Pittman v. Aviva Insurance Canada, 2025 CanLII 1810

Citation: Pittman v. Aviva Insurance Canada, 2025 ONLAT 22-002621/AABS

Licence Appeal Tribunal File Number: 22-002621/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:

Harry Pittman

Applicant

And

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Andrea Reid

APPEARANCES:

For the Applicant: Tina Radimisis, Counsel

For the Respondent: Nabila Majidzadeh, Counsel

HEARD: By way of written submissions

OVERVIEW

1Harry Pittman, the applicant, was involved in an automobile accident on January 17, 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, Insurer, 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 attendant care benefits in the amount of $2,257.09 per month from January 17, 2020, to ongoing?

ii. Is the applicant entitled to $2,973.49 ($4,504.53 less $1,531.04 approved) for a psychological service, proposed by Dr. Andrew Shaul, in a treatment plan/OCF-18 (“plan”) dated September 14, 2020?

iii. Is the applicant entitled to $3,300.00 ($4,996.25 less $1,696.25 approved) for physical and occupational therapy services proposed by Revie Physio Care in a plan dated November 23, 2020?

iv. Is the applicant entitled to $3,300.00 for physiotherapy and occupational therapy service, proposed by Revie Physio Care in a plan dated January 28, 2021?

v. Is the applicant entitled to $2,460.00 for a neurology assessment, proposed by iScope Concussion and Pain Centres in a plan dated March 8, 2021?

vi. Is the applicant entitled to $2,033.00 for an EEEG assessment, proposed by iScope Concussion and Pain Centres in a plan dated March 8, 2021?

vii. Is the applicant entitled to $2,200.00 for a Spect Scan, proposed by iScope Concussion and Pain Centres in a plan dated March 8, 2021?

viii. Is the applicant entitled to $2,486.00 for an in-home assessment, proposed by Access Rehab in a plan dated May 20, 2021?

ix. Is the applicant entitled to $2,085.85 for occupational therapy services, proposed by Julie Ann Villano in a plan date October 26, 2021?

x. Is the applicant entitled to $2,148.06 for an assistive device assessment, proposed by Julie Ann Villano in a plan dated October 26, 2021?

xi. Is the applicant entitled to $10,469.25 ($29,001.45 less $18,532.20 approved) for x-rays, a neurophysiatry assessment, a psychological assessment, a mental/behavioural assessment, and psychometric testing, proposed by Omega Medical in a plan dated February 24, 2022?

xii. Is the applicant entitled to $875.00 ($3,575.00 less $2,700.00 approved) for social work services, proposed by iScope Concussion and Pain Centre in a plan dated February 18, 2022?

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

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

RESULT

3I find that the applicant is not entitled to attendant care benefits.

4I find that the applicant is not entitled to the treatment plans and assessments in dispute, or the remaining balances for those treatment plans that have been partially approved.

5I find that the applicant is not entitled to interest as there is no overdue payment of benefits.

6I find that the respondent is not liable to pay an award under s. 10 of O. Reg. 664.

PROCEDURAL ISSUES

Page limits

7In its submissions, the respondent raised a procedural issue regarding written submission page length limits. The Tribunal ordered written submissions to a maximum of 15 pages following the case conference on February 18, 2023. The respondent submits that the applicant’s written submissions are 19 pages which violates the Order.

8The respondent further submits the respondent is prejudiced by the applicant’s failure to comply and requests that the Tribunal not consider any written submissions of the applicant past page 15 (paragraph 86).

9I agree with the respondent that page limits ordered by the Tribunal should not be exceeded to avoid prejudicial circumstances to either party. Therefore, I will not be considering submissions from the applicant beyond the set page limit of 15 pages.

Exclusion of Evidence

10The applicant filed a motion seeking on order for the Tribunal to exercise its discretion to exclude surveillance reports, videos and curricula vitae of the investigators, Dhanumjaja Kona, Marvin Casino and Maurizio Santolin (“Surveillance”) disclosed to the applicant’s representative after the production deadline had passed. The applicant submits that this delay prejudiced its ability to fully prepare and effectively respond to the developing merits of the case.

11At the case conference on February 18, 2023, the parties agreed to exchange “records not previously disclosed which a party intends to rely on” no later than 90 days from the date of the case conference which was April 14, 2023.

12The respondent sent the applicant two sets of surveillance on May 12 ad May 26, 2023, respectively. This was a 28-day and 41-day delay from the 90-day timeline ordered in the Case Conference Report and Order (“CCRO”).

13The applicant submits that the respondent breached the CCRO and emphasizes the importance of upholding established deadlines set up the Tribunal to ensure fairness and due process in Tribunal proceedings. The applicant further submits that the respondent’s delay in disclosing surveillance prejudiced the applicant’s ability to fully prepare and effectively respond to the developing merits of the case.

14The respondent concedes that through inadvertence, it missed the 90-day timeline by incorrectly calculating the deadline from the release date of the CCRO. The respondent submits that the applicant knew or ought to have known the respondent was intending to rely on surveillance and that the surveillance evidence is directly associated with the issues in dispute. The respondent requests that the motion be denied.

15Per Rule 9.3, if a party fails to comply with any Rule, direction or order with respect to disclosure, exchange, production, or inspection of documents or things, that party may not rely on the document or thing as evidence without the permission of the Tribunal.

16When making its determination, the Tribunal may consider any relevant factor including but not limited to the reasons for non-compliance, whether a party will be prejudiced by the admission of the evidence, whether the other party opposes the admission of the evidence and the relevance of the document to an issue in dispute in the proceeding.

17While it is unfortunate that the respondent inadvertently miscalculated the 90-day deadline date, the language of the CCRO is plain and clear. I agree with the applicant that the delay in the respondent’s disclosure of surveillance did prejudice the applicant and that the timelines set out in a CCRO are to be compiled with by all parties.

18For these reasons, I will be excluding all surveillance reports, videos, and curricula vitae of the investigators from this hearing.

ANALYSIS

The applicant is not entitled to attendant care benefits

19I find that the applicant has not met his onus to demonstrate that attendant care benefits are reasonably and necessary.

20Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (ACBs) provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).

21Further, the onus is on the applicant to show that the ACBs are reasonable and necessary and to establish that they have been incurred, or should be deemed incurred under section 3(8) of the Schedule.

22As outlined in A.A. vs. Aviva Insurance Company, 2020 ONLAT 18-011152/AABS, the issue of entitlement to attendant care can be narrowed to focus on services that were incurred by the applicant. There is no dispute between the parties that the applicant submitted no proof of “incurred” attendant care.

23The applicant submits that the medical evidence supports entitlement to ACBs and that I should rely solely on said evidence in making this determination. The applicant further submits that left ankle pain, balance issues, lower extremity weakness and dizziness persisted following the subject motor vehicle accident. The applicant asserts these impairments demonstrate the need for ACB. The applicant points to the hospital records and medical records from family physician, Dr. Elraheb, in support of this argument.

24The respondent argues that the applicant has significant pre-accident medical history. The respondent further submits that six months after the subject accident, on June 15, 2020, the applicant fell off a 20-foot ladder while painting his house which resulted in blunt trauma to the head and other serious injuries. The respondent notes that the applicant admitted this information in its submissions. The respondent argues it is the applicant’s pre-existing history and injuries sustained from the ladder fall, not injuries from the subject accident, that are the cause for the applicant’s physical impairments and therefore, ACBs are not warranted.

25In light of these submissions, this case requires a very careful review of the medical evidence for me to determine which injuries resulted directly from the subject accident, were previously in existence or caused by the ladder fall, and in order to determine whether ACBs are reasonable and necessary.

26I find that the medical records of Dr. Elraheb form January 24, 2018, note the applicant’s long-standing history of nerve/pain issues in both legs described as “pin and needles in the lower legs for several years” that “disturbs sleep and daytime activity.” At a subsequent visit with Dr. Elraheb on August 10, 2019, the applicant complained of pain in both feet which resulted in a podiatry referral. Additionally, on December 20, 2019, Dr. Elrehab noted “RT leg and back pain for a long time” which was diagnosed as sensory loss over L4, lower back tenderness and neurotic pain. The records reveal that the applicant had a longer standing history of neuropathy, sensory and vascular issues relating to both feet prior to the subject accident.

27I also find that the hospital report of the subject accident indicated that the applicant suffered minor injuries including a left eyebrow laceration and left ribcage pain. The applicant did not suffer any fractures or dislocations. Mild degenerative changes of the left foot along with a bunion were also noted in the hospital report. Further, I see no medical evidence that directly links the applicant’s assertions of balance issues, lower extremity weakness or dizziness to the subject accident.

28The evidence also shows that the applicant was seen by Dr. Elrehab on the day of the accident as well. He noted, “MVA, hit from the side this morning. Never lost consciousness, no dizziness […] Lt foot pain x-ray was taken was told all is well.”

29I find that the hospital report following the ladder fall on June 15, 2020, indicated the applicant’s past medical history as “healthy” and functional history as “previously independent.” The applicant did not mention the subject accident to the treating medical professionals while at the hospital. The applicant suffered significant injuries from the ladder fall including bilateral wrist fractures which required subsequent surgery, an orbital fracture, temporary loss of consciousness, a left black eye, bruised ribs, facial pain, left eyebrow stitches and bilateral shoulder pain.

30While the medical evidence shows that the applicant has suffered significant injuries, the applicant has not proven on a balance of probabilities that the subject accident-related impairments give rise to a need for attendant care services.

31I find that the applicant is not entitled to ACBs.

The applicant is not entitled to the remaining balance of a treatment plan for physical and occupational therapy services

32I find that the applicant has not met the onus to demonstrate that the remaining balance for psychological services is reasonable and necessary.

33To 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.

34The treatment plan submitted by Revie Physio Care on November 26, 2020, was partially approved for completion of the OCF-18 form and for 15 sessions of physical rehabilitation. The respondent denied 15 sessions of physical rehabilitation by an occupational therapist on the basis that no identifiable objective, demonstrable, definable, and clinically relevant evidence to support the treatment for injuries suffered as a direct result of the subject accident.

35My examination of the medical evidence, addressed above, applies to this treatment plan as well. I am in agreement with the respondent. The applicant has not put forward any clinically relevant evidence and therefore, not proven on a balance of probabilities, that the subject accident-related impairments give rise to a need in occupational therapy services.

36The respondent also denied 15 additional sessions of treatment of physical rehabilitation by Rajesh Ramnath, an unregulated professional. The respondent requested that the applicant provide medical documentation to demonstrate the difference and need between the approved 15 treatments. Upon receipt of such information, the respondent agreed to review and reevaluate its decision.

37The applicant did not put forward any further medical documentation to support the difference and need for 15 additional sessions.

38Therefore, I find that the applicant is not entitled to the remaining balance of the treatment plan for physical and occupational therapy services.

The applicant is not entitled to the remaining balance of a treatment plan for psychological services

39I find that the applicant has not met the onus to demonstrate that the remaining balance for psychological services is reasonable and necessary.

40The treatment plan was submitted including the following proposed services:

i. 16 sessions of counseling

ii. Documentation, support activity

iii. Recorded materials – e.g., tapes/videos for education, training, relaxation

iv. Education, promoting health and preventing disease

v. Documentation, support activity for claim form (e.g., for insurance, third party payor, worker’s compensation)

41The respondent agreed to pay $200.00 for documentation and completion of the treatment plan, 16 one-hour psychotherapy sessions and $400.00 for record materials. The respondent did not agree to pay for any goods/services relating to the planning/preparation/brokerage as they were included in the $200.00 maximum fee allowable for treatment plan completion.

42Further, the respondent did not agree to pay for a progress report unless required at which time it would request the information. The respondent also noted that it would not pay for any other costs, fees or charges that have the result of increasing the effective hourly rates or the maximum fees payable for completing forms, beyond what is permitted under the Professional Services Guidelines.

43The respondent noted that it was unable to determine the request for education to promote health and prevent disease as no details of the proposed item were provided.

44I am unable to locate any evidence that supports the request for education related to the subject accident.

45As I see it, the respondent approved all items which were demonstrated to be reasonable and necessary by the applicant. In other words, the applicant did not provide evidence to support that the education was reasonable and necessary and I find that the rates were in accordance with the Guidelines.

46I find that the applicant is not entitled to the remaining balance for psychological services.

The applicant is not entitled to the remaining balance for CAT assessments

47I find that the applicant has not met the onus to demonstrate that the remaining balance for CAT assessments is reasonable and necessary.

48The treatment plan for CAT assessments was submitted on February 24, 2022, and was partially approved for $18,532.00. The respondent did not fund the review of x-rays as it was included in the assessment fees by the reviewing doctor. The respondent also did not fund the neurophysiatry assessment or personal protective equipment (PPE) deeming on the basis that they were not reasonable and necessary.

49My examination of the medical evidence, previously addressed, applies to this treatment plan as well. The applicant has not put forward any clinically relevant evidence and therefore, not proven on a balance of probabilities, that the subject accident-related impairments give rise for a neurophysiatry assessment or PPE.

50I find that the applicant is not entitled to the remaining balance for CAT assessments.

The applicant is not entitled to the remaining balance of a treatment plan for social work services

51I find that the applicant has not met the onus to demonstrate that the remaining balance for social work services is reasonable and necessary.

52The respondent partially approved a treatment plan for social work services, proposed by iScope Concussion and Pain Centre dated February 18, 2022. The plan was approved at an hourly rate of $100.00 on the basis that this was a reasonable fee for this treatment.

53I see no evidence put forth by the applicant to support the need for a higher fee for social work services. Further, I agree with the respondent that the proposed fee of $100.00 per session is reasonable.

54The applicant has not met the onus to demonstrate that the remaining balance for social work services is reasonable and necessary. Therefore, I find the applicant is not entitled to this treatment plan.

The applicant is not entitled to a neurology assessment, EEEG assessment, Spect scan, in-home assessment, assistive device assessment or an occupational therapy treatment plan

55To 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.

56As stated above, the medical evidence shows that the only injuries arising from the subject accident were minor, inclusive of a left eyebrow laceration and left ribcage pain. The applicant did not suffer any fractures or dislocations. Mild degenerative changes of the left foot along with a bunion were also noted in the hospital report.

57Further, on March 6, 2020, Dr. Elraheb noted the applicant was not in need of a CT of the brain.

58Sections 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical/rehabilitation benefits that are reasonable and necessary as a result of the subject accident. The onus is on the applicant to prove on a balance of probabilities that the treatment plans are reasonable and necessary.

59The applicant has failed to meet this onus and adduce any supporting evidence to the treatment and assessment plans in dispute are reasonable and necessary for the injuries sustained by the subject accident.

60I find the applicant is not entitled to any treatment plans or assessments relating to physical or neurological impairments inclusive of the neurology assessment, Spect scan, in-home assessment, assistive device assessment and occupational therapy service treatment plan dated October 26, 2021.

Interest

61No interest is payable as there are no outstanding benefits pursuant to s. 51 of the Schedule.

Award

62The 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.

63Since I find that there are no benefits payable to the applicant, the respondent cannot be found to have unreasonably withheld or delayed payment. As a result, an award is not warranted in the circumstances.

ORDER

64I find:

i. The applicant is not entitled to attendant care benefits in the amount of $2,257.09 per month from January 17, 2020, to ongoing.

ii. The applicant is not entitled to $2,973.49 ($4,504.53 less $1,531.04 approved) for a psychological service, in a treatment plan dated September 14, 2020.

iii. The applicant is not entitled to $3,300.00 ($4,996.25 less $1,696.25 approved) for physical and occupational therapy services proposed by Revie Physio Care in a plan dated November 23, 2020.

iv. The applicant is not entitled to $3,300.00 for physiotherapy and occupational therapy service, proposed by Revie Physio Care in a plan dated January 28, 2021.

v. The applicant is not entitled to $2,460.00 for a neurology assessment, proposed by iScope Concussion and Pain Centres in a plan dated March 8, 2021?

vi. The applicant is not entitled to $2,033.00 for an EEEG assessment, proposed by iScope Concussion and Pain Centres in a plan dated March 8, 2021.

vii. The applicant is not entitled to $2,200.00 for a Spect Scan, proposed by iScope Concussion and Pain Centres in a plan dated March 8, 2021.

viii. The applicant is not entitled to $2,486.00 for an in-home assessment, proposed by Access Rehab in a plan dated May 20, 2021.

ix. The applicant is not entitled to $2,085.85 for occupational therapy services, proposed by Julie Ann Villano in a plan date October 26, 2021.

x. The applicant is not entitled to $2,148.06 for an assistive device assessment, proposed by Julie Ann Villano in a plan dated October 26, 2021.

xi. The applicant is not entitled to $10,469.25 ($29,001.45 less $18,532.20 approved) for x-rays, a neurophysiatry assessment, a psychological assessment, a mental/behavioural assessment, and psychometric testing, proposed by Omega Medical in a plan dated February 24, 2022.

xii. The applicant is not entitled to $875.00 ($3,575.00 less $2,700.00 approved) for social work services, proposed by iScope Concussion and Pain Centre in a plan dated February 18, 2022.

xiii. The applicant is not entitled to interest as there is no overdue payment of benefits; and

xiv. The applicant is not entitled to an award.

65The application is dismissed.