Licence Appeal Tribunal File Number: 24-007187/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:
Stella Pinto
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Aric Bhargava
APPEARANCES:
For the Applicant:
Hermia Leung, Paralegal
For the Respondent:
Sadaf Shahzad, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Stella Pinto, the applicant, was involved in an automobile accident on February 5, 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 of 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”) in the amount of $185.00 per week from August 4, 2023 to February 5, 2024?
ii. Is the applicant entitled to medical benefits proposed by Mackenzie Medical Rehabilitation Centre in the following treatment plans/OCF-18 (“plans”) for chiropractic treatment:
a. $1,194.38 submitted October 12, 2022;
b. $1,194.38 submitted January 18, 2023; and
c. $3,183.14 submitted July 25, 2023?
iii. Is the applicant entitled to a psychological assessment proposed by Prime Health Care Inc. in a plan submitted December 12, 2022?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
v. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3The applicant is not entitled to a NEB of $185.00 per week from August 4, 2023 to February 5, 2024.
4The applicant is not entitled to the disputed chiropractic treatment plans or the psychological assessment.
5As there are no overdue benefits, the applicant is not entitled to interest.
6The applicant is not entitled to an award under section 10 of the Regulation 664 because no payments were unreasonably withheld or delayed.
PROCEDURAL ISSUES
Failure to provide records to the respondent
7The respondent raises a procedural issue on the basis that the applicant failed to produce some of the records required by the Case Conference Report and Order (“CCRO”), including the complete clinical notes and records (“CNRs”) from her family physician, Dr. Abraham Cohen, and any CNRs from any psychiatrist or psychologist attended pre-accident, or confirmation that such records do not exist. The respondent requests the Tribunal draw an adverse inference based on the applicant’s failure to produce these materials.
8The CCRO states that the applicant shall provide the respondent with a decoded OHIP Summary from February 5, 2021; CNRs of Dr. Abraham Cohen, family physician, from February 5, 2021; CNRs of Mackenzie Medical from July 4, 2021; CNRs of all hospitals attended from February 5, 2021; CNRs of all psychologists, counsellors, therapists and social workers from February 5, 2021; CNRs of all physiotherapists, chiropractors, massage therapists from February 5, 2021; and prescription summaries from pharmacies where prescriptions have been filled from February 5, 2021.
9The applicant did not submit a reply submission to address this issue and no explanation is provided for not providing the required records in full. In my view, this omission is material, as the records are within the applicant’s control and relevant to the issues in dispute.
10While the applicant’s submissions refer to the CNRs of Dr. Cohen and the psychological pre-screen report of Dr. Jacqueline Brunshaw, psychologist, the CCRO requested additional documents, including the complete CNRs from Dr. Cohen from February 2021, prior to the accident, and CNRs from any psychiatrist or psychologist attended prior to the accident, or confirmation that such records do not exist. Although the absence of particular records is noteworthy and limits the completeness of the evidentiary record, I am satisfied that the materials submitted, including the CNRs of the family physician, provide sufficient basis to assess the claim for the disputed benefits. Therefore, I will not draw an adverse inference.
11The records in question are directly relevant to the issues in dispute, specifically the NEB and her pre-accident activities, and the psychology assessment. The absence of these records creates a gap in the evidentiary record that could be viewed as prejudicial to the respondent, however, I accept the applicant filed sufficient materials and this non-compliance does not affect the Tribunal’s ability to consider the claim. I will consider all of the submissions in full; however, I emphasize that all parties are expected to comply with Tribunal orders.
ANALYSIS
Is the applicant entitled to NEB in the amount of $185.00 from August 4, 2023 to February 5, 2024?
12I find that the applicant is not entitled to a NEB in the amount of $185.00 per week for the period of August 4, 2023 to February 5, 2024.
13Section 12(1) provides that an insurer shall pay an 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.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which generally focuses on a comparison of the applicant’s pre- and post-accident activities.
14The applicant was paid a NEB beginning on March 4, 2022 in the amount of $185.00 per week. On July 31, 2023 the respondent advised the applicant that she was no longer entitled to a NEB of $185.00 per week based on the section 44 reports, because she no longer meets the criteria for NEB entitlement.
Pre-accident activities
15The applicant submits at the time of the accident she was on leave from her work since 2012. The applicant relies on the pre-screening psychology report dated November 30, 2022, prepared by Dr. Jacqueline Brunshaw, psychologist, that notes her self-reported pre-accident activities include household chores, grocery shopping, and yoga.
16The respondent submits the applicant has not met her onus to demonstrate entitlement to a NEB and did not direct me to a dispute of the applicant’s pre-accident activities. The respondent’s submission is silent on the applicant’s pre-accident activities.
17I find that the applicant’s pre-accident activities that she ordinarily engaged in were her personal care, household activities such as laundry, washing floors, cleaning, and grocery shopping, social and recreational activities of daily living such as yoga.
Accident-related impairments
18Shortly after the accident, the applicant complained of pain in her neck, upper, middle, and lower back to Dr. Cohen, as well as anxiety and depressed feelings as a result of the accident and her accident-related injuries.
19The applicant relies on parts of the section 44 multidisciplinary assessment report dated July 15, 2022 that refers to the OCF-3 dated February 11, 2022, prepared by Dr. Milesh Panchal, chiropractor; the CNRs of Dr. Cohen; and the neurological examination by Dr. Stanley Salkauskis, physician.
20Dr. Salkauskis notes “no evidence for a mass or abnormal attenuation [or] acute intercranial hemorrhage, or an acute infarct. The ventricles, sulci, and cisternal spaces are within normal limits.” This report is significant because it confirms the applicant’s headaches and mild concussion were resolving.
21The respondent submits the applicant’s accident-related impairments include a WAD 2 cervical strain/sprain and a lumbar strain/sprain and continuous symptoms of pain and stiffness in the lower back, buttock and left thigh. The respondent relies on the section 44 multidisciplinary assessment report dated July 15, 2022.
22I find the applicant’s accident-related injuries, based on the CNRs of the family physician, include a mild concussion, lower back and neck pain, and knee pain.
Post-accident activities
23The applicant submits that following the accident she experienced fatigue, sadness, anxiety, lack of motivation, painful and restricted movements, and she is unable to carry out the activities of daily living. The applicant relies on the CNRs of Dr. Anselmo Mendez-Fernandez, physician, dated August 19, 2024. The applicant’s submissions are mainly focussed on her ongoing accident-related pain symptoms and limitations, and she did not provide specifics of her post-accident activities.
24The respondent submits that since the accident the applicant has begun swimming, taking walks, continues grocery shopping with some assistance from her family, and is independent in her personal care. The respondent relies on the section 44 multidisciplinary report dated July 31, 2023, prepared by Dr. Jacqueline Auguste, orthopaedic surgeon, Dr. Arnold Rubenstein, psychologist, Mr. Robert Campos, occupational therapist.
25Dr. Auguste notes in the section 44 report dated July 31, 2023 that the applicant is not able to participate in yoga, or ride her bicycle, however, she is independent in her self-care, able to go for walks, able to go grocery shopping, and taken up swimming.
Complete inability to carry on a normal life
26The applicant submits she has ongoing pain and unable to fully carry out the activities of normal life including her personal care and activities of daily living. The applicant relies on the CNRs of Dr. Mendez-Fernandez, family physician.
27The respondent submits the applicant has not met her onus to demonstrate she suffers a complete inability to carry on a normal life and relies on the section 44 reports noted above.
28The applicant directs me to the CNRs of Dr. Mendez-Fernandez for the period of March 1, 2024 to August 2, 2024; while the disputed period is from August 2023 to February 2024. Dr. Mendez-Fernandez also notes complaints of ongoing pain as a result of the accident and diagnosed the applicant with chronic lower mechanical back pain on March 12, 2024 and May 17, 2024. However, the CNRs assessed chronic pain, to avoid bending, lifting, and strenuous activity. The CNRs do not indicate the applicant has an inability to carry on a normal life or cannot engage in substantially activities that were engaged in previously.
29The respondent submits the applicant did not suffer a complete inability to engage in activities of normal life. Based on the section 44 report the applicant reported to Dr. Auguste that her neck pain is resolving, and her back pain is aggravated by prolonged sitting, standing, and bending. Dr. Auguste notes “she does not suffer a complete inability to carry on a normal life as a result of the subject accident.” The section 44 report prepared by Mr. Campos concludes the applicant demonstrates sufficient mobility, range of motion, and strength to resume her normal activities of daily living.
30I find the section 44 reports concluded the applicant did not suffer a complete inability to carry on a normal life and the limitations described by the applicant due to the pain from prolonged standing, sitting, and bending are not sufficient to support a finding that the applicant has suffered a complete inability to carry on a normal life.
31The test for a NEB is an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident. I find that although the medical evidence notes the applicant experiences some pain in her back from prolonged sitting, standing and bending, she is not continuously prevented from engaging in substantially all her pre-accident activities because she is able to grocery shop with some assistance from family, do her own independent care, go for walks and go recreational swimming.
32I am not persuaded by the applicant’s evidence because the family physician’s CNRs notes there is some ongoing accident-related pain for the period of March 2024 to August 2024, however, I was not directed to a complete inability to carry on a normal life and the applicant has not provided a comparison of her pre- and post-accident activities that demonstrates she can no longer perform most of her pre-accident activities.
33I place weight on Dr. Rubenstein’s section 44 psychology report because it included a clinical interview with the following tests: Pain Patient Profile, Structured Inventory of Maligned Symptomology, Beck Depression Inventory-II, Beck Anxiety Inventory. Based on the clinical interview and tests, Dr. Rubenstein concluded “present findings based on objective testing provide no evidence to support [her] subjective complaints” and “there is no accident-related mental impairment providing any barrier to [her] ability to carry on her normal daily activities.”
34I find the medical evidence does not support the applicant’s claim that, on a balance of probabilities, the accident-related impairments have resulted in a continuous inability to engage in substantially all of her pre-accident activities during the time in question. The applicant’s evidence focussed on her impairments, but not on how her impairments limited her ability to engage in pre-accident activities, or to what extent her abilities to engage in pre-accident activities.
35I find the applicant has not demonstrated, on a balance of probabilities, that her accident-related injuries preclude her from completing substantially all her pre-accident activities.
36Accordingly, I find that the applicant has not demonstrated that she suffers a complete inability to carry on a normal life. Therefore, on a balance of probabilities the applicant is not entitled to the disputed NEB of $185.00 from August 4, 2023 to February 5, 2024.
37I find the applicant has not met the burden of proof to demonstrate that the treatment plans are reasonable and necessary.
38To receive payment for an OCF-18 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 the treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
39There are three chiropractic treatment plans in dispute. Each plan addresses injuries including postconcussional syndrome, concussion, radiculopathy, sprain and strain of cervical spine, thoracic spine, lumbar spine, sacroiliac joint, shoulder joint, lower back pain, headache, stress and anxiety. Each plan seeks to achieve pain reduction, increased range of motion, increase in strength, and return to activities of normal living. Progress will be evaluated through range of motion, visual analogue scale, and orthopaedic testing.
i. The first plan, dated October 12, 2022, valued $1,194.38 recommends six counts of manipulation, multiple body sites, one count of exercise, multiple body sites, seven counts of therapy, multiple body sites, six counts of gloves, and one assessment.
ii. The second plan, dated January 18, 2023, valued $1,194.38 recommends six counts of manipulation, multiple body sites, one count of exercise, multiple body sites, seven counts of therapy, multiple body sites, six counts of gloves, and one assessment.
iii. The third plan, dated July 25, 2023, valued $3,183.14 recommends eighteen counts of manipulation, multiple body sites, one count of exercise, multiple body sites, one count of acupuncture, multiple body sites, two counts of hyperthermy, multiple body sites, one count of stimulation, multiple body sites, twenty counts of therapy, multiple body sites, eighteen counts of gloves, and one assessment.
40The applicant submits the chiropractic treatment plans are reasonable and necessary based on excerpts of the section 44 report of Dr. Auguste dated July 15, 2022. However, Dr. Auguste’s report makes no recommendation for chiropractic treatment, and the report does not support the applicant’s entitlement to the treatment plans.
41The applicant argues that the CNRs of Dr. Mendez-Fernandez and Dr. Cohen supports entitlement because she has ongoing pain, however, the CNRs do not recommend chiropractic treatment.
42Dr. Mendez-Fernandez notes on May 17, 2024, June 19, 2024, and July 30, 2024 over two years after the accident, that the applicant was referred to a multidisciplinary approach including continued home exercises, a cardiovascular program including aqua fitness, vigorous walking, home exercises, exercise therapy, and lifestyle modification including weight loss
43The respondent denied the three plans in letters dated October 14, 2022, January 23, 2023, and July 31, 2023 on the basis of Dr. Auguste’s section 44 report dated July 15, 2022 noting “the applicant should be discharged to a progressive home-based exercise program”.
44The respondent submits the applicant has not met her burden and the chiropractic treatment plans are not supported by objective medical evidence from any treating physician. The respondent argues the applicant has not demonstrated how the proposed treatment goals would be met, and if the goals are reasonable. The respondent relies on the section 44 reports prepared by Dr. Auguste dated July 15, 2022 and July 31, 2023.
45Based on the evidence, the applicant has not demonstrated that the proposed chiropractic treatment plans are supported by medical recommendations, or that the proposed treatment is reasonable and necessary as a result of the accident.
46Accordingly, I find on a balance of probabilities that the applicant is not entitled to the chiropractic treatment plans.
Psychological assessment
47I find that the applicant is not entitled to $2,200.00 for a psychological assessment.
48The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
49The treatment plan, in the amount of $2,200.00, prepared by Dr. Jacqueline Brunshaw, psychologist, and supervised by Dr. Chad Hefford, chiropractor, proposes a psychological assessment, including documentation. The stated goals are to evaluate the applicant’s psychological and emotional repercussions and to assist her with returning to activities of normal living. Progress is to be evaluated based on the treatment plan and psychological evaluation.
50The applicant submits the treatment plan is reasonable and necessary due to the applicant’s accident-related injuries, her pre-existing depression, and her sleep related difficulties. The applicant relies on the Dr. Brunshaw’s psychological pre-screen report dated November 30, 2022 and excerpts of Dr. Rubenstein’s section 44 psychology assessment dated July 31, 2023.
51The applicant argues Dr. Rubenstein’s report notes above average level scores in areas of depression and somatization. However, the report states the applicant registers a barely moderate level of depressive symptomology and points to the overstatement of symptoms.
52I find the overall conclusion in Dr. Rubenstein’s section 44 report is that the applicant’s symptoms from an affective and cognitive standpoint do not warrant clinical attention and she does not meet the criteria for any diagnosis according to DSM-IV due to the accident.
53I find Dr. Brunshaw’s psychological pre-screening report provides limited insight to the applicant’s accident-related psychological impairments. The pre-screening report is nine months after the accident and based entirely on the applicant’s self-reporting, without any formal diagnosis in the report. Additionally, the applicant did not direct me to any corroborating medical evidence in support of the psychological issues or the treatment plan. I prefer the opinion of Dr. Rubenstein because his findings regarding the applicant’s psychological impairments were consistent with the medical evidence before me.
54Accordingly, I find on a balance of probabilities that the applicant is not entitled to the psychological treatment plan.
Interest
55Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As no benefits are owed, no interest is payable.
Award
56The applicant seeks an award under section 10 of Regulation 664. Under section 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 Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.
57The applicant submits the respondent’s denials were unreasonable, and the respondent acted in a manner that was imprudent, inflexible, and unyielding by denying the treatments.
58The respondent submits it did not unreasonably withhold benefits or delay payments, and it reviewed all the evidence, conducted insurer examinations and articulated reasons for the denials throughout the process demonstrating good faith.
59I find that no benefits were withheld or delayed and therefore the respondent’s behaviour does not amount to being imprudent, inflexible, or unyielding. Therefore, I find the applicant is not entitled to an award.
ORDER
60For the above reasons, it is ordered that:
i. The applicant is not entitled to NEB for $185.00 per week from August 4, 2023 to February 5, 2024.
ii. The applicant is not entitled to the disputed chiropractic treatment plans or the psychological assessment.
iii. As there are no overdue benefits, the applicant is not entitled to interest.
iv. The applicant is not entitled to an award under section 10 of Regulation 664 because no payments were unreasonably delayed or withheld.
61The application is dismissed.
Released: March 19, 2026
Aric Bhargava
Adjudicator