Licence Appeal Tribunal File Number: 24-014036/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:
Robin Diaz
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
VICE-CHAIR:
Julian DiBattista
APPEARANCES:
For the Applicant:
Siona Sullivan, Counsel
For the Respondent:
Tresa S Zacharia, Counsel
HEARD: In Writing
OVERVIEW
1Robin Diaz, the applicant, was involved in an automobile accident on March 31, 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 $3,385.20 for a rehabilitation assistant, proposed by FunctionAbility in a treatment plan/OCF-18 (“plan”) submitted June 4, 2024?
ii. Is the applicant entitled to $4,528.01 for physiotherapy, massage, and gym membership, proposed by St.Catharine’s Physiotherapy Center in a treatment plan submitted August 19, 2024?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the disputed treatment plans or interest.
4This application is dismissed.
ANALYSIS
The applicant is not entitled to the disputed treatment plans
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.
The applicant is not entitled to the plan dated on June 4, 2024
6I find that the applicant is not entitled to the disputed plan.
7This plan was prepared by Ms. S. Hughes, occupational therapist.
8The plan proposes the following:
| Description | Rate | Count | Cost |
|---|---|---|---|
| Preparation of OCF-18 | $200.00 | One-time | $200.00 |
| Therapy, motor and living skills | $116.38/session (2 hours) | 12 sessions | $1,396.56 |
| Provider travel time, provider to treatment | $40.73 (0.7 hours) | 12 sessions | $488.76 |
| Provider milage | $22.00 (40km) | 12 sessions | $264.00 |
| Documentation support activity | $290.95 (5 hours) | One-time | $290.95 |
| Brokerage Service | $232.76 (4 hours) | One-time | $232.76 |
| Claimant transportation to treatment | $8.25 (15km) | 12 sessions | $99.00 |
| Activity Fund | $100.00 | One-time | $100 |
| Tax | $313.17 | ||
| Total | $3,385.20 |
9The goals of the plan are as follows:
i. Pain reduction;
ii. Improve self-management pain symptoms;
iii. Improve management of psych-emotional symptoms;
iv. Improve activity tolerance;
v. Return to activities of normal living;
vi. Improve safety and confidence in the community;
vii. Improve independence with pre-collision instrumental routines; and
viii. Improve Ms. Diaz’s ability to apply coping strategies while in the community.
10The applicant submits that that as she suffered from psychological injuries following the collision, namely post traumatic stress disorder (PTSD), driving anxiety and social isolation, the rehabilitation assistant is required to reintegrate the applicant into the community at a therapeutic pace.
11The respondent submits that the plan was denied based on a lack of evidence within the medical records justifying the need for rehabilitation assistance.
12The respondent further submits a s. 44 assessment of Dr. P. Bansal, physician. Dr. Bansal assessed the applicant on August 21, 2024, where the applicant stated that she independently attends a gym on the advice of her physiotherapist 3 times per week where she swims, uses a hot tub, sauna, and lays out in the sun.
13I agree with the respondent. The onus is on the applicant to prove that a treatment plan is reasonable or necessary. The existence of a psychological condition does not justify the need for a rehabilitation assistant absent supporting medical evidence. The applicant has not adduced any medical evidence which supports a rehabilitation assistant.
14In addition, the applicant has stated to Dr. Bansal that she is able to participate in self-directed therapy at her local gym, showing her ability to participate independently in the community. This directly contradicts the applicant’s submissions on the need for a rehabilitation assistant.
15Therefore, on the balance of probabilities, I find that the applicant has not met her onus to prove that the services of a rehabilitation assistant are reasonable or necessary.
The applicant is not entitled to the plan dated on August 19, 2024
16The applicant is not entitled to the disputed treatment plan.
17The plan was proposed by Ms. L. Dickie, physiotherapist.
18The plan proposed the following:
| Description | Rate | Count | Cost |
|---|---|---|---|
| Physiotherapy | $99.75/hour | 24 hours | $2,394.00 |
| Massage Therapy | $58.19/hour | 24 hours | $1,396.56 |
| Documentation support activity | $70.00 | One-time | $70.00 |
| Gym Membership | $485.90 | One-time | $485.90 |
| Tax | $181.55 | ||
| Total | $4,528.01 |
19The goals of the plan are:
i. Pain reduction;
ii. Increased range of motion;
iii. Increased strength;
iv. Return to activities of normal living;
v. Return to pre-accident work activities; and
vi. Initiate work condition program to be completed in clinic.
20The applicant submits that the plan is reasonable and necessary based on an MRI report of Dr. R Shergill, radiologist. The applicant underwent a right shoulder MRI on April 1, 2025. Dr. Shergill notes that the applicant has a full-thickness tear of the supraspinatus and an additional partial-thickness tear of the superior subscapularis.
21The applicant further relies on a clinical note from Dr. N Sacevich, orthopaedic surgeon. Dr. Sacevich ordered the MRI noted above and recommended that the applicant undergoes a surgical arthroscopic rotator cuff repair.
22Dr. Sacevich attributed the applicant’s supraspinatus tear to the accident. Dr. Sacevich noted that the applicant was previously diagnosed with a partial tear of the supraspinatus 3 years prior and the injury was being managed by her family physician in the community.
23The applicant further submits that the gym membership is reasonable and necessary as this was conceded by the adjuster in a letter dated December 5, 2023.
24The respondent submits that the applicant’s supraspinatus tear existed before the accident and that the applicant has not established that any changes in her shoulder are related to the subject accident. In support of this, the respondent submits a bilateral shoulder ultrasound report of Dr. T. Macnab, radiologist, dated May 3, 2021, which shows the full thickness tear existed prior to the accident. The respondent further submits a letter from Dr. M. Denkers, orthopaedic surgeon, who on July 16, 2021 recommended the applicant pursue surgical repair of the right rotator cuff tendons.
25The respondent further submits that Dr. Bansal in a s. 44 paper review stated the applicant has reached maximal medical improvement from a musculoskeletal injury perspective in relation to the accident. He saw no valid signs of musculoskeletal, orthopaedic or neurological injury when he assessed the applicant on August 21, 2024.
26The applicant submits that Dr. Bansal’s report should be given limited weight as he states that there is no indication of tendinopathy or bursitis in her shoulders. The applicant further submits that Dr. Bansal is incorrect as an ultrasound report dated July 11, 2024 shows tendinopathy.
27However, I note that the applicant has mischaracterized Dr. Bansal’s statements. Dr. Bansal wrote, “There is no indication of an active tendinopathy or bursitis” when discussing his physical examination of the applicant, not that there is no indication of tendinopathy or bursitis in her shoulders.
28When discussing his review of the imaging, Dr. Bansal noted that tendinopathy was present on the imaging he reviewed.
29For this reason, I will not discount the weight assigned to Dr. Bansal’s evidence as requested by the applicant.
30Dr. Bansal further notes in his assessment of the applicant that bilateral shoulder active range of movement was demonstrated to full throughout all orthopaedic planes. There was no indication of an active tendinopathy or bursitis or any indication of shoulder instability bilaterally.
31I give significant weight to the opinion of Dr. Bansal because he had full knowledge of the applicant’s clinical history, namely the tear of the supraspinatus which occurred prior to the accident.
32Dr. Sacevich, however, did not have this history. His understanding was that the applicant had only partially tore her supraspinatus. This understanding is contradicted by the medical evidence. The ultrasound report of May 3, 2021, and the subsequent report from Dr. Denkers both demonstrate that the applicant had completely torn her supraspinatus before the accident.
33It appears that Dr. Sacevich was not aware that the applicant had been diagnosed with the injury pre-accident or that the applicant previously engaged with an orthopaedic surgeon in July of 2021. I therefore give less weight to Dr. Sacevich’s opinion as he did not have complete awareness of the applicant’s clinical history.
34It is clear from the medical evidence that the applicant had torn her right supraspinatus tendon prior to the accident and had agreed to surgical repair.
35The existence of a tear does not satisfy the burden to prove the treatment proposed is reasonable and necessary. The applicant has not adduced medical evidence showing the impact of the tear on her abilities and function, which Dr. Bansal has evaluated as a full active range of motion.
36Further, I am not swayed by the applicant’s submission that the respondent conceded a gym membership was necessary in a December 5, 2023 letter.
37This treatment plan was submitted on August 19, 2024. The fact that the respondent approved the items proposed in this plan previously in December of 2023 has no bearing on whether additional treatment is required in August of 2024.
38Therefore, I find that the applicant is not entitled to the disputed treatment plan.
Interest
39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, there is no entitlement to interest.
Award
40The 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.
41Despite not being listed as an issue in dispute in the Tribunal’s order dated February 13, 2025, the applicant has made submissions outlining her entitlement to an award.
42However, as I have found that no benefits have been unreasonably withheld, there is no basis for me to consider entitlement to an award.
ORDER
43For the reasons above I find that:
i. The applicant is not entitled to the disputed treatment plans; and
ii. No interest is payable.
44This application is dismissed.
Released: April 16, 2026
__________________________
Julian DiBattista
Vice-Chair