Rai v. Aviva General Insurance, 2025 CanLII 3864

Rai v Aviva General Insurance, 2025 ONLAT 22-013473/AABS

Citation: Rai v Aviva General Insurance, 2025 ONLAT 22-013473/AABS

Licence Appeal Tribunal File Number: 22-013473/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:

Jason Rai

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Muhammad Aftab Alam, Counsel

For the Respondent: Geoffrey Keating, Counsel

HEARD: By way of written submissions

OVERVIEW

1Jason Rai (“the Applicant”) was involved in an automobile accident on November 12, 2020, and sought benefits from Aviva General Insurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The Applicant was denied benefits by the Respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The issues to be decided in the hearing are:

1. Is the Applicant entitled to non-earner benefits (“NEBs”) in the amount of $135.00 per week for the period from December 12, 2020 to November 12, 2022?

2. Is the Applicant entitled to attendant care benefits (“ACBs”) in the amount of $10,334.25 per month for the period from February 24, 2021 to-date and ongoing?

3. Is the Applicant entitled to a medical benefit in the amount of $506.85 ($5,941.84 less $5,434.99 approved) for physiotherapy services, proposed by Health Max Brampton in a treatment plan/OCF-18 (“plan”) dated December 24, 2020?

4. Is the Applicant entitled to a medical benefit in the amount of $232.64 ($2,220.85 less $1,968.21 approved) for other assistive devices, proposed by Pearson Medical Assessment Centre in a plan dated December 8, 2021?

5. Is the Applicant entitled to a medical benefit in the amount of $350.00 ($1,971.44 less $1,621.44 approved) for occupational therapy, proposed by Pearson Medical Assessment Centre in a plan dated February 1, 2021?

6. Is the Applicant entitled to a medical benefit in the amount of $1,250.03 for other assistive devices, proposed by Pearson Medical Assessment Centre in a plan dated March 17, 2021?

7. Is the Applicant entitled to a medical benefit in the amount of $337.66 ($2,000.00 less $1,662.34 approved) for an Attendant Care Assessment, proposed by Pearson Medical Assessment Centre in a treatment plan dated December 7, 2020?

8. Is the Applicant entitled to a medical benefit in the amount of $42.00 ($1,538.75 less $1,496.75 approved) for a Home Safety Assessment, proposed by Pearson Medical Assessment Centre in a treatment plan dated December 4, 2020?

9. Is the Applicant entitled to $950.24 a medical benefit in the amount of ($2,147.75 less $1,197.51 approved) for a Occupational Therapy Assessment, proposed by Pearson Medical Assessment Centre in a treatment plan dated December 4, 2020?

10. Is the Applicant entitled to a medical benefit in the amount of $337.66 ($2,000.00 less $1,662.34 approved) for a Attendant Care Assessment, proposed by Pearson Medical Assessment Centre in a treatment plan dated February 17, 2021?

11. Is the Applicant entitled to a medical benefit in the amount of $1,519.88 for a FAE Assessment, proposed by Pearson Medical Assessment Centre in a treatment plan dated June 2, 2021?

12. Is the Applicant entitled to a medical benefit in the amount of $2,200.00 for a Chronic Pain Assessment, proposed by Pearson Medical Assessment Centre in a treatment plan dated September 1, 2021?

13. Is the Applicant entitled to a medical benefit in the amount of $1,988.80 for a Functional Impairment Assessment, proposed by Pearson Medical Assessment Centre in a treatment plan dated September 28, 2021?

14. Is the Applicant entitled to a medical benefit in the amount of $620.28 ($1,467.78 less $847.50 approved) for an Attendant Care Invoice, proposed by Advanta Health Care Services Inc. in a treatment plan dated January 20, 2021?

15. Is the Applicant entitled to a medical benefit in the amount of $904.11 ($2,768.81 less $1,864.50 approved) for an Attendant Care Invoice, proposed by Advanta Health Care Services Inc. in a treatment plan dated March 1, 2021?

16. Is the Applicant entitled to a medical benefit in the amount of $506.85 ($5,670.72 less $2,750.72 approved) for physiotherapy services, proposed by Health Max Brampton in a plan dated June 17, 2022?

17. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?

18. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

4The Applicant withdrew all his claims related to ACBs. Specifically, he has withdrawn issues 2, 9, 13, and 14.

5The chronic pain and functional abilities evaluation plans are reasonable and necessary as a result of the accident. The Applicant is entitled to the plans and the Respondent is liable to pay for same, once properly invoiced. These plans are subject to interest pursuant to section 51 of the Schedule.

6The Applicant has not met his onus to demonstrate entitlement to the remaining benefits claimed.

7No award is payable.

BACKGROUND

8The Applicant was struck by a vehicle while crossing the street as a pedestrian. He sustained a fractured left tibia which required internal fixation, as well as other injuries.

9He claims that his injuries render him to have a complete inability to carry on a normal life as a result of the accident, entitling him to NEBs. He further submits that his accident-related injuries render the goods and services proposed in the various plans to be reasonable and necessary as a result. The Respondent contends that the evidence provided by the Applicant is insufficient to support the Applicant’s claims.

ANALYSIS

Non-Earner Benefits (“NEBs”)

10I find that the Applicant is not entitled to NEBs as claimed.

11Pursuant to section 12 of the Schedule, the Applicant must suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident in order to qualify for NEBs. The test for NEBs involves a consideration of the Applicant’s activities and life circumstances pre-accident and compares them to their activities and life circumstances post-accident. Sustaining serious injuries or minor life changes does not automatically entitle the Applicant to NEBs. Rather, according to the test in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, (“Heath”), she must demonstrate that her life circumstances have changed and that the change must be significant enough to continuously prevent her from substantially engaging in all the activities that she engaged in before the accident.

12The period of claim is incorrectly identified in the issues in dispute. The evidence demonstrates that the Applicant received NEBs from the Respondent from December 20, 2020 to June 19, 2021. Thus, the period of claim is June 20, 2021 to November 12, 2022.

13The Applicant has led no compelling evidence that is contemporaneous with the period of claim. The Applicant refers to disability certificates, completed December 9, 2020 and March 25, 2021. These documents pre-date the period of claim and support NEBs for 9-12 weeks after March 25, 2021 – or until no later than June 17, 2021.

14Similarly, he refers to the CNRs of his family physician, Dr. J.K. Sandhu, but those records do not demonstrate a complete inability to carry on a normal life. The CNRs refer to the accident and highlight that the Applicant has complained of sleep issues, increased headaches and sensitivity to loud noises, as well as various pains throughout his body. However, there is no indication that these issues cause a complete inability to carry on a normal life. In fact, by August 9, 2021, Dr. Sandhu recorded that the Applicant is doing well, appeared to be responding well to psychotropic medication, and was planning on returning to post-secondary education in September 2021. The entries for the period between August 9, 2021 and November 20, 2022 note that the Applicant was doing well with psychotropic mediation, had returned to school by the spring of 2022, and was progressing well. An august 9, 2022 note states that his depression was stable, he was going to school, and has no problems.

15My findings related to Dr. Sandhu’s CNRs are consistent with the insurer examination (“IE”) assessors. The conclusion of the multidisciplinary IE report issued June 3, 2021 is that the Applicant does not suffer a complete inability to carry on a normal life as a result of the accident. The report included assessment findings by Dr. L. Weisleder, orthopaedic surgeon, Dr. J. Desai, neurologist, Dr. B. Ballon, psychiatrist, and occupational therapist A. Bertolo, which led to the determination that the applicant did not suffer a complete inability to carry on a normal life as a result of the accident.

16I give virtually no weight to the report of Dr. Gozlan, dated June 2021. This report includes no review of the Applicant’s medical records and relies entirely on the Applicant’s self-reported contemporaneous and historical medical condition. The report concluded that the Applicant’s psychological symptoms prevent him from returning to his previous levels of functioning, but this conflicts with Dr. Sandhu’s assessment of August 9, 2021 which found that the Applicant was doing well.

17The other evidence led by the Applicant, specifically the catastrophic impairment reports by Dr. T. Getahun, orthopaedic surgeon, dated January 20, 2023, Dr. V. Basile, neurologist, dated February 1, 2023, Dr. S. Hasan, psychiatrist, dated January 27, 2023, and occupational therapist (“OT”) J. Moy, dated January 13, 2023, all post-date the period of claim and are, at times, inconsistent with Dr. Sandhu’s CNRs. Dr. Getahun noted that the Applicant returned to post-secondary education, made attempts to return to work but has self-restricted his return, and is independent with his self-care activities. Functionally speaking, Dr. Basile found that the Applicant was independent with his ADLs but requires assistance with housekeeping and home maintenance. In contrast, Dr. Sandhu reported that the Applicant was doing well by August 2021, that he was responding well to medication, and that he had returned to school in late 2021 and into 2022. Dr. Hasan found that the Applicant’s impairment levels significantly impeded useful functioning in the realm of ADLs, social functioning, and adaptation. OT Moy assessed the Applicant and determined that he requires ongoing assistance and demonstrated insufficient physical, cognitive, and psycho-emotional faculties to complete his self-care tasks independently and required assistance such as intermittent basic supervisory care. Yet objective testing done by OT Moy found that the Applicant’s ROM was within normal limits throughout his body, but for moderate restrictions in the hip and knees, which is not consistent with OT Moy’s conclusions.

18Indeed, the Applicant suffered from impairments as a result of the accident. This is particularly the case when he was recovering from his leg surgery. However, his functionality has improved since that time and has risen to the level that he does not suffer a complete inability to carry on a normal life as a result of the accident. Much of the Applicant’s evidence post-dates the period of claim and, where the evidence is contemporaneous with his claim, it demonstrates that he does not suffer a complete inability to carry on a normal life considering his improved functionality – both from a physical and psychological perspective, exemplified by his attempts to return to work, his return to post-secondary education, and ability to independently complete his ADLs.

$506.85 related to a plan, dated December 24, 2020

19The Applicant has not demonstrated why the unapproved balance of this plan is reasonable and necessary as a result of the accident. The unapproved balance relates to the hourly rate of the service providers – the Applicant sought a flat fee of $200.00 for an hour-long assessment by a chiropractor, and the Respondent approved it at $112.81. He also sought services by a physiotherapist at the rate of $150.00, and the Respondent approved the rate of $99.75.

20With respect to the assistive devices listed in the plan, the difference between the amount proposed for assistive devices and the rate as available to the general public. The Applicant sought $220.00 for a personal massager, and the Respondent approved it for $149.99. The Applicant sought $200.00 for a heating pad, and the Respondent approved it at $106.99. The Applicant sought $90.00 for elastic bandages, and the Respondent approved it for $25.94. Additionally, the Applicant sought dispensing fees in the amount of $112.81.

21The Applicant has led no evidence or submissions for me to conclude that he is entitled to an enhanced hourly rate for the service providers, and that the assistive devices are not available at the rate approved by the Respondent, and that he is entitled to dispensing fees. The Respondent approved funding according to the maximum hourly rate provided by the the Professional Services Guideline – Superintendent’s Guideline no.03/14 (“the PSG”).

22Having led no evidence or submissions on the issue, it follows that the Applicant has not met his onus to demonstrate that he is entitled to the unable balance of this plan.

$232.64 related to a plan, dated December 8, 2021 (232.64

23The Applicant has not demonstrated why the unapproved balance of this plan is reasonable and necessary as a result of the accident. The unapproved balance relates to following: one hour of driving time for the service provider at $99.75 whereas the Applicant sought a flat fee of $250.00, a long-handled shoehorn for $9.50 when $25.00 was claimed, a long-handled bath scrubber for $19.95 when $25.00 was claimed, a sock aid for $19.95 when $25.00 was claimed, $99.99 for a back support with heat and massage function when $120.00 was claimed, and $50.00 for a body pillow when $95.00 was claimed.

24The Applicant has led no evidence demonstrating that he is entitled to the unapproved goods and services. Specifically, he has not addressed why he would be entitled to transportation and has not demonstrated that the goods are only available at the rate proposed in the plan.

$350.00 related to a plan, dated, February 1, 2021, and

$42.00 related to a plan, dated December 4, 2020

25The Applicant has not demonstrated why the unapproved balance of this plan is reasonable and necessary as a result of the accident. The unapproved balance relates to $350.00 in transportation fees for the service provider for the plan, dated February 1, 2021. This was denied by the Respondent because it approved $498.75 for the service provider’s time while travelling and that an additional $350.00 would be duplicative. Similarly, the unapproved balance of $42.00 relates to a milage fee charged in addition to fees for the service provider’s time while travelling.

26The Applicant has led no evidence or issued any submissions demonstrating why he is entitled to mileage in addition to fees for the service provider’s travel time. Accordingly, he is not entitled to the unapproved balance of this plan.

$1,250.03 for an iPad and Airpods proposed in a plan, dated March 17, 2021

27The Applicant has not demonstrated why an iPad, Airpods, and ancillary goods and services are reasonable and necessary as a result of the accident. He has led no evidence or submissions explaining why an iPad, Airpods and other goods and services are reasonable and necessary as a result of the accident.

28From my review, it appears that the goods were proposed by OT Arora to help the Applicant attend his online post-secondary school classes because he reported difficulty with carrying his laptop computer around the home. Yet, OT Arora never assessed the Applicant’s ability to lift and carry, other than to report he was observed to carry his phone and place it on the table during the assessment. I don’t see any indication in the medical record before me that the Applicant is unable to carry the weight of a laptop computer.

$337.66 related to a plan, dated February 17, 2021

29The Applicant has not demonstrated why the unapproved balance of this plan is reasonable and necessary as a result of the accident. The unapproved balance relates to the service provider’s hourly rate – the Applicant claims an hourly rate of $119.92, and the Respondent approved the rate of $99.75. There is also a denied charge of $42.00 for milage because the Respondent agreed to pay for the service provider’s travel time.

30The Applicant has led no evidence or issued any submissions demonstrating why he is entitled to an enhanced hourly rate, or mileage in addition to fees for the service provider’s travel time. The maximum hourly rate for an OT as provided by the PSG is $99.75, and there is no basis to award the Applicant an increased rate. Additionally, he has not demonstrated why he is entitled to mileage in addition to fees for the service provider’s travel time. Accordingly, he is not entitled to the unapproved balance of this plan.

$950.24, related to a plan, dated Dec 4, 2020

31The Applicant has not demonstrated why the unapproved balance of this plan is reasonable and necessary as a result of the accident.

32It is unclear what the unapproved balance of this plan is. The Applicant never addressed the goods and services proposed in this plan, and the Respondent made no submissions on whether the plan is reasonable and necessary. Instead, the Respondent submitted that the Applicant never provided the plan for review, which is incorrect as the plan is within the Applicant’s evidence.

33Nevertheless, the Applicant has not met his onus to demonstrate that the unapproved balance of the plan is reasonable and necessary as a result of the accident. While he generally cites medical evidence in his submissions, he does not explain how or why the medical evidence supports his claim for the unapproved balance of the plan. More importantly, the Applicant has not identified the goods and services in the plan that were not approved. I am unable to find the unapproved balance of the plan to be reasonable and necessary without understanding what the unapproved goods and services are.

$2,920.00, related to a plan, dated June 17, 2022

34The Applicant has not met his onus to demonstrate entitlement to the unapproved balance of this plan.

35This plan was partially approved, but the amount approved is unclear from the evidence as the explanation of benefits is not before me and the Respondent never addressed the issue. Nevertheless, I have accepted the amount approved as noted in the Case Conference Report and Order, released August 14, 2023.

36This plan proposes services by a chiropractor and physiotherapist, and the fee for the plan itself. Some of the services are proposed are above the maximum hourly rate outlined in the PSG. Nevertheless, the Applicant has made no submissions and led no evidence explaining how or why he would be entitled to an enhanced hourly rate. Accordingly, he has not met his onus to demonstrate that the unapproved balance is reasonable and necessary as a result of the accident.

$1,519.88 for a functional abilities evaluation assessment plan, dated June 2, 2021

$2,200.00 for a chronic pain assessment plan, dated September 1, 2021

$1,988.80 for a functional impairment assessment plan, dated September 28, 2021

37I find that the Applicant is entitled to the functional abilities evaluation and chronic pain assessment because they are reasonable and necessary as a result of the accident. The functional impairment assessment is not reasonable and necessary.

38The Applicant submits that these assessments are reasonable and necessary because of his ongoing chronic pain, functional impairments, restrictions and limitations. He submits that they propose to explore new treatment avenues and functional support in light of the issues outlined in his evidence. The Respondent contends that the assessments are not reasonable and necessary because the IE assessors had previously recommended treatment modalities. It further submits that it is unclear what a functional impairment assessment entails and that it is unsure if a chiropractor is qualified to conduct such an assessment.

39I find the Applicant’s submissions on his inability to return to his pre-accident employment and his inability to maintain new employment to be persuasive evidence of a potential functional impairment or chronic pain conditions, which warrant further investigation. Similarly, the development of depressive and anxiety symptoms following the accident potentially indicate a chronic pain condition. This is further supported by the Applicant’s complaints to Dr. Sandhu, both physical and psychological. Dr. Sandhu’s CNRs include various references to the Applicant’s pain complaints and sleep issues. While these complaints may not have risen to the level to render the Applicant completely unable to carry on a normal life, they still rise to a level to partly impairs the Applicant and warrant further investigation. Accordingly, I find the functional abilities evaluation and the chronic pain assessment plans to be reasonable and necessary as a result of the accident.

40I am unable to find that the functional impairment evaluation assessment is reasonable and necessary because it appears to be a duplication of services. The functional abilities evaluation that I found reasonable and necessary can assess the Applicant’s functionality from a vocational and avocational perspective and provide recommendations to return the Applicant to his pre-accident function, including employment. It is unnecessary to approve a second, virtually identical, assessment where there is no clear rationale for it.

41Accordingly, I find that the chronic pain and functional abilities evaluation plans are reasonable and necessary as a result of the accident. The Applicant is entitled to these plans. The Applicant is not entitled to the functional impairment evaluation plan as it is not reasonable and necessary because it is a duplication of services.

Interest

42Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found the Applicant is entitled to the chronic pain and functional abilities evaluation plans, it follows that those plans are subject to interest, pursuant to section 51 of the Schedule.

Award

43The Applicant sought an award under section 10 of Regulation 664. Under section 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.

44The Applicant claims entitlement to an award of an undetermined amount. He submits that the Respondent did not pay NEBs, nor did it approve the treatment plans in dispute, resulting in unreasonable withholding of the benefit, rendering it liable to pay an award. The Respondent submits that it has not unreasonably withheld or delayed the payment of benefits. It submits that its denials are entirely reasonable.

45I find no basis for an award. The test for an award is whether there has been unreasonable withholding or delay of benefits. I find none of the denials before me is unreasonable. It is trite law that insurers are not held to a standard of perfection. Here, the denials were based on the recommendations of the assessors and the information on file. There is no evidence that the Respondent ignored information, or acted in any way, which would warrant an award. Accordingly, I find no award payable.

CONCLUSION AND ORDER

46The chronic pain and functional abilities evaluation plans are reasonable and necessary as a result of the accident. The Applicant is entitled to the plans and the Respondent is liable to pay for same, once properly invoiced. These plans are subject to interest pursuant to section 51 of the Schedule.

47The Applicant has not met his onus to demonstrate entitlement to the remaining benefits claimed.

48No award is payable.

49The Application is dismissed.