Licence Appeal Tribunal File Number: 23-014047/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:
Yuliet Marqueti Kelly
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Melanie Malach
APPEARANCES:
For the Applicant: Dayana Soto Santana, Paralegal
For the Respondent: Michal Baura, Counsel
HEARD: By way of written submissions
OVERVIEW
1Yuliet Marqueti Kelly, the applicant, was involved in an automobile accident on May 15, 2023, 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
2The issues in dispute are:
i. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from June 12, 2023, to ongoing?
ii. Is the applicant entitled to the services and assessments proposed by 101 Assessments:
i. $2,094.62 ($4,688.38 less approved $2,593.76) for psychological treatment proposed in a treatment plan submitted on January 3, 2024;
ii. $816.61 for concussion treatment proposed in a treatment plan submitted on November 16, 2023;
iii. $1,298.79 for chiropractic treatment proposed in a treatment plan submitted on November 8, 2023?
iv. $2,460.00 for a cognitive assessment proposed in a treatment plan submitted on January 11, 2024?
v. $2,460.00 for an orthopaedic assessment proposed in a treatment plan submitted January 2, 2024?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to a NEB of $185.00 per week from June 12, 2023 and ongoing.
4The applicant is partially entitled to the treatment plan for psychological services and is entitled to 1.5-hour sessions plus interest. The applicant is not entitled to the costs for the counselling notes or progress report.
5The applicant is not entitled to the treatment plan for chiropractic services, a cognitive assessment or an orthopaedic assessment.
ANALYSIS
Entitlement to a Non-Earner Benefit (“NEB”)
6I find that the applicant is not entitled to a NEB. She has not established, on a balance of probabilities, that she suffers a complete inability to carry on a normal life as a result of the accident.
7Section 12(1) of the Schedule provides that an insurer shall pay a NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines “a complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”
8The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Insurance Company, 2009 ONCA 391 (“Heath”), which, generally focuses on a comparison of the applicant’s pre- and post-accident activities.
9For the applicant to prove that she sustained injuries that continuously prevent her from engaging in substantially all of her pre-accident activities, she must present a thorough analysis and comparison of activities that she could do before and after the accident. The applicant must first identify the activities in which she used to engage, along with their frequency and importance.
10While the applicant submits that she suffers a complete inability to carry on a normal life as a result of the accident, I find that the applicant provided limited submissions with respect to her entitlement to a NEB and the accident-related impact on her pre- compared to post-accident activities. In my view, it is not the Tribunal’s role to sort through the applicant’s medical evidence, or to search for support for the applicant’s position in the reports provided: see Dooman v. TD Insurance Co. 2025 ONSC 184 at para. 50.
11The applicant submits that she has had to continuously cope with impairments and functional limitations, arising from the physical and psychological injuries sustained in the accident. The applicant relies upon the clinical notes and records (“CNRs”) of Dr. Adena Gustein, family physician; the psychological assessment report of Dr. Mehdi Lotfalizadch, registered psychologist, dated November 19, 2023; the psychological progress report of Dr. Tulika Anand, clinical psychologist, dated October 3, 2024; the report of Dr. Angela Mailis, of the Pain and Wellness Centre, dated June 5, 2024; and the CNRs of 101 Physio clinic.
12The respondent submits that the applicant is not entitled to a NEB. It relies upon the Insurer’s Examination (“IE”) multidisciplinary assessment report of Dr. Zubina Ladak, psychologist, Dr. Howard Platnick, general practitioner, and Rebecca Oatman, occupational therapist, dated October 26, 2023. The respondent submits that Dr. Ladak concluded in her psychological assessment that the applicant meets the criteria for a DSM-5 diagnosis of adjustment disorder with mixed anxiety and depressed mood. However, Dr. Ladak found that the applicant’s symptoms were not of a severity that rendered her completely unable to carry on a normal life. The applicant reported that she has continued to engage in her pre-accident housekeeping activities, she remains independent in her personal care, and she engages in some, although not all, of the recreational activities she used to enjoy.
13The respondent submits that according to Dr. Platnick’s general practitioner assessment, the applicant reported that she is able to drive; purchase items and bring them home; prepare simple meals; wash dishes, pots and pans; tidy up; wipe counters; dust; sweep; mop; light scrubbing, and laundry. The applicant further reported that she is independent with self-care activities.
14The respondent submits that Ms. Oatman who conducted an occupational therapy in-home assessment, found that the applicant demonstrated the functional ability to independently manage her daily activities. The applicant reported that she continues to engage in her previous daily tasks, however she modifies them with the use of pacing and alternate positions.
15The applicant submits that the IE reports of Dr. Ladak, Dr. Platnick, and Ms. Oatman should be given little weight. The applicant submits that the assessors concluded that she did not meet the test for NEBs without reviewing the CNRs of the family physician, the pain clinic or the psychological assessment report, which clearly state that she sustained chronic knee pain, chronic back pain, a concussion and psychological impairments. She further states that Ms. Oatman stated in her report that the applicant was able to complete her house activities slowly, despite the applicant reporting that she was unable to perform her house activities.
16In the applicant’s reply submissions, she submits that while she can technically complete some activities of daily living, the extent to which she is able to do so is negligible relative to her pre-accident state of being. The applicant submits that she relies upon the use of task modification to be successful in minimally completing her activities of daily living. She further submits that although she can complete some tasks, this is not sufficient to conclude that she does not face substantial limitations in doing so.
17I find that the applicant has not proven on a balance of probabilities that she suffers from a complete inability to carry on a normal life for the following reasons.
18I find that the applicant has not made submissions on the particulars of the pre- and post-accident activities as required in Heath. Without details regarding the activities she valued, or evidence of the frequency and time commitments of her pre-accident activities, I cannot compare her pre- and post-accident ability to engage in activities she ordinarily engaged in or valued and therefore I find the applicant has not met her onus.
19Further, I am persuaded by the evidence of the respondent set out in the October 26, 2023 IE reports of Dr. Ladak, Dr. Platnick and Ms. Oatman, which I find provide a thorough analysis and assessment of the applicant’s injuries and directly references the complete inability test. While the applicant argues that the assessors did not review the CNRs of her treating practitioners, the assessors did complete an in-person assessment of the applicant to formulate their opinions.
20For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that her injuries and impairments resulted in a complete inability to carry on a normal life and she is not entitled to a NEB.
Entitlement to medical and rehabilitation benefits
21To 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 that the goals of treatment are reasonable, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
The applicant is partially entitled to the balance of the treatment plan for psychological services
22I find that the applicant is partially entitled to the balance of the treatment plan proposing psychological services.
23The applicant claims entitlement to $2,094.62 ($4,688.38 less approved $2,593.76) for psychological services proposed by 101 Physio, submitted on January 3, 2024. The treatment plan was not provided by either party in their submissions. According to the Explanation of Benefits dated January 9, 2024, the respondent partially approved the treatment plan on January 9, 2024, with the following explanation:
Line 1 – 16 hourly sessions (there is no rationale for more than the standard hourly session and the severity of your diagnosis does not warrant 1.5-hour sessions)
Line 2 – counselling notes and evaluations are to be included in therapy sessions
Line 3 – we will advise if we require a progress report
Line 4 - payable
24The respondent further advised that psychotherapy treatment will be paid at the following hourly rates:
Psychologist - $149.61
Psychotherapist - $58.19
25The respondent denied payment of client related supervision services and any goods/services relating to planning/preparation/brokerage, as they are included in the $200.00 maximum fee allowable for an OCF-18 completion.
26I find that the issue in dispute is that the respondent approved 1.0 hour per session when the treatment plan recommends 1.5 hours per session. In addition, the respondent denied the cost of counselling notes and evaluations as well as a progress report.
27The applicant submits that she is entitled to the balance of the treatment plan as she continues to suffer from a psychological impairment.
28The respondent submits that the treatment plan was partially approved and provides the particulars of the Explanation of Benefits for the basis of the denial. The respondent submits that the applicant’s treatment provider has not adduced any evidence to explain why 1.5-hour-sessions are needed as opposed to the standard one-hour sessions.
29The respondent submits that with respect to the cost of counselling notes and evaluation, these are incorporated into the hourly rate of the treatment provider. It relies on Professional Services Guideline, Superintendent’s Guideline No. 03/14 which states,
Expenses related to professional services as referred to in the SABS and Professional Services Guideline include all administrative costs, overhead, and related costs, fees, expenses, charges and surcharges. Insurers are not liable for any administration or other costs, overhead, fees, expenses, charges or surcharges that have the result of increasing the effective hourly rates, or the maximum fees payable for completing the forms, beyond what is permitted under the Professional Services Guideline.
30The respondent submits that counselling notes form part of the therapy sessions and are included in the hourly rate. They fall under the category of “administration costs, overhead, and related costs, fees, expenses, charges and surcharges”. The respondent further submits that a progress report is not a required component of the treatment and is a related cost of providing the therapy sessions. It argues that the therapist is required to document the services provided to the applicant and this information ought to be sufficient to update other treatment providers to determine whether additional treatment is required.
31The applicant in her reply submissions submits that it is her position and that of her psychologist, Dr. Anand, in a psychological progress report dated October 8, 2024, that sessions of 1.5-hours in length are reasonable and necessary to ensure adequate rehabilitation and a return to her pre-accident state of being. The applicant submits that the lengthened sessions would provide her a chance to consolidate coping strategies in rectifying her cognitive and emotional difficulties.
32I find that a treating practitioner who has provided treatment and has completed a detailed assessment of the applicant is in a better position to determine the details of the treatment necessary to address the applicant’s symptoms. I accept that the applicant’s psychological treatment provider possesses a strong understanding of her psychological impairments based on her history of treating her. I find that the recommendation regarding the length of the treatment sessions is based on her knowledge and expertise in addressing the applicant’s specific impairments. I also find that the progress report of Dr. Anand notes that the applicant has made significant progress with the treatment received to date. I further find that the respondent has not provided any medical evidence to support its position that 1.5-hour sessions are not reasonable and necessary. Therefore, I find that the applicant has proven on a balance of probabilities that the recommendation for 1.5-hour sessions of psychological treatment is reasonable and necessary.
33With respect to the issue of the cost of counselling notes and the progress report that were denied in the treatment plan, I find that the applicant has not provided sufficient evidence or submissions to support that these items are reasonable and necessary. I agree with the respondent that counselling notes are a related cost of providing the therapy sessions. I further agree that this item does not comply with the Professional Services Guideline as it is considered “administration costs, overhead and related costs”. With respect to the progress report, I find that the applicant has not provided a persuasive reason or any submissions as to why a progress report is a reasonable and necessary component of the treatment plan.
34For the reasons set out above, I find that the applicant has proven on a balance of probabilities that she is entitled to 1.5-hour psychological sessions. I also find that the applicant has not proven on a balance of probabilities that she is entitled to the cost of counselling notes or a progress report.
The applicant is not entitled to the treatment plan for concussion treatment
35I find that the applicant is not entitled to the treatment plan for concussion treatment.
36The applicant claims entitlement to $816.61 for concussion therapy, proposed by 101 Physio in a treatment plan submitted on November 8, 2023. The treatment plan recommends the following:
i. Instruction, support activity, $54.41
ii. Physical rehabilitation, $560.40
iii. Documentation, support activity for claim form, $200.00
37The applicant submits that she is entitled to this treatment plan because she was diagnosed with a concussion post-accident. She submits that the CNRs from Trillium Health Partners corroborate that after hitting her head at the time of the accident, she started vomiting blood and had a massive headache. She further relies upon the CNRs of Dr. Gustein that indicate she has been suffering from headaches, dizziness, nausea, sensitivity to light, and sleep issues. She submits that the treatment plan was denied by the respondent based on requiring more CNRs, which were provided.
38The respondent submits that the treatment plan was denied based on the IE reports of Dr. Platnick and Dr. Yue Jiang, neurologist, dated January 4, 2024. It submits that Dr. Jiang points out that in the emergency records, Dr. Amy Burton, emergency physician, documented the presence of a headache, vomiting and dizziness. There was no documentation of a head trauma, hematoma or loss of consciousness. The CT of the applicant’s head was normal. Dr. Jiang states that the applicant was advised of the possibility of concussion and was given instructions to take Tylenol and Advil at the first onset of headache and avoid triggers of headache. The respondent submits that Dr. Jiang concluded from a neurological perspective, that the applicant had no significant ongoing impairment and that the treatment plan for concussion therapy was not reasonable or necessary. The respondent further submits that Dr. Platnick also confirmed that the treatment plan for concussion therapy was not reasonable and necessary.
39I find that the applicant has not directed me to sufficient medical evidence to establish that she suffered a concussion as a result of the accident. I agree with the respondent that the report from the Emergency Room doctor does not provide a formal diagnosis of a concussion and merely states “discussed possibility of concussion and management of same”.
40I find upon review of the CNRs of Dr. Gustein, that despite seeing Dr. Gustein on multiple occasions post-accident, the first mention of a concussion was on April 5, 2024. The CNR notes “concussion post-MVC, on appropriate rehabilitation”. I find that there is no recommendation for any further treatment in respect to her symptoms of concussion and subjectively the applicant reported that she only had occasional headaches on April 5, 2024.
41I further find that the applicant has submitted that she began attending at 101 Physio within a week of the accident. I find that she has not directed me to any evidence within these records where she was diagnosed with a concussion or treated for any concussion symptoms. Similarly, the Disability Certificate dated June 6, 2023, does not list a concussion as an injury and only indicates headaches.
42Finally, I find the IE reports of Dr. Jiang and Dr. Platnick persuasive. Dr. Jiang concluded that the applicant’s neurological examination, seven months after the accident was essentially normal. Dr. Jiang diagnosed the applicant with persistent headaches attributed to whiplash and concluded that the treatment plan for concussion therapy was not reasonable or necessary.
43For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that the treatment plan recommending concussion therapy is reasonable and necessary.
The applicant is not entitled to the treatment plan for chiropractic treatment
44I find that the applicant is not entitled to the treatment plan for chiropractic treatment.
45The applicant claims entitlement to $1,298.70 for chiropractic treatment proposed by 101 Physio, in a treatment plan submitted November 8, 2023. The treatment plan recommends the following:
i. Documentation, support activity for clam form, $200.00
ii. Physical rehabilitation, $676.86
iii. Therapy, multiple body sites, $116.40
iv. Exercise equipment, $80.00
v. Acupuncture, multiple body sites, $200.00
46The applicant submits that she is entitled to this treatment plan because she continues to suffer a physical impairment. She submits that Dr. Gustein referred her to a chronic pain clinic to address her chronic back pain by way of injections in her back and her knees. The applicant refers to several Tribunal decisions where it was found that the medical evidence from the applicant’s treatment providers demonstrate that she continues to experience accident-related pain and that the treatment proposed is reasonable and necessary to improve physical functionality.
47The respondent submits that the treatment plan for chiropractic services is not reasonable and necessary as the applicant has not adduced any evidence that chiropractic treatment is needed, or the goals of her chiropractic therapy are being met. The respondent submits that according to the report of Dr. Mailis at the Pain and Wellness Centre, dated June 5, 2024, the only recommendations for treatment were for physical treatment centred on active exercise, aqua fitness, a driver’s desensitization program and St. John’s wort. It submits that chiropractic treatment which is a passive treatment was not recommended by Dr. Mailis.
48The respondent relies upon the IE reports of Dr. Platnick and Dr. Jiang, dated January 4, 2024, which concluded that the treatment plan for chiropractic treatment was not reasonable or necessary. It submits that Dr. Platnick concluded that the applicant suffered soft tissue injuries as a result of the accident which have resolved, and she is now at her pre-accident state. Dr. Jiang found that the applicant’s neurological examination was essentially normal and from a neurological perspective she has no significant ongoing impairment.
49The applicant in her reply submissions states that the medical records support her ongoing knee pain and degenerative disc disease. She therefore submits that the treatment plan for chiropractic treatment is reasonable and necessary.
50I find that the applicant has not provided sufficient evidence to establish that the treatment plan for chiropractic treatment is reasonable and necessary for the following reasons.
51First, the applicant has not addressed the particulars of the treatment plan in dispute or provided any submissions on the goals of the treatment plan, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable. I find that other than submitting that the treatment is reasonable because the medical evidence supports that she continues to have physical impairments, she has not addressed why the treatment plan for chiropractic services is reasonable and necessary or what goals will be addressed.
52Second, I find that aside from stating that she was referred to Dr. Mailis, she has not directed me to any contemporaneous medical evidence that supports or recommends the proposed treatment at the time the treatment plan was prepared on November 8, 2023. I agree with the respondent that the report of Dr. Mailis, dated June 5, 2024, recommends active therapy, and does not make any recommendations for chiropractic treatment that is passive in nature.
53Third, while the applicant submits that the medical records support that she continues to experience knee pain and suffers from degenerative disc disease, she has not addressed how the treatment plan recommending chiropractic services will help to reduce these symptoms.
54Finally, I find the IE reports of Dr. Platnick and Dr. Jiang, persuasive based on the comprehensive assessment of the applicant’s injuries and their analysis. Dr. Platnick concluded that there were no valid/reproducible signs or indications to support accident-related injury or management, and he concluded that she suffered soft tissues injuries as a result of the accident. Dr. Jiang concluded that from a neurological perspective she did not sustain an impairment as a direct result of the accident. I find that the applicant has not provided sufficient evidence to refute these findings.
55For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she is entitled to the treatment plan for chiropractic services.
The applicant is not entitled to the treatment plan for a cognitive assessment
56I find that the applicant is not entitled to the treatment plan for a cognitive assessment.
57The applicant claims entitlement to $2,460.00 for a cognitive assessment, proposed by 101 Physio in a treatment plan submitted January 11, 2024.
58The applicant submits that the treatment plan is supported by the medical evidence and the numerous recommendations and referrals. She submits that the assessment would be beneficial for her recovery.
59The respondent submits that the treatment plan was assessed in a neurology paper review report, prepared by Dr. Jiang, dated February 2, 2024. Dr. Jiang concluded that the assessment was not reasonable or necessary and noted that no cognitive issues were identified, and the neurological examination was normal. The respondent further submits that Dr. Jiang’s conclusions are also supported by the report of Dr. Mailis who did not note any cognitive issues.
60The applicant in her reply submissions states that a paper review report is not of sufficient medical significance or diligence to firmly assert that she has not suffered substantial cognitive impairment. She submits that an adequate assessment would have involved real-time behavioural observations that cannot be replicated or estimated by means of a paper review.
61I find that the applicant has not provided sufficient evidence to establish that the treatment plan for a cognitive assessment is reasonable and necessary for the following reasons.
62First, the applicant has not addressed the particulars of the treatment plan in dispute or provided any submissions on the goals of the treatment plan, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable. I find that other than submitting that the assessment is reasonable based on the medical evidence and will be beneficial for her recovery, she has not addressed why the assessment is reasonable and necessary or what goals will be addressed.
63Second, the applicant has not directed to me to the grounds on which the treatment plan was based to support that the applicant required a cognitive assessment. Merely stating that the medical evidence supports such an assessment is not sufficient for a finding that such assessment is reasonable and necessary. In my view, it is not the Tribunal’s role to sort through the applicant’s medical evidence, or to search for support for the applicant’s position in the reports provided.
64For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she is entitled to the treatment plan for a cognitive assessment.
The applicant is not entitled to a treatment plan for an orthopedic assessment
65I find that the applicant is not entitled to the treatment plan for an orthopedic assessment.
66The applicant claims entitlement to $2,460.00 for an orthopaedic assessment proposed by 101 Physio in a treatment plan submitted January 2, 2024.
67The applicant submits that an orthopaedic assessment is reasonable and necessary based on the medical evidence and that the assessment would be beneficial to her recovery.
68The respondent submits that the treatment plan was denied on January 8, 2024 because Dr. Getahun who completed the treatment plan provides no rationale why a further physical assessment is required. It relies upon the IE report of Dr. Platnick, dated January 4, 2024, which concludes that the applicant’s accident-related injuries have resolved, and she is back to her pre-accident state and has reached maximum medical improvement. Dr. Platnick did not find any indicators of musculoskeletal, neurological or orthopedic injury or impairment. It further submits that the applicant’s family physician did not recommend any further investigations or specialists and Dr. Mailis did not recommend an orthopaedic assessment or identify any orthopaedic injuries.
69In reply the applicant submits that several accident-related or exacerbated impairments have not fully resolved, and that maximum medical improvement has not been reached. She submits that she continues to suffer from neurologically influenced symptoms and suffers from degenerative disc disease and pre-existing bilateral tricompartmental osteoarthritis, which have not improved since the accident.
70I find that the applicant has not provided sufficient evidence to establish that the treatment plan for an orthopaedic is reasonable and necessary for the following reasons.
71First, the applicant has not addressed the particulars of the treatment plan in dispute or provided any submissions on the goals of the treatment plan, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable. I find that other than submitting that the assessment is reasonable based on the medical evidence and will be beneficial for her recovery, she has not addressed why the assessment is reasonable and necessary or what goals will be addressed.
72Second, the applicant has not directed to me to the grounds on which the treatment plan was based on to support that the applicant required an orthopaedic assessment. Merely stating that the medical evidence supports such an assessment is not sufficient for a finding that such assessment is reasonable and necessary. As stated above, it is not the Tribunal’s role to sort through the applicant’s medical evidence, or to search for support for the applicant’s position in the reports provided.
73Finally, while the applicant submits in her reply submissions that her impairments have not resolved and that she has not reached maximum medical recovery, she has not directed me to the evidence that she is relying on in support of the need for the orthopaedic assessment. I find that there is no referral by her family physician nor Dr. Mailis to support that an orthopaedic assessment is recommended.
74For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she is entitled to the treatment plan for an orthopaedic assessment.
Interest
75Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is partially entitled to the treatment plan for psychological services, interest is payable in accordance with s. 51.
ORDER
76For the reasons set out above, I find:
i. The applicant is not entitled to a NEB of $185.00 per week from June 12, 2023 and ongoing;
ii. The applicant is partially entitled to the treatment plan for psychological services and is entitled to 1.5-hour sessions, plus interest. The applicant is not entitled to the costs of the counselling notes or progress report; and
iii. The applicant is not entitled to the treatment plan for chiropractic services, a cognitive assessment or an orthopaedic assessment.
Released: September 11, 2025
Melanie Malach
Adjudicator