Mayers v. Aviva Insurance Company of Canada, 2025 CanLII 18237

Citation: Mayers v. Aviva Insurance Company of Canada, 2025 ONLAT 23-005694/AABS

Licence Appeal Tribunal File Number: 23-005694/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:

Atasha Mayers

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

VICE-CHAIR: Tyler Moore

APPEARANCES:

For the Applicant: Cary Schneider, Counsel

For the Respondent: Matthew Owen, Counsel

HEARD: In Writing

OVERVIEW

1Atasha Mayers, the applicant, was involved in an automobile accident on March 18, 2018, 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 an income replacement benefit (“IRB”) in the amount of $400.00 per week from May 22, 2019 to March 18, 2020?

ii. Is the applicant entitled to $2,472.09 for physiotherapy services, proposed by Fairview Wellness in a treatment plan/OCF-18 (“plan”) dated October 3, 2019?

iii. Is the applicant entitled to $5,085.00 for a physiatry assessment, proposed by Dr. Wong of Fairview Wellness in a plan dated September 15, 2020?

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

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

RESULT

3The applicant is not entitled to an IRB in the amount of $400.00 per week from May 22, 2019 to March 18, 2020.

4The applicant is not entitled to $2,472.09 for physiotherapy services, and the parties agree that the respondent will reimburse the applicant for the incurred physiatry assessment in the amount of $2.260.00.

5The applicant is entitled to interest on the overdue payment for the incurred physiatry assessment.

6The applicant is not entitled to an award.

PROCEDURAL ISSUES

7The respondent submits that the applicant’s initial submissions are one page beyond the 12-page limit set out by the Tribunal, and that the 13th page related to the special award should be disregarded by the Tribunal.

8The applicant did not address the respondent’s position regarding page limits in her reply submissions.

9While I agree with the respondent that the applicant exceeded the page limit set out in the Tribunal’s case conference report and order dated December 22, 2023, I find that in this case the 13th page is highly relevant to the issues in dispute and the applicant would be prejudiced if it was excluded. I see no prejudice to the respondent. In the interest of procedural fairness I have accepted the entirety of the applicant’s initial submissions for consideration. However, the applicant is cautioned about exceeding the page limits ordered by the Tribunal in the future.

ANALYSIS

IRB

10I find that the applicant is not entitled to an IRB between May 22, 2019 and March 18, 2020 for the following reasons.

11To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

12To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.

13In this case, the applicant is only claiming pre-104-week IRB entitlement.

14The applicant alleges that as a result of the accident she suffered a traumatic brain injury/concussion, neck, left shoulder, and back pain that is aggravated by activity, migraine headaches, poor sleep, anxiety, and depression for which she takes anti-depressant medication. She is claiming income replacement benefits on the grounds of both psychological and physical injuries and limitations.

Procedural History

15The applicant received an IRB from April 5, 2018 to May 22, 2019. The respondent suspended the applicant’s benefits at that time pursuant to s. 37(7) of the Schedule after the applicant did not attend s. 44 assessments scheduled for March 13, March 26, or April 16, 2019. The applicant subsequently applied to the Tribunal for a preliminary issue determination as to whether the respondent’s notices of assessment were properly requested.

16The respondent accepted the applicant’s updated disability certificate that was submitted by chiropractor, Dr. Barry Nguyen, on February 5, 2019, but it was almost identical to the first disability certificate. Based on the updated disability certificate, the respondent requested s. 44 physician and psychological assessments to determine the applicant’s ongoing entitlement to IRBs.

17On December 8, 2020, the Tribunal issued a preliminary issue decision finding that the applicant was non-compliant with the Schedule for not attending the s. 44 assessments that were properly requested. The applicant notified the respondent on December 10, 2020 that she would attend the s. 44 assessments, which she subsequently did in June 2021.

18The applicant submits that she should be entitled to an IRB between May 22, 2019 and March 18, 2020 because she was compliant with the respondent’s s. 44 assessment request after the Tribunal’s decision was released. The applicant also submits that there is nothing in the Tribunal’s decision that suggests that her position was unreasonable, and the decision shows that her position was viable.

19The respondent submits that the applicant is not entitled to IRBs between May 22, 2019 and March 18, 2020 because she did not attend s. 44 assessments until June 26, 2021, which was well after the 104-week mark post-accident. The respondent argues that the applicant has chosen to limit her claim to the pre-104-week mark, which expired some 4 years before this application, and 14 months before the s. 44 assessments occurred. That, along with the applicant’s s. 44 non-compliance has resulted in prejudice to the respondent.

Section 37

20Section 37(8)(b)(ii) of the Schedule states that if the insured person subsequently complies with subsection 44(9), the insurer shall: (a) reconsider the insured person’s entitlement to the specified benefit; and (b) if the insurer determines that the insured person is still entitled to the specified benefit; (i) resume payment of the specified benefit, and (ii) pay all amounts, if any, that were withheld during the period of non-compliance if the insured person provides not later than the 10th business day after the failure or refusal to comply, or as soon as practicable after that day, a reasonable explanation for not complying with that subsection.

21The respondent determined that the applicant was not entitled to an IRB after the s. 44 reports were obtained in 2021, and that the applicant has not provided a reasonable explanation for her non-attendance. As a result, the respondent argues that it should not be required to pay an IRB during the period of non-compliance pursuant to s. 37(8)(b)(ii) of the Schedule because after reconsidering the applicant’s entitlement it has maintained its position that she is not entitled to an IRB.

22I agree that the Tribunal’s preliminary decision found that the applicant’s s. 44 non-attendance was not reasonable in statute barring her. However, I find that the applicant’s explanation for her subsequent compliance with s. 44 to be reasonable. I have considered the prejudice caused to the respondent by the applicant’s period of non-compliance below.

Substantive Entitlement

23The applicant submits that at the time of the accident she was employed as an assembly line warehouse worker where she would carry products weighing between 10 and 20 lbs from the line and put them into boxes. She worked 40 to 44 hours per week, and described her job as physically demanding, requiring her to stand all the time, lift, twist, bend, tape packages, and stamp.

24The applicant submits that she attempted to return to her pre-accident job for two weeks after the accident without success because of pain. On or around March 22, 2019, she found part-time work at Sobeys working 4 days or 12 to 27 hours per week in what she describes as a sedentary/light capacity job as a cashier. The applicant alleges that she only returned to part-time work because she was depressed being at home and needed to work to help her family financially, despite still being in pain.

25With respect to the s. 44 assessments that were completed after the Tribunal’s preliminary decision, the applicant argues that the June 26, 2021 s. 44 psychological assessment report of Dr. Kerry Lawson was based on an inaccurate and incomplete employment history. Dr. Lawson did not acknowledge the applicant’s pre-accident job and duties, discuss the differences in tasks, or discuss whether he had knowledge as to what a packer does.

26The applicant also argues that the s. 44 physiatry assessment report of Dr. Alborz Oshidari should be given little weight because his assessment of the applicant’s employment history is cursory as he does not mention the applicant’s job duties at Sobeys or any limitations performing same. According to the applicant, Dr. Oshidari makes no comparison between her pre-accident and post-accident work or explain why the applicant is only working part-time.

27I find that according to Dr. Lawson’s report, it was the applicant who advised him that she had not returned to work since the accident, but that she was planning on returning to work in July 2021. The applicant’s self-report was inaccurate because she returned to work at Sobeys in 2019. I also find that Dr. Oshidari acknowledged the applicant’s part-time work at Sobeys as a cashier and he went so far as to conclude that the applicant did not suffer a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience. Based on the applicant’s s.44 non-compliance during the pre-104-week period, I find that the respondent has been prejudiced in only being able to have its s. 44 assessors address the post-104-week IRB test.

28According to the applicant, any gaps in the clinical notes of Dr. Abdulmajid Hamami, family physician, with respect to shoulder pain can be explained by the fact that she was receiving physiotherapy for shoulder pain during that time. The respondent accepts that Dr. Hamami’s report dated July 22, 2020 noted that the applicant sustained low back pain and left shoulder pain as a result of the accident, but the last complaint the applicant made of low back pain to Dr. Hamami was in August 2018.

29The applicant submits further that physiatrist, Dr. Joseph Wong, recommended that she attend a chronic pain clinic for both the physical and psychological aspects of her impairments in his September 30, 2020 report. According to the respondent, however, Dr. Wong did not diagnose the applicant with chronic pain syndrome, but rather chronic pain problems. While Dr. Wong recommended a chronic pain program, the respondent argues that it was with respect to the applicant’s psychological concerns and not her physical pain symptoms. The respondent notes that the applicant has not pursued treatment for any psychological symptoms during the entirety of the five-year benefit coverage period.

30The respondent argues that Dr. Wong’s physiatry report should be given little to no weight by the Tribunal because there is no corroborating evidence to support that the applicant ever reported hitting her head or sustaining a head injury, and she did not mention any physical symptoms apart from headaches/migraines between August 7, 2018 and December 17, 2019. In addition, Dr. Wong did not actually diagnose her with post-concussion syndrome or a concussion, but just that some of her complaints were often seen in patients with concussion problems. The respondent submits that the only other health practitioner that refers to a concussion diagnosis was a chiropractor, who does not have the qualifications to do so.

31The respondent also argues that the applicant’s first mention of any psychological complaints was made to her family physician on September 25, 2018, which was several months after the accident and shortly after her child was diagnosed with autism. The respondent submits that none of the clinical notes of the applicant’s family physician reflect psychological complaints related to the accident.

32The respondent relies on the functional abilities evaluation findings of Dr. Philip Dimakis, chiropractor, dated July 6, 2021. Dr. Dimakis found that the applicant was able to dynamically lift at a medium level, carry at a heavy level, and push/pull at a medium level, which would coincide with the applicant’s pre-accident work duty expectations.

33The respondent submits that there is little evidence to support that the applicant’s job at Sobeys is substantially different from her pre-accident job as a packer. A cashier would stand for prolonged periods and move groceries of varying weights while scanning them, and there is no evidence that the applicant receives any accommodations at Sobeys.

34I find that the applicant has provided limited evidence to support that her job at Sobeys is substantially different from her pre-accident job as a packer. A cashier would be required to stand for prolonged periods, bend, and perform repetitive twisting and lifting. There is no evidence that the job duties were lighter than her pre-accident work or that the applicant has had to be accommodated at Sobeys as a result of her accident-related injuries.

35I am mindful that the applicant is a single mother of three children, ages 12, 12, and 5 years old at the time of the accident. The applicant submitted that she tends to the special needs of her youngest son, but she did not elaborate on what that entails, how it impacts her ability to work, or the psychological impact it has had on her. The applicant only submitted that she had restrictions lifting, taking him to activities, and providing supervision after the accident.

36I am persuaded by the functional abilities assessment findings of Dr. Dimakis, because it relies on objective measures of the applicant’s functional tolerances for physical tasks that could be extrapolated to work task abilities. According to Dr. Dimakis, the applicant was able to perform lifting and carrying tasks at a medium to heavy level, which would coincide with her pre-accident work duty expectations as a packer, because according to the applicant that job was more physically demanding than her duties as a cashier. These findings do not support that the applicant was incapable of performing her pre-accident work.

37From a psychological standpoint, I have placed greater weight on Dr. Lawson’s findings compared to Dr. Wong’s recommendation that the applicant should participate in a chronic pain program for her psychological condition, because Dr. Lawson is in a better position to comment as a psychologist. Dr. Lawson found that, from a psychological perspective, the applicant’s condition did not constitute an impairment that rendered her completely unable to engage in any employment or self-employment for which she was reasonably suited as a direct result of her psychological injuries sustained in the accident. Dr. Lawson also found that the applicant over-reported her psychological symptomatology based on the outcome of the Structured Inventory of Malingered Symptomatology he administered, and he considered that in his findings.

38I also find that there is no indication from Dr. Hamami that the applicant could not participate in her pre-accident or post-accident job duties. Dr. Hamami’s notes reflect that the applicant had discomfort in her left shoulder after working, but not that she could not perform the essential tasks of her employment or pre-accident employment. I have also placed limited weight on Dr. Nguyen’s updated disability certificate recommendations which are inconsistent with the applicant’s other assessors and treating practitioners, particularly Dr. Dimakis’ objective functional abilities evaluation.

39While I accept that the applicant suffered both physical and psychological injuries as a result of the accident, I find on a balance of probabilities that she is not entitled to IRBs between May 22, 2019 and March 18, 2020.

40I find that the applicant is not entitled to $2,472.09 for chiropractic, physiotherapy, and massage therapy.

41To 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.

42The treatment plan submitted by Dr. Nguyen proposes 1 assessment in the amount of $183.59, 12 chiropractic sessions in the amount of $676.92, 12 sessions of exercise in the amount of $450.00, 12 physiotherapy sessions in the amount of $598.56, 4 massage therapy sessions in the amount of $232.76, 12 sessions of physiotherapy stimulation in the amount of $300.00, and $30.26 in taxes. The treatment plan goals are listed as pain reduction, increased strength, increased ranges of motion, and return to activities of normal living. Dr. Nguyen noted that the applicant had ongoing pain in her neck, shoulders, and back, with joint restrictions and hypertonic muscles.

43The applicant submits that Dr. Oshidari did not render an opinion with respect to this treatment plan, and only addressed the proposed physiatry assessment of Dr. Wong. The applicant submits that there has been no medical denial of this plan on the question as to whether it is reasonable and necessary because the original denial was on the basis that the applicant sustained a Minor Injury Guideline injury which the applicant has since been removed from.

44The applicant argues that the medical records of Dr. Hamami, Dr. Nguyen, and Dr. Wong all recommended that she attend physiotherapy. The applicant has paid for the physiotherapy treatment out of her own pocket.

45The respondent submits that it was denied an opportunity to exercise its s. 44 rights to assess this plan at the time it was submitted because the applicant initially refused to attend a s. 44 assessment. According to the respondent, by the time the applicant was assessed by Dr. Oshidari, he correctly found that further facility-based treatment was not reasonable and necessary. That sentiment was echoed by Dr. Wong in September 2020 when he made no recommendations for ongoing physiotherapy, chiropractic, or massage therapy, but rather that the applicant participate in exercise and joins a pool program.

46The respondent also argues that there is no evidence that the applicant’s family physician recommended further facility-based treatment until the applicant complained about left shoulder pain in December 2019 and January 2020, which was almost 16 months after the applicant last mentioned shoulder pain. As a result, the respondent argues that it is unclear whether the applicant’s complaints at that time had anything to do with the accident.

47I agree that Dr. Wong recommended a chronic pain program to address the applicant’s psychological concerns, and that she join a gym and participate in a pool program. Many of these recommendations were echoed by Dr. Oshidari. I find no evidence that Dr. Wong recommended facility-based physiotherapy, chiropractic, or massage therapy as submitted by the applicant. I also find that Dr. Hamami made no reference in his clinical notes recommending any of the proposed facility-based services around the time the plan was proposed. Simply because the applicant continued to attend physiotherapy treatment on her own does not mean that the treatment plan is reasonable and necessary.

48I am not persuaded by the applicant’s submissions. I find on a balance of probabilities that the proposed treatment plan is not reasonable and necessary.

49The applicant submits that the respondent agreed to pay for the physiatry assessment on the eve of the written hearing, as opposed to years ago when it was proposed. According to the applicant, the respondent has yet to pay for the report even though it has been paid for by the applicant.

50The respondent submits that it has agreed to pay for Dr. Wong’s physiatry assessment report up to $2,000.00 plus HST, in accordance with the maximum amount payable under s. 25 of the Schedule, by way of correspondence dated June 21, 2024.

51Given that the respondent has agreed to pay for the physiatry assessment incurred by the applicant in the total amount of $2,260.00, I find that this is no longer an issue in dispute. The applicant’s submission that she should be entitled to interest and an award related to the respondent’s delay in payment is addressed below.

Interest

52Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that the applicant is entitled to interest on the incurred physiatry assessment as agreed to be funded by the respondent on June 21, 2024.

Award

53The 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.

54The applicant submits that the respondent should pay an award of 50% of the benefits in dispute because its refusal to pay for her IRBs impacted her financial and mental health and the refusal to pay for her treatment negatively affected her ability to recover.

55The applicant argues that the treatment plan for physiotherapy was denied on the basis of the MIG, which she has since been removed from, but was never reassessed.

56The applicant also argues that the respondent waited nearly four years to approve the physiatry assessment of Dr. Wong, and only did so on the eve of the written hearing on June 21, 2024.

57The respondent submits that it stopped paying IRBs because the applicant refused to attend s. 44 assessments for more than 2 years. When she finally attended, after an unsuccessful Tribunal appeal, she did not meet the more stringent post-104 test that applied at that time. The respondent argues that the applicant has chosen to limit her claim to the pre-104-week mark, which expired some 4 years before this application, and 14 months before the s. 44 assessments occurred, resulting in prejudice to the respondent.

58The respondent also submits that with respect to the treatment plans in dispute, it obtained the opinion of Dr. Oshidari in respect to both treatment plans, as noted in the July 6, 2021 explanation of benefits. In both cases, the applicant did not attend s. 44 assessments for years, and when she finally did attend, Dr. Oshidari found that the plans were not reasonable and necessary.

59The respondent argues further that its decision to not leave the applicant liable to pay for a physiatry assessment report that had clearly been incurred on her representative or clinic’s recommendation should not be held against it. The respondent’s decision was made in the applicant’s best interest without intending to concede that it agreed that the treatment plan was substantively reasonable and necessary.

60I find that as a result of the applicant’s non-compliance with s. 44 assessments between March 2019 and December 2020, the respondent could not properly address whether Dr. Wong’s physiatry assessment was reasonable and necessary when it was proposed. The respondent has agreed to Upon being made aware that the fee for the assessment was paid out-of-pocket by the applicant, the respondent agreed to fund it without conceding if it was reasonable and necessary.

61As I have found that IRBs and the treatment plan for physiotherapy are not payable, the only item to address is related to the proposed physiatry assessment of Dr. Wong, which the respondent has agreed to reimburse.

62I do not find that the respondent has unreasonably withheld payment to meet the high threshold that would warrant an award. There have been unfortunate delays in this case on behalf of both parties, but I find that none meets the threshold that would warrant an award.

ORDER

63I find that the applicant is not entitled to an IRB in the amount of $400.00 per week from May 22, 2019 to March 18, 2020.

64The applicant is not entitled to $2,472.09 for physiotherapy services, and that the parties have agreed that the respondent will reimburse the applicant for the incurred physiatry assessment in the amount of $2.260.00.

65The applicant is entitled to interest on the overdue payment for the incurred physiatry assessment.

66The applicant is not entitled to an award.