Terceros v. Aviva General Insurance Company, 2026 CanLII 21049

Citation: Terceros v. Aviva General Insurance Company, 2026 ONLAT 24-013469/AABS

Licence Appeal Tribunal File Number: 24-013469/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:

Randy Terceros

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Moninder Khattra, Counsel

For the Respondent: Dominik Gora, Counsel

HEARD: By way of written submissions

OVERVIEW

1Randy Terceros, the applicant, was involved in an automobile accident on July 11, 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 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 the treatment proposed by Align Physio and Wellness as follows:

1. $4,727.91 for chiropractic, massage and acupuncture therapy, in a treatment plan submitted on November 23, 2022;

2. $922.68 ($2,918.24 submitted less $1,995.56 approved) for psychological treatment, in a treatment plan submitted on October 25, 2022; and

3. $2,818.49 for psychological treatment, in a treatment plan submitted on January 28, 2023.

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

RESULT

3I find that the applicant is entitled to the treatment plan for chiropractic, massage and acupuncture therapy, submitted on November 23, 2022, plus interest.

4I find that the applicant is not entitled to the balance of the treatment plan for psychological treatment, submitted on October 25, 2022.

5I find that the applicant is not entitled to the treatment plan for psychological treatment, submitted on January 28, 2023.

ANALYSIS

Medical and Rehabilitation Benefits

6To receive payment for a treatment 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.

Entitlement to the Treatment Plan for chiropractic, massage therapy and acupuncture submitted on November 23, 2022

7I find that the applicant is entitled to the treatment plan for chiropractic, massage therapy and acupuncture.

8The applicant claims entitlement to $4,727.91 for chiropractic, massage therapy and acupuncture, proposed by Align Physio & Wellness Inc., in a treatment plan submitted on November 23, 2022. The treatment plan recommends a total body assessment, 15 sessions of physical rehabilitation, 15 sessions of chiropractic therapy, 7 sessions of massage therapy, 8 sessions of acupuncture and various assistive devices including a heat pad, BioFreeze, posture medic, and a cervical pillow.

9The goals of the treatment plan are pain reduction, increase range of motion, increase in strength, return to activities of normal living, return to pre-accident work activities and return to modified work activities.

10The applicant submits that the treatment plan in dispute is reasonable and necessary in order for him to achieve maximal medical recovery. He submits that he has suffered from a barrage of chronic pain issues subsequent to and directly as a result of the subject accident. He argues that based on the Clinical Notes and Records (“CNRs”) of Dr. Mahmood Elahi, family physician, that prior to the accident he was generally in good health, and he did not have any visits for serious physical injuries or impairments except his knee pain. Post-accident, he claims that he had a host of injuries that have left him in in constant, chronic pain.

11The applicant further submits that the Tribunal has held in many decisions that pain reduction is a legitimate medical and rehabilitative goal. He relies upon the decision in 17-002589 v. Wawanesa Mutual Insurance, 2018 CanLII 83505 (ON LAT) (“17-002589”), where the Tribunal held that, “The reduction of pain is…a necessary goal and she is entitled to choose treatment that reduces pain and increased strength.”

12The respondent submits that the applicant has provided insufficient evidence to support that the treatment plan recommending chiropractic, massage and acupuncture treatment is reasonable and necessary as a result of the accident. It relies upon the Tribunal decision in Xie v. Allstate Insurance Company of Canada, 2024 CanLII 2636 (ON LAT) (“Xie”), at paragraph 15, that confirmed “the presence of objective supporting evidence to justify further…[benefits] is key in determining whether the medical benefits in dispute are reasonable and necessary” and “a treatment plan for a medical benefit, without more, is not enough to establish entitlement.”

13The respondent submits that the CNRs of Dr. Elahi note that as of August 25, 2022, the applicant’s left-hand pain, neck and back pain were better, and there was an increase in range of motion in the neck noted to be 90% of normal. On October 18, 2022, the applicant’s only complaint was left hand discomfort, and his neck and back range of motion was found to be within normal limits. The CNR dated January 30, 2023, noted myofascial strain and neck and back tenderness despite attending for physiotherapy. The later notes show no complaints of pain. The respondent submits that the Tribunal has found that no improvement in pain symptomatology despite ongoing treatment results in treatment not being reasonable and necessary (see: Capisciolto v. TD General Insurance Company, 2024 CanLII 126889 (ON LAT))

14The respondent further relies upon the Insurer’s Examination (“IE”) report of Dr. Greg Gelman, dated October 27, 2022, and the Paper Review reports, dated March 7, 2023 and June 19, 2023, that found no objective signs of musculoskeletal impairment and support the denial of the subject treatment plan.

15I find that the applicant has proven that he is entitled to the treatment plan for chiropractic, massage and acupuncture therapy.

16While I am not bound by previous Tribunal decisions, I agree with the respondent’s reliance on the decision in Xie that the presence of objective supporting evidence to justify further benefits is key in determining whether a medical benefit is reasonable and necessary. I find that the applicant has provided sufficient objective evidence in the records of Dr. Elahi.

17I find that the CNRs of Dr. Elahi support that the applicant continued to report ongoing pain in his neck, shoulder and left hand, contemporaneous to the submitted treatment plan. I give greater weight to the CNRs of a treating practitioner than to a s. 25 or s. 44 report where the applicant was only assessed on one occasion. I find that a treating family physician has the opportunity to continue to assess an insured’s complaints and where the records support continuous and consistent complaints, these records are more persuasive.

18Upon review of the records of Dr. Elahi, while I agree that there are notations that the applicant’s range of motion were within normal limits on October 18, 2022, this does not mean that he was still not experiencing ongoing pain and it is clear that he was undergoing treatment during this period of time. I find that the CNRs dated November 7, 2022, January 30, 2023 and March 3, 2023, document the applicant’s ongoing complaints of neck and back pain. I further do not accept the respondent’s submission that the “later notes show no complaints of pain”. I find that the CNR from March 3, 2023, as well as the CNRs from September 28, 2023 to December 12, 2023, document ongoing complaints to the applicant’s left hand, neck, lower back, buttock and right hip.

19While I note that the IE report of Dr. Gelman, dated December 14, 2022, states that the applicant’s only ongoing musculoskeletal concern is stiffness in his neck and that his back pain has since resolved, these findings are inconsistent with the records of Dr. Elahi which document his ongoing neck and back complaints.

20With respect to the goals of the treatment plan, I agree that pain reduction is a legitimate and rehabilitative goal. I further agree with the applicant based on the Tribunal decision in 17-002589, that the applicant is entitled to chose treatment that reduces pain and increases strength. As I have found that the evidence supports the applicant’s ongoing pain complaints, I find that he has proven that treatment plan for ongoing treatment is reasonable and necessary.

21For the reasons outlined above, I find that the applicant has proven on a balance of probabilities that the treatment plan for chiropractic, acupuncture and massage therapy, submitted on November 23, 2022, is reasonable and necessary.

Entitlement to the balance of the Treatment Plan for Psychological Services submitted on October 25, 2022

22I find that the applicant is not entitled to the balance of the treatment plan submitted on October 25, 2022.

23The applicant claims entitlement to $992.68 ($2,918.24 submitted less $1,995.56 approved) for psychological treatment, proposed by Align Physio and Wellness Inc., in a treatment plan submitted on October 25, 2022. The treatment plan recommends the following services:

Line 1 – 12 – 1.5 hours of therapy, mental health: $1,795.56 Line 2 – Planning, service: $99.75 Line 3 – Test, mental health and addictions: $149.63 Line 4 – Documentation, support activity: $448.88 Line 5 – Preparation, service: $224.42 Line 6 – Documentation, support activity for claim form: $200.00

24The respondent submits that all treatment portions, i.e. the psychotherapy sessions, of this treatment plan were approved, and the denial pertains to line 2 planning, service; line 3 test, mental health; line 4 documentation, support activity; and line 5, preparation, service. The respondent submits that the applicant has not made submissions as to the reasonableness and necessity of these line items, and therefore they cannot be found payable.

25I find that the applicant has not proved on a balance of probabilities that the balance of the treatment plan is reasonable and necessary.

26I find that the applicant has not provided submissions or evidence in support of the reasonableness and necessity of the balance of the treatment plan in dispute. His only submission with respect to his entitlement to psychological services is that he suffered from psychological impairments as a result of the accident and saw Shabana Bacchus, psychotherapist, at Promedicare Wellness for therapy sessions post-accident.

27While the respondent has provided detailed submissions as to why the specific line items were denied, the applicant did not submit a reply to directly address the treatment plan or the submissions of the respondent in respect to same.

28Given the lack of submissions and evidence provided by the applicant with respect to his entitlement to the balance of the treatment plan submitted on October 25, 2022, I find that he has not met his onus of demonstrating on a balance of probabilities that it is reasonable and necessary.

Entitlement to the Treatment Plan for Psychological Services, submitted on January 28, 2023

29I find that the applicant is not entitled to the treatment plan for psychological services, submitted on January 28, 2023.

30The applicant claims entitlement to $2,818.49 for psychological treatment, proposed by Align Physio and Wellness Inc., in a treatment plan submitted on January 28, 2023. The Treatment Plan recommends the following:

Line 1 – 12 – 1.5 hours of therapy, mental health: $1,795.56 Line 2 – Test, mental health and addictions: $149.63 Line 3 – Documentation, support activity: $448.88 Line 5 – Preparation, service: $224.42 Line 6 – Documentation, support activity for claim form: $200.00

31The goals of the treatment plan are pain reduction, address and treat symptoms of anxiety and depression, and return to activities of normal living.

32The applicant submits that he suffered from psychological impairments as a result of the accident and received psychotherapy from Ms. Bacchus for his anxiety. He submits that he had anxiety while driving and his sessions focused a lot on his pain, which supports his position that his pain symptoms also contributed to his anxiety and psychological sequalae. He refers to CNRs from Promedicare Wellness at Tab F of his submissions.

33The treatment plan was denied by the respondent on February 9, 2023. The respondent submits that the applicant has not pointed to any evidence of psychological symptomatology. It argues that while the applicant references Tab F in his submissions as the CNRs of Promedicare Wellness, there was no attached evidence labelled as Tab F. The respondent argues that submissions are not evidence. The respondent further submits that the records from Promedicare Wellness prior to the submission of the subject treatment plan note that the applicant has no anxiety and only reported anxiety when driving in the snow which is commonplace and not related to the accident.

34I find that the applicant has not proved on a balance of probabilities that the balance of the treatment plan is reasonable and necessary.

35While I agree with the respondent that there are no records produced at Tab F of the applicant’s submissions, I find that this error was rectified by the respondent who attached the records of Promedicare Wellness. I have therefore had the opportunity to review the records relied upon by the applicant.

36I find upon review of the CNRs of Ms. Bacchus, that there are CNRs for five sessions from January 5, 2023 to February 9, 2023. I find that the records do not note any symptoms of anxiety except on January 26, 2023, when he notes he had anxiety driving in the snow which was not severe. I find that the notes focus on the applicant’s physical pain and discuss his family life, his employment and his enjoyment of going to the gym. I agree with the respondent that these records do not support the applicant’s claim of an ongoing psychological impairment as a result of the accident.

37I further find that the applicant has not made submissions as to the reasonableness and necessity of this treatment plan other than his submission that he is entitled to psychological services because he suffered a psychological impairment. I find that the applicant has not specifically mentioned the subject treatment plan in his submissions and has not addressed the goals of the treatment plan or provided submissions on how the treatment recommended is reasonable and necessary.

38Given the lack of submissions and evidence provided by the applicant with respect to his entitlement to the treatment plan submitted on January 28, 2023, I find that he has not met his onus of demonstrating on a balance of probabilities that it is reasonable and necessary.

Interest

39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is entitled to the treatment plan submitted on November 23, 2022, interest is payable pursuant to s. 51 of the Schedule.

ORDER

40For the reasons outlined above, I find that:

I. The applicant is entitled to the treatment plan for chiropractic, massage and acupuncture therapy, submitted on November 23, 2022, plus interest;

II. The applicant is not entitled to the balance of the treatment plan for psychological treatment, submitted on October 25, 2022; and

III. The applicant is not entitled to the treatment plan for psychological treatment, submitted on January 28, 2023.