Lopreiato v. Aviva Insurance Canada, 2025 CanLII 15953

Citation: Lopreiato v. Aviva Insurance Canada, 2025 ONLAT 23-006866/AABS

Licence Appeal Tribunal File Number: 23-006866/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:

Maria Lopreiato

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Tami Cogan

APPEARANCES:

For the Applicant: Egidio Stagnitta, Counsel

For the Respondent: Alicia Edwards, Paralegal

HEARD: By Way of Written Submissions

OVERVIEW

1Maria Lopreiato, the applicant, was involved in an automobile accident on March 30, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Aviva Insurance 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 a non-earner benefit of $185.00 per week from March 30, 2021 to March 30, 2023?

ii. Is the applicant entitled to $1,995.50 for physiotherapy services, proposed by Hartwell Health Corporation, in a treatment plan/OCF-18 (“plan”) dated July 28, 2021?

iii. Is the applicant entitled to $2,594.00 for physiotherapy services, proposed by Hartwell Health Corporation, in a plan dated October 22, 2021?

iv. Is the applicant entitled to $8,882.79 for chronic pain treatment, proposed by Prime Health Care, in a plan dated September 23, 2023?

v. Is the applicant entitled to $3,192.26 for psychotherapy services, proposed by Prime Health Care, in a plan dated May 1, 2023?

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

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

RESULT

i. The applicant is not entitled to a non-earner benefit of $185.00 per week from March 30, 2021 to March 30, 2023.

ii. The applicant is entitled to $1,995.50 for a physiotherapy services treatment plan dated July 28, 2021.

iii. The applicant is entitled to $2,594.00 for a physiotherapy services treatment plan dated October 22, 2021.

iv. The applicant is not entitled to $8,882.79 for chronic pain treatment plan dated September 23, 2023.

v. The applicant is entitled to $3,192.26 for a psychotherapy services treatment plan dated May 1, 2023.

vi. The respondent is liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant.

vii. The applicant is entitled to interest on any overdue payment of benefits, in accordance with s. 51 of the Schedule.

ANALYSIS

Non-Earner Benefit (“NEB”)

3I find the applicant is not entitled to a NEB from March 20, 2021 to March 30, 2023 for the following reasons.

4Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104-weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

5The test for an NEB is set out in the Court of Appeal decision of Heath v. Economical Mutual Insurance Company 2009 ONCA 391 (“Heath”), which generally focuses on a comparison of the applicant’s pre- and post-accident activities.

6The applicant’s position is that her symptoms interfere with her ability to perform activities of daily living including housework and caregiver responsibilities.

7I find that it is not enough for the applicant to simply state she is unable to perform her activities of daily living. As set out in Heath, the applicant must lead evidence to support the level of activity before the accident, as well as after the accident, to allow for a proper comparison and analysis.

8Based on the OCF-1, the applicant was employed as a superintendent in her residential complex and was not a caregiver at the time of the accident. The clinical notes and records of Dr. Dr. Anthony D’Urzo, the applicant’s family physician, indicate on April 19, 2021 the applicant was looking after her elderly mother. I have not been directed to evidence that explains what her caregiver role entailed. On May 20, 2021 Dr. D’Urzo’s records suggest that before the accident the applicant enjoyed gardening and was able to engage in regular housekeeping duties. These records also support that she has continued with housekeeping after the accident, albeit on a reportedly reduced ability. On February 23, 2023 the records indicate the applicant’s caregiving role changed due to her mother being hospitalized, however the applicant’s stress related to her caregiving role was further noted. In the records of Dr. Chad Hefford, psychologist, on July 28, 2021 the applicant reported that she cannot take care of her grandkids any longer and that she is limiting her superintendent workload to administrative duties. However, as noted above, I have not been directed to evidence that speaks to what the applicant’s activities entailed, or the quantity/quality of the applicant’s engagement, pre or post accident. I am therefore unable to make a comparison between the applicant’s activities and life circumstances before and after the accident in order to determine from a qualitative perspective the level of the applicant’s engagement.

9I find the applicant has not proven on a balance of probabilities that she has suffered a complete inability to carry on a normal life as a result of and within 104-weeks after the accident. Therefore, she is not entitled to an NEB for the period March 20, 2021 to March 30, 2023.

10To 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.

Physiotherapy Services

11I find the applicant is entitled to $1,995.50 for the July 28, 2021 and $2,594.00 for the October 22, 2021 treatment plans for physiotherapy proposed by Hartwell Health Corporation, for the following reasons.

12I have reviewed the treatment plan prepared by Kinjal Patel, physiotherapist at Hartwell Health Corporation dated July 28, 2021. The goals of treatment are identified as pain reduction, increase range of motion and increase in strength, to return to activities of normal living. The treatment plan also identifies the applicant’s restriction in her range of motion and identifies the barriers to recovery based on pre-existing conditions documented by a medical doctor. The recommendation is for 19 sessions over a 4-week period.

13I have also reviewed the treatment plan prepared by Kinjal Patel, physiotherapist at Hartwell Health Corporation dated October 22, 2021. The goals of treatment are identified as pain reduction, increase range of motion and increase in strength, and to return to activities of normal living. The treatment plan also identifies the applicant’s restriction in her range of motion and identifies the barriers to recovery based on pre-existing conditions documented by a medical doctor. The recommendation is for 25 sessions over a 6-week period. Attached to the OCF-18 is a referral from Dr. D’Urzo for the resumption of physiotherapy dated October 15, 2021.

14The applicant’s position is that because the applicant’s injuries have not resolved, continuing physical rehabilitation for improvement in function and returning to pre-accident activities of daily living is reasonable and necessary.

15The respondent’s position is that the treatment plans dated July 28, 2021, and October 25, 2021, were denied based on an Insurer’s examination report completed by Dr. Michael Hanna, M.D. who opined the applicant’s injuries were sprain/strain of her neck and back, the applicant has had sufficient facility-based rehabilitation, and that further facility-based rehabilitation is unlikely to add any long-term benefits from her accident-related injuries. The respondent submits the applicant had already achieved most of the treatment goals and there is no compelling evidence to support ongoing therapy.

16I have considered that Dr. D’Urzo, the applicant’s family physician, and Dr. Hanna agree that the applicant’s injuries are sprains and strains. I find Dr. D’Urzo’s records more persuasive than those of Dr. Hanna because Dr. D’Urzo has an ongoing treatment relationship with the applicant, rather than the one-time meeting Dr. Hanna had with the applicant. I also note that Dr. Hanna did not have the benefit of reviewing Dr. D’Urzo’s clinical notes and records when he was conducting his initial assessment and paper reviews. I have considered that Dr. D’Urzo’s clinical notes and records mention the applicant’s physical pain as well as his examination results of her ranges of motion during seven appointments between the date of the accident and December 16, 2021. On four occasions Dr. D’Urzo recommends physiotherapy and home exercises. On October 15, 2021 Dr. D’Urzo referred the applicant for resumption of physiotherapy. The letter of referral was attached to the October 25, 2021 treatment plan. The applicant’s pain and limited ranges of motion continues to be documented through to 2023, as well as Dr. D’Urzo’s recommendation for home exercises.

17I find the treatment goals of pain reduction and increase range of motion are reasonable and the goals have not been achieved because the applicant continued to have pain symptoms, and decreased ranges of motion.

18I find the applicant has proven on a balance of probabilities that the physiotherapy treatment plans dated July 28, 2021, and October 22, 2021 are reasonable and necessary.

Chronic Pain Treatment

19I find the applicant is not entitled to $8,882.79 for chronic pain treatment, proposed by Prime Health Care, in a plan dated September 23, 2023 for the following reasons.

20I have reviewed the treatment plan prepared by Dr. Grigory Karmy, physician and Dr. Chad Hefford, chiropractor, at Prime Health Care Inc., dated September 18, 2023. The goals of treatment are identified as pain reduction, increase range of motion and increase in strength, to return to activities of normal living. This is a multidisciplinary treatment plan which includes 8 x 1.5-hour psychotherapy sessions, 18 sessions of each chiropractic and functional exercise program, 8 sessions of spinal decompression therapy, 18 sessions of massage, and 18 sessions of acupuncture, to be provided over the course of an 8-week period.

21Although not part of the Schedule, the Tribunal has found the six criteria in the American Medical Association’s Guides (“the Guides”) for evaluating chronic pain with functional limitation claims to be a valuable interpretive tool. The Guides state that at least three of the following six criteria must be met for a diagnosis of chronic pain:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.

ii. Excessive dependence on health care providers, spouse, or family.

iii. Secondary physical deconditioning due to disuse and or fear avoidance of physical activity due to pain.

iv. Withdrawal from social milieu, including work, recreation, or other social contracts.

v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

22The applicant’s position is that in February 2022, Dr. D’Urzo diagnosed the applicant with chronic pain and documented this diagnosis. On September 14, 2023 Dr. Grigory Karmy, M.D. conducted a chronic pain assessment and recommended a multidisciplinary chronic pain treatment plan.

23In a letter dated October 10, 2023, the respondent denied the treatment plan dated September 18, 2023 and required the applicant to attend an Insurer’s Examination. In a letter dated March 19, 2024, following the completion of, and relying on the conclusions from the assessments, the respondent maintained the denial of the treatment plan. It was the opinion of Dr. Kruger, physician and Dr. Ratti, psychologist, that the applicant had reached maximum medical improvement, and the treatment plan was not reasonable or necessary.

24I acknowledge that Dr. D’Urzo documented that the applicant has chronic pain. However, I find Dr. D’Urzo’s diagnosis is not persuasive because I have not been directed to evidence that supports the applicant suffers with functional limitations. I have also considered that Dr. D’Urzo has not referred the applicant to a chronic pain treatment provider.

25I find that Dr. Karmy’s conclusions and opinion expressed in the assessment report dated September 14, 2023 do not support a finding of chronic pain with functional limitations. Dr. Karmy defines chronic pain as pain that lasts or recurs form more than 3 to 6 months, and is often resistant to medical treatments, lacks an early-warning physiological function, and is a complex condition that is multifactorial in origin. While I am not dismissing Dr. Karmy’s opinion, chronic pain in-and-of-itself is does not remove a person from the MIG, there must be limitations to their functioning ability. The applicant has not led evidence in support of functional limitations as a result of chronic pain.

26I find that because the applicant does not meet the criteria for chronic pain with functional limitations, the treatment plan for chronic pain is not reasonable or necessary.

27The applicant has not proven on a balance of probabilities that the chronic pain treatment plan, proposed by Prime Health Care, in a plan dated September 23, 2023 is reasonable or necessary.

Psychotherapy Treatment

28I find the applicant is entitled to $3,192.26 for psychotherapy services, proposed by Prime Health Care, in a plan denied on May 30, 2023, for the following reasons.

29I have reviewed the treatment plan certified by Dr. Chad Hefford, chiropractor and prepared and supervised by Tatiana Kloopina, clinical psychologist, at Prime Health Care Inc., dated on May 1, 2023, submitted on May 16, 2023, and denied on May 30, 2023. The goals of treatment are identified as evaluating the applicant’s psychological and emotional repercussions following the accident and returning to activities of normal living. The recommendation is for 12, 1-hour psychotherapy sessions and 12, ½ hour treatment planning sessions over the course of a 24-week period.

30The applicant’s position is that on March 27, 2023 during a psychological assessment conducted by Foujan Rahmati, of Prime Health Care Inc., the applicant was diagnosed with adjustment disorder with anxiety and depressed mood in response to the primary stressors of pain and functional limitations as a result of the accident. Ms. Rahmati recommended 12 sessions of psychotherapy to address her symptoms, which supports the treatment plan in dispute, with services to be provided by Tatiana Kloopina, psychotherapist.

31The respondent denied the treatment plan dated May 1, 2023 in a letter dated May 30, 2023, on the grounds that the signature of the health practitioner under Part 4, certifying the treatment plan, is a chiropractor who is not authorized by law to treat psychological impairments. The respondent refers to s. 38(3) of the Schedule and states OCF-18 is non-compliant and therefore not payable. The applicant was invited to re-submit the treatment plan completed by a qualified health practitioner or regulated provider.

32I find that the OCF-18 is in compliance with the Schedule and payable because s. 38(3)(b) requires the treatment plan to be completed and signed by a health practitioner, which it was, specifically signed under Part 5 by a health practitioner, Tatiana Kloopina, clinical psychologist on May 5, 2023. Ms. Kloopina is also listed under Part 11 as the Health Care Provider for the treatment plan. I find that the Health Care Provider signed the OCF-18 after Dr. Hefford filled in the document, and in doing so verifies the content of the document including the additional comments which refer to treatment recommendations.

33The respondent further submits, that psychological assessments of Dr. Ratti, psychologist do not support the applicant suffers from a psychological condition as a result of the accident, and the treatment plan is not reasonable or necessary.

34I have reviewed the clinical notes and records of Dr. D’Urzo, and I find that the records do not support that the applicant suffered a psychological condition or impairment as a result of the accident because the only mention of psychological symptoms were attributed to caregiver stress. However, I have also reviewed the Insurer’s Examination psychological assessment reports of Dr. Ratti. In the initial assessment report dated September 2, 2021, Dr. Ratti opined that the applicant does not meet the criteria for any mental health diagnosis in regard to the accident. However, in the March 14, 2023 addendum report Dr. Ratti opines that the applicant does meet the criteria for a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood in regard to the accident.

35I find that the March 14, 2023 report corroborates the findings of the Independent Medical assessor, Foujan Rahmati in the psychological assessment report dated April 28, 2023, which opines the applicant suffers from Adjustment Disorder with anxiety and depressed mood. It was based on Rahmati’s findings that the treatment plan was recommended. I do note that the psychological assessment report of Dr. Ratti, dated March 13, 2024, one year later, did not support his own diagnosis. However, at the time the treatment plan was submitted in May 2023, Dr. Ratti’s opinion was available to the respondent and at the time, did corroborate the diagnosis. I have not been directed to evidence that Dr. Ratti was asked to opine on the psychological treatment plan. I find that the March 13, 2023 and April 28, 2023 assessment reports of Dr. Ratti and Foujan Rahmati support the May 30, 2023 treatment plan. I also find the treatment goals are reasonable and necessary.

36I find on a balance of probabilities that the applicant is entitled to $3,192.26 for psychotherapy services, proposed by Prime Health Care, in a plan dated May 1, 2023.

Interest

37Pursuant to s. 51 of the Schedule, the applicant is entitled to interest on any overdue payment of benefits.

Award

38The applicant seeks 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.

39An award should be proportionate and considerate of the blameworthiness of the insurer, the vulnerability of the insured and the advantage wrongfully gained by the insurer from its misconduct. The Tribunal has found unreasonable behaviour by an insurer to be behaviour that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

40I find that the respondent acted unreasonably when it denied benefits to the applicant because the recommendation of the applicant’s family physician for physiotherapy, which were supported by Dr. D’Urzo’s clinical notes, were not taken into account. I also find that the respondent ignored the opinion of their own assessor, who opined the applicant suffered from Adjustment Disorder as a result of the accident, and had this information available to them when considering the treatment plan for psychological treatment. Further, I find that the respondent inflexibly dismissed the psychological treatment plan because the Regulated Health Professional and treatment provider signed under Part 5, but not Part 4 of the treatment plan. I find this conduct amounts to unreasonable behaviour by an insurer in withholding or delaying payment, which can be seen as stubborn, inflexible, unyielding or immoderate.

41The quantum of a s. 10 award should be proportionate to: i. the overall length of the delay; ii. the blameworthiness of the insurer’s conduct; iii. the vulnerability of the insured person; iv. the harm or potential harm directed at the insured person; v. the need for deterrence; and vi. the advantage gained by the insurer from the misconduct.

42I have considered the amount of benefits withheld from the applicant, and the length of time that payment has been withheld. I find the appropriate quantum is 15% of the amount to which the applicant is entitled for the disputed physiotherapy and psychological treatment plans, plus interest in accordance with the Schedule.

ORDER

43The applicant is not entitled to a non-earner benefit of $185.00 per week from March 30, 2021 to March 30, 2023.

44The applicant is entitled to $1,995.50 for physiotherapy services, proposed by Hartwell Health Corporation, in a treatment plan/OCF-18 (“plan”) dated July 28, 2021.

45The applicant is entitled to $2,594.00 for physiotherapy services, proposed by Hartwell Health Corporation, in a plan dated October 22, 2021.

46The applicant is not entitled to $8,882.79 for chronic pain treatment, proposed by Prime Health Care, in a plan dated September 23, 2023.

47The applicant is entitled to $3,192.26 for psychotherapy services, proposed by Prime Health Care, in a plan denied on May 30, 2023.

48The respondent is liable to pay an award under s. 10 of Reg. 664 of 15% of the amount to which the applicant is entitled to for the physiotherapy and psychological treatment plans, because it unreasonably withheld or delayed payments to the applicant.

49The applicant is entitled to interest on any overdue payment of benefits in accordance with s. 51 of the Schedule.