Citation: Becker v. Aviva Insurance Company, 2026 ONLAT 24-008288/AABS

Licence Appeal Tribunal File Number: 24-008288/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:

Steven Becker

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Gordon W Harris, Counsel

For the Respondent:

Kathleen Mertes, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Steven Becker, the applicant, was involved in an automobile accident on July 8, 2022, 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 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 $2,200.00 for a retroactive attendant care assessment, proposed by Joanne Nunn in a treatment plan/OCF-18 (“plan”) dated January 9, 2023?

ii. Is the applicant entitled to $1,583.12 for massage therapy, proposed by Joanne Nunn in a plan dated June 12, 2023?

iii. Is the applicant entitled to $1,352.74 ($4,258.10 less $2,905.36 approved) for RSW services, proposed by Joanne Nunn in a plan dated April 19, 2023?

iv. Is the applicant entitled to $1,175.00 for optometric services, proposed by Dr. P. Fink in a plan dated April 25, 2024?

v. Is the applicant entitled to $399.04 ($3,791.06 less $3,392.02 approved) for occupational therapy services, proposed by Joanne Nunn in a plan dated March 6, 2023?

vi. Is the applicant entitled to $972.64 ($2,968.00 less $1,995.36 approved) for psychological services, proposed by Dr. A. Nashef in a plan dated September 5, 2023?

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

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

RESULT

3The applicant is entitled to the treatment plan in the amount of $2,200.00 for a retroactive attendant care assessment, plus interest.

4The applicant is not entitled to the remaining treatment plans.

5The respondent is not liable to pay an award.

PROCEDURAL ISSUES

Respondent’s request to exclude portions of the applicant’s evidence is partially granted

6In its responding submissions, the respondent argues that certain documents provided with the applicant’s initial submissions, namely, the clinical notes and records (“CNRs”) of Dr. Hadidi and two academic articles about the possibility of traumatic cataracts being a cause of reported floaters, should be excluded as evidence at this hearing. The respondent submits that these documents had been included for the first time as part of the applicant’s written hearing submissions, and that they had not been previously disclosed to the respondent as required by the Case Conference Report and Order (“CCRO”). The respondent requests that the documents be excluded on the basis of non-compliance with the Licence Appeal Tribunal Rules.

7The applicant submits in reply that Dr. Hadidi’s CNRs were provided to the respondent on March 26, 2025, three months prior to his written hearing submissions. While the applicant concedes that this is outside the deadline in the CCRO, he argues that the records had been requested prior to the production deadline, and had been provided to the respondent promptly upon receipt. With respect to the two academic articles, the applicant argues that they are not evidence but are akin to caselaw and in the public domain, and would not have to have been disclosed previously.

8The respondent’s request to exclude Dr. Hadidi’s CNRs is denied. The respondent’s request to exclude the academic articles is granted.

9With respect to Dr. Hadidi’s CNRs, the applicant has provided a copy of a letter dated January 21, 2025 to Pioneer Eye Care requesting its CNRs, which I agree would have been within the production deadline in the CCRO. Further, the applicant has provided email correspondence establishing that the CNRs were sent to the respondent once received on March 26, 2025. While this was outside the deadline stipulated in the CCRO, given that the CNRs are highly relevant to at least one of the issues in dispute, the fact that they are not lengthy (totalling approximately 21 pages) and the fact that the respondent had more than three months to review them prior to providing its responding submissions, I find that the prejudice to the respondent would be minimal, while the prejudice to the applicant in excluding highly relevant CNRs would be significant. Accordingly, I deny the respondent’s request to exclude them as evidence in this hearing.

10With respect to the two academic articles, the applicant does not dispute that they were provided for the first time with his submissions for this hearing. I do not accept the applicant’s argument that these articles did not have to be previously disclosed, as they are not evidence, but rather, are akin to caselaw and are available to everyone in the public domain. From the applicant’s submissions, he is clearly relying on these articles to rebut the respondent’s s. 44 report and to advance a medical argument that “damage to the optic disc/nerve is known to cause visual disturbances, including floaters, and damage to the optic disc can occur with head injuries”. In my view, this would be akin to untested expert evidence. By not disclosing these documents until the applicant provided his hearing submissions, the respondent’s ability to address the applicant’s argument has been significantly impaired. Accordingly, the respondent’s request to exclude the articles is granted.

ANALYSIS

11To receive payment for a treatment 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 that the goals of treatment are reasonable, how the goals would be met to a reasonable degree and that the overall cost of achieving them are reasonable.

OCF-18 in the amount of $2,200.00 for a retroactive attendant care assessment

12I find that the applicant has established that the proposed assessment is reasonable and necessary.

13The OCF-18 dated January 9, 2023 was for a retroactive occupational therapy/attendant care assessment. The respondent denied the OCF-18 on the basis that a current in-home assessment was approved at the same time. The respondent argues that the treatment plans for an in-home attendant care assessment and the retroactive assessment were essentially identical and therefore the OCF-18 in dispute was properly denied as being duplicative. It submits that its position is confirmed by the fact that the two incurred attendant care assessment reports are virtually identical in terms of their content, and that there is nothing in the retroactive report that was not included in the current attendant care assessment.

14The applicant submits that the retroactive attendant care assessment is reasonable and necessary, as the assessments are for different post-accident periods. The retroactive assessment details the applicant’s housekeeping limitations and his attendant care needs immediately after the accident, until the end of December 2022, which was not covered in the current in-home assessment. The applicant also disputes that the two reports stemming from the assessments are identical. He cites the Court of Appeal decision Morrissey v. Wawanesa Insurance Company, 2024 ONCA 602 to argue that once a retroactive Form 1 is submitted, an insurer is obliged to determine whether the expenses claimed in relation to the retroactive period are reasonable and necessary.

15I agree with the applicant that the retroactive attendant care assessment is not duplicative of the in-home assessment that the respondent had already approved. It clearly relates to a different period of time, the initial 5-months post-accident, when the applicant claims his accident-related impairments particularly impeded his activities of daily living. I also do not agree with the respondent that the two reports stemming from the attendant care assessments are essentially identical. Rather, markedly different levels of attendant care are proposed for the different periods.

16In the context of an assessment, the applicant must prove, with persuasive evidence, that there is some accident-related condition that warrants investigation via the proposed assessment. In the present case, the applicant has led sufficient evidence to establish that he suffered from functional limitations in the months post-accident, which would warrant investigation into whether attendant care services were required.

17The hospital records establish that immediately post-accident, the applicant reported pain in his neck, lower back, knee, right foot and right fingers. He was discharged from the hospital with a cervical collar to support and immobilize his neck. The applicant continued to report significant pain to his family doctor, Dr. Huth, in the months post-accident, and Dr. Huth referred the applicant to a chronic pain program due to the exacerbation of his pre-accident neck and back pain. On November 21, 2022 the applicant reported to Dr. Huth that he continued to struggle with day to day activities like showering, cleaning and snow shovelling.

18Given the applicant’s reported functional limitations and evidence of accident-related impairments for this period, I find that the applicant has established that a retroactive assessment is reasonable and necessary.

OCF-18 in the amount of $1,583.12 for massage therapy

19I find that the applicant has not established entitlement to the OCF-18 for massage therapy.

20The OCF-18 dated June 12, 2023 proposed 12 sessions of registered massage therapy at a rate of $102.00 per session. The respondent denied the OCF-18 by way of a letter dated June 27, 2023 where it stated that it required the provider information as well as the duration of the massage therapy. It confirmed that once the plan was resubmitted, it would reconsider the treatment plan at the approved massage therapist rate of $58.19/hr.

21The applicant argues that the denial letter was non-compliant with s. 38(8) of the Schedule, as no medical reason for the denial was provided.

22The respondent relies on the Court of Appeal decision Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78, to argue that when the reason for a denial is not a medical reason, the insurer is not required to provide medical reasons. It argues that in the present case, the OCF-18 was improperly completed, in that the person who submitted and was identified as the treatment provider was the applicant’s occupational therapist (OT), not a registered massage therapist (RMT). The OT was identified as the treatment provider in Part 11, and it appears that the rate being charged was for an OT, not an RMT. Accordingly, the respondent submits that it was appropriate for it to deny the plan, until the requested information was provided to confirm whether the treatment provider was qualified to do the treatment.

23The applicant argues that the respondent was required to provide medical reasons for the denial. He cites the Tribunal decision [JG] v BelairDirect, 2024 CanLII 102101 (ONLAT), where the Tribunal found that Varriano does not apply to a s. 38(8) analysis, as the Court of Appeal in Varriano considered s. 37 of the Schedule, not s. 38(8), which explicitly states that a denial must include “medical and all of the other reasons”. The applicant further argues that if the respondent had concerns about the proposed rate, it should have partially approved the plan at a massage therapist’s rate, to avoid delay of treatment. Finally, the applicant submits that massage therapy is reasonable and necessary, as it had been recommended by a number of treatment providers.

24I find that the respondent’s denial was compliant with s. 38(8). The applicant does not dispute that the OCF-18, despite proposing massage therapy, was completed by his OT and the only treatment provider listed in the OCF-18 was an OT. The proposed rate for treatment also did not correspond to an RMT’s hourly rate under the Professional Services Guideline (“the PSG”). As such, I agree with the respondent that it was appropriate to deny the plan until the treatment provider and his/her qualifications were clarified. I do not agree with the applicant that the respondent should have just approved the plan at an RMT’s hourly rate, since in this case, the OCF-18 was incorrectly completed and no RMT was identified as a treatment provider. I further find that a medical reason was not required to be provided, as the denial was not based on a medical reason, but because the OCF-18 lacked the basic identification of the qualified treatment provider, as required in Part 11 of the OCF-18.

25I acknowledge the applicant’s submissions with respect to [JG] v BelairDirect, however, I note that Tribunal decisions are not binding upon me. I find that the respondent’s denial offered a principled rationale based fairly on the information available, and was adequate to allow an unsophisticated person to understand the denial and make an informed decision. No medical reasons were provided, because the OCF-18 was properly denied for non-medical reasons. I do not find that an insurer would be required to create a medical reason, when it was relying on a non-medical ground.

26The denial letter encouraged the applicant to resubmit the plan with the requested information. The applicant has not provided any information as to whether the qualifications of the treatment provider were clarified with the respondent, or whether the plan was resubmitted to identify an RMT as the treatment provider. The applicant did not dispute the respondent’s submissions that her treating OT was not qualified to provide massage therapy. Accordingly, I find that the applicant has not established that the massage therapy services as specified in the OCF-18 dated June 12, 2023 were reasonable and necessary.

OCF-18 in the amount of $1,175.00 for optometric services

27I find that the applicant has not established that the treatment plan for a vision therapy assessment is reasonable and necessary.

28The applicant submits that a vision assessment is reasonable and necessary, due to his post-accident vision floaters. He argues that he reported floaters in his vision to his treating ophthalmologist Dr. Hadidi. The applicant points to a September 24, 2024 entry where the applicant had reported seeing floaters since the accident. The applicant argues that Dr. Hadidi confirmed that the floaters “could be triggered by a head – eye trauma” which warranted a thorough examination. The applicant also argues that the respondent’s s. 44 assessor Dr. Allen did not conduct a thorough examination, as he failed to complete an optic disc examination. Dr. Allen also did not provide any explanation for the applicant’s bilateral eye floaters.

29The respondent submits that Dr. Allen conducted extensive testing, and could not identify any ophthalmic sequelae from the accident. It also argues that the medical record does not support the proposed vision assessment, as the applicant has not established any link between the floaters and the accident. The respondent submits that the applicant first reported floaters on October 3, 2023, more than 1 year post-accident. The respondent further argues that none of the applicant’s ophthalmologic treatment providers had recommended any such assessment.

30I find that the applicant has not met his onus to prove, on a balance of probabilities, that the proposed vision therapy assessment is reasonable and necessary.

31The applicant does not direct me to any CNR entry where he complained of accident-related vision impairments in the year post-accident. Rather, the applicant points to Dr. Hadidi’s September 27, 2024 CNR entry (more than two years post-accident), where for the first time, he reported seeing floaters since “his car accident”. However, in an earlier CNR entry on October 3, 2023, the applicant stated that he had been “seeing floaters for about 2 months ago”, which would have been more than a year post-accident. Rather the bulk of the records from the applicant’s ophthalmologist related to his cataract surgery in 2023, and the post-consultation note of November 27, 2023 which noted that the applicant was stable post-surgery with excellent refractive outcome.

32I do not find that the isolated September 27, 2024 CNR entry (two years post-accident) establishes that there are grounds on which to believe that the applicant suffered from an accident-related vision impairment that would warrant further investigation by way of an assessment. The notation in the CNR entry that the applicant had been seeing floaters “since the accident”, was based on his self-reporting, and does not appear to be based on any review of the medical history.

33Further, Dr. Hadidi noted in the same entry that the condition was reviewed with the applicant and that it “is normal aging process”. The applicant points to the fact that Dr. Hadidi further stated that it “could” be triggered by a head-eye trauma. However, I do not find that this statement is sufficient evidence of a potential accident-related vision impairment to warrant a further assessment. Indeed, Dr. Hadidi did not appear to be recommending any further assessment or vision therapy. Nor does the applicant direct me to any CNR entry from a treating ophthalmologist or doctor, where a vision therapy assessment was recommended for injuries stemming from the accident.

34Accordingly, I find that the applicant has not established that the OCF-18 for a vision assessment is reasonable and necessary.

Outstanding Balance of $1,352.74 for OCF-18 dated April 19, 2023;

35I find that the applicant has not established that the denied balance of the OCF-18s dated April 19, 2023, is reasonable and necessary.

36The treatment plan in dispute was for rehabilitation support worker services. The OCF-18 was partially approved, and the denied portion related to: preparation, service (scheduling visit with client, preparing for visit); planning, service (all communication, research, preparing documents); and documentation support activity (visit notes to share with rehab team).

37The applicant submits that all of the administrative costs are reasonable and necessary. He argues that the respondent improperly denied the balances on the basis that the PSG did not require insurers to pay for any costs that have the result of increasing effective hourly rates, or the maximum fees payable for completing forms. The applicant submits that the respondent misapplied the PSG as none of these costs were associated with the completion of forms.

38Rather, the applicant argues that his counsel sent the treatment providers numerous clinical notes and records for their review and to keep them updated about his medical status. He argues that the review of his medical records was reasonable and necessary for accurate assessments and treatment.

39The respondent submits that the denied portion of the treatment plan relates to services that are not payable per the PSG. It notes that had it approved all of the line items of preparation, planning and documentation support activity, they would have added an additional 1 hour of time for each 1.5 hour session. The respondent submits that it is not reasonable and necessary to have an additional hour per sessions to review medical records.

40I find that the applicant is not entitled to the denied fees for preparation, planning and documentation support activity. The PSG provides that insurers are not liable to pay any administration or other expenses, charges and surcharges, that have the result of increasing the effective hourly rates, or the maximum fees payable for completing forms, beyond what is permitted under it. To me, the preparation, planning and documentation support fee would be such a charge or surcharge that has the result of increasing the effective hourly rate of the service provider. In his submissions, the applicant appears to be arguing that this restriction in the PSG would only relate to an “administrative cost or fee associated with the completion of forms”. However, the PSG limits the payment of such administrative charges not only with respect to form completion, but also if “such a charge has the result of increasing the effective hourly rate of the service provider”. In my view, additional charges for preparation, scheduling, communication and notetaking would have the result of effectively increasing the hourly rate of the service provider.

41The only explanation for the additional expenses provided by the applicant was that his counsel regularly sent clinical notes and records, decoded OHIP summaries, and updated medical records to the treatment providers. However, if these disputed line items were added together, they included up to an additional hour of time per treatment session. In my view, the applicant has not explained why up to an additional hour of treatment time would be required per session to review ongoing medical records. Nor has the applicant provided any evidence as to whether the treatment providers had requested the medical records.

42Accordingly, the applicant has not established that he is entitled to the denied portion of the OCF-18 dated April 19, 2023.

Outstanding balance of $399.04 for OCF-18 dated March 6, 2023

43I find that the applicant is not entitled to the denied portion of this treatment plan.

44This OCF-18 was for occupational therapy services. The respondent partially approved the treatment plan and denied $399.04 in preparation service, which was noted as “scheduling visit with client, preparing for visit”. The respondent submits that it had already approved 10 hours of planning for: communications (emails, texts, phone calls) research, preparing documents. The applicant submits, as with the prior treatment plan, that the additional time was required to review the medical documentation that was provided by his counsel, and that reviewing the medical documents provided was different than “research” or planning.

45I find that the applicant has not established that the denied $399.04 is reasonable and necessary. I agree with the respondent that reviewing updated medical documentation provided by the applicant’s counsel, could reasonably be completed within the 10 hours already approved for “planning”. Although the applicant submits that all of the updated doctors’ records, OHIP summaries, and hospital records had to be sent to the treatment provider, the applicant has not explained why all of the medical records had to be reviewed by the treatment provider to provide OT services. Nor has the applicant provided evidence that these records were requested by the treatment provider.

Outstanding balance of $972.64 for OCF-18 dated September 5, 2023

46I find that the applicant is not entitled to the denied portion of the treatment plan.

47The denied portion of the treatment plan for psychological treatment related to “preparation, services” and documentation, support activity, which was noted to be a progress report. The respondent noted in its denial letter that the OCF-18 did not provide any details as to what preparation services were, and that it was not requiring a progress report at this time. The letter further stated that should a progress report be required, it would contact the applicant’s treatment provider.

48The applicant submits that the preparation services related to the review of all of the updated medical information sent by his counsel. With respect to the progress report, the applicant submits that progress reports are required to advance why further treatment is needed.

49I find that the applicant has not established that the denied portion of the treatment plan is reasonable and necessary.

50With respect to the preparation services, I note the applicant’s submissions that his counsel had sent medical records for Dr. Nashef, psychologist, to review. However, these records included prescription and pharmacy records, massage therapy notes, a physiatry assessment report, and an occupational therapy assessment. The applicant has not explained why it was necessary to incur an additional cost to review some of these documents (such as massage therapy notes, prescription summaries or a physiatry assessment), in order to provide psychological treatment. Further, the respondent was clear that it was not requiring a progress report at that time. Although the applicant submits that it was necessary to advance why further treatment was needed, the applicant has not explained why this information could not have been provided by way of treatment records, and why a formal progress report was still required, in the light of the respondent’s statement that it was not requesting a progress report.

51Accordingly, I find that the applicant is not entitled to the outstanding balance of the treatment plan for psychological services.

Interest

52Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the OCF-18 dated January 9, 2023 for a retroactive occupational therapy/attendant care assessment

Award

53The 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. The applicant argues that he is entitled to an award, since the respondent improperly denied OCF-18s with a blatant disregard for the medical evidence. He further submits that he was not removed from the Minor Injury Guideline (“MIG”) until seven months post-accident despite his significant pre-accident history.

54I find that the applicant has not established that he is entitled to an award. Although I have found that the applicant is entitled to one of the treatment plans in dispute, it is well-settled that an award should not be ordered simply because an insurer made an incorrect decision. The applicant has not directed me to evidence that the respondent acted in bad faith nor that its actions rose to a level of being excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. Further, although the applicant argued that the respondent delayed in removing him from the MIG for seven months, the applicant has not directed me to evidence as to when the medical records were provided to the respondent, or whether IE assessments had been requested prior to the removal from the MIG. Without being directed to evidence as to the circumstances surrounding the applicant’s removal from the MIG, I find that the applicant has not established the basis for an award.

ORDER

55The applicant is entitled to the treatment plan in the amount of $2,200.00 for a retroactive attendant care assessment, plus interest.

56The applicant is not entitled to the remaining treatment plans.

57The respondent is not liable to pay an award.