Lightfoot v. Aviva Insurance Canada, 2025 CanLII 78098

Citation: Lightfoot v. Aviva Insurance Canada, 2025 ONLAT 23-012577/AABS

Licence Appeal Tribunal File Number: 23-012577/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:

Madison Lightfoot Applicant

and

Aviva Insurance Canada Respondent

DECISION

ADJUDICATOR: Estella Muyinda

APPEARANCES:

For the Applicant: Frank McNally, Counsel

For the Respondent: Mostafa Hamed, Counsel

HEARD: By way of written submission

OVERVIEW

1Madison Lightfoot, the applicant, was involved in an automobile accident on April 30, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule").

2The applicant was denied benefits by the respondent, Aviva Insurance Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

3The case conference report and order indicate that the date of the accident was April 20, 2016. However, both parties and the initial application state that the accident happened on April 30, 2016.

ISSUES

4The issues in dispute are:

i. Is the applicant entitled to $3,029.60 for occupational therapy services proposed by FunctionAbility Rehabilitation Services in a treatment plan, OCF 18 ("plan"), submitted May 21, 2021?

ii. Is the applicant entitled to $2,767.30 for kinesiology services proposed by Fleming Fitness in a plan submitted July 5, 2023?

iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

5The applicant is entitled to $3,029.60 for occupational therapy services proposed by FunctionAbility Rehabilitation Services in a treatment plan dated May 21, 2021.

6The applicant is entitled to $2,767.30 for kinesiology services proposed by Fleming Fitness in a plan dated July 5, 2023.

7The respondent is not liable to pay an award.

8The applicant is entitled to interest on any overdue payment of benefits.

ANALYSIS

9To receive payment for a treatment and assessment plan under ss.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.

10To 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.

$3,029.60 for occupational therapy services proposed by FunctionAbility Rehabilitation Services, in a treatment plan dated May 21, 2021.

11I find that the applicant is entitled to this treatment plan.

12The applicant submits that the treatment plan for occupational therapy services is reasonable and necessary and therefor payable. She submits that the occupational therapy treatment is essential to facilitate meeting her goals for recovery and preventing further complications.

13The applicant relies on the OCF-18 and the report of Stephanie Bosse (occupational therapist) dated May 21, 2021. The goals of recovery listed in this treatment include pain reduction, increased range of motion, increase in strength, maintenance of physical function and improvement of physical and mental health for daily function.

14To meet the goals, Ms. Bosse recommended 8 in-home occupational therapy sessions of 1.5 hours duration, for an estimated duration of sixteen week, and she added that the applicant requires the continued support of a rehabilitation team to assist her recovery.

15The applicant submits that the occupational therapy treatment is essential to facilitate meeting her goals for recovery and preventing further complications. Moreover, Ms. Bosse's report showed that she continues to experience substantial functional impairments.

16The applicant submits that she has had extensive physical rehabilitation therapy and psychotherapy with some treatment plans spanning for a period between June 7, 2016, to August 31, 2023, approved by the respondent. The applicant asserts she has been attended to by numerous doctors and heath service providers over the past years.

17The applicant submits that on December 5, 2019, Dr. Albert Cheng (physiatrist) recommended a treatment regimen involving a physiotherapist, kinesiologist, and occupational therapist with a goal to maximise the applicant's strength and mobility and to improve overall functionality. In a neuropsychological assessment dated December 5, 2019, Dr. David Kurzman recommended that the applicant engage in a chronic pain program, psychology and prioritize a healthy lifestyle.

18The applicant submits that Dr. Christopher Gallimore (orthopaedic surgeon), in his evaluation dated January 15, 2021, recommended ongoing support from an occupational therapist, particularly for the right hip, due to the severity and complexity of her injuries.

19The respondent submits that the treatment plan is not reasonable and necessary, it relies on the s.44 report of Dr. Mohammed Abdul Wahab Khan (physiatrist), dated November 9, 2021.The respondent submits that Dr. Khan opined that there were no significant objective accident-related physical impairments that necessitated an occupational therapy assessment.

20Further, the respondent points to Dr. Khan's report as evidence suggesting that an assessment is not expected to significantly improve the applicant's function. Upon review of the respondent's submission, I note that the treatment plan in question is about occupational therapy services and not an occupational therapy assessment as stated by the respondent. As a result, I place less weight on the report by Dr. Khan that is submitted by the respondent.

21I am persuaded by the evidence that was submitted by Dr. Cheng, Dr. Gallimore and Ms. Bosse because I find that their reports corroborate the applicant's assertion that the treatment plan is necessary.

22I find that at the time the treatment plan was submitted, the goals of the treatment plan and how to meet the listed goals so as to get the applicant back to her activities of normal living, reasonable and necessary. I also find that the cost of the proposed treatment plan is reasonable.

23As a result, I find that the applicant has met her burden of proof in showing that the treatment plan was reasonable and necessary.

$2,767.30 for kinesiology services proposed by Fleming Fitness Inc. in an assessment and treatment plan dated July 5, 2023.

24I find that the applicant is entitled to $2,767.30, with respect to the treatment plan.

25Dr. Cathy Williams (family physician) with intimate knowledge of the applicant's injuries initiated the treatment plan that contains the kinesiology report by Adrian Mayost (registered kinesiologist), dated, June 12, 2023. The goals of the assessment and treatment plan for kinesiology as specified by Mr. Mayost are to increase strength at the hips, core, upper back, and neck; decrease tightness around the thoracic and lumbar spine, and in the hips; improve posture and motor control; increase overall fitness levels; and alleviate concussions symptoms and mental health symptoms through exercise therapy. The treatment plan proposes 2 sessions per week, each one hour in duration, for 12 weeks for a total of 24 appointments.

26Additionally, the applicant submits that a multi disciplinary approach that includes occupational therapy, physiotherapy, and kinesiology sessions as necessary to ensure she achieves her rehabilitation goals. To support this assertion, the applicant relies on the recommendations found in the reports of Dr. Cheng, Dr. Gallimore and Ms. Bosse wherein their reports in total state that kinesiology is one of the treatments that would maximize physical health and improve daily functioning of the applicant.

27The respondent denied this treatment plan based on the s.44 report of Dr. Tonya Ballard (physiatrist) report dated August 28, 2023, who opines that the applicant has reached maximum medical improvement.

28I note that Dr. Ballard confirmed the multiple injuries experienced by the applicant. However, I find her opinion somewhat inconsistent particularly, wherein she states that the applicant requires further examination of the hip. Opining that the applicant may require a hip replacement in the future given the extent of the injuries she sustained, and recommending an assessment by a pelvic floor physiotherapist, facilitated by the applicant's family physician, to try and reduce the ongoing right deep hip pain. Yet, some of the goals for the kinesiology treatment plan include to increase strength at the hip and to decrease tightness in the hip.

29Accordingly, I find that the applicant has demonstrated on a balance of probabilities that the kinesiology assessment and treatment plans are reasonable and necessary.

Interest

30The applicant is entitled to the payment of interest on overdue benefits pursuant to s. 51 of the Schedule.

Award

31The applicant sought an award under s. 10 of Reg. 664 as laid out in the issues. 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.

32The responded submits that it relies upon s.44 insurer's examination assessors (IE) to determine whether the treatment plans were reasonable and necessary. In addition, the respondent references caselaw, to support its position that the applicant is not entitled to an award.

33In order to attract an award, the respondent's conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. I do not find that the respondent acted unreasonably in withholding or denying the treatment plans because it was relying on its s.44 IE reports.

34Upon review of the applicant's submissions, I note that she did not submit any evidence substantiating her claim that an award was warranted. Accordingly, I find that the applicant has not met her burden of demonstrating that she is entitled to an award.

35Based on the foregoing, I find that although the benefits were payable, they were not unreasonably withheld or delayed by the respondent. Accordingly, the applicant is not entitled to an award.

ORDER

36The applicant is entitled to $3,029.60 for occupational therapy services.

37The applicant is entitled to $2,767.30 for Kinesiology services.

38The respondent is not liable to pay an award.

39The applicant is entitled to interest on any overdue payment of benefits.