Citation: Fernando v. Aviva Insurance Company of Canada, 2026 ONLAT 24-007755/AABS

Licence Appeal Tribunal File Number: 24-007755/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:

Ann V Fernando

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Aric Bhargava

APPEARANCES:

For the Applicant:

Brandon Greenwood, Counsel

For the Respondent:

Alexander Hartwig, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Ann V Fernando, the applicant, was involved in an automobile accident on April 13, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule — Effective September 1, 2010 (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.

2The applicant was deemed catastrophically impaired on February 6, 2024 under Criterion 8 due to her mental and behavioural impairments.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to $5,714.90 for physiotherapy services, proposed by FunctionAbility Rehabilitation Services in a treatment plan/OCF-18 (“plan”) dated April 5, 2024?

ii. Is the applicant entitled to $2,359.90 ($6,732.94 less $4,373.04 approved) for psychological services, proposed by InnerCore Health Psychology and Wellness in a plan dated February 15, 2024?

iii. Is the applicant entitled to $479.68 ($1,722.98 less $1,243.30 approved) for occupational therapy services, proposed by FunctionAbility Rehabilitation Services in a plan dated February 16, 2024?

iv. Is the applicant entitled to $3,690.39 ($5,043.00 less $1,352.61 approved) for case management services, proposed by FunctionAbility Rehabilitation Services in a plan dated February 21, 2024?

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

vi. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the application?

4In her submissions the applicant withdrew issue v), and vi) listed in the Case Conference Report and Order (“CCRO”), as such, I will not address the issue of a lift recliner in the amount of $4,508.67 in a plan dated June 12, 2024, a mattress and adjustable base in the amount of $9,628.71 in a plan dated May 14, 2024.

RESULT

5I find that:

i. The applicant is not entitled to the physiotherapy treatment plan dated April 5, 2024.

ii. The applicant is partially entitled to the psychological services treatment plan dated February 15, 2024 for the OCF-18 form completion, plus interest.

iii. The applicant is entitled to the occupational therapy treatment plan dated February 16, 2024, plus interest.

iv. The applicant is entitled to case management services in the plan dated February 21, 2024, plus interest.

v. The respondent is not liable to pay an award.

PROCEDURAL ISSUES

6The applicant submits that the respondent did not comply with the CCRO production orders for the adjusters’ log notes from the date of loss to the date of the Case Conference. The respondent submits that the log notes were provided on February 4, 2025.

7The respondent argues that the applicant violated the CCRO by submitting nine pages of separate submissions on the award and the CCRO limits total submissions to ten pages. The respondent states that it is prejudiced in only having 10 pages to respond and the applicant’s special award particulars should be rejected by the Tribunal.

8I disagree with the applicant’s reply submissions that state the ten-page limit agreed to in the CCRO applies to the substantive issues and special awards are remedial in nature that warrant special consideration, and therefore additional pages.

9I find the applicant’s submissions do not comply with the Tribunal’s orders. The CCRO ordered that the applicant shall provide particulars of the award claim within 30 calendar days after receipt of the adjusters’ log notes. The CCRO also indicates the hearing adjudicator may choose not to consider submissions which exceed page limits. I choose to do so in this matter because I find that the applicant and the respondent agreed to the page limits at the CCRO, the applicant did not seek an order for additional pages prior to making her submissions, and it is prejudicial to the respondent. Therefore, I will not consider the first four pages that include the introduction, overview, nature of disputed benefits, and legal framework. I will consider the applicant’s argument for special award, conclusion and relief sought on pages 5 to 8.

ANALYSIS

10To receive payment for an OCF-18 under section 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.

Is the applicant entitled to physiotherapy services in the amount of $5,714.90?

11I find the applicant has not demonstrated that the physiotherapy treatment plan is reasonable and necessary.

12The physiotherapy treatment plan in the amount of $5,714.90 prepared by Samina Chanda, physiotherapist, dated April 5, 2024 proposes 12 sessions over a one week period of treatment – multiple body sites, four sessions of treatment – multiple body sites, two sessions of facilitation, cognition and learning, one assessment, one completing claim forms, one documentation, provider travel time, and other supplies over a period of one week. The applicant’s injuries are noted as abnormalities of gait, cervicalgia, chronic intractable pain, concussion, sleep disorder, dizziness, headache, lower back pain, nausea and vomiting, unspecified injuries to neck, symptoms involving cognitive functions, and unspecified shoulder and upper arm injury. The goal of the plan is to complete an in-person assessment and treatment. The applicant’s progress will be measured through standardized outcome measures, observations, and self-reporting. The respondent denied the plan in full in a letter dated October 2, 2024.

13The applicant submits the physiotherapy treatment is reasonable and necessary because she experiences pain in her neck and back as a result of the accident and the injuries have affected her functional abilities, and she requires assistance with her activities of daily living such as dressing, bathing, getting in and out of bed, climbing stairs. The applicant relies on the consultation report of Dr. Nagamani Natarajan, physician; the physiotherapy assessment dated August 23, 2024 prepared by Ms. Samina Chanda, physiotherapist; the chronic pain assessment dated July 3, 2017 prepared by Dr. Stephen Brown, anaesthesiologist; the physiatry assessment dated October 8, 2021 prepared by Dr. Joseph Wong, physiatrist; and the clinical notes and records (“CNRs”) of Ms. Samina Chanda, physiotherapist, for the period of May – June 2024.

14I am directed to Dr. Natarajan’s notes dated October 5, 2022, June 12, 2023, and June 27, 2023. Dr. Natarajan notes the applicant complained of chronic low back pain, repeated falls causing left shoulder and lower back, elbow and neck pain, headaches, and not being able to sit, stand or walk for greater than 15 minutes. Dr. Natarajan notes her reduced range of motion, tenderness over the sacroiliac joint, soft tissue tenderness. I find Dr. Natarajan’s October 2022 note includes a reference to the applicant’s accident in 2015, however, there is no reference to a referral in the October 2022 and June 2023 notes for the applicant requiring physiotherapy due to her accident-related injuries.

15I am also directed to the section 25 physiotherapy assessment report prepared by Ms. Chanda dated August 23, 2024 and Ms. Chanda’s physiotherapy progress notes from May to June 2024. The section 25 physiotherapy report notes the applicant attended physiotherapy once or twice a week for approximately three years after the accident. The report notes that the applicant has pain in her shoulders, legs, lower back, coccyx, and headaches and she reported her pain in the range of eight to ten on a scale of one to ten, with ten being the worst possible pain. The section 25 physiotherapy report notes that the applicant should continue physiotherapy treatment to improve her range of motion, strength, balance, endurance, and mobility. The applicant submits in reply that the treatment is not for temporary relief, but for functional gains as noted in Ms. Chanda’s report. However, the physiotherapy progress reports do not note meaningful improvement in her pain as a result of the physiotherapy treatment.

16I am directed to the CNRs of Somerset West Community Health Clinic that note on April 23, 2015 the applicant has upper back pain and started physiotherapy two weeks after the accident, and the physiotherapy is “helping a bit”. The applicant attended follow up appointments May 12, 2015, and June 2, 2015 with complaints of low, back and neck pain with a recommendation from the clinic to continue physiotherapy treatment.

17I am directed to the section 25 chronic pain assessment dated July 3, 2017 prepared by Dr. Brown and the physiatry assessment dated October 8, 2021 prepared by Dr. Wong that note the applicant would benefit from physiotherapy treatment for her accident-related impairments. However, the reports are from nine years and five years ago respectively and the applicant previously received physiotherapy treatment for some time in 2024 and has not directed me to how the proposed treatment would be different or improve her accident-related injuries.

18The respondent submits the treatment plan is not reasonable and necessary because there is no evidence that physiotherapy would have any significant therapeutic benefit for the applicant.

19The respondent relies on the section 44 orthopaedic surgeon assessment report and addendum report prepared by Dr. Christopher Brown, orthopaedic surgeon, dated February 12, 2016 and March 7, 2016; the section 44 orthopaedic assessment report prepared by Dr. Mohammad Khan, physiatrist, dated August 30, 2023; the section 44 physiatry report prepared by Dr. David Simon, orthopaedic surgeon, dated August 21, 2024; and the section 44 physical medicine and rehabilitation specialist report prepared by Dr. Gaurav Gupta, physiatrist, dated January 15, 2025. The applicant further relies on C.C. v. Aviva Insurance Canada. 2020 CanLII 57410 (ON LAT), W.H. v. Allstate Insurance, 2019 CanLII 51324 (ON LAT), and Smith v. Wawanesa Mutual Insurance Company, 2022 CanLII 106432 (ON LAT).

20Dr. Brown’s section 44 orthopaedic assessment of 2016 recommends a twelve-week course of physiotherapy transitioning to a home-based program, and Dr. Khan’s section 44 physiatry assessment notes that while the applicant’s lower back, shoulder pain and headaches have worsened since the accident and the discontinuation of physiotherapy, she has reached maximal medical recovery and physiotherapy is not considered reasonable and necessary treatment. There is no recommendation for further physiotherapy treatment.

21Dr. Simon’s section 44 orthopaedic assessment notes from an orthopaedic perspective the applicant reached maximum medical recovery and the physiotherapy treatment plan in dispute is not reasonable and necessary.

22Dr. Gupta notes in the section 44 report that the applicant resumed physiotherapy treatment in 2024, attending sessions two to three times a week. Dr. Gupta notes the applicant has likely reached a plateau in her recovery and “she is unlikely to attain any further resolution”, however, a home exercise program could improve her pain and activity tolerance.

23The applicant submits in reply that a catastrophically impaired person must be assessed holistically and disputes the assertion that she has reached maximum medical recovery. The applicant relies on parts of Dr. Simon’s section 44 report that notes the applicant’s presentation is “in keeping with psycho-emotional distress in the form of a somatic disorder.” However, I find the opinions in the section 44 reports of Dr. Gupta in 2025, Dr. Brown in 2016, and Dr. Khan in 2023 to be more persuasive than the applicant’s evidence because the section 44 reports of Dr. Brown, Dr. Simon, and Dr. Gupta each reviewed the various clinic CNRs, imaging reports, the physiatry and physiotherapy reports, the chronic pain assessment, and notes that the symptoms of neck and low back pain are present, however, the applicant has achieved maximal medical recovery and recommend in-home exercise therapy.

24The applicant has not addressed how the treatment plan can be delivered in one week, and how continued physiotherapy treatment benefits the applicant, especially in light of her self-reported pain not reducing or resolving by the physiotherapy treatment provided to date. I make this finding in light of the extensive physiotherapy progress reports that note the applicant continues to experience virtually the same intensity of on-going pain in her lower back and shoulders. As a result, it is not clear how further physiotherapy would be beneficial to the applicant.

25Accordingly, I find that the applicant has not met her onus to demonstrate, on a balance of probabilities, that the physiotherapy treatment plan is reasonable and necessary.

Is the applicant entitled to the balance of psychological services in the amount of $2,359.00?

26I find the applicant has proven entitlement to the claimed amount for the OCF-18 form completion for the psychological services treatment plan. She is not entitled to the rest of this plan.

27The treatment plan for $6,732.94 for psychological services dated February 15, 2024 prepared by Jeremy Frank, psychologist, and supervised by Karen Gordon, psychologist, was partially approved by the respondent in the amount of $4,373.04. At issue is the remaining $2,359.00 for completion of OCF-18, planning/service, ongoing progress and re-evaluation, review of external materials, and materials.

28The applicant submits that coordination, planning, and brokerage services are healthcare functions and not administrative overhead. The applicant argues these services are crucial for efficient communication across multiple treatment providers. The applicant relies on The Joint Ontario Psychological Association / Canadian Academy of Psychologists in Disability Assessment (“OPA/CAPDA”) Guidelines for Best Practices in Psychological Insurer Examinations dated August 2016, The College of Psychologists of Ontario’s Standards of Professional Conduct, [H.R.] v. Intact Insurance Company, 2023 CanLII 56030 (ON LAT), and Patton v. Aviva Insurance Company, 2025 CanLII 28487 (ON LAT).

29The respondent submits the treatment plan is a duplicate of an earlier plan and partially approved $130.00 for completion of OCF-18 fee, leaving $70.00 unapproved. The respondent argues that the planning/services are not payable because case management was previously approved and it relies on Butler v. Allstate Insurance, 2021 CanLII 28679 (ON LAT). The respondent also argues the remaining unapproved amounts for ongoing process and re-evaluation, review of external materials, and materials are normally included as the cost of treatment and relies on K.W. v. Aviva Insurance Canada, 2020 CanLII 12709 (ON LAT).

30The respondent relies an explanation of benefits letter dated February 20, 2024 approving the sixteen sessions for psychological treatment and notes that insurers are not liable for administration or other costs, overhead, fees, expenses, charges or surcharges that have the result of increasing the effective hourly rates, or fees, beyond what is permitted under the Professional Services Guideline – Superintendent’s Guideline No. 03/14 (the “Guideline”), and notes taxes were erroneously applied to the psychology counselling sessions.

31While I am not bound by previous Tribunal decisions, upon review of [H.R.] v. Intact Insurance Company, and Patton v. Aviva Insurance Company, these decisions are also guided by the rates authorized by the Guideline. To put another way, the Tribunal is not guided by the OPA/CAPDA the College of Psychologists of Ontario’s Standards of Professional Conduct in matters relating to the rates submitted as part of a treatment plan.

32The Guideline 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 charges 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.

33I acknowledge the applicant is arguing that the planning/service, ongoing progress and re-evaluation, review of external materials, and materials are crucial services, however, the applicant has not led evidence to demonstrate what is crucial about these services and why these services are crucial, or reasonable and necessary, in this case.

34I find that these services are a part of “administration costs, overhead, and related costs, fees, expenses, charges and surcharges” as noted the Guideline. Therefore, I find the planning/service, ongoing progress and re-evaluation, review of external materials, and materials in the treatment plan are not reasonable and necessary.

35The respondent submits that the treatment plan is identical to the plan submitted earlier on October 2, 2023, however, I was not directed to evidence in support of this, and in my view, the insurer does not have authority to pay an amount less than what is listed as the cost for documentation, support activity.

36The OCF-18 prepared and submitted by the applicant includes the relevant and necessary details, including the applicant’s injuries, goals of the treatment plan, how the applicant’s progress will be evaluated, details of the proposed goods or services and the corresponding health care provider for each service, and there are extensive additional comments.

37I find on a balance of probabilities the applicant is entitled to the claimed amount for the completion of the OCF-18. She is not entitled to planning/service, ongoing progress and re-evaluation, review of external materials, and materials.

Is the applicant entitled to the occupational therapy services in the amount of $479.68?

38I find the applicant has proven entitlement to the balance of the treatment plan for $479.68.

39The treatment plan, prepared by Michelle Leclerc, occupational therapist, in the amount of $1,722.98 was partially approved for $1,243.30 that includes documentation, support activity, assessment, total body, provider travel time, and documentation, support activity. At issue is the remaining $479.68 comprised of brokerage, service, and three hours of documentation, support activity.

40The Additional Comments for this treatment plan note “The proposed OCF-18 is for an Occupational Therapy completion of Form 1 attendant care re-assessment to evaluate client’s physical, psychosocial, functional and safety requirements.” Both parties submit that this treatment plan involves an attendant care assessment.

41Section 25(5)(a) provides that the respondent is not liable to pay more than $2,000.00 plus HST for fees and expenses for conducting any one assessment or examination and the preparation of the related report.

42The applicant submits the brokerage, service and documentation, support activity are vital services and that this involves reviewing medical documentation, coordinating with existing providers, detail functional limitations across multiple domains, and prepare appropriate assessment tools that are required for a comprehensive assessment. The applicant relies on Patton to support her position that the proposed amount is reasonable and necessary. The applicant states that the Tribunal ruling in Patton notes that planning time is an appropriate cost that cannot be characterized as administrative or overhead.

43The respondent submits the partial approval of five hours for documentation is more than enough time to generate the report and the applicant has not met her onus to demonstrate the additional three hours of documentation support or the brokerage, service fees are reasonable and necessary. The respondent further submits the applicant provides no reason for brokerage, service fees for a one-time assessment, however, the OCF-18 notes the fee is for “medical file review, advice telephone, advisory health, delegation, clinical support activities on client’s behalf, monitoring, referral, initiating or maintaining a collaborative process to assess, plan, implement, coordinate, monitor and/or evaluate the options and services required to meet a client’s health care needs”.

44I find the applicant has demonstrated the brokerage, service and the remaining documentation, support activity is reasonable and necessary. The respondent partially approved the assessment; however, the respondent does not refer to the Guideline to vary the fees stated within treatment plan. In my view, the service provider is within the limits set in section 25(5)(a) and the service provider is also best placed to understand and determine the time and associated effort required for the completion of the services.

45I find the applicant has proven on a balance of probabilities that she is entitled to the unapproved balance of the treatment plan in the amount of $479.68.

Is the applicant entitled to case management services in the amount of $3,690.39?

46I find the applicant is entitled to the unapproved case management services.

47Pursuant to section 17(1)(b) of the Schedule, medical or rehabilitation benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of the accident for services provided by a qualified case manager in accordance with a treatment and assessment plan under section 38;

a) If the insured person sustains a catastrophic impairment as a result of the accident; or

b) If the optional medical, rehabilitation and attendant care benefit referred to in paragraph 4 of subsection 28(1) or the catastrophic impairment benefit referred to in paragraph 5 of subsection 28(1) is available to the insured person.

48Hourly rates of case management officers are addressed in the Guideline, and the applicant acknowledges the maximum hourly fee of $89.07 for case management services.

49The treatment plan, prepared by Michelle Leclerc, occupational therapist, in the amount of $5,043.00 was partially approved for $1,352.61 that included completing claim forms, facilitation, cognition and learning, provider travel time, documentation, and planning, service.

50The parties do not dispute the qualifications of the case manager or the maximum hourly rate of $89.07 for a case manager. At issue is the remaining hours for documentation, support recovery, and the remaining hours for planning services.

51The applicant submits the remaining unapproved amount for four hours of documentation and the unapproved 15 hours of planning services are necessary. The applicant argues complexity of her injuries requires sophisticated coordination between medical specialities to ensure treatments do not conflict or exacerbate other conditions and the applicant’s family crisis involving both of her adult daughters requires comprehensive case management coordination.

52The applicant relies on the Case Management Report prepared by Ms. Natalie Hopkins, social worker, dated May 9, 2024, to demonstrate the full eight hours are required to complete the volume of work required. The Case Management Report details a series of priority recommendations including facilitating necessary referrals for medical and therapy needs, reviewing medical and rehabilitation documentation, acting as liaison between all service providers and providing ongoing collaboration to ensure continuity of care, addressing risk factors and barriers to treatment, coordinating team meetings regarding the applicant’s ongoing care and long-term rehabilitative goals. The applicant argues this corresponds to the 20 hours of planning services.

53The respondent submits the remaining four hours are excessive or unnecessary and reduced the documentation, support activity noting four hours should be more than sufficient. The respondent also submits the planning services were excessive and reduced to five hours, and the hourly rate was reduced from $145.00 per hour to the maximum of $89.07 per hour for a case manager.

54I have reviewed the evidence, and I find the applicant has demonstrated the unapproved four hours of documentation, support activity and the unapproved 15 hours of planning services are reasonable and necessary. The respondent has not referred to any guiding authority or expert opinion to vary the time required as described in the treatment plan and the service provider is best suited to determine both the time and effort required to complete these services in consideration of the applicant’s injuries and long-term health and recovery objectives.

55I find on a balance of probabilities the applicant is entitled to 4 hours for documentation support, and 15 hours of planning services at the maximum hourly wage of $89.07 in accordance with the Guideline.

Interest

56Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that interest applies on the psychological services treatment plan, the occupational therapy plan, and the case management services.

Award

57The applicant sought 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.

58The applicant submits the respondent’s pattern of delaying treatment and unreasonable withholding of benefits has caused further deterioration in her physical condition and mental well-being. The applicant seeks the maximum amount of 50 per cent of the withheld sums. The applicant argues the respondent continues to request updated medical reports and refers to the respondent’s ongoing denial of treatment plans based on the OCF-18 and supporting diagnosis from a qualified medical practitioner.

59The respondent submits its behaviour is not excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

60I find an award is not appropriate because the applicant has not led evidence to demonstrate that the respondent’s behaviour was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The respondent has partially approved treatment plans and did not withhold payments. The respondent is not liable to pay an award.

61I find the applicant has not met the threshold to demonstrate the respondent’s behaviour merits an award.

ORDER

62For the reasons outlined above, I find:

i. The applicant is not entitled to the physiotherapy treatment plan.

ii. The applicant is partially entitled to the psychological services plan for the OCF-18 form completion, plus interest.

iii. The applicant is entitled to the occupational therapy treatment plan, plus interest.

iv. The applicant is entitled to case management services, plus interest.

v. The respondent is not liable to pay an award.