Lo v. Aviva Insurance Company of Canada, 2025 CanLII 13559

Citation: Lo v. Aviva Insurance Company of Canada, 2025 ONLAT 23-004520/AABS

Licence Appeal Tribunal File Number: 23-004520/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:

Ying Tak Lo

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Aylina Dhanji, Counsel

For the Respondent: Aimee Draper, Counsel

HEARD: By way of written submissions

OVERVIEW

1Ying Tak Lo, the applicant, was involved in an automobile accident on October 23, 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 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 the treatment plans proposed by Total Recovery Rehab as follows: i. $4,149.56 for physiotherapy services, in a treatment plan, dated February 10, 2023? ii. $4,463.90 for chiropractic, exercise, strength and balance training and acupuncture services, in a treatment plan, dated September 6, 2023?

ii. Is the applicant entitled $2,804.12 for psychotherapy services, proposed by Somatic Assessments & Treatment Clinic, in a treatment plan, dated April 5, 2023?

iii. Is the applicant entitled to the medication expenses, submitted on the following expenses claim forms (“OCF-6s”): i. $422.67 dated April 29, 2021? ii. $165.93 dated May 31, 2021? iii. $52.04 dated June 21, 2021? iv. $101.98 dated July 26, 2021? v. $93.31 dated October 27, 2021?

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

v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant, as well as its delay in approving the treatment plan for a psychological assessment in the amount of $2,200.00 proposed by Somatic Assessment and Treatment Clinic?

3The Case Conference Report and Order (“CCRO”), dated November 21, 2023, lists issue ii as: “Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Somatic Assessments & Treatment Clinic in a treatment plan dated April 19, 2021”. The parties advised in their submissions that the treatment plan was subsequently approved by the respondent. The applicant maintains his claim for an award regarding this plan under s. 10 of Reg. 664, despite it being approved.

RESULT

4I find that:

i. The applicant is not entitled to the treatment plans for physiotherapy or chiropractic services;

ii. The applicant is not entitled to the treatment plan for psychotherapy;

iii. The applicant is not entitled to the five OCF-6s for medication expenses;

iv. The applicant is entitled to interest in accordance with s. 51 of the Schedule; and

v. The respondent is required to pay the applicant an award.

ANALYSIS

The applicant is not entitled to the treatment plans proposed by Total Recovery Rehab

5I find that the applicant has not proven on a balance of probabilities that he is entitled to the treatment plans proposed by Total Recovery Rehab.

6The applicant claims entitlement to $4,149.56 for physiotherapy services, proposed by Mr. Ahmed Afifi, physiotherapist, at Total Recovery Rehab, in a treatment plan, dated February 10, 2023. The treatment plan seeks the following:

Assessment (examination), total body: $200.00

Physiotherapy, multiple body sites, 16 1-hour sessions: $1,596.00

Physiotherapy, multiple body sites, 16 ½ hour sessions: $798.08

Physiotherapy, multiple body sites, 16 1-hour sessions: $931.04

Documentation, support activity, 2.25 hours: $224.44

Provider travel time, provider to treatment: $400.00

The goals of the February 10, 2023 treatment plan are pain reduction, increased range of motion, increase in strength, and a return to activities of normal living and a return to pre-accident work activities.

7The applicant also claims entitlement to $4,463.90 for chiropractic, exercise, strength and balance training and acupuncture services, proposed by Dr. Georgia Palantzas, chiropractor, at Total Recovery Rehab Centre, in a treatment plan, dated September 6, 2023. The treatment plan seeks the following:

Reassessment: $200.00

Chiropractic treatment, 16 1-hour sessions: $1,804.96

Exercise, strength and balance training, 16 ½ hours sessions: $902.56 Acupuncture 16 ½ hour sessions: $902.56

Travel assistance, 16 1-hour: $400.00

Progress report, 2.25 hours: $253.82

The goals of the September 6, 2023 treatment plan are pain reduction, increased range of motion, increase in strength, minimize compensatory strain, return to activities of normal living, return to pre-accident work activities, and to promote soft tissue healing.

8The submissions from both the applicant and the respondent are the same for both treatment plans.

9To receive payment for a treatment plan under sections 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 the treatment are reasonable, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

10The applicant submits that he is entitled to the treatment plans in dispute because the medical evidence submitted establishes that the various treatment modalities which the applicant received over the years post-accident were beneficial in either improving his functional limitations or significantly assisting with pain reduction. The applicant further submits that the records confirm that the applicant has not achieved his pre-accident state as he continues to experience the impact of the accident through physical pain, which impairs his ability to complete his duties.

11The respondent submits that the treatment plans in dispute were denied on the basis of the medical documentation on file and the two Insurer Examination (“IE”) reports prepared by Dr. Greg Gelman, family physician. Dr. Gelman opined that there was no objective evidence of ongoing orthopaedic, musculoskeletal or neurological impairment, that the applicant had reached maximal medical recovery and that further facility-based treatment would not have any rehabilitative benefit.

12I find that the applicant has not provided sufficient medical evidence to support a finding that the treatment plans in dispute are reasonable and necessary for the following reasons.

13Firstly, I find that other than providing the treatment plans themselves, there are no contemporaneous clinical notes and records (“CNRs”) from his treating practitioners to support the applicant’s ongoing complaints at the time the subject treatment plans were submitted.

14I find that upon review of the CNRs of Dr. Kevin Leung, family physician, the applicant’s last appointment with Dr. Leung was on September 8, 2021, which was over a year and a half before the date of the first treatment plan in dispute. I further find that the CNRs provided by Dr. Leung are barely legible except for the dates of the appointments. I find that there are no updated CNRs provided by the applicant to support that he continued to see his family physician after September 8, 2021 with ongoing complaints.

15The applicant has also only submitted two CNRs from Dr. M.T. Wong, rheumatologist. The first CNR is dated July 20, 2021 and it lists the right leg and right ankle problems and a referral is made for an MRI. The second CNR is dated September 21, 2021 and it lists the results of the MRI of the ankle and lumbar spine. A copy of the MRI reports is also attached. There is no report from Dr. Wong assessing the applicant’s injuries and no additional CNRs supporting that the applicant returned to see Dr. Wong after September 21, 2021.

16I find that despite the applicant’s submission that the medical evidence submitted establishes that the various treatment modalities which the applicant received over the years post-accident were beneficial in either improving his functional limitations or significantly assisting with pain reduction this is not supported by the evidence provided by the applicant. There are no CNRs provided which document what if any treatment the applicant received and what if any benefit was received from any treatment.

17Secondly, I find that the applicant has not dealt with the key elements to establishing entitlement to the disputed treatment plans in his submissions. He has not provided any submissions on the disputed treatments plans’ therapeutic goals, whether they are being met, or their costs. The applicant has not established whether and how the services proposed in the disputed treatment plan are reasonable. There are also no CNRs provided of the physical treatment that the applicant previously received or the benefits that he received from this treatment.

18Finally, I find the IE reports prepared by Dr. Gelman, persuasive. The applicant reported at the time of the assessment that his only ongoing symptom from the accident was his right lower leg. He reported that he did have some low back pain after the accident, but this had long since resolved. He denied any other musculoskeletal symptoms. Dr. Gelman concluded that there was no ongoing musculoskeletal accident-related impairment. Similarly, Dr. Gelman concluded in his April 28, 2023 report, that the applicant had reached maximal medical recovery regarding his musculoskeletal injuries. He noted that the applicant has some ongoing symptoms in his right ankle and foot which do not appear to be accident-related as his treating physician, Dr. Wong, had diagnosed him with some osteoarthritic issues and mechanical symptoms in the right ankle which pre-date the accident. I find that these reports are consistent with the evidence before me that the applicant made no complaints after September, 2021.

19For the reasons set out above, I find that the applicant has not met his onus of proving on a balance of probabilities that the treatment plans dated February 10, 2023 and September 6, 2023 are reasonable and necessary.

20As an alternative argument, the applicant submitted that he is entitled to the disputed treatment plans because the respondent’s denials did not comply with s. 38(8) of the Schedule. For the reasons that follow, I find that the respondent complied with s. 38(8) of the Schedule.

21Section 38(8) of the Schedule provides that an insurer shall respond to a treatment plan within 10 business days of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does not agree to pay for. The insurer must provide medical and all other reasons why it has determined that the treatment plan is not reasonable and necessary.

22If an insurer fails to comply with its obligations under s. 38(8), the following consequences under s. 38(11) of the Schedule are triggered:

i. The insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies; and

ii. The insurer must pay for all goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on a day the insurer gives notice as described in s. s. 38(8)

23The applicant submits that the respondent’s denial letters dated March 1, 2023 and September 8, 2023, failed to comply with s. 38(8) of the Schedule by not providing medical and relevant reasons for the denials. The applicant submits that the respondent’s denials lack a detailed explanation and justification, and do not provide an explanation for the denials.

24The respondent submits that its denials of the two treatment plans were clear and unequivocal, referenced the medical documentation and insurer examinations relied on for the decision, informed the applicant of his right to dispute, the two-year limitation to dispute a claim and the steps necessary to file an Application with the Tribunal. The respondent submits that the denials also invited the applicant to contact the adjuster for assistance if necessary.

25With respect to the treatment plan dated February 10, 2023, I find that the denial letter dated March 1, 2023, properly set out the medical and other reasons for the denial by stating that, “Per section 44 report dated April 13, 2022 – there is no current sign of ongoing musculoskeletal accident-related impairment. Your family doctor notes from Dr. Wong, Dr. Leung, specialist reports do not provide an objective, compelling, supporting medical documents to substantiate this treatment.” The respondent requested that the applicant attend an IE to review the treatment plan recommendations which was scheduled for March 22, 2023 with Dr. Gelman.

26With respect to the treatment plan dated September 6, 2023, I find that the denial letter dated September 8, 2023, properly set out the medical and other reasons for denying the treatment plan. The letter quotes the opinion in the April 28, 2023 IE report of Dr. Gelman that stated, “you have reached maximal medical improvement and have no recommendations for any ongoing interventions from a muscular perspective.”

27For the reasons set out above, I find that the applicant is not entitled to the treatment plans dated February 10, 2023 and September 6, 2023.

The applicant is barred from proceeding to a hearing on the issue of entitlement to the treatment plan for psychotherapy services.

28I find that the applicant is barred from proceeding to a hearing on the issue of entitlement to the treatment plan for psychotherapy services because he failed to attend the s. 44 assessment and he did not provide a reasonable explanation for his non-attendance.

29Section 44(1) of the Schedule provides that, for purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but no more often than is reasonably necessary, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.

30The requirements for a Notice of Examination (“NOE”) are set out in s. 44(5) of the Schedule:

If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out,

a. The medical and other reasons for the examination;

b. Whether the attendance of the insured person is required at the examination;

c. The name of the person or persons who will be conducting the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and

d. If the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.

31Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied with its request for attendance.

32The applicant claims entitlement to $2,804.12 for psychotherapy services, proposed by Dr. Mehrdad Pojhan, psychologist, of Somatic Assessments & Treatment Clinic, in a treatment plan, dated April 5, 2023.

33The respondent provided a NOE dated April 20, 2023, advising that it required a s. 44 IE assessment to review the recommendations in the April 5, 2023 treatment plan.

34The respondent submits that the applicant should be barred from proceeding with his claim for this treatment plan because he failed to attend the scheduled s.44 assessment and he did not provide a reason for his failure to attend.

35The applicant submits that he is entitled to the disputed treatment plan because the respondent’s denial did not comply with the requirements of s. 38(8) of the Schedule. The applicant submits that the respondent failed to provide medical and relevant reasons for the denials. The applicant submits that the respondent’s denials lack a detailed explanation and justification and do not provide an explanation for the denials. The applicant further submits in his reply submissions that he complied with s. 55 of the Schedule because he attended two scheduled IE assessments on January 20, 202 and March 30, 2022. In addition, the applicant submits that the respondent made no effort to reschedule the missed examination. Finally, the applicant submits that as the respondent did not raise a s. 55 issue at the case conference, he cannot rely upon a s. 55 argument in this hearing.

36I find that the NOE, dated April 20, 2023 was proper and that the applicant’s failure to attend this assessment bars him from proceeding with his claim for the following reasons:

i. Firstly, I am satisfied that the NOE provided comprehensive reasons which satisfy s.44(5) of the Schedule. In the April 20, 2023 letter, the respondent indicates that upon review of the family doctor notes from Dr. Wong, Dr. Leung, and specialist reports, there is no objective, compelling, supporting medical documents to substantiate the treatment. It further relies upon the IE report dated April 13, 2022, prepared by Dr. Sarah Talebizadeh, where a psychological diagnosis could not be made as the applicant had a difficult time completing the psychological tests;

ii. Secondly, I find that the assessment scheduled by the respondent was reasonable and necessary pursuant to s. 44(1) of the Schedule to assess whether the psychotherapy treatment was reasonable and necessary based on the length of time that had passed since the previous IE psychological assessment and the submission by the applicant of a new psychological report and treatment plan that was not previously provided to the respondent at the time of the initial IE; and.

iii. Thirdly, I find that the applicant has not directed me to any legal authority that the respondent cannot rely upon a s. 55 argument in this hearing because he was required to raise the s. 55 issue at the case conference.

37In addition to finding the NOE compliant, I further find that where the applicant has not provided a reasonable explanation for his non-attendance, it follows that he is statute barred from proceeding with his claim for the proposed treatment plan in dispute under s. 55(1)2 of the Schedule.

The applicant is not entitled to the medication expenses

38I find that the applicant has not proven on a balance of probabilities that he is entitled to the five OCF-6’s for medication expenses.

39The applicant claims entitlement to the medication expenses claimed on the following five OCF-6 expense forms:

i. OCF-6, dated April 29, 2021 in the amount of $422.67 for diclofenac, ativan, naproxen, rabeprazole, lenoltec, and zoplicone

ii. OCF-6, dated May 31, 2021 in the amount of $165.93 for naproxen, rabeprazole, and zopiclone;

iii. OCF-6, dated June 21, 2021 in the amount of $52.04 for diclofenac, rabeprazole, and pregabalin;

iv. OCF-6, dated July 26, 2021 in the amount of $101.98 for diclofenac, pantoprazole, and pregabalin; and

v. OCF-6, dated October 27, 2021 in the amount of $93.31 for naproxen, rabeprazole, zopliclone, and pantoprazole.

40The applicant submits that the five medication OCF-6 expenses were denied solely based on MIG limits. The applicant submits that after the applicant was removed from the MIG, these expenses were not re-evaluated and paid. In his reply submissions, the applicant submits that the prescriptions are to treat mild-to-moderate pain/reduce swelling (diclofenac), nerve pain (pregabalin), pain relief/inflammation (apo-diclo), pain and swelling (apo-naproxen), sleeping issues (apo-zopiclone) and more. He submits that each medication is directly intended to treat pain from the accident and were prescribed by either Dr. Leung or Dr. Wong following the accident.

41The respondent submits that these medication expenses were denied on the basis that they were not required to treat accident-related conditions. The respondent further submits that the CNRs of the applicant’s treating practitioners, Dr. Leung and Dr. Wong, reveal that the applicant has been prescribed the majority of these medications prior to the accident for his extensive pre-morbid conditions.

42Based on the medical evidence before me, I find that the applicant has not proven on a balance of probabilities that the prescriptions are reasonable and necessary and were prescribed as a result of injuries sustained in the accident. I find that upon review of the CNRs of Dr. Leung and Dr. Wong, these records are not legible, and the applicant has not pointed me to the specific CNRs that support the necessity of these medications for his accident-related injuries.

43For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that he is entitled to the medication expenses.

Interest and an award

44Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

45Further, under s. 10 of Reg. 664, 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.

a. The applicant is entitled to interest and an award on the psychological assessment

46I find that the applicant is entitled to interest and the respondent is liable to pay an award for its unreasonable delay in paying for the psychological assessment.

47Initially in dispute was a treatment plan dated April 19, 2021, in the amount of $2,200.00 for a psychological assessment, prepared by Dr. Sharleen McDowall, psychologist, at Somatic Assessment and Treatment Clinic. The respondent denied this treatment plan on April 27, 2021, based on s. 38(5) of the Schedule.

48On February 9, 2023, the applicant was removed from the MIG.

49On April 5, 2023, the applicant submitted a psychological assessment report, prepared by Dr. Pojhan, psychologist, dated March 24, 2023.

50After the applicant’s written submissions were filed with the Tribunal, the respondent approved the treatment plan by an Explanation of Benefits letter dated July 25, 2024.

51In his reply submissions, the applicant acknowledges that the psychological assessment was approved but he is still seeking interest and an award.

52The applicant submits that once he was removed from the MIG on February 9, 2023, it was the respondent’s responsibility to re-examine/re-evaluate its previous denials. The respondent did not approve the psychological assessment until July 25, 2024, after the applicant had submitted his written hearing submissions. The applicant submits that due to the respondent’s conduct, the applicant was deprived access to certain benefits. It further submits that the delay in approving the assessment was extraordinarily long, and the respondent gained monetarily by not incurring the cost of the assessment.

53I find that the respondent provided its initial denial letter on April 27, 2021. The treatment plan was denied based on the applicant’s injuries being within the MIG. However, once the applicant was removed from the MIG on February 9, 2023, the respondent was required to re-evaluate the treatment plan and provide a proper denial of the treatment plan to the applicant. If the respondent does not do so pursuant to s. 38(8) of the Schedule, the consequences under s. 38(11) are triggered. In this matter, the respondent did not re-evaluate the treatment plan after the applicant was removed from the MIG. Similarly, after receiving the Psychological Assessment Report on April 5, 2023, the respondent did not re-evaluate the treatment plan. It was not until July 25, 2024, well over one year later, that the respondent sent a letter to the respondent approving the treatment plan. I also note that there was no explanation provided as to why the respondent eventually approved the treatment plan. I agree with the applicant that the respondent’s delay in approving and paying for the psychological assessment was unreasonable.

54In determining the quantum of a special award, the Tribunal has found that the following factors may be considered (Applicant v. Porter La Prairie Mutual Insurance Company, 2019 CanLII 101649 (ON LAT)):

i. The blameworthiness of the respondent’s conduct;

ii. The vulnerability of the applicant;

iii. The harm or potential harm directed at the applicant;

iv. The need for deterrence;

v. The advantage wrongfully gained by the insurer from the misconduct;

vi. Any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct; and

vii. The overall length of the delay.

55Neither party made submissions on the appropriate quantum for the award.

56I have considered the amount of benefits withheld from the applicant, and the length of time that payment has been withheld. I find that an appropriate award is $440.00, being 20% of the cost of the psychological assessment.

57I also find that the applicant is entitled to interest on the payment of the psychological assessment, pursuant to s. 51 of the Schedule.

ORDER

58For the reasons outlined above, I find:

i. The applicant is not entitled to the treatment plan for physiotherapy or chiropractic services;

ii. The applicant is not entitled to the treatment plan for psychotherapy;

iii. The applicant is not entitled to the five OCF-6s for medication expenses;

iv.

v. The applicant is entitled to interest on the delayed psychological assessment in accordance with s. 51 of the Schedule; and

vi. The respondent is required to pay the applicant an award pursuant to Reg. 664 in the amount of $440.00.