, or the maximum fees payable for completing the forms, beyond what is permitted under the Professional Services Guideline.

30I find that with respect to the denied items, the applicant has not provided sufficient evidence or submissions to support that these items are reasonable and necessary.

31I agree with the respondent that “testing/scoring/interpretation” and “treatment planning” are related costs of providing a therapy session and would be incorporated into the hourly rate of the treatment provider. I find that these expenses would fall under the category of “administration costs, overhead, and related costs, fees, expenses, charges and surcharges” under the Guideline. I find that other than submitting that these denied components are reasonable and necessary to achieve psychological recovery, the applicant did not provide any additional reasons why these items are a reasonable and necessary component of the treatment plan. I therefore find that “testing/scoring/interpretation” and “treatment planning” in the treatment plan are not reasonable and necessary.

32I find that the evidence does not support that a progress report is a required component of the applicant’s treatment. The psychotherapist is required to document the services provided to the applicant and this information ought to be sufficient to update other treatment providers or to determine whether additional treatment is required. Other than submitting that the progress report is required to access his level of recovery that is achieved at the end of the treatment, the applicant did not provide any additional reasons why the progress report is a reasonable and necessary component of the treatment plan. I therefore find that the progress report in the treatment plan is not reasonable and necessary, as there is no evidence that other treatment providers requested or require a progress report.

33For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that he is entitled to the balance of the treatment plan for psychological services, dated July 27, 2023.

Entitlement to the balance of the treatment plan for a chronic pain assessment

34I find that the applicant has not proved entitlement to the balance of the treatment plan for a chronic pain assessment, dated July 27, 2023.

35The applicant claims entitlement to $480.00 ($3,228.40 less $2,748.40 approved) for a chronic pain assessment, proposed by HM Medical, in a treatment plan dated July 27, 2023.

36According to the respondent’s letter dated August 15, 2023, the respondent partially approved the treatment plan, with the following explanation:

Aviva is agreeable to fund:

Documentation in the amount of $200.00 Assessment in the amount of $2000.00 Interpretation in the amount of $200.00

Aviva is not agreeable to fund:

Transportation in the amount of $180.00

37The applicant submits that the respondent reduced the funding of the interpretation services from $500.00 to $200.00 and denied transportation expenses without providing an explanation. The applicant submits that he is deaf and mute and reducing the portion of interpretation services would nullify the effect of the treatment.

38The respondent submits that the applicant is not entitled to transportation in the amount of $180.00 as this amount was outside of the 50-kilometer deductible pursuant to the Schedule.

39Within s. 3(1) of the Schedule is the term “authorized transportation expense”, which means, in respect of an insured person, expenses related to transportation that are authorized by, and calculated by applying the rates set out in, the most recent transportation expense guideline published by the Financial Services Regulatory Authority of Ontario. The definition also notes that the expense must relate to transportation expenses incurred only after the first 50 kilometres of a trip, unless the insured person is catastrophically impaired as a result of the accident.

40With respect to the transportation expense, I find that the applicant has not demonstrated entitlement to this expense because he has not addressed the 50-kilometre deductible outlined in the definition of “authorized transportation expense”. The applicant has not sustained a catastrophic impairment and thus, the 50-kilometre deductible continues to apply. The applicant has provided no information on the physical distance that is required to travel to this assessment. Therefore, I am unable to find the expense payable without the requisite information.

41In regard to the amount approved for interpretation services, I find that the respondent reduced the amount of funding for interpretation services from $500.00 to $200.00 without any explanation. In addition, I find that the respondent did not make any submissions with respect to this expense. As it is undisputed that the applicant is deaf and mute, and he submits that reducing the portion of interpretation services would mean to nullify the effect of the treatment, I find that the applicant has proven that it is reasonable and necessary for him to receive these interpretation services in the full amount of $500.00 and he is therefore entitled to the balance of $300.00.

42For the reasons outlined above, I find that the applicant has proven on a balance of probabilities that he is entitled to the balance of the interpretation services in the amount of $300.00. I further find that he has not proven on a balance of probabilities that he is entitled to the $180.00 in transportation expenses.

Entitlement to the treatment plan for a chronic pain management program

43I find that the applicant has not proved entitlement to the treatment plan for a chronic pain management program, dated January 16, 2024.

44The applicant claims entitlement to $7,357.16 for a chronic pain management program proposed by Dr. Kevin Rod, physician, of HM Medical Network Ltd., in the treatment plan dated January 16, 2024. The treatment plan recommends the following:

Individual management plan: $800.00 8 - .5 hour sessions of chronic pain management: $1,600.00 Medication review and management: $200.00 8 – 1 hour rehab counsellor visits: $731.44 4 – 1 hour enrolment and administration of validated: $365.72 Pharmacogenetic testing: $600.00 Exit program evaluation report: $600.00 Treatment plan: $200.00 9 – 2 hour translation services: $1,800.00 Transportation: $200.00

45The goals of the treatment plan are noted to be pain reduction, increase range of motion, return to activities of normal living, return to pre-accident work activities, alleviate chronic pain, promote self-management and restore functional tolerance and endurance.

46The applicant submits that this treatment plan was prepared by Dr. Rod, physician, based on the recommendations in the Chronic Pain Assessment report prepared by Dr. Igor Portnoi, dated December 4, 2023, which diagnosed the applicant with chronic pain syndrome. Dr. Portnoi recommended a comprehensive multidisciplinary chronic pain treatment program, including a physical activity component, physiotherapy, acupuncture, massage therapy, chiropractic care, psychotherapy with cognitive behavioural therapy, and the involvement of a social worker. The applicant argues that he has been suffering with pain since the accident which has become chronic in nature.

47The respondent by letter dated July 9, 2024, denied the treatment plan based on the IE report of Dr. Alborz Oshidari, physiatrist, dated June 18, 2024, which concluded that as a result of the accident, the applicant experienced a sprain/strain to the cervicolumbar spine, contusion to the right shoulder and tension headaches. Dr. Oshidari found that the applicant has reached maximum medical improvement considering there is no physiological or structural abnormality. He concluded that the treatment plan dated January 16, 2024 was not reasonable or necessary.

48The respondent submits that Dr. Portnoi’s report should be afforded little weight by the Tribunal due to the applicant’s failure to provide the CNRs, instruction correspondence and the complete file of Dr. Portnoi, to support the conclusions articulated in his report. The respondent submits that Dr. Portnoi completed a full physical examination, all of which was normal with the exception of “tightness and tenderness” in the cervical, thoracic and lumbosacral spine on palpation. Range of motion in the spine was normal. It argues that while a Pain Disability Index Questionnaire was administered, no CNRs or raw data were disclosed in order to confirm that the results reported are accurate. In addition, while Dr. Portnoi diagnosed the applicant with “chronic pain syndrome”, he did not address the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition (“AMA Guides”) before coming to his diagnosis. The respondent submits that Dr. Portnoi provides no basis or justification for this diagnosis.

49I find that the applicant has not proven entitlement to the treatment plan dated January 16, 2024 for the following reasons.

50The applicant submits that the subject treatment plan was based on the report and recommendations of Dr. Portnoi. I give little weight to the report of Dr. Portnoi for the following reasons. First, upon review of Dr. Portnoi’s report, I do not accept the various diagnoses rendered because he has not provided an explanation regarding how the various diagnoses are supported by the physical examination and the medical reports reviewed. I note that the only medical documentation reviewed by Dr. Portnoi was the Psychological Assessment report, dated July 13, 2023 and a CNR from an emergency room visit at Scarborough Health Network dated July 12, 2023. Second, I do not find that the diagnoses made by Dr. Portnoi are consistent with his physical examination. For example, he diagnosed cervical radiculopathy where his physical examination revealed that the ROM of the applicant’s cervical spine was normal. Third, I find that Dr. Portnoi does not explain how the applicant met the criteria for a diagnosis of chronic pain syndrome or on what basis he made this conclusion. I agree with the respondent that there is no reference to the AMA Guides or the criteria needed to meet the definition of a chronic pain syndrome. Finally, I agree with the respondent that as the applicant did not produce Dr. Portnoi’s CNRs, instruction correspondence or his complete file, I cannot confirm the accuracy of the conclusions articulated in his report.

51In contrast, the respondent relies upon the IE report of Dr. Oshidari, which found no objective findings of any structural abnormality, for non-complicated soft tissue injury. He diagnosed the applicant with a sprain/strain of the cervicolumbar spine, contusion of the right shoulder and tension headaches in relation to the accident. Dr. Oshidari conducted a physical examination which revealed that the applicant has a functional range of motion of the spine and upper and lower extremities with normal neurological findings. I further find that Dr. Oshidari reviewed multiple medical documents including the CNRs of his family doctor, CT scans and hospital records. I prefer the opinion of Dr. Oshidari because his findings regarding the applicant’s impairments and ROM were consistent with the medical evidence before me.

52For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that he is entitled to the treatment plan for a chronic pain management program, dated January 16, 2024.

Entitlement to the balance of the treatment plan for a neurological assessment

53I find that the applicant is not entitled to the balance of the treatment plan for a neurological assessment, dated March 19, 2024.

54The applicant claims entitlement to $200.00 ($3,138.00 less $2,938.00 approved) for a neurological assessment, proposed by HM Medical in a treatment plan dated March 19, 2024.

55According to the respondent’s letter dated April 3, 2024, the respondent partially approved the treatment plan dated March 19, 2024, except for the transportation costs in the amount of $200.00. The respondent states that “Transportation was not approved as you have been attending treatment without the need for transportation previously.”

56The applicant submits that he requires transportation for completing the neurological assessment. He argues that the need for transportation is a dynamic requirement and the respondent’s reasoning is unreasonable as it relies on previous circumstances.

57The respondent submits that the transportation amount is not reasonable and necessary as this amount is outside of the 50-kilometre deductible pursuant to the Schedule.

58I find that the applicant has not demonstrated entitlement to the transportation expense because he has not addressed the 50-kilometre deductible outlined in the definition of “authorized transportation expense”. The applicant has not sustained a catastrophic impairment and thus, the 50-kilometre deductible continues to apply. The applicant has provided no information on the physical distance that is required to travel to this assessment. Therefore, I am unable to find the expense payable without the requisite information.

59For the reasons outlined above, I find that the applicant has not proved on a balance of probabilities that he is entitled to the balance of the treatment plan for a neurological assessment dated March 19, 2024.

Interest

60Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is entitled to the balance of the interpretation services in the amount of $300.00, recommended in the treatment plan dated July 27, 2023, interest is payable pursuant to s. 51.

Award

61The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. While I found that the applicant was entitled to the full amount of interpretation services recommended, I did not find that the applicant was entitled to any of the other treatment plans in dispute. I do not find that the denial of the full interpretation services is sufficient to warrant an award as the applicant has not provided evidence that the respondent’s conduct was excessive, imprudent, stubborn, inflexible and unyielding. Therefore, no award is warranted.

ORDER

62For the reasons outlined above, I find:

i. The applicant is not entitled to the treatment plan for physiotherapy services, proposed by Scarborough Health and Wellness Centre, submitted on February 16, 2023;

ii. The applicant is not entitled to balance of the treatment plans proposed by HM Medical for psychological services, dated July 27, 2023 or a neurological assessment dated March 19, 2024;

iii. The applicant is partially entitled to the balance of the treatment plan proposed by HM Medical for a chronic pain assessment, dated July 27, 2023. I find that the applicant is entitled to the balance of $300.00 for interpretation services, plus interest. I do not find that the applicant is entitled to the cost of transportation expenses;

iv. The applicant is not entitled to the treatment plan proposed by HM Medical for a chronic pain management program, dated January 16, 2024; and

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