Citation: Mathurin v. Aviva Insurance Canada, 2025 ONLAT 23-014482/AABS

Licence Appeal Tribunal File Number: 23-014482/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:

Clesha Gemmy Mathurin

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Rasha El Sissi

APPEARANCES:

For the Applicant:

Yanira E. Monterroza, Paralegal

For the Respondent:

Peter A.B Durant, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Clesha Gemmy Mathurin, the applicant, was involved in an automobile accident on July 13, 2019, 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.

2The applicant’s application to the Tribunal (filed November 29, 2023) and the case conference and order (dated April 26, 2024) (“CCRO”) both indicate that the accident occurred on July 14, 2019. However, the OPP Motor Vehicle Collision Report indicates that the accident occurred on July 13, 2019. The applicant’s and respondent’s submissions also indicate that the accident occurred on July 13, 2019. I assume this is the same accident and that references to July 14, 2019 are errors.

3The applicant is being treated for physical and psychological injuries related to the accident outside of the Minor Injury Guideline.

PRELIMINARY ISSUE

4The preliminary issue to be decided is:

i. Is the applicant barred from proceeding to a hearing on issue ii below (the “physical therapy plan”), because she failed to attend an insurer’s examination (“IE”) under section 44 of the Schedule with Dr. Oleg Safir, orthopedic surgeon, scheduled for July 11, 2023?

5I find the applicant is permitted to proceed to a hearing on her entitlement to the physical therapy plan for the following reasons.

6Section 44(1) of the Schedule permits an insurer to require that an insured person be examined by a regulated health professional to help determine if the insured person is, or continues to be, entitled to a claimed benefit. There is no dispute that the applicant did not attend the IE with Dr. Safir, of which she was given notice by the respondent’s letter dated June 2, 2023. The applicant did not make submissions with respect to the compliance of the respondent’s letter with the Schedule, nor did the applicant make any submissions as to whether the IE was “reasonably necessary” under section 44(1).

7The dispute in this preliminary issue focuses on sections 55(1)2 and 55(2) of the Schedule. Section 55(1)2 prohibits an insured person from applying to the Tribunal to dispute a benefit if the insurer has provided the insured person with notice that it requires an examination under section 44, but the insured person has not complied with that section. This is to be read in concert with section 55(2) of the Schedule, which enables the Tribunal to permit an application to continue despite the insured person’s non-compliance with section 44.

8I find that the applicant is not barred from proceeding to a hearing on the physical therapy plan, despite not attending the IE with Dr. Safir. I find the applicant had a reasonable explanation for her non-attendance, namely, the occurrence of an epileptic seizure.

9The applicant submits that she intended to attend the IE with Dr. Safir. She submits that she would have but for this medical emergency.

10The respondent admits that the applicant had childhood epilepsy but submits that her medical records in evidence do not substantiate that epilepsy continued to be a problem. In addition, the respondent submits there was no evidence of a seizure happening on or around the date of the IE. Therefore, the respondent takes the position that the medical reason for non-attendance is not valid or supported.

11The applicant did not point to any specific medical evidence of ongoing epilepsy, or a seizure occurring on or around the date of the IE, in her reply. However, having reviewed the evidence, I note her history of epilepsy is indicated in Dr. Mark Angelini’s, orthopedic surgeon, consultation report dated July 19, 2019. Dr. John W. Lee, psychologist and section 44 assessor, noted in his report, dated December 2, 2019, that the applicant said her last epileptic episode occurred a year prior. Dr. Lee noted that she reported that her epilepsy is triggered by light, crowds and nervousness, and she did not take medication for it. Also, the applicant described her medical history to Dr. Jacqueline Brunshaw, psychologist, as follows: “epileptic – 2012 – took meds for 6 months – last seizure 2013 (?) requiring hospitalization otherwise gets occasional small seizures” (questionnaire dated January 13, 2020). This evidence suggests that the applicant continued to report epileptic seizures to her health practitioners in adulthood.

12The respondent asks the Tribunal to draw an “adverse inference” from the lack of production of the applicant’s OHIP records, pursuant to the CCRO. The applicant did not address this position in her reply.

13I decline to infer that the contents of the applicant’s OHIP records would be detrimental to her case on the preliminary issue. The respondent did not address the relevance of the missing information. I note that the applicant did produce her family doctor’s, Dr. Penina Melamed, clinical notes and records (“CNR”) until 2024. Those CNR document numerous encounters for a range of complaints over time.

14In addition, the evidence shows that the respondent did not communicate in a timely fashion after the applicant requested the IE to be rescheduled. On July 12, 2023, via her counsel, the applicant submits she requested the IE to be rescheduled. An entry in the adjuster’s log, also dated July 12, 2023, states: “monitor file for rescheduling.” However, there was no response from the respondent to this email (which was provided in evidence by the applicant), according to the applicant’s submissions, nor is a response evident in the adjuster’s log and the other evidence before me.

15On November 22, 2023, via her counsel, the applicant asked if the IE had been rescheduled. The respondent acknowledged this email the next day, and it indicated that another adjuster would provide a further response. However, there is no further correspondence from the respondent or applicant before me. The next entry in the adjuster’s log is on November 29, 2023, and it states that an application to the Tribunal was filed. The applicant submits that she decided to file the application for dispute resolution at this time because she was approaching the five-year mark of the claim.

16The respondent addressed the lack of log notes between July 13 and November 28, 2023 by submitting that this mirrors a period of inactivity on the claim. The evidence shows that the respondent intended to monitor the file to reschedule the IE in July 2023. It also shows that the respondent intended to respond to the applicant when contacted again in November 2023. I find that the lack of progress in rescheduling the IE is, at least partially, as the result of a lack of timely communication by the respondent to the applicant.

17I therefore permit the applicant to proceed with her claim for the physical therapy plan under section 55(2) of the Schedule because the applicant had a reasonable excuse for non-compliance. I decline to impose any conditions as part of my permission.

SUBSTANTIVE ISSUES

18The substantive 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”) submitted on June 19, 2023?

ii. Is the applicant entitled to $2,332.00 for physiotherapy services, proposed by Downsview Healthcare Inc., in a plan submitted on May 26, 2023 (i.e., the physical therapy plan)?

iii. Is the applicant entitled to $4,233.66 for psychological services, proposed by Downsview Healthcare Inc., in a plan submitted on March 10, 2020?

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

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

RESULT

19The applicant is not entitled to the treatment and assessment plans in dispute or interest.

20The applicant is not entitled to an award.

ANALYSIS

Sections 15 and 16 of the Schedule

21To receive payment for a treatment and assessment plan under sections 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.

22It is well established that there must be some medical evidence to support the treatment proposed in a plan besides the plan itself.

Chronic pain assessment plan is not reasonable or necessary.

23I find that the applicant has not demonstrated that the plan for a chronic pain assessment is reasonable or necessary, because it would substantially duplicate assessments already made or referred by her primary care physician, according to the evidence.

24The chronic pain assessment plan proposed by Downsview Healthcare Inc. on June 19, 2023 proposes a chronic pain assessment by Dr. Grigory Karmy, physician, and documentation, plus tax. The proposed cost of the assessment is $2,000.00 and the cost of documentation is $200.00. The goal of the plan is to “evaluate the extent of the [applicant’s] chronic injuries and psychological complaints and to provide a prognosis and recommendations for recovery”.

25The applicant submits that this plan is reasonable and necessary to prepare recommendations for her recovery from accident-related chronic pain symptoms. I find that the applicant has not provided sufficient evidence that she was experiencing chronic pain symptoms broadly that warranted investigation at the time the plan was proposed or since.

26Rather, I find that the applicant’s chronic pain symptoms were predominantly related to the applicant’s right shoulder injury involving instability and recurrent dislocation. I further find that the applicant’s primary care physician was pursuing specialized medical care, physiotherapy and psychological treatment to address this pain.

27The applicant suffered a right shoulder injury in the accident. The applicant was brought to William Osler Emergency Department (“ED”) by Emergency Medical Services after the accident on July 14, 2019. Her right shoulder was put back in place in ED. She was discharged from ED with a diagnosis of right shoulder dislocation. She saw Dr. Angelini on July 30, 2019, and then Dr. Melamed on August 8, 2019. Dr. Angelini and Dr. Melamed both assessed dislocation of the right shoulder and possible Bankart injury to her right shoulder.

28The applicant was suffering from chronic pain related to the recurrent dislocation of her shoulder around the date of the plan (June 19, 2023) and ongoing. The applicant submits that Dr. Melamed’s CNR contain notations of chronic pain in 2019, 2022 and 2024. Having read Dr. Melamed’s CNR provided by the applicant in evidence, I find that the notations of pain or chronic pain from the date of the accident until December 14, 2020 relate variously to her shoulder, back, hip and head. However, starting from July 7, 2021 through August 28, 2024 (the end of the record), the notations of chronic pain relate exclusively to the recurring dislocation of the applicant’s right shoulder.

29The CNR of Dr. Melamed show that the doctor was actively engaged in a plan to address the applicant’s right shoulder injury, including referring the applicant to Dr. Seligman, orthopedic surgeon, several times starting in 2021 through 2024. The referrals cite the findings of Dr. Angelini referenced above. It would be duplicative and an unreasonable cost to have a new physician’s assessment of, and treatment recommendation for, this chronic injury in light of these referrals to Dr. Seligman further to the assessment of Dr. Angelini.

30I note that the applicant was diagnosed with Somatic Symptom Disorder with Predominant Pain and Post-traumatic Stress Disorder as a result of the accident by the respondent’s section 44 psychological assessor, Dr. Aleksandra Nesovic (report dated March 11, 2021). The applicant was also diagnosed by her section 25 assessor and psychologist, Dr. Brunshaw, with Adjustment Disorder with Anxiety, Major Depressive Disorder and Specific Phobia (passenger and pedestrian) (report dated February 10, 2020). Dr. Melamed referred the applicant for mental health services on January 18, 2024, in which the accident is noted in her current, relevant medical conditions (specifically, the chronic pain of recurring shoulder dislocation). It would be duplicative and an unreasonable cost to have a new physician’s assessment of, and treatment recommendations for, the psychological component of her chronic pain relating to the accident considering these assessments and referral.

31Finally, Dr. Melamed was engaged in referring the applicant for physiotherapy for her shoulder, as discussed below.

32The applicant also cites the recommendation of the respondent’s assessor, Dr. Lee, in his report dated December 2, 2019, that she should have a chronic pain evaluation. I do not place weight on this recommendation, because it pre-dates the plan in dispute by 3.5 years, and there is medical evidence closer in time to the date of the plan.

33I therefore find that the plan for a chronic pain assessment is not reasonable or necessary on a balance of probabilities because the applicant’s predominant pain related complaint at the date of the plan was already assessed and subject to referrals by Dr. Melamed.

Physical therapy plan is not reasonable and necessary.

34I find that the applicant has not demonstrated that the physical therapy plan is reasonable and necessary.

35The physical therapy treatment plan proposed by Downsview Healthcare Inc. on May 26, 2023 proposes an 8-week course of the following therapy: an assessment (examination), total body, exercise multiple body sites and stimulation, muscles of the back, by Dr. Dominic Minnella, chiropractor; acupuncture, multiple body sites and mobilization, multiple body sites by Mr. Vadim Elesin, registered acupuncturist; and therapy, multiple body sites by Mr. David Bu, massage therapist. The proposed total cost is $2,280.00, plus tax. The goal of the plan is pain reduction, increase in strength, increase in range of motion and “reduction of intensity and frequency of headaches, dizziness and other post-concussion symptoms”.

36The applicant submits that she has been attending physiotherapy since July 18, 2019, including physical therapy, massage, acupuncture, functional exercise program, and passive modalities, such as heat and laser therapy. She cites the CNR of Downsview Healthcare and Dr. Melamed in support of this submission.

37The CNR of Downsview Healthcare describe various physical therapy treatments from July 2019 to December 2021. Therefore, the last treatment session covered in these records predates the physical therapy plan in dispute by 16 months.

38Turning to the CNR of Dr. Melamed, I note that Dr. Melamed recommended physiotherapy for the applicant’s right shoulder complaints on July 7, 2021. Dr. Melamed discussed physiotherapy for her shoulder on May 5, 2022. Dr. Melamed referred her for physiotherapy for her right shoulder and arm on January 3, 2024, and again on August 28, 2024.

39However, the physical therapy plan in dispute proposes treatment that relates to the applicant’s whole body, or multiple body parts, and stimulation of the back muscles, whereas the evidence shows that Dr. Melamed recommended physiotherapy for her right shoulder.

40The respondent submits that the goals of the physical therapy plan are related to injuries that are not as a result of the accident (e.g., headaches and dizziness).

41As proposed, the physical therapy plan is not properly tailored to the ongoing physical injury for which the applicant provided medical evidence that recommends physiotherapy.

42Therefore, I find the benefit in the physical therapy plan is not reasonable or necessary on a balance of probabilities.

Defense against payment has been successfully engaged with respect to the plan for psychological services.

Section 46.2 of the Schedule

43I find that the applicant is not entitled to the cost of unpaid invoices for psychological services under this plan because the applicant has not established that the requested information under section 46.2 of the Schedule was provided by Downsview Healthcare.

44Section 46.2(1)1 of the Schedule permits an insurer to request any information from a provider required to assist it, acting reasonably, to determine its liability for the payment. Section 46.2(2) states that the provider shall give the insurer the information requested under section 46.2(1) within 10 business days after receiving the request.

45Under section 46.2(3) of the Schedule, the amount payable by an insurer under an invoice is not overdue and no interest accrues on it during any period during which a provider fails to comply with section 46.2(2).

Requested information

46The applicant submits that the plan for psychological services was approved, that the information requested by the respondent from Downsview Healthcare has been answered and that the respondent has still not made payments. The applicant requests the Tribunal to order payment of the unpaid invoices to Downsview Healthcare.

47The respondent submits that Downsview Healthcare has still not answered its requests for information to determine if the submitted invoices under this plan are payable under section 46.2 of the Schedule.

48The parties submitted a letter of the respondent to the applicant and Downsview Healthcare dated March 23, 2020 that is a partial approval of the plan for psychological services to be provided by Dr. Brunshaw. The letter requests information confirming which practitioner completed the psychotherapy for the applicant (including college registration information) and how the psychotherapy was provided (in person/phone/video). The letter states that psychotherapy treatment will be paid at the following rates: psychologist will be paid an hourly rate of $149.61; and psychotherapist will be paid at the hourly rate of $58.19. In addition, the respondent declined client-related supervision services proposed in the plan. The letter states that, if the information requested is not provided, the amounts listed on the invoices are not payable until such time as the requested documents are received and reviewed by the respondent.

49The respondent submitted denial and information request letters dated August 9, 2021, June 15, 2022, July 26, 2022 and May 12, 2023 addressed to Downsview Healthcare. The letters repeat the requests for information described above.

50Neither the respondent nor the applicant made any submissions regarding the reasonableness of the respondent’s information requests under section 46.2 of the Schedule.

51I find that the information request to confirm the identity of the individual providing psychotherapy was reasonable considering that the hourly rate approved depended on the type of professional, i.e., psychologist or psychotherapist. In addition, it was reasonable because the presence of supervision services in the proposal indicated that there would be two individuals involved, one providing treatment and one supervising the treatment provider.

52The issue turns on whether the information requests have been answered. The applicant submitted that the CNR of Dr. Brunshaw, as of December 3, 2022, and containing attendance records and confirmation of who provided the services, were provided to the respondent.

53I find that the information contained in these CNR does not answer the respondent’s reasonable information requests completely. For example, the CNR list three psychotherapists or qualifying psychotherapists, plus Dr. Brunshaw, as being involved in the applicant’s treatment. The registration information of the qualifying psychotherapists is missing. It is not clear from the CNR which professional completed the treatment for the applicant.

54Therefore, the applicant is not entitled to the cost of unpaid invoices for psychological services under this plan because the applicant has not established that the requested information under section 46.2 of the Schedule was provided by Downsview Healthcare.

Interest

55Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule.

56As no payments are overdue, the applicant is not entitled to any interest.

Award

57The 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.

58As no benefits have been unreasonably withheld, the respondent is not liable for an award.

ORDER

59For the above reasons, I find that:

i. The applicant is permitted to proceed to a hearing on her entitlement to the physical therapy plan, pursuant to section 55(2) of the Schedule.

ii. The applicant is not entitled to the treatment and assessment plans in dispute or interest.

iii. No award is payable.

iv. The application is dismissed.