Citation: Gargovic v. Aviva General Insurance, 2025 ONLAT 23-005392/AABS

Licence Appeal Tribunal File Number: 23-005392/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:

Elvir Gargovic

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Kalim Khan, Counsel

For the Respondent:

Michal Baura, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Elvir Gargovic, the applicant, was involved in an automobile accident on January 13, 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. Is the applicant entitled to treatment proposed by Imperial Medical as follows:

i. $4,770.80 for psychological services proposed in a treatment plan, dated February 10, 2023?

ii. $2,486.00 for a chronic pain assessment proposed in a treatment plan, dated February 14, 2023

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

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?

RESULT

3The applicant is not entitled to the treatment plans in dispute, interest or an award.

PRELIMINARY ISSUE

Motion to Strike the Applicant’s Exhibits

4The respondent’s motion to strike the following documents included in the applicant’s written submissions from the hearing record is granted:

i. Optional Tab 1 – Authority for the reasonable and necessary argument;

ii. Optional Tab 2 – Legislative intent reasonably inferred from the Forms; and

iii. Optional Tab 3 – Detailed analysis of arguments at paragraphs 12-15 of the submissions

5The respondent’s request to strike the document at Tab R of the applicant’s written submissions which lists the applicant’s position on the deficiencies in the respondent’s denials and Insurer Examinations (“IEs”), is granted in part, as only the shaded elements of Tab R will be included in the hearing record.

6The respondent submits that the applicant appended additional submissions as exhibits for this hearing, resulting in a total of 15 extra pages of submissions. The respondent submits that these exhibits are not evidence, caselaw, or authorities. According to the respondent, these extra pages of submissions are an “egregious contravention” of the Case Conference Report and Order (“CCRO”), dated December 19, 2023, which limited written submissions to seven pages. The respondent submits that the extra submissions are highly prejudicial as it confined its submissions to the seven pages ordered in the CCRO and it was not possible for the respondent to respond to the extra 15 pages of submissions within its allotted page limit. Had the applicant required further pages to make his submissions, the respondent’s position is that the appropriate course of action was to seek permission from the Tribunal to do so. The respondent relies upon the Tribunal cases in Ali v. The Co-Operators General Insurance Company, 2023 CanLII 15047 (ON LAT), A.Y. v. Aviva Insurance Company, 2019 CanLII 119734 (ON LAT), and F.H. v. Certas, 2018 CanLII 39445 (ON LAT), where the Tribunal struck the applicant’s submissions that exceeded the page-limit.

7The applicant does not dispute that he issued submissions in an appended document as exhibits. He submits that the respondent has failed to establish that the Tribunal must, or even ought to, exercise its discretion to strike the documents, or any part thereof, and seeks an Order to dismiss the Motion, in its entirety. The applicant submits that the main body of his submissions is 4.25 pages long, excluding the endnotes which comprise an additional 1.25 pages. He further states that while his submissions refer to tabs that contain additional information/analysis, such tabs are clearly denoted as “OPTIONAL” and/or accompanied by the qualification “should the Tribunal wish to [exercise its discretion to] refer to it”. The applicant further submits that the shaded elements of Tab R contain the entirety of the applicant’s account of the countless “egregious contraventions” of the respondent and if struck his “ability to adjudicate his claim” would be reduced to nil.

8The applicant further submits that the respondent has also contravened the page limit set out in the CCRO. The applicant submits that out of the seven substantive pages of the respondent’s written submissions, five of the pages contain content that is single-spaced and in 10-point font, that when formatted in the manner prescribed in the Order, comprise more than three pages. The applicant submits that the Tribunal ought to strike part, if not all, of the respondent’s written submissions.

9I agree with the applicant’s submissions that the CCRO sets out that the hearing adjudicator may choose not to consider submissions which exceed the page limits and that it is subject to my discretion. Pursuant to s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, it is within my discretion to strike any submissions in excess of the seven-page limit set out in the CCRO. Subject to my discretion, I chose to consider only the shaded elements of Tab R and to not consider the remainder of Tab R or the Optional Tabs 1-3, in the applicant’s submissions for the following reasons.

10The applicant’s substantive submissions total 4.25 pages in length plus an additional two pages of endnotes which are single spaced. Attached to these substantive submissions, the applicant has incorrectly appended additional submissions as exhibits for this hearing, resulting in a breach of the page limit.

11I find with respect to Tab R, which is nine pages in length, the applicant submits as evidence, a chart created to address what he submits are deficiencies in the respondent’s denials and his analysis of the respondent’s notices. I find that the respondent has provided no explanation as to why these submissions were not made in his substantive submissions and were appended in a separate chart. Making submissions through appended evidence is contrary to the CCRO and effectively extends the page limit for submissions. However, I find as the shaded elements of Tab R are essential to the applicant’s position, I will review only that part of Tab R.

12I find that with respect to the remainder of the submissions in Tab R and the Optional Tabs 1-3, the applicant has labelled these as “optional.” I find that these submissions and arguments should have been included in the applicant’s substantive submissions and not as an attachment. As the applicant has indicated that these tabs are “optional,” I have exercised my discretion not to review these tabs based on the applicant exceeding the page-limit set out in the CCRO.

13With respect to the applicant’s submissions that I strike the respondent’s submissions for being over the page limit, the applicant essentially takes the position that, on principle, the respondent should be subjected to the same sanctions applied to the applicant. However, the applicant has not claimed any prejudice owing to the extra pages. I note that the two pages of endnotes provided by the applicant in his submissions are also single spaced and have paragraphs that are in smaller font. Similarly, the shaded elements of Tab R are single spaced and in a smaller font. The respondent has also used single space and smaller font in its submissions. As both parties have committed the same offence in using single spacing and smaller font for quotations, I have reviewed both of the parties’ substantive submissions in full.

14Therefore, based on the reasoning stated above, I have reviewed the shaded elements of Tab R. I have not reviewed Optional Tabs 1-3 or the remainder of Tab R.

ANALYSIS

The applicant is not entitled to psychological services.

15The applicant is not entitled to the treatment plan for psychological services, dated February 10, 2023.

16The February 10, 2023 treatment plan was completed by Imperial Medical and sought funding in the amount of $4,770.80 for psychological services.

17The applicant’s submissions do not address whether the treatment plan was reasonable and necessary. Instead, he claims entitlement to it under s. 38(8) and s. 38(11) of the Schedule.

18Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply.

19Under s. 38(8), an insurer has the obligation to, within 10 business days after it receives a treatment plan, provide an insured person with a notice identifying the medical and all other reasons why the insurer finds the treatment plan not to be reasonable and necessary. There should be clear and sufficient information for an unsophisticated person to make an informed decision to either accept or dispute the denial.

20If the insurer fails to give a notice in accordance with s. 38(8) in connection with a treatment and assessment plan, the following rules found in s. 38(11) apply: (a) the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies; and (b) 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 the day the insurer gives notice as described in subsection (8).

21Additionally, under sections 38(10) and 44(1), an insurer may notify an insured person that they are required to be examined by a regulated health professional. Section 44(5) requires an insurer to provide a Notice of Examination which sets out “the medical and any other reasons for the examination.” The medical and any other reason should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the insurer’s request to attend the assessment.

22The applicant submits that the respondent failed to comply with the notice requirements pursuant to s. 38(8) of the Schedule in denying the February 10, 2022 treatment plan. The applicant submits that the respondent’s rationale for denying the treatment plan failed to consider any substantive, specific, or material aspect of the treatment plan or the psychological treatment progress report attached to the treatment plan.

23The respondent submits that it complied with s. 38(8) of the Schedule. It submits that the denial letter and the notice of examination letter is written in clear and concise language that an unsophisticated person can understand. It identified the goods that the respondent did not agree to pay, made reference to the specified benefit being claimed and identified the reasons why a s. 44 assessment was required. The respondent requested that the applicant attend a s. 44 assessment with a psychologist, and advised the applicant of the date, time and location of the assessment. The applicant subsequently attended for the assessment.

24I find that the February 10, 2023 treatment plan was submitted to the respondent on February 13, 2023. On February 15, 2023 the respondent denied the treatment plan and on February 21, 2023, the respondent provided a Notice of Examination with respect to the scheduled s. 44 assessment. The letters state:

In review of the OCF-18 dated February 10, 2023 completed by Dr. S. Sabet Ghadam (psychologist) is requesting a further 18 sessions of psychotherapy. Please refer to the Post-104 Multidisciplinary assessment report dated May 11, 2022, at the time of this report it was documented that Mr. Gargovic did not suffer a complete psychological inability to engage in any employment. It is documented that he is experiencing psychological adjustment difficulty associated with persistent pain. He notes the pain is the barrier and his psychological adjustment difficulties are a consequence and not a cause for him not to be able to return to work. He engages in purposeful and goal-directed conversations, there is no overt signs of psychomotor retardation or agitation. The recommendation in this report was for Mr. Gargovic to receive an additional 12 sessions of one hour per session, to assist him in learning to cope with pain and stress more effectively. Since this report of May 11, 2022, the claimant has had 24 further sessions.

In reviewing this OCF-18 dated February 10, 2023, the medical provider has not attached any new medical documentation and as such we will be arranging for an independent medical opinion.

25I find that both letters include sufficient medical reasons, as required by s. 38(8) of the Schedule. The respondent refers to the post-104 multidisciplinary assessment report dated May 11, 2022, which recommends 12 sessions of psychotherapy. It notes that since this report, the applicant had 24 further sessions, but the medical provider has not attached any new medical documentation. The respondent provided notice that it required a s. 44 assessment in order to determine if the goods are reasonable and necessary as a result of the accident. By letter dated February 21, 2023, the respondent provided the applicant with the details of the scheduled assessment.

26I find that despite the applicant submitting that a psychological progress report was attached to the treatment plan, a copy of this report was not provided in the applicant’s submissions for the Tribunal’s review. Therefore, I have no way to confirm whether in fact this report was attached to the original treatment plan and submitted to the respondent.

27I find that the applicant attended the s. 44 assessment and was sent the April 24, 2023 report by Dr. Jonathan Siegel, psychologist, by letter dated April 25, 2023. In the respondent’s letter dated April 25, 2023, it provided the applicant with a copy of the s. 44 assessment report, and advised the applicant that, “As per the s.44 report – it is the opinion of Dr. Siegel, that Mr. Gargovic has reached maximum psychological improvement and that his condition has stabilized. Therefore, the OCF-18 dated February 10, 2023, for further psychotherapy is not reasonably required.”

28Having concluded that the respondent complied with its obligations outlined in s. 38(8) of the Schedule, coupled with the fact that the applicant made no submissions on whether the plan is reasonable and necessary as a result of the accident, I find that the applicant has not met his onus to demonstrate entitlement to the plan.

The applicant is not entitled to a chronic pain assessment

29The applicant is not entitled to the treatment plan for a chronic pain assessment, dated February 14, 2023.

30The February 14, 2023 treatment plan was completed by Imperial Medical and sought funding in the amount of $2,486.00 for a chronic pain assessment.

31Similar to the previous disputed treatment plan, the applicant did not make any submissions as to the reasonableness or necessity of the services proposed. Instead, the applicant submits that the respondent failed to comply with the notice requirements pursuant to s. 38(8) of the Schedule in denying the treatment plan. Specifically, the applicant submits that the respondent did not provide a meaningful denial of the treatment plan and, instead provided an analysis by a non-healthcare provider who completed an IE report that was outdated by at least 10 months. The applicant further submits that a detailed report regarding the applicant’s pain and the justification for the treatment plan as well as two MRI reports were attached to the treatment plan submitted.

32The respondent submits that it complied with s. 38(8) of the Schedule. It submits that the February 23, 2023 denial and notice of examination letter is written in clear and concise language that an unsophisticated person can understand. It identified the goods that the respondent did not agree to pay, made reference to the specified benefit being claimed, and identified the reasons why a s. 44 assessment was required. The respondent requested that the applicant attend s. 44 assessments with a psychologist and orthopaedic surgeon, and advised the applicant of the date, time and location of the assessments. The applicant subsequently attended for the assessments.

33I find that the treatment plan recommending a chronic pain assessment, dated February 14, 2023, was submitted to the respondent on February 21, 2023. On February 23, 2023 the respondent denied the treatment plan and provided a Notice of Examination with respect to the scheduled s. 44 assessments. The letter states:

In review of this OCF-18 dated February 14, 2023 completed by Dr. Gofeld, he has not attached any compelling medical evidence or new medical documentation to justify the need for this assessment. Please refer to the Post-104 Multidisciplinary assessment report dated May 11, 2022. It is documented in this report that the claimant does not require any further facility-based treatment and to do a home exercise program to improve his posture. It is also documented in this report that he suffers from myofascial strain and muscular pain of the cervical spine and shoulder girdle. It is also documented that his symptoms are related to an upper crossed syndrome related to his posture and poor biomechanics, he has no muscular atrophy, he has full mobility and excellent strength. Your medical records also indicate there are pre-existing medical conditions which are unrelated to the accident. Author: Scott King/Chris Mason Version: 4.0 (Dec 9, 2014). I do not believe this OCF-18 dated February 14, 2023, for a chronic pain assessment is reasonable and necessary and we are referring it to an independent medical examination.

34I find that the letter included sufficient medical reasons, as required by s. 38(8) of the Schedule. The respondent refers to the post-104 multidisciplinary assessment report dated May 11, 2022 which concluded that the applicant did not require any further facility-based treatment and that his injuries consisted of myofascial strain and muscular pain of the cervical spine and shoulder girdle. The respondent also refers to the applicant’s pre-accident medical records and that the applicant has medical conditions unrelated to the accident. The respondent notes that there is no compelling medical evidence or new medical documentation attached to the treatment plan to justify the need for this assessment. The respondent provided notice that it requires s. 44 assessments in order to determine if the chronic pain assessment is reasonable and necessary as a result of the accident. The respondent provided the applicant with the details of the scheduled assessments.

35I find that despite the applicant submitting that a detailed report and MRI reports were attached to the treatment plan, a copy of this report and the MRI reports were not provided in the applicant’s submissions for the Tribunal’s review. Therefore, I have no way to confirm whether in fact these reports were attached to the original treatment plan and submitted to the respondent.

36I find that the applicant attended the s. 44 assessments and a report was issued on April 24, 2023. In the respondent’s letter dated April 25, 2023, it provided the applicant with a copy of the s. 44 assessment reports, and advised the applicant that, “As per the s.44 report – it is the opinion of Dr. Siegel, that while Mr. Gargovic continues to have mild psychological adjustment difficulties associated with pain, these are not of a magnitude to warrant a DSM-5-TR diagnosis. As such, this OCF-18 is not reasonably required.”

37Having concluded that the respondent complied with its obligations outlined in s. 38(8) of the Schedule, coupled with the fact that the applicant made no submissions on whether the plan is reasonable and necessary as a result of the accident, I find that the applicant has not met his onus to demonstrate entitlement to the plan.

Interest

38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found that no benefits are payable, it follows that no interest is payable.

Award

39The 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.

40While an award was listed as an issue in dispute, the applicant made no submissions in support of his claim for an award. Therefore, the applicant has not proven on a balance of probabilities that the respondent unreasonably withheld or delayed the payment of benefits and, therefore, is not entitled to an award under s. 10 of Reg. 664.

ORDER

41I find that the applicant is not entitled to the treatment plans in dispute, interest, or an award. The application is dismissed.