Licence Appeal Tribunal File Number: 23-015598/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:
Andre Anderson
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Jeff Chatterton
APPEARANCES:
For the Applicant:
Alexei Antonov, Counsel
For the Respondent:
Branson Wong, Counsel
HEARD:
In Writing
OVERVIEW
1Andre Anderson, the applicant, was involved in an automobile accident on October 13, 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 General 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 $2,486.00 for a chronic pain assessment, proposed by Downsview Healthcare Inc in a treatment plan/OCF-18 (“plan”) dated September 2, 2022?
ii. Is the applicant entitled to $2,465.32 for a driving assessment, proposed by Downsview Healthcare Inc in a plan dated September 6, 2022?
iii. Is the applicant entitled to $1,932.00 for physiotherapy, proposed by Downsview Healthcare Inc in a plan dated August 26, 2022?
iv. Is the applicant entitled to $1,799.00 for physiotherapy, proposed by Downsview Healthcare Inc in a plan dated January 6, 2024?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The application is dismissed. The applicant is not entitled to the treatment plans in dispute, nor an award or interest.
ANALYSIS
4The applicant has claimed eligibility for two assessments (chronic pain and driving), and two treatment plans for physiotherapy. To 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.
5To support his claim, the applicant has submitted an OCF-3 Disability Certificate completed by Dr. Saranjit Khaira, a chiropractor, dated October 21, 2020. The OCF-3 identified injuries suffered in the accident to the cervical spine, the lumbar spine, headache, shoulder sprain and strain, acute stress reactions and signs involving emotional state.
6The applicant has also submitted the Clinical Notes and Records (CNRs) from Downsview Healthcare for the period of October 2020 to August 2022. These CNRs are handwritten and can be challenging to read, but appear to indicate a history of the applicant attending treatments involving laser acupuncture therapy and aqua-massage treatments.
7The applicant further relies on a psychological pre-screen report and a psychological report from Psychologist Dr. Jacqueline Brunshaw, dated December 2020 and April 2021, respectively. These reports state that the applicant suffers from Adjustment Disorder with Mixed Anxiety and Depressed Mood, and Specific Phobia (Passenger, pedestrian).
8Finally, the applicant submitted a Chronic Pain Consultation Report, authored by Dr. Dimitri Louvish in July 2024. In this report, Dr. Louvish notes ongoing complains of neck pain, bilateral shoulder pain, lower back and right knee pain, with ongoing psychological distress and trouble sleeping.
Is the applicant entitled to a Chronic Pain Assessment?
9The applicant is not entitled to a Chronic Pain Assessment.
10The 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.
11It can be noted here that the applicant was previously removed from the Minor Injury Guideline. However, neither the applicant nor the respondent appear to indicate on what grounds the applicant was removed.
12The applicant submitted an OCF-18 for a Chronic Pain Assessment on September 2, 2022.
13The applicant has not directed me to contemporaneous supportive medical evidence which indicates that he was suffering from chronic pain. Upon review of the CNR’s from Downsview Healthcare, I see only one visit for physiotherapy in the calendar year 2022, which occurred in August. The last noted visit prior to that was over one year prior, in July 2021. Based on these CNRs, I conclude that the applicant did not attend physical treatment in over a year. This contradicts the applicant’s claim that he was suffering from persistent or chronic pain.
14The CNR’s from Downsview Healthcare are handwritten and difficult to read. The notes appear to indicate that the August visit was for laser therapy and aqua-massage. There is no reference in the CNR’s that I could read which references chronic pain, or other, legible references to severe, ongoing or otherwise persistent pain or functional impairment.
15Further, while Dr. Louvish’s chronic pain report may be helpful in hindsight, I place limited weight on it because it was authored in July of 2024, approximately 22 months after the request for a chronic pain assessment.
16In summary, while the onus is on the applicant to prove entitlement, the applicant has not led me to any further evidence which supports his claim that he was suffering from chronic pain. It does not appear that he was attending treatment on a consistent basis, and the chronic pain report was written 22 months after the fact. For these reasons, I find the applicant has not met the onus to prove that the Chronic Pain Assessment is reasonable and necessary.
Is the applicant entitled to a Driving Assessment?
17The applicant is not entitled to a Driving Assessment.
18As identified above, the purpose of an assessment is to determine whether a condition exists. The applicant bears the onus to demonstrate there are grounds on which to demonstrate a condition exists that warrant further investigation.
19The applicant submits that Dr. Brunshaw’s psychological report provides evidence that a condition exists which would warrant a driving assessment because it lists specific phobias related to driving. The OCF-18 was submitted September 6, 2022 by Dr. Brunshaw and proposed a driving assessment, because the injuries affect the applicant’s employment and his activities of normal life.
20I note that Dr. Brunshaw’s report states the applicant has been diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood, and Specific Phobia (Passenger, pedestrian). However, I also note that there is a large time gap between Dr. Brunshaw’s report, written in April 2021, and the request for an assessment in September 2022. The applicant has not submitted further supportive psychological evidence indicating ongoing psychological symptoms or treatments from April 2021 onward.
21The respondent further points out that Dr. Brunshaw’s report should bear limited weight because she did not conduct the interviews for the report. The interviews were conducted by psychotherapist Helen Ilios. The respondent is also troubled by the fact Dr. Brunshaw’s report does not refer to difficulties posed by illiteracy during testing, which suggests a lack of detail.
22Because there is a large time gap between the Psychological Assessment and the proposed driving assessment, and because the Psychological Assessment was not conducted by Dr. Brunshaw but by an associate, I prefer the respondent’s evidence.
23The respondent relies on a s.44 multi-disciplinary assessment conducted by Psychologist Dr. Rod Day and GP Eric Silver. The respondent submits that Dr. Day is thorough, forthright about the testing difficulties presented by the applicant’s illiteracy, yet still concludes the applicant does not meet the diagnostic criteria for any DSM-5 disorder.
24In the absence of further supportive and contemporaneous psychological evidence, I find that, on the balance of probabilities, the applicant has not met the onus to demonstrate that a driving assessment is warranted.
Is the applicant entitled to physiotherapy, in treatment plans dated August 2022 and January 2024?
25The applicant is not entitled to treatment plans for physiotherapy.
26The CNR’s from Downsview Healthcare, as mentioned above, are difficult to read. However, I can see no legible indication recommending further physiotherapy.
27As mentioned above, I give limited weight to Dr. Louvish’s report, given that it had not been written at the time of the request for treatment.
28The respondent points out that the applicant has not submitted any medical records, from his doctor or any other treating medical professional, which show that the disputed benefits are reasonable and necessary.
29While it is the applicant’s burden to demonstrate that a treatment plan is reasonable and necessary, I was not provided with any supportive and contemporaneous medical evidence which indicates the plans are reasonable and necessary.
30In the absence of further supportive, contemporaneous evidence, I find the applicant has not met his onus to demonstrate that the treatment plans are reasonable and necessary.
Interest
31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.
Award
32The applicant sought an award under s. 10 of Reg. 664. 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. As no benefits were withheld, no award is payable.
ORDER
33The application is dismissed:
i. The applicant is not entitled to a chronic pain assessment or driving assessment.
ii. The applicant is not entitled to physiotherapy treatment.
iii. No interest is due, and no award is payable.
Released: August 29, 2025
Jeff Chatterton
Adjudicator