Hussein v. Aviva Insurance Company, 2025 CanLII 42709

Licence Appeal Tribunal

Citation: Hussein v. Aviva Insurance Company, 2025 ONLAT 23-005706/AABS Licence Appeal Tribunal File Number: 23-005706/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:

Ayan Hussein, Applicant

and

Aviva Insurance Company, Respondent

DECISION

ADJUDICATOR: Jeff Chatterton

APPEARANCES:

For the Applicant: Gjergji Laloshi, Paralegal

For the Respondent: Jeffrey F. Pasternak, Counsel

HEARD: In Writing

OVERVIEW

1Ayan Hussein, the applicant, was involved in an automobile accident on October 29, 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, 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 $2,923.75 for physiotherapy services, proposed by PhysioMed Bramalea in a treatment plan / OCF-18 (“plan”) denied on December 22, 2022?

ii. Is the applicant entitled to $1,394.50 ($3,841.75 less $2,447.25 approved) for physiotherapy services, proposed by PhysioMed Bramalea, in a plan denied December 22, 2022?

iii. Is the applicant entitled to $2,846.47 for a chronic pain assessment, proposed by Medex Assessments, in a plan denied February 2, 2023?

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

3In her submissions the applicant confirmed that she is withdrawing the issue of an award.

RESULT

4The applicant is entitled to both treatment plans for physiotherapy services. The applicant is also entitled to partial payment of the treatment plan for a chronic pain assessment in the amount of $2,260.00. The applicant is entitled to interest in accordance with s. 51 of the Schedule.

ANALYSIS

Is the applicant entitled to the physiotherapy treatment plans?

5The applicant is entitled to both physiotherapy treatment plans in the amounts of $2,923.75 and $1,394.50.

6When reviewing treatment plans, the applicant has the onus of proving that the treatment plans in question are both reasonable and necessary. To determine whether or not a treatment plan is reasonable and necessary, the Tribunal must consider a number of factors, such as relevance to the injury, whether or not the proposed treatment is cost-effective, whether it will be successful, what the goals of the treatment are, and what medical evidence supports the claim for treatment.

7The applicant submitted approval for two physiotherapy treatment plans to the respondent. Taken together, the two plans involved 28 sessions of 90 minutes each over a period of 18 weeks, with stated goals of pain reduction, increase in strength, and increased range of motion. The functional goals were listed as a return to the activities of normal living, and a return to pre-accident work activities.

8The respondent partially approved one treatment plan, approving ten sessions of one hour in duration, and scheduled the applicant for an independent medical examination.

9The medical evidence relied upon by the applicant included clinical notes and records from her family physician. She specifically referred to visits with her general practitioner Dr. Jason Ali. The applicant submitted clinical notes and records from Dr. Ali from September 29, 2022, where the doctor noted ongoing pain since a motor vehicle accident. In that visit, Dr. Ali recommended continued physiotherapy.

10The applicant also submitted records from Dr. Ali dated November 4, 2022, where Dr. Ali notes ongoing pain in the applicant’s lower back, neck, shoulder and hips. He also noted that the applicant was receiving benefit from physiotherapy and massage. He advised her to continue physiotherapy and massage treatments.

11The respondent relies upon the report of its Independent Medical Examiner Dr. Jennifer Gordon, dated December 21, 2022. In that report, Dr. Gordon notes that the applicant continues to experience headaches, neck pain, left shoulder pain, left arm pain, lower back pain and bilateral pain in her knees and hips. She also indicated that her pain has improved by 40% since the accident.

12Dr Gordon’s report indicates that the applicant has received maximal medical recovery, and that further treatment was not expected to provide any additional benefit.

13I was persuaded by the applicant’s submissions. The applicant has clearly demonstrated that she continued to experience ongoing pain which was directly related to the motor vehicle accident. She has provided independent medical supporting evidence that indicates she was receiving therapeutic benefit in the form of reduced pain achieved from ongoing physiotherapy. She also submitted supporting medical evidence that recommended further physiotherapy treatments.

14For these reasons, I find that the applicant has met her onus in establishing that the two treatment plans in question are both reasonable and necessary.

Is the applicant entitled to a Chronic Pain Assessment?

15I find that the applicant is entitled to a chronic pain assessment.

16The purpose of an assessment is to determine whether a condition exists. An insured bears 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.

17I find it clear that the applicant has a history of documented complaints regarding pain and reduced mobility after her motor vehicle accident. Those complaints were, according to the respondent’s IE exam by Dr. Gordon, improving by approximately forty percent. This does, however, mean that the applicant was still in a significant amount of pain.

18The applicant also indicated challenges with continued chronic pain in a s.25 psychological assessment, conducted by Dr. J Frank in January 2023. This report indicated that the applicant was still struggling with ongoing chronic pain.

19To support its denial of the chronic pain assessment, the respondent relied upon the report of Dr. Gordon, which noted that ‘there were no significant ongoing accident-related impairments noted following my examination other than muscle tenderness.” I am less persuaded by the respondent’s submission because Dr. Gordon acknowledges that the applicant continues to be in a significant amount of pain.

20Overall, I am persuaded by the applicant’s submissions because she provided clear supporting medical evidence that she continuing to experience and seek solutions for chronic pain. In addition, the respondent’s submissions acknowledged that the applicant continued to struggle with chronic pain. Since the purpose of an assessment is to determine if a condition exists, I find that the applicant’s request for a chronic pain assessment is reasonable and necessary.

21I do take note of the respondent’s submissions that the maximum amount payable is limited to $2,000 plus HST, as per s. 25(5) of the Schedule. The applicant did not provide a submission as to why the higher amount was warranted. Accordingly, I am awarding the chronic pain assessment at a revised rate of $2,260.00.

Interest

22Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies for all three treatment plans, according to the Schedule.

ORDER

23I find that:

i. The applicant is entitled to $2,923.75 for physiotherapy services, proposed in a treatment plan denied on December 22, 2022.

ii. The applicant is entitled to $1,394.50 ($3,841.75 less $2,447.25 approved) for physiotherapy services, proposed in a treatment plan denied December 22, 2022.

iii. The applicant is entitled to partial payment of the treatment plan for a chronic pain assessment in the amount of $2,260.00.

iv. The applicant is entitled to interest on any overdue payment of benefits.