Licence Appeal Tribunal File Number: 24-011737/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:
Giuseppe Perlingieri
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harouna Saley Sidibé
APPEARANCES:
For the Applicant:
Sundeep Singh, Counsel
For the Respondent:
Jessica Rogers, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Giuseppe Perlingieri, the applicant, was involved in an automobile accident on May 26, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Aviva 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 $7,250.00 for psychological services, proposed by Glenridge Medical in a treatment plan/OCF-18 (“plan”) dated March 1, 2024?
ii. Is the applicant entitled to $70.00 ($2,816.20 less $2,746.20 approved) for chiropractic services, proposed by St. Catharines Physioheal in a plan dated February 7, 2024?
iii. Is the applicant entitled to $2,550.00 for other assistive devices proposed by Insync Wellness in a plan dated March 26, 2024?
iv. Is the applicant entitled to $2,486.00 for an EMG assessment, proposed by Downsview Healthcare Inc. in a treatment plan dated March 8, 2024?
v. Is the applicant entitled to $2,486.00 for a dietary assessment, proposed by Complete Balance Health Centre in a treatment plan dated January 27, 2024?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons below, I find that:
The applicant is not entitled to the disputed treatment plans or balances in dispute.
The applicant is not entitled to interest or an award.
ANALYSIS
Is the applicant entitled to the disputed treatment plans?
4I find that the applicant has not established entitlement to the disputed plans. Specifically, the applicant is not entitled to payment for the following plans: the psychological services plan dated March 1, 2024; the outstanding $70.00 under the chiropractic plan dated February 7, 2024; and the assistive devices plan dated March 26, 2024.
5To 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 the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
Psychological Services
6I find that the applicant is not entitled to the psychological plan dated March 1, 2024.
7The plan dated March 1, 2024, for $7,250.00 for psychological services is signed by Patel Vinodbhai Ramanbhai, a physician, and Adel Khalil, a social worker. The goals are to address the applicant’s psychosocial and emotional needs (improving mood and coping skills), reduce stress and anxiety through educational, supportive, and adjustment counselling, and improve coping abilities. It outlines 18 assessments, 16 providers’ travel time, service planning, service brokerage, and 2 support activity documents.
8The applicant relies on a neurological assessment dated April 15, 2024, by Dr. Andrew Gomez‑Vargas, a neurologist, which concludes that, as a result of the accident, the applicant has developed significant psychological problems suggestive of a variety of mood disorders, including adjustment disorder, pain disorder, depression and anxiety, and post‑traumatic stress disorder.
9The applicant also relies on a Functional Abilities Evaluation dated April 9, 2024, by Dr. James Fung, a Doctor of Chiropractic, who recommended psychological consultation because the applicant reported emotional stress and other psychological symptoms, including depression, irritability, and nervousness. The applicant submits that psychological issues may persist for years after an accident and that the plan's timing should not weigh against entitlement.
10The respondent denied the March 7, 2024, plan because it states that it mirrors the March 24, 2022, plan and shows no progress. Psychological treatment was approved for Joel Bamini at Scarborough Physio & Rehab on July 15, 2022, for $3,042.64, but the applicant attended only a few sessions in early 2024 and did not exhaust the funding. Since the applicant already receives psychological treatment, it submits that the new Glenridge Medical plan duplicates existing services.
11The respondent argues that the disputed plan was submitted more than 4 years after the accident. Although medical evidence confirms ongoing psychological symptoms, the applicant had unused approved funding. The plan fails to explain why the existing treatment was insufficient or to show that the new treatment differs from previously approved care. As noted above, it submits that it also duplicates services provided by another provider, and that not disclosing this undermines the plan’s reliability.
12Additionally, the respondent argues that the $125.00 hourly rate for social worker Adel Khalil is excessive. Case law (Xu v. Aviva General Insurance Company, 2023 CanLII 23556 (ON LAT) at para 43, and Zhang v. Aviva Insurance Company of Canada, 2024 CanLII 94140 (ON LAT)) supports a fair rate of $100.00/hour or less. The applicant must provide evidence of the social worker’s qualifications, such as a CV, to justify the rate. No such evidence has been provided. The respondent contends that the applicant has not proven that $125.00/hour is reasonable or necessary, and that the evidence is insufficient to determine the proper rate.
13The respondent further submits that the provider's travel time of $3,000.00, or, more specifically, at the rate of $187.50 for 1.5 hours over 16 sessions, is not payable. The treatment plan did not set out any particulars explaining why the provider's travel time was required. In accordance with s. 15(2)(c) of the Schedule, provider travel time is not a payable benefit unless it is an authorized transportation expense. Section 3(1) of the Schedule defines “authorized transportation expenses” as expenses related to transportation (a) that are authorized by, and calculated by applying the rates set out in, the most recent transportation expense guideline published by the Financial Services Regulatory Authority of Ontario, and (b) that, unless the insured person sustained a catastrophic impairment, relate to transportation expenses incurred only after the first 50 km of a trip.
14The respondent argues that the plan's additional lines for unrecoverable items (lines 4-6: $625, $250, $250) lack detail and relate to professional services under the Professional Services Guideline (the “Guideline”). The Guideline defines such expenses broadly but excludes costs that inflate hourly rates or maximum fees. The Tribunal has interpreted that these costs are included in the hourly rate and that separate charges for them are unreasonable, increasing the provider's effective hourly rate beyond permitted limits.
15I find that separate charges for planning, documentation, and brokerage would impermissibly inflate the effective hourly rate beyond Guideline caps.
16I accept that the applicant continues to report psychological symptoms that he attributes to the accident, as reflected in Dr. Gomez‑Vargas’s neurological report and the history recorded in Dr. Fung’s Functional Abilities Evaluation. However, I place limited weight on Dr. Fung’s comments regarding psychological issues, given that he is a chiropractor and not qualified to diagnose or opine on such conditions. While Dr. Fung appropriately recommended a psychological consultation based on the applicant’s self‑reported symptoms, that recommendation does not, on its own, establish the necessity or reasonableness of the specific treatment plan under consideration. The question before me is whether this particular plan is reasonable and necessary and whether its costs are reasonable within the meaning of the Schedule. On that issue, I find the respondent’s submissions and evidence to be more persuasive.
17First, the applicant had an approved psychological plan from March 24, 2022, with funding remaining unspent. The applicant did not meaningfully engage in that care until early 2024 and then only partially, just before submitting the disputed plan. The disputed plan does not explain why the approved 2022 treatment was inadequate, nor does it identify any materially different modality or provider qualifications that would justify duplicative concurrent services.
18Second, the disputed plan did not disclose concurrent psychological treatment. That omission undermines the reliability of the clinical rationale and frustrates the Tribunal’s ability to assess necessity and cost‑effectiveness.
19Third, several cost components are not payable at their face value. The charging of provider travel time is not supported under s. 15(2)(c) or the definition of “authorized transportation expenses” in s. 3(1); the plan provides no particulars to bring the claim within the Guideline requirements. Likewise, separate line items for “documentation/support activity,” “planning,” and “brokerage” are administrative/professional services already embedded within the hourly rates under the Guideline and are therefore not separately recoverable.
20Fourth, the claimed $125/hour social‑work rate is unsupported by evidence of qualifications and exceeds rates commonly approved by the Tribunal in the absence of such proof. Even if I were to reduce the rate to $100/hour, the duplication and non‑disclosure issues remain determinative.
21In sum, while the applicant’s ongoing symptoms are acknowledged, the applicant has not shown that this plan is necessary in addition to the approved, available funding, nor that its pricing complies with the Schedule and Guideline.
22Accordingly, on a balance of probabilities, I find that the applicant is not entitled to the psychological services plan dated March 1, 2024.
The Outstanding Amount of the Plan for Chiropractic Services
23I find that the applicant is not entitled to the outstanding $70.00 under the chiropractic plan dated February 7, 2024.
24The plan dated February 7, 2024, for $70.00 ($2,816.20 less $2,746.20 approved) for chiropractic services is signed by Pona Emil, a physiotherapist. The goals are pain reduction, increased range of motion, increased strength, return to activities of daily living, and return to pre‑accident work activities. It outlines a treatment plan OCF‑18, a reassessment, 14 sessions of prescribed active exercises and modalities, 14 sessions of active release and spinal manipulation, and kinesiology tape.
25On February 8, 2024, the respondent partially approved the February 7, 2024, plan but denied line 1 ($70) because it is included in the $200 maximum fee. Line 1 in the plan is listed as “Treatment plan OCF‑18” and “Reassessment.” The Guideline caps payment for completion of an OCF‑18 at $200.00. Charging both $70.00 and $200.00 exceeds the permitted amount.
26The respondent added that the $200 maximum fee referred to in the Guideline applies only to the services of a health practitioner as referred to in subsection 25(1)3 of the Schedule, namely reviewing and approving an OCF‑18 under subsection 38(3)(c), including any assessment or examination necessary for that review and approval by the health practitioner.
27The wording of the Guideline and s. 25(1)3 makes it clear that the OCF‑18 review/approval and any necessary assessment for that review are subject to the single maximum fee of $200.00. The applicant has not identified any separate statutory head of entitlement that would permit an additional $70.00 for “Treatment plan OCF‑18”/“Reassessment” beyond the capped fee already billed. On these facts, the additional $70.00 would impermissibly increase the effective fee beyond the Guideline maximum. The applicant identifies no separate statutory basis for an additional fee. Therefore, allowing the $70.00 would exceed the Guideline cap.
28Accordingly, on a balance of probabilities, I find that the applicant is not entitled to the outstanding balance of the chiropractic services plan dated February 7, 2024.
Assistive Devices
29I find that the applicant is not entitled to the plan dated March 26, 2024, for assistive devices.
30The plan dated March 26, 2024, for $2,550.00 for other assistive devices is signed by Chirayu Desai, a physiotherapist. The goals are pain reduction, increased range of motion, increased strength, and return to activities of normal living. It outlines a back support with a rigid shell, 2 braces, and an initial assessment.
31The applicant relies on diagnoses of chronic pain and lumbar findings. The March 21, 2022, as performed by Dr. Michael Gofeld, a chronic pain specialist, diagnosed Chronic Pain with Central Sensitization, Chronic Posttraumatic Headaches, NOS; Chronic Neck Pain: Spondylosis; Possible Sensory Left C8 Radiculopathy; Chronic Shoulder Pain: Osteoarthritis; Possible Rotator Cuff Tear; Chronic Low Back Pain: Spondylosis; and Chronic Knee Pain: Osteoarthritis.
32On May 3, 2024, the respondent denied the plan because the back brace duplicates an approved device from October 26, 2022. No medical documents support the need for a knee brace. Family doctor notes from May 25, 2015, to February 27, 2024, record chronic health issues but no knee injury. The neurologist’s notes also lack knee injury complaints. Therefore, the respondent needs medical evidence proving a knee injury from the May 26, 2019, accident is related to the requested knee brace.
33The respondent submits that the back brace is duplicative. The accident occurred in 2019, and the plan was submitted nearly five years later. There is insufficient evidence explaining why these devices are now medically required or why prior conservative care is inadequate.
34The applicant must prove each device is reasonable and necessary due to the accident. The back brace request repeats an approved device from October 2022 without explaining why the previous device is no longer suitable or linking it to functional deficits. For knee braces, medical records show normal X-rays, no knee complaints, and no connection to the 2019 accident. Dr. Gofeld’s assessment reports intermittent, sharp pain in the left knee radiating to the foot, with a "ball' forming behind the knee during activity, rated 3/10, affecting standing and stair climbing, though massage helps. PhysioHeal notes from the August 2023 report indicate improvement in knee pain. The plan does not address this gap. Although the five-year post-accident delay does not automatically bar entitlement, the lack of justification for necessity and for less intrusive options means the evidence requirement is unmet. Generalized pain reports without a corresponding diagnosis or functional deficit do not necessitate bracing.
35On this record, the applicant has not demonstrated that the requested devices are reasonable and necessary under the Schedule.
36Accordingly, on a balance of probabilities, I find that the applicant is not entitled to the plan for assistive devices dated March 26, 2024.
Is the applicant entitled to the disputed assessment plans?
37I find that the applicant has not met the burden of establishing entitlement to the disputed assessments.
38The purpose of assessments is to determine whether a condition exists. For an insured, they bear the onus of demonstrating that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
EMG Assessment
39I find that the applicant is not entitled to the EMG assessment proposed in the plan dated March 8, 2024.
40The plan dated March 8, 2024, for $2,486.00 for EMG assessment, is signed by Dr. Basile Vincenzo, a physician, and Dr. Pivtoran Oleksandr, a chiropractor. The goals are to determine whether neuropathies or myopathies are present, evaluate paresthesia and muscle weakness, and assist in returning the applicant to activities of normal living. The plan outlines an electromyography (upper extremity), a nerve conduction study, a report formulation, the OCF‑18 form, and a review of medical documentation.
41The applicant argues that chronic radiculopathy and neuropathic symptoms justify EMG testing. He relies on the chronic pain assessment, which diagnoses Chronic Pain with Central Sensitization; Chronic Posttraumatic Headaches; Chronic Neck Pain with possible sensory left C8 radiculopathy; Chronic Shoulder Pain; Chronic Low Back Pain; and Chronic Knee Pain. He submits that these findings can lead to neuropathies, paresthesia, and muscle weakness, thereby necessitating EMG testing.
42In its denial dated March 11, 2024, the respondent took the position that the plan is neither reasonable nor necessary. The respondent relied on the fact that an EMG is a diagnostic test that may be ordered by the applicant’s family physician and, if medically indicated, is covered by OHIP. The respondent further noted that the treatment plan was not accompanied by any physician’s referral, clinical findings, or other medical documentation establishing the need for an EMG study at this time.
43The applicant’s family physician, Dr. Vinod Patel, documented “left UE radicular symptoms” on November 25, 2019, as a result of the accident. However, the record does not show how the EMG results would change the course of treatment or lead to a different clinical direction.
44I accept that the applicant has reported radicular symptoms since 2019 and that his chronic pain assessment notes a possible sensory radiculopathy. However, the determinative issue is whether the proposed EMG is reasonable and necessary and whether its findings would influence treatment planning at this time.
45Several factors in the evidentiary record weigh against entitlement. First, there is no demonstrated clinical utility for the proposed EMG: the OCF‑18 and accompanying materials do not explain how EMG results would alter diagnosis or management beyond what has already been determined on prior assessments, and no treating or assessing provider in the record states that ongoing or future treatment is contingent on electrodiagnostic confirmation. Second, the record contains no referral or physician order for an EMG, and no contemporaneous clinical notes identifying an EMG as medically indicated at this time. Third, the timing. Although radicular‑type complaints were noted in 2019, the clinical notes and records filed, together with the more recent assessment reports (including Dr. Gomez‑Vargas’s neurological report), do not document deterioration or new objective deficits nearly five years post‑accident. On this record, the applicant has not shown that the proposed test is reasonable and necessary within the meaning of the Schedule.
46On this record, I am not persuaded that the EMG is reasonably required to clarify the diagnosis or guide rehabilitation.
47Accordingly, on a balance of probabilities, I find that the applicant is not entitled to an EMG assessment.
Dietary Assessment
48I find that the applicant is not entitled to the dietary assessment plan dated January 27, 2024.
49The plan dated January 27, 2024, for $2,486.00 for dietary assessment, is signed by James Fung, a chiropractor. The goals are pain reduction, evaluation of dietary intake and its impact on recovery, and dietary recommendations to improve energy levels and promote recovery. It outlines two support‑activity documentation items and a total‑body test.
50The applicant submits that although a functional abilities evaluation was completed in April 2024, an updated assessment is required to provide insight into his current status as a 78‑year‑old man. He argues that his headaches and dizziness affect his ability to socialize and that a dietary assessment is essential to determine his nutritional status and potential fall risk.
51On February 2, 2024, the respondent denied the plan because the stated goal, establishing “objective functional status,” was vague. The respondent also requested clarification on which benefit the assessment pertained to under s. 33 of the Schedule. The applicant failed to provide the requested information. The plan was therefore denied for insufficient particulars.
52The applicant has not established that the proposed dietary assessment is reasonable or medically necessary, nor that it aids accident‑related rehabilitation. The plan proposes a dietary evaluation to be conducted by a chiropractor, but the record contains no evidence that a chiropractor is qualified to provide the dietetic or nutritional assessment services contemplated, nor any explanation of why such services would be appropriate outside the scope of a regulated dietitian or physician. More fundamentally, the plan does not identify any accident‑related impairments, nutritional deficiencies, or medical conditions for which dietary intervention is clinically indicated or that give rise to functional limitations. Concerns identified in the plan, such as age, dizziness, and fall risk, are not supported by evidence linking them to diet or demonstrating that a dietary assessment would address accident‑related impairment. The insurer requested clarification on the purpose and relevance of the assessment, but none was provided. The plan does not specify which nutritional issues will be examined or how the findings will inform treatment. General objectives such as improving energy levels, diet, or overall wellness, without a demonstrated connection to accident‑related disability, do not establish entitlement under the Schedule.
53On the evidence before me, the dietary assessment appears exploratory rather than necessary, and its goals are not supported by relevant clinical documentation.
54Accordingly, on a balance of probabilities, I find that the applicant is not entitled to the dietary assessment.
Interest
55Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, interest is not payable.
Award
56The 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.
57The applicant submits that the respondent unreasonably withheld and delayed payment of the treatment plans in dispute. He argues that, in determining whether an award is warranted, the Tribunal must consider the impact of the insurer’s conduct on the insured, the degree of blameworthiness, the vulnerability of the claimant, any advantage improperly gained by the insurer, and the broader need for deterrence. The applicant maintains that the respondent’s conduct discouraged him from pursuing several treatment plans and caused ongoing hardship.
58The respondent submits that entitlement to an award is subject to a stringent test and arises only where an insurer’s delay or withholding of benefits is unreasonable. The respondent notes that the Tribunal has described unreasonable conduct as behaviour that is “excessive, imprudent, stubborn, inflexible, unyielding, or immoderate,” and asserts that the applicant has not provided evidence that its conduct meets this threshold.
59The respondent further submits that insurers are not held to a standard of perfection and that an award is not intended to penalize insurers for delays resulting from legitimate differences in interpretation or opinion.
60I have found no benefits payable, and there is no benefit that was unreasonably withheld or delayed. The applicant is therefore not entitled to an award under s. 10 of Regulation 664.
ORDER
61For the above reasons, it is ordered that:
i. The applicant is not entitled to the disputed treatment plans or balances in dispute.
ii. The applicant is not entitled to interest or an award.
iii. The application is dismissed.
Released: March 23, 2026
Harouna Saley Sidibé
Adjudicator