Paiva v. Aviva Insurance Canada, 2025 CanLII 86541

Licence Appeal Tribunal

Citation: Paiva v. Aviva Insurance Canada, 2025 ONLAT 23-009288/AABS

Licence Appeal Tribunal File Number: 23-009288/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:

Manuel Paiva

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

VICE-CHAIR: Neil Levine

APPEARANCES:

For the Applicant: Rebecca Nelson, Counsel

For the Respondent: Nabila Majidzadeh, Counsel

HEARD: By way of written submissions

OVERVIEW

1Manuel Paiva, the applicant, was involved in an automobile accident on December 15, 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 Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2A Motion Order dated July 17, 2024 was issued by the Tribunal. On consent, this order converted the original videoconference hearing to a written hearing. This order also narrowed the issues to the four issues listed below.

3The issues in dispute are:

i. Is the applicant entitled to $2,659.42 ($2,994.39 less $334.97 withdrawn) for occupational therapy services, proposed by Rehabilitation Management Inc. in a treatment plan/OCF-18 (“plan”) dated August 18, 2022?

ii. Is the applicant entitled to $140.63 for medical services, proposed by Hospital Internacional dos Acores in a plan dated November 7, 2022?

iii. Is the applicant entitled to $1,668.78 for occupational therapy services, proposed by Rehabilitation Management Inc. in a plan dated January 12, 2024?

iv. Is the applicant entitled to attendant care benefits in the amount of $3,864.60 per month from January 20, 2022 ongoing?

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

4The applicant withdrew the claim for an award under s. 10.

RESULT

5I find that the applicant is not entitled to occupational therapy services for $2,659.42 (issue i).

6I find that the applicant is not entitled to occupational therapy services for $1,668.78 (issue iii).

7I find that the applicant is not entitled to $140.60 for medical services (issue ii).

8I find that the applicant is not entitled to $3,864.60 per month for attendant care benefits (issue iv).

9The applicant is not entitled to interest.

PROCEDURAL ISSUE

10The respondent brought a motion to strike paragraphs 3, 4, 6, 9, 10 and 13 of the applicant’s reply submissions.

11The grounds for the motion are:

i. The applicant’s reply submissions contain new evidence that should have properly been included in his initial written submissions.

ii. The applicant’s reply submissions contain new arguments that should properly have been included in his initial written submissions.

iii. The respondent is prejudiced by the failure of the applicant to follow the rules of procedural fairness.

12The respondent relies on Rules 3.1 and 15 of the Rules. In addition, the respondent cites Spence v Aviva General Insurance, 2023 CanLII 84381 (ONLAT) at paragraph 5 in which the concern of unfair surprise, prejudice and confusion was expressed by the Courts in establishing law against “case-splitting.” The respondent is entitled at the close of the applicant’s case to have before it the full case so that it is known at the outset what must be met in response.

13The applicant submits that the distinction between a reply and new submissions is a broad one, in that any reply may include information perceived as “new” when in fact it is not.

14As both parties are well aware, reply submissions are not an opportunity for a party to raise issues that should have been raised in their initial submissions.

15I do not find the information submitted by the applicant in paragraphs 3, 4, 6, 9, 10 and 13 of the applicant’s reply submissions to be new information.

16This motion by the respondent is denied.

ANALYSIS

Issues i and iii: Occupational therapy services ($2,659.42 and $1,668.78)

17I will consider the two occupational therapy services treatment plans that are in dispute together, as the applicant presents the same evidence and arguments for both plans.

18The applicant is not entitled to two occupational therapy services treatment plans in the amount of $2,659.42 and $1,668.78.

19To 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.

20The applicant submits that OT services are required to aid in his mobility and gait as a result of dizziness that causes a risk of a fall, in addition to support and supervision for daily tasks including personal care and housekeeping. The goal on the OCF-18 is noted as a return to activities of daily living.

21The proposed and recommended goods and services include training, motor and living skills; a raised toilet seat; urinal bottle; lifeline installation and monitoring; a Samsung tablet and case; internet service; and grab bars.

22The respondent submits that a s. 44 assessment by Dr. Ijaz Chaudhry determined that the applicant had met maximum medical improvement despite his ongoing symptoms, and the goods and services in this treatment plan would not be beneficial or provide any functional improvement (Multidisciplinary Assessment Report of Dr. Ijaz Chaudhry, MD, December 8, 2022). Assessor Jag Dhirayain, OT, in the same report, determined that the goods and services were not necessary from an occupational therapy perspective.

23There has been no corroborating evidence produced by the applicant from the applicant’s physician or other health care providers to show that these OCF-18s are reasonable and necessary. The applicant’s family physician, Dr. Hong, makes no mention in his CNRs of any issues with the applicant’s activities of daily living, personal care or housekeeping.

24In the absence of any other medical evidence presented by the applicant, I find on a balance of probabilities that these treatment plans are not reasonable and necessary.

Issue ii: Medical services ($140.63)

25The applicant is not entitled to medical services for $140.63.

26The applicant has presented no evidence that this treatment or service is reasonable or necessary. Accordingly, this treatment is denied.

Issue iv: Attendant care benefits ($3,864.60/month)

27The applicant is not entitled to ACB.

28Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services provided by an aide or attendant.

29Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form 1”).

30The Form 1 is divided into three categories:

i. Routine personal care,

ii. Basic supervisory functions, and

iii. Complex health/care and hygiene functions.

31The attendant can assist the applicant with his personal care, assistance with medical equipment, safety concerns and/or meal preparation. The burden rests with the applicant to prove his entitlement based on evidence that the treatment is reasonable and necessary.

32The applicant claims that he is entitled to attendant care benefits in the amount of $3,864.60 per month from January 20, 2022 and ongoing. This calculation is based on the Form 1 from Ms. Stacey Bergman, Occupational Therapist, dated June 4, 2021. This is for:

i. Fingernail and toe care,

ii. Meal preparation and clean-up,

iii. Mobility,

iv. Hygiene (bathroom cleaning, bed-making, etc.)

v. Comfort and security,

vi. Basic supervisory care,

vii. Medication management,

viii. Supervision for bathing transfers, and

ix. Housekeeping and home maintenance.

33The applicant argued that his inability to complete his activities of daily living are because he experiences post-collision headaches, dizziness, hearing loss, shoulder pain, left (non-dominant) hand pain, chest pain, upper and lower back pain, right hip pain, reduced balance, decreased tolerance to activity, sleep difficulties, fatigue, irritability, frustration and mood changes and vehicular anxiety.

34The respondent submits that there are no corresponding medical records from Dr. Hong, the applicant’s family physician, or other health care providers, that corroborate the needs and symptoms suffered by the applicant that are articulated in the OT’s report. The respondent relies on the s. 44 report from Dr. Ijaz Chaudhry, MD and Mr. Jag Dhirayain, OT, which concludes that attendant care is not required as a result of accident-related injuries. The report noted that the applicant’s range of motion and strength would allow him to complete most self-care tasks.

35The questions before me are (1) is attendant care support and assistance required, and if attendant care is required, then (2) what the appropriate level is.

36I find that the medical evidence shows the following:

i. Back pain (on March 14, 2021, it was noted as “moderate not severe” in Dr. Hong’s CNRs, where it is also noted that it didn’t interfere with ADLs). This pain persisted through a June 22, 2021 visit and beyond.

ii. Rib and knee pain (March 15, 2021, CNRs Dr. Hong)

iii. Hearing issues (March 15, 2021, CNRs Dr. Hong)

iv. Hip and shoulder pain (documented in an x-ray report by Dr. Sonal Talwar)

v. Right knee and left shoulder pain (Dr. Azar Bahrami visit, Feb. 2, 2022)

vi. Syncopal episodes. (March 29, 2022, and June 26, 2022 - Trillium Health Centre emergency department records)

37There is no mention in the medical records of the applicant having difficulties with any activities of daily living (“ADL”) or self-care tasks, nor is there mention of items like fatigue, sleep, or vehicular anxiety. On March 14, 2021, the applicant informed Dr. Hong that he was independent with his activities of daily living, and in 2022, informed Dr. Kosta during an emergency room visit at Trillium Health that he was independent with ADLs. There are also no diagnosed instances of driving anxiety in the CNRs submitted by the applicant.

38No clinical notes and records by any examining medical professional ascribe the syncopal episodes to the subject accident. I was not pointed to any medical evidence that these episodes were related to or were caused by the subject accident. On a balance of probabilities, I cannot conclude that they occurred as a result of the subject accident.

39There are noticeable and marked inconsistencies between the OT report and Form 1 of Ms. Bergman, the OT, and CNRs of family doctor, Dr. Hong and with other treating health care providers. Many issues cited by the OT, Ms. Stacey Bergman do not have corresponding issues or conditions noted in the CNRs of Dr. Hong nor are they listed anywhere else. For example, there are no mobility issues nor are headaches are noted in Dr. Hong’s CNRs.

40In paragraph 33, above, the applicant’s occupational therapist, Ms. Bergman, opined that the applicant requires attendant care benefits to assist with nine different items. The only evidence of need is the same occupational therapist’s assessment. Apart from pain complaints to the applicant’s family doctor, Dr. Hong, and a note by Dr. Azar Bahrami about pain and degenerative hip, knee and shoulder issues (with no mention of any significant functional limitations), there are no other corroborating medical records that substantiate this claim for assistance with these items.

41In the absence of corroborating evidence, on a balance of probabilities I conclude that the applicant does not require any attendant care.

Interest

42Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No benefits are owing and therefore no interest applies.

ORDER

43I find that:

i. The applicant is not entitled to the occupational therapy in the amount of $2,659.42.

ii. The applicant is not entitled to medical services in the amount of $140.63.

iii. The applicant is not entitled to the occupational therapy in the amount of $1,668.78.

iv. The applicant is not entitled to attendant care services in the amount of $3,864.60/month.

v. As no benefits are owing, no interest applies.