Hanson v. Aviva Insurance Company of Canada, 2025 CanLII 35929

Licence Appeal Tribunal File Number: 23-004992/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:

Susan Hanson Applicant

and

Aviva Insurance Company of Canada Respondent

DECISION

ADJUDICATOR: Jeff Chatterton

APPEARANCES:

For the Applicant: Miryam Gorelashvili, Counsel

For the Respondent: Sandra L White, Counsel

HEARD: In Writing

OVERVIEW

1Susan Hanson, the applicant, was involved in an automobile accident on July 28, 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, Aviva Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

[2] The issues in dispute are:

1. Is the applicant entitled to $488.72 for chiropractic services, proposed by Waytowich Frank Chiropractic, in a treatment plan/OCF-18 (“plan”) dated July 30, 2022?
2. Is the applicant entitled to $1,493.80 for physiotherapy services, proposed by Lifemark, in a plan dated April 7, 2022?
3. Is the applicant entitled to $2,097.88 for an attendant care assessment proposed by Revival Rehabilitation, in a plan dated October 25,2021?
4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is not entitled to the treatment plans for chiropractic or physiotherapy services.

4The applicant is entitled to $2,097.88 for an attendant care assessment.

5The applicant is entitled to interest pursuant to s. 51 of the Schedule for the treatment plan for an attendant care assessment.

ANALYSIS

Are the treatment plans for physiotherapy and chiropractic services reasonable and necessary?

6To 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.

7In a treatment plan dated April 7, 2022, the applicant sought approval for physiotherapy services to reduce pain, increase strength and range of motion, with a stated goal of a return to pre-accident work activities and the activities of normal living. The treatment plan called for eight sessions of therapy.

8In a treatment plan dated July 30, 2022, the applicant sought approval for chiropractic services. She was seeking ten sessions of chiropractic treatments, where again the stated goals of treatment were pain reduction, increased strength and increased range of motion, with a stated goal of return to activities of normal living and pre-accident work activities.

9I find that the applicant has not proven on a balance of probabilities that treatment plans for physiotherapy and chiropractic services are reasonable and necessary, for the following reasons.

10The applicant included a Motor Vehicle Progress Report from the physiotherapist, as well as a copy of the treatment plan for both the physiotherapy and chiropractic services. Other than this, the evidence tendered by the applicant does not establish sufficient contemporaneous support in favour of the treatment plans in question.

11I do note the applicant submitted a note from her family physician supporting physiotherapy and chiropractic services. However, I find that this note is not sufficiently contemporaneous, having been written in August 2022, several months after the creation of the disputed treatment plans. Clinical Notes and Records by the family physician in the months leading up to the treatment plan indicate that the patient was receiving treatment, but they do not contain recommendations to continue treatment.

12Without sufficient contemporaneous evidence to support further treatment, I find that the applicant has not met her onus to prove that the treatment plans are reasonable and necessary.

Is the applicant entitled to $2,097.88 for an attendant care assessment?

13I find the applicant is entitled to $2,097.88 for an attendant care assessment. The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

14In October 2021, the applicant, via Occupational Therapist Katie Walsh, submitted an OCF-18 for approval, seeking an attendant care assessment (ACA).

15It should be noted that both the applicant and respondent referred to the assessment as either an Attendant Care Assessment, a Functional Abilities Evaluation, a Functional Capacity Assessment or an Occupational Therapy Assessment. The OCF-18 itself refers to a “Occupational Therapy Functional Abilities and Attendant Care Assessment.” For clarity’s sake, I will refer to it simply as an Attendant Care Assessment, or ‘ACA.’

16The ACA was requested to determine the applicant’s “needs for therapy and attendant care,” and claimed that the applicant was suffering from injuries that affected her tasks at employment and activities of normal life.

17The respondent denied the request for an ACA. The respondent relies on statements in earlier s. 44 assessments with Dr. Khan, a Physiatrist, and Dr. Jetly, the author of a psychiatry assessment. In those assessments, the respondent submits that the applicant reported that she has” returned to cooking, grocery shopping, driving, golfing, swimming, walking and has returned to work.”

18The respondent further submits that applicant’s evidence does not justify a duplicative functional assessment since the Functional Capacity Evaluation, dated October 31, 2022, has already been completed.” The respondent is referring to a s.44 Functional Capacity Evaluation conducted by Dr. Grimaldi.

19The test to determine whether or not an assessment is required is to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation.

20In this case, I find the respondent’s actions contradict their claim. Specifically, the respondent claimed that an assessment was not reasonable or necessary. However, one year later, the respondent ordered their own Functional Abilities Evaluation.

21If the respondent genuinely felt a Functional Abilities / Attendant Care Assessment was not reasonable or necessary, I must question why they then proceeded to conduct their own assessment.

22Further, at the time of the denied ACA, the applicant had previously reported ongoing pain in her back, spine and shoulders which was causing her to experience a reduced range of motion.

23For this reason, I find that the applicant’s request for an attendant care assessment to be reasonable and necessary.

Interest

24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies on issue 3, for the disputed Attendant Care Assessment.

ORDER

[25] I find that: i. The applicant is not entitled to $488.72 for chiropractic services. ii. The applicant is not entitled to $1,493.80 for physiotherapy services. iii. The applicant is entitled to $2,097.88 for an attendant care assessment. iv. The applicant is entitled to interest for issue (iii), above, pursuant to the s.51 of the Schedule.