Ubaydulloeva v. Aviva General Insurance, 2025 CanLII 35911

Citation: Ubaydulloeva v. Aviva General Insurance, 2025 CanLII 35911

Licence Appeal Tribunal File Number: 23-002637/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:

Sabrina Ubaydulloeva

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Robert Rock

APPEARANCES:

For the Applicant: Dayana Soto Santana, Counsel

For the Respondent: Branson Wong, Counsel

HEARD: By way of written submissions

OVERVIEW

1Sabrina Ubaydulloeva, the applicant, was involved in an automobile accident on November 28, 2022, 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:

1. Is the applicant entitled to the assessments proposed by 101 Assessment Centre, as follows: i. $2,460.00 for an orthopaedic assessment, in a plan submitted February 17, 2023? ii. $1,333.40 (2,497.51 less $1,164.11 approved) for assistive devices, in a plan submitted June 22, 2023?
2. Is the applicant entitled to $1,313.03 ($2,447.96 less $1,134.98 approved) for chiropractic services, proposed by 101 Physio in a treatment plan submitted December 2, 2022?
3. Is the applicant entitled to a non-earner benefit of $185.00 per week from January 3, 2023, to November 28, 2024?
4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant has not proven on a balance of probabilities that the various treatment plans in dispute are reasonable and necessary.

4The applicant has not proven on a balance of probabilities that she is entitled to non-earner benefits from January 3, 2023 to November 28, 2024.

5As there are no overdue benefit payments, no interest in owing.

PROCEDURAL ISSUES

Exclusion of Evidence

6The respondent submits that the clinical notes and records (CNRs) from 101 Physio, psychological assessment, from August 1, 2023, CNRs from 101 Physio from January 2, 2024, and the CNRs of Dr. Peters, from March 4, 2024 (contained in Tabs E,G,H and J) from the applicant’s submissions should be excluded as evidence in this hearing, because they were not provided in accordance with the timeline set out in the Case Conference Report and Order (CCRO). The respondent argues that the report and clinical notes and records were not supplied to the respondent until the applicant filed her written submissions on May 8, 2024.

7The CCRO states that the parties had 75 days from the date of the case conference to disclose any additional items responsive to items that have already been produced which they intend to present as evidence at the hearing. The date of the Case Conference was October 6, 2023, which would mean that all documents should have been disclosed by December 20, 2023.

8The applicant submits that the psychological assessment report was provided on November 28, 2022, as part of the accident benefits file. This would address the psychological assessment report but does not address the (CNRs) from 101 Physio, CNRs from 101 Physio from January 2, 2024, and the CNRs of Dr. Peters, from March 4, 2024 referred to by the respondent.

9In my assessment I have reviewed Licence Appeal Tribunal Rules, 2023 Rule 9.3, Failure to comply with the rules. In making my determination, I have considered the factors listed in Rule 9.3, including whether the respondent will be prejudiced by the admission of the evidence and the relevance of the documents to the issues in dispute in the proceeding.

10I find that the admission of the evidence will not prejudice the respondent by its admission, and that the documents at issue are relevant to the issues in dispute in the hearing. On the issue of prejudice, two of the remaining three tabs at issue are clinical notes and records of the physiotherapy provider, and the third is additional clinical notes and records of the applicant’s family doctor. The contents of all three tabs do not prejudice the respondent by their inclusion, as the respondent has made submissions on these records. These documents are highly relevant to the issues in dispute in the proceeding. When balancing the probative value of these documents against any prejudice to the respondent, I find that the relevance of the documents outweighs any prejudice to the respondent.

11I find that the Tabs E, G, H and J from the applicant’s submission will be allowed into evidence.

ANALYSIS

12To 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.

a) The applicant is not entitled to the treatment plan for an Orthopaedic Assessment.

13I find that the applicant has not proven on balance of probabilities that the treatment plan for an orthopaedic assessment is reasonable and necessary.

14The OCF-18 was not filed as evidence by the applicant to assist the Tribunal with understanding the goals of the treatment and how they would meet those goals to a reasonable degree.

15The applicant submits that their ongoing chronic pain make the treatment plan at issue reasonable and necessary. The treatment plan itself is not a valid indicator of it being reasonable and necessary and should be accompanied by supporting medical evidence. The applicant has not directed me to any compelling medical evidence to support that the orthopaedic assessment plan is reasonable and necessary. The applicant directed me to S.M. v. Aviva Insurance Company, 2020 CanLII 27439, and argues that the fact pattern in her case is similar. I place little weight on this argument as in the referred case, the applicant’s family physician, a chronic pain specialist, and the treating chiropractor, both recommended ongoing treatment. In the applicant’s evidence, I am not presented with either her family physician or a chronic pain specialist recommending treatment.

16The respondent argues that the applicant has not provided medical evidence to support the orthopaedic assessment as reasonable and necessary. The respondent relies on a s. 44 orthopaedic assessment completed by Dr. Yee, orthopaedic surgeon, on February 15, 2023, and a paper review completed by Dr. Yee, on May 16, 2023.

17I find that the orthopaedic assessment by Dr. Yee does not support orthopaedic assessment as reasonable and necessary. Dr. Yee found that strictly from an orthopaedic perspective, based on his clinical findings, and available medical documentation review, that there were no objective clinical findings to suggest any active radiculopathy or myelopathy.

18In his follow-up orthopaedic assessment paper review, Dr. Yee reviewed additional documentation including additional entries form Dr. Peters’ CNRs, and the OCF-3 by Dr. Nikols. Dr. Yee concluded that the orthopaedic assessment was not reasonable or necessary, as the applicant’s physical injuries should be considered within MIG.

19The applicant has not proven on a balance of probabilities that the treatment plan for an orthopaedic assessment is reasonable and necessary. The applicant has not provided the OCF-18 for review or led any compelling medical evidence to substantiate that the goals and cost of the treatment plan are reasonable and necessary. I find the respondent has provided compelling medical evidence that the treatment plan for an orthopaedic assessment is not reasonable and necessary due to the lack of physical injuries the applicant suffered as a result of the subject accident.

Assistive Devices

20I find that the applicant has not proven on balance of probabilities that the treatment plan for assistive devices is reasonable and necessary.

21The OCF-18 was not filed as evidence to assist the Tribunal with understanding what the assistive devices are, what the goals of the use are and how they would meet those goals to a reasonable degree

22The applicant submits that the plan is reasonable and necessary, but they have not directed me to any compelling medical evidence to support that the treatment plan for assistive devices is reasonable and necessary.

23The applicant has not proven on a balance of probabilities that the treatment plan for assistive devices is reasonable and necessary. The applicant has not provided the OCF-18 for review or led any compelling medical evidence to substantiate the treatment plan as reasonable and necessary.

Chiropractic Services

24I find that the applicant has not proven on balance of probabilities that the treatment plan for chiropractic services is reasonable and necessary.

25The OCF-18 was not provided as part of evidence to understand the goals of the treatment and how they would meet those goals to a reasonable degree.

26The applicant has not directed me to any compelling medical evidence to support that the treatment plan for chiropractic services is reasonable and necessary. The applicant has not provided the OCF-18 for review or led any compelling medical evidence to substantiate that the goals and cost of the treatment plan are reasonable and necessary. I find the respondent has provided compelling medical evidence that the treatment plan for chiropractic services is not reasonable and necessary due to the lack of physical injuries the applicant suffered as a result of the subject accident

27The applicant has not proven on a balance of probabilities that the treatment plan for chiropractic services is reasonable and necessary. The applicant has not provided the OCF-18 for review or led any compelling medical evidence to substantiate the treatment plan as reasonable and necessary.

Non-Earner Benefit (NEB)

28I find the applicant has not proven on a balance of probabilities that she is entitled to NEB.

29Section 12(1) 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.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

30The applicant argues that due to her ongoing chronic pain and psychological impairments, she has a complete inability to carry on a normal life. The applicant relies on a submitted OCF-3 and the CNRs of her family doctor, Dr. Peters.

31The applicant has not provided any specific details of her pre-accident activities or demonstrated how her participation in those activities has been limited as a result of the accident, as required by Heath.

32I find that the CNRs of Dr. Peters do not support that the applicant suffered from a complete inability to carry on a normal life. The CNRs do show ongoing reporting of pain, but there is no discussion that outlines the applicant as being unable to engage in activities in which she ordinarily engaged or valued before the accident. The pain reporting is often attributed to other sources, and not the subject accident. For example, a report of low back pain on October 18, 2023 is attributed to a fall the applicant suffered two years prior. Additionally, the applicant reports in the CNRs dated February 14, 2024 that she has a new job in sales from 11:00am -evenings.

33The OCF-3 that the applicant relies on in their submissions that speaks to the applicant’s complete inability to carry on a normal life, as it was not submitted as part of evidence.

34The respondent argues that the applicant has not provided sufficient and compelling medical evidence to prove her entitlement to NEB. The respondent relies on an occupational therapy in-home assessment by Ms. Mehta, OT, completed April 23, 2023, an orthopaedic surgery assessment by Dr. Yee, orthopaedic surgeon, completed February 15, 2023, and a psychological assessment completed by Dr. Cowman, psychologist, completed March 8, 2023. Additionally, the respondent relies on a surveillance investigation report, completed by Larrek Investigations, in a report dated June 30, 2023.

35I find that the occupational therapy in-home assessment does not support the applicant’s entitlement to NEB. In the assessment, the applicant did not outline any activities that she was no longer able to engage in. She reported being independent with self care, housekeeping, and meal preparation. She also reported going for walks, performing stretching exercises, and accessing public transportation. The applicant continues to read, sketch, and watch movies and TV and socializes with friends.

36I find that the psychological assessment also does not support the applicant’s entitlement to NEB. In the assessment, the applicant reported that she manages her self care, cares for her cat, goes for walks and coffee in nice weather. Additionally, she does cleaning and some cooking.

37I further find that the orthopedic assessment by Dr. Yee does not support the applicant’s entitlement to NEB. Dr. Yee concluded that, from an orthopaedic perspective, his clinical findings and a review of available medical documentation, the applicant does not suffer a complete inability to carry on a normal life as a result of the subject accident.

38Further, the investigation report completed by Larrek Investigations revealed that the applicant continued to engage in her activities of daily living. The investigation report was completed over 8 days (June 13-14, 17, 19-23, 2023). The investigation shows the applicant engaging in normal daily activities such as taking public transit, walking, taking riding sharing, and working at a Greek Stop location, which I find undermines her claim for an NEB, as it displays that she was employed and did not have a complete inability to carry on a normal life.

39I find that the applicant has not proven on a balance of probabilities that she suffers from a complete inability to carry on a normal life.

Interest

40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefit payments, no interest is owing.

Award

41The 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. The applicant made submissions on an award, but this was not an issue included in this written hearing. The respondent made no submissions on an award, as they did not consider this an issue in dispute, based on the agreed upon issues in the Case Conference Report and Order.

ORDER

42I find that:

i. The applicant has not proven that the various treatment plans in question are reasonable and necessary. ii. The applicant has not proven that she is entitled to NEB. iii. As there are no overdue benefit payments, no interest is owing. iv. The application is dismissed.