Christian Sfalcin v. Aviva Insurance Company of Canada, 2025 CanLII 28492

Citation: Sfalcin v. Aviva Insurance Company of Canada, 2025 ONLAT 23-003902/AABS

Licence Appeal Tribunal File Number: 23-003902/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:

Christian Sfalcin Applicant

and

Aviva Insurance Company of Canada Respondent

DECISION

VICE-CHAIR: Henry Harris

APPEARANCES:

For the Applicant: Yalda Aslamzada, Counsel

For the Respondent: Yalda Aziz, Counsel

HEARD: By way of written submissions

OVERVIEW

1Christian Sfalcin, the applicant, was involved in an automobile accident on March 21, 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 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 $2,486.00 for psychological assessment, proposed by Imperial Medical Assessments in a treatment plan/OCF-18 (“plan”) dated March 30, 2021?

ii. Is the applicant entitled to $282.50 for psychological services, proposed by Imperial Medical Assessments in a plan dated March 30, 2021?

iii. Is the applicant entitled to $876.86 for chiropractic treatment, proposed by Studio Athletica Partnership in a plan dated October 12, 2021?

iv. Is the applicant entitled to $4,538.69 for psychological counselling, proposed by Imperial Medical Assessments in a plan dated January 11, 2022?

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

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?

3For issues (i) and (ii) above, the November 17, 2023 Case Conference Report and Order (the “CCRO”) refers to plans dated April 1, 2021. However, the correct date of these as identified in both parties’ submissions is March 30, 2021.

4For issue (iii) above, the CCRO refers to a plan dated October 18, 2021. However, the correct date of the plan as identified in both parties’ submissions is October 12, 2021.

5For issue (iv) above, the CCRO refers to a plan dated November 1, 2022. However, the correct date of the plan as identified in both parties’ submissions is January 11, 2022.

RESULT

6The applicant is not entitled to the plans in dispute, interest or an award.

PROCEDURAL ISSUE

Page limits and submission chart in applicant’s initial submissions

7The respondent’s request for an order to strike the table labelled as “Tab R” (the “Table”) included in the applicant’s written hearing submissions from the hearing record for failure to comply with the CCRO is denied.

8The Tribunal ordered written submissions to a maximum of 12 pages in the CCRO.

9In its submissions, the respondent requested that the Tribunal strike out the Table for failure to comply with the CCRO. The respondent submits that the majority of the applicant’s submissions appear in the Table. The respondent submits that this does not comply with the submission requirements set out in the CCRO, and is confusing and difficult to follow.

10The applicant argued in reply that his position would be prejudiced if the Table was not considered by the Tribunal as it contains “virtually all of the applicant’s specific analysis”. The applicant also submitted that the proper forum for the respondent to raise such issue would have been by way of motion, so that the applicant would have had an opportunity to sufficiently respond.

11I find that for purposes of considering page count, the Table is part of the applicant’s submissions because the applicant has acknowledged the Table forms virtually all of its specific analysis.

12As such, I find that the applicant’s initial submissions significantly exceed the 12-page limit set out in the CCRO because it is more than 21 pages in total. This is comprised of both the initial 10 pages of applicant’s submissions and an additional 11 pages for the Table. I note the Table is single-spaced which is also contrary to the CCRO, and would accumulate to substantially more pages if it was formatted in compliance with the CCRO.

13However, the respondent has not established that it has suffered any real prejudice from the applicant’s non-compliance with the CCRO. In fact, the respondent did not make submissions on prejudice and only commented that it found the Table extremely confusing and difficult to follow.

14The applicant, however, would be severely prejudiced if the Table were otherwise excluded in this matter because it contains most of the facts and specific analysis of its position.

15In weighing the prejudice to the parties, the respondent’s request to strike out the Table is denied.

ANALYSIS

Issues 1 & 2: Plan dated March 30, 2021 for psychological assessment in the amount of $2,486.00, and Plan dated March 30, 2021 for psychological services-pre-screening in the amount of $282.50

16I find that the applicant is not entitled to the plans for a psychological assessment and psychological services-pre-screening.

17The first March 30, 2021 plan for a psychological assessment was prepared by Somayyeh Sabet Ghadam, psychologist, and sought funding of $2,486.00, comprised of $2,000.00 for the assessment and $200.00 for documentation support activity for claim form, plus tax of $286.00.

18The second March 30, 2021 plan was prepared by Somayyeh Sabet Ghadam, psychologist, and sought funding of $282.50, comprised of $250.00 for psychological services-pre-screening, plus tax of $32.50.

19The applicant’s submissions indicate that his arguments are focused exclusively on the “deficient notice argument”, which does not require any analysis as to whether the treatment plans in dispute were reasonable and necessary. Rather, the applicant submitted that he was entitled to the plans as a result of the respondent not complying with s. 38(8) of the Schedule.

20Before considering the s. 38(8) argument, I note that the applicant’s submissions focus on an argument that a submitted OCF-18, and in particular the part 4 signature of health practitioner, serves as a rebuttable presumption of the plan being reasonable and necessary to which the respondent must conclusively rebut within the 10 business day framework for a denial under s. 38(8). On this basis, the applicant argues that he has provided a “certified medical opinion” and objects to the wording in the explanation of benefits that the respondent has not received any medical documents that indicate any psychological concerns. I note that certified medical opinion is not a defined term in the Schedule. The respondent cites the Tribunal decision of Almasalmah v Travelers Insurance, 2024 CanLII 2645 (ON LAT) for the proposition that “this Tribunal has confirmed that treatment plans are not medical evidence”. I find that to be a helpful statement in this context. While I agree with the applicant that the Schedule constitutes consumer protection legislation and should be interpreted in that context, I do not accept the applicant’s argument that an OCF-18 is rebuttable presumption of a plan being reasonable and necessary as it is not medical evidence. Upon receipt of an OCF-18, an insurer may in connection with its denial, request medical documents and/or schedule an Insurer’s Examination (IE) to review the suitability of the treatment plan proposed.

21I will now turn to specific consideration of the s. 38(8) argument.

22Sections 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. Section 38(8) requires an insurer to inform an insured person within 10 business days after it receives a plan which goods, services, assessments and examinations that the insurer does and does not agree to pay for. The insurer must also provide medical and other reasons why it considers any of the goods and services to not be reasonable and necessary.

23If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:

i. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

ii. The insurer shall pay for all incurred goods, services, assessments and examinations described in the treatment and assessment 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 a notice described in s. 38(8). See: Aviva General Insurance Company v. Catic, 2022 ONSC 6000.

24Section 38(10) also states that a notice under s. 38(8) may notify an insured person that it requires them to undergo an examination under s. 44.

25Section 44(5) of the Schedule provides that an insurer shall give notice of an examination with the medical and other reasons for the examination.

26The Tribunal has recognized medical reasons for denials as specific details about the insured’s condition forming the basis for the insurer’s decision or identifying information about the insured’s condition that the insurer still requires. In addition, the insurer should refer to the specific benefit or determination at issue with the relevant section of the Schedule.

27I find that the applicant is not entitled to the plans for a psychological assessment and for psychological services-pre-screening because the respondent has complied with s. 38(8).

28The respondent’s explanation of benefits letter (“EOB”) dated April 7, 2021 is in response to both of the March 30, 2021 plans.

29Regarding the denial of the first March 30, 2021 plan for a psychological assessment, the April 7, 2021 EOB identifies the plan that the respondent did not agree to pay for, that it had not received any medical documents to date indicating any psychological concerns or demonstrating the specific injuries listed in the plan, and indicated it would be arranging an IE to determine whether the plan for a psychology assessment is reasonable and necessary. Specifically, the EOB states that:

Insurer has not received any medical documents in terms of family doctor notes, and/or specialist reports indicating any psychological concerns. To date, insurer has not [sic] received any medical documents demonstrating the injuries listed on the treatment plan which are: adjustment disorders, sleep disorders, irritability, anxiety. The plan is denied as per section 44.1 of the statutory accident benefit schedule and insurer examination will be arranged to determine if the treatment plan in subject is reasonable and/or necessary.

30For the denial of the second March 30, 2021 plan for psychological services-pre-screening, the April 7, 2021 EOB notice identifies the psychological pre-screening ($282.50) as a duplication of services to that found in the first March 30, 2021 plan for psychological assessment. Specifically, the EOB states that:

Upon review of this Psychological Pre Screen Assessment plan, this is a duplication in service with the OCF18 March 30, 2021 proposing psychological assessment plan listing line 2. Documentation support activity. As per the Professional fee guideline, the $200 fee for the submission of the OCF18 includes any assessment or examination necessary for the purpose of the review and submission. As such the cost of the pre screen assessment is covered under the submission of the OCF18 for the psychological assessment plan, and is not approved as it is a duplication of service.

31The applicant submits that the April 7, 2021 EOB was an improper denial with limited, non-specific explanations and contained fatal deficiencies from the substantive requirements in s.38(8). The applicant submits that the EOB fails to consider any substantive, specific, material aspect of the plan or its merits, including the certifications of the health practitioner submitting the plans.

32The respondent submits that the April 7, 2021 EOB adequately allows an unsophisticated person to understand the medical reasons for the denial of the plans.

33After reviewing the April 7, 2021 EOB, I find it is compliant with s. 38(8). The respondent provided clear medical and other reasons in the EOB for both of the March 30, 2021 plans, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision. Regarding the March 30, 2021 plan for a psychological assessment, the EOB identifies the plans that the respondent did not agree to pay for and provides an explanation of the respondent’s decision that it had not received any medical documents, including family doctor notes or specialist reports, indicating the specific injuries listed in the plan. It also indicated it would be arranging an IE to determine whether the plan for an assessment is reasonable and necessary. Regarding the March 30, 2021 plan for psychological services-pre-screening, the EOB provides a reasoned explanation as to the duplication of the fee.

34Having found the notices of both treatment plans are compliant with s. 38(8), it is not necessary for me to consider arguments whether the respondent complied with s. 38(8) for subsequent denials or with s. 44(5) for its notices of examinations regarding the March 31, 2021 plans.

35Accordingly, I find on a balance of probabilities that the applicant has not met his burden to establish entitlement to these plans.

Issue 3: Plan dated October 12, 2021 for chiropractic treatment in the amount of $876.86

36I find that the applicant is not entitled to the plan for chiropractic treatment because the respondent has complied with s. 38(8).

37The October 12, 2021 plan for chiropractic treatment was prepared by Alan Bui, chiropractor, and sought funding of $876.86, comprised of $676.86 for multiple body sites therapy (6 hours x $112.81) and $200 for documentation support activity for claim form.

38The respondent’s EOB dated November 12, 2021 is in response to the October 12, 2021 plan. The EOB identifies the plan that the respondent did not agree to pay for, provided medical reasons, stating that based on the IE report dated February 11, 2021 and the absence of updated relevant medical records, there was no medical evidence to substantiate further physical treatment, and indicated that it would be arranging an IE to determine whether the plan for chiropractic treatment is reasonable and necessary. Specifically, the EOB states that:

Current injuries listed on the treatment plan such WAD2, impingement syndrome of shoulder, rotator cuff syndrome, calcific tendinitis of shoulder, segmental and somatic dysfunction of cervical region, and given the amount of time elapsed since the date of accident, and in the absence of any updated medical documents and specialist reports, and based on the Section 44 assessment report dated February 11, 2021, the insurer does not have compelling medicals to substantiate further physical treatment requirement from the accident related injuries. As such we are arranging a section 44 insurer’s examination paper review.

39The applicant submits that the November 12, 2021 EOB was an improper denial with limited, non-specific explanations and contained fatal deficiencies from the substantive requirements s.38(8). The applicant submits that the EOB fails to consider any substantive, specific, material aspect of the plan or its merits, including the certifications of the health practitioner submitting the plans.

40The respondent submits that the EOB adequately allows an unsophisticated person to understand the medical reasons for the denial of the plan.

41After reviewing the November 12, 2021 EOB, I find it is compliant with s. 38(8). The respondent provided clear medical and other reasons in the EOB, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision. The EOB identifies the plan that the respondent did not agree to pay for and provides an explanation of the respondent’s decision that was based on an earlier IE report from February 2021 and in the absence of updated relevant medical records, there was no medical evidence to substantiate further physical treatment. The denial also indicated that a new IE would be scheduled to determine whether the plan for chiropractic treatment is reasonable and necessary.

42Having made this finding, it is not necessary for me to consider arguments whether the respondent complied with s. 38(8) for its subsequent denials or s.44(5) for its notice of examination regarding the October 12, 2021 plan.

43Accordingly, I find on a balance of probabilities that the applicant has not met his burden to establish entitlement to this plan.

Issue 4: Plan dated January 11, 2022 for psychological counselling in the amount of $4,538.69

44I find that the applicant is not entitled to the plan for psychological counselling because the respondent has complied with s. 38(8).

45The January 11, 2022 plan for psychological counselling was prepared by Somayyeh Sabet Ghadam, psychologist, and sought funding of $4,538.69, comprised of $3,590.64 for mental heal and addictions counselling (24 hours x $149.61), $299.22 for mental heal and addictions assessment (2 hours x $149.61), documentation support activity $448.83 (3 hours x $149.61) and documentation support activity for claim form $200.00.

46The respondent’s EOB dated January 20, 2022 identifies the plan that the respondent did not agree to pay for and provided medical reasons by stating that based on the IE reports dated June 11, 2021 and August 24, 2021 and in the absence of updated relevant medical records, there was no medical evidence to substantiate psychological treatment. Specifically, the January 20, 2022 EOB states that:

Current injuries listed on the treatment plan such as adjustment disorder, Undifferentiated somatoform disorder, and given the amount of time elapsed since the date of accident, and in the absence of any updated medical documents and specialist reports, and based on the Section 44 report June 11 and August 24, 2021, the insurer does not have compelling medicals to substantiate psychological treatment requirement from the accident related injuries.

47The applicant submits that the January 20, 2022 EOB was an improper denial with limited, non-specific explanations and contained fatal deficiencies from the substantive requirements s.38(8). The applicant submits that the EOB fails to consider any substantive, specific, material aspect of plan or its merits, including the certifications of the health practitioner submitting the plans.

48The respondent submits that the January 20, 2022 EOB adequately allows an unsophisticated person to understand the medical reasons for the treatment plan's denial.

49After reviewing the January 20, 2022 EOB, I find it is compliant with s. 38(8). The respondent provided clear medical and other reasons in the EOB, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision. The EOB identifies the plan that the respondent did not agree to pay for and provides an explanation of the respondent’s decision that based on IE reports from June and August 2021 and in the absence of updated relevant medical records, there was no medical evidence to substantiate psychological treatment.

50Accordingly, I find on a balance of probabilities that the applicant has not met his burden to establish entitlement to this plan.

Interest

51Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are owing, interest does not apply.

Award

52The 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.

53As no benefits are overdue, the respondent cannot be found to have unreasonably withheld or delayed payment of benefits pursuant to s.10 of Reg. 664. Therefore, no award is payable.

ORDER

54For the reasons set out above, I find that the applicant is not entitled to the plans in dispute, interest or an award.