Lam v. Aviva General Insurance Company, 2026 CanLII 34328

Licence Appeal Tribunal

Citation: Lam v. Aviva General Insurance Company, 2026 ONLAT 24-010010/AABS

Licence Appeal Tribunal File Number: 24-010010/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:

Sau-Leung Lam Applicant

and

Aviva General Insurance Company Respondent

DECISION

ADJUDICATOR: Kathleen Wells

APPEARANCES:

For the Applicant: Sareena Samra, Counsel

For the Respondent: Gina Nardella, Counsel

HEARD: By way of written submissions

OVERVIEW

1Sau-Leung Lam, was involved in an automobile accident on June 3, 2020 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:

1. Is the applicant entitled to $320.00 ($4,383.90 less $4,063.90 approved) for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“treatment plan”) submitted June 22, 2022?
2. Is the applicant entitled to $320.00 ($4,069.56 less $3,749.56 approved) for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan submitted August 23, 2022?
3. Is the applicant entitled to $4,383.90 for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan submitted January 25, 2023?
4. Is the applicant entitled to $1,250.56 ($4,150.56 less $2,900.00 approved) for psychological services, proposed by Somatic Assessments and Treatment Clinic in a treatment plan submitted July 7, 2022?
5. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
6. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

1. The applicant is not entitled to the remaining balance of $320.00 for chiropractic services in the treatment plan submitted June 22, 2022.
2. The applicant is not entitled to the remaining balance of $320.00 for physiotherapy services in the treatment plan submitted August 23, 2022.
3. The applicant is not entitled to $4,383.90 for chiropractic services in the treatment plan submitted July 7, 2022.
4. The applicant is not entitled to the remaining balance of $1,250.56 in the treatment plan for psychological services submitted July 7, 2022.
5. As no payments are owing, no interest is due.
6. The applicant is not entitled to an award.
7. The application is dismissed.

ANALYSIS

4To 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.

Is the applicant entitled to $320.00 ($4,383.90 less $4,063.90 approved) for chiropractic services in a treatment plan submitted June 22, 2022?

5I find that the applicant has not established that the remaining balance of $320.00 in the treatment plan for chiropractic services dated June 22, 2022 is reasonable and necessary.

6The treatment plan dated June 22, 2022 was prepared by Dr. Georgia Palantzas, chiropractor. It seeks a total of $4,383.90, including $200.00 for a reassessment, $1,804.96 for chiropractic treatment, $902.56 for exercise/strength and balance training, $902.56 for acupuncture, $254.82 for a progress report and $320.00 for travel assistance.

7The applicant submits that the treatment plan is reasonable and necessary because the applicant has incurred the treatment plan, and his family doctor reports that the applicant has improved due to physiotherapy, but that the applicant has not returned to his pre-accident function.

8The respondent argues that it approved the amount of $4,063.90, and denied the $320.00 travel charge, because the respondent is not liable to pay for the first 50 kilometres of transportation, the applicant is not catastrophically impaired, and he lived 7.6 kilometres from his treatment provider at the time the treatment plan was submitted.

9The Transportation Expenses Guideline published by FCSO, sets out that, unless the insured has a catastrophic impairment as a result of the accident, the insurer is not liable to pay for the first 50 kilometres of transportation for any round trip to treatment sessions.

10As the applicant has not made submissions or directed me to evidence with respect to the $320.00 balance remaining in the treatment plan, or the applicant’s eligibility for transportation expenses, I find that the applicant has not met his burden to prove on a balance of probabilities that the remaining balance of $320.00 is reasonable and necessary.

Sections 38(8) and 38(11)

11The applicant also submits that the treatment plan is payable under s. 38(11) because the respondent did not provide sufficient medical or other reasons for the denial to comply with s. 38(8) of the Schedule. The respondent argues that the July 6, 2022 Explanation of Benefits (EOB) is compliant with s. 38(8).

12Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has a impairment to which the MIG applies.

13I find that the EOB complies with s. 38(8) because it approves $4,063.90 and provides a detailed explanation of its denial of the $320.00 transportation charge, and the Transportation Expenses Guideline, a valid “other reason” for a denial, and provides information about the applicant’s right to dispute the denial and the process by which to do so. As such, I find that the EOB is sufficiently clear and detailed for an unsophisticated person to make an informed decision whether to dispute the denial. Therefore, the remaining balance of $320.00 is not payable under s. 38(11).

14Accordingly, the applicant is not entitled to the remaining balance of $320.00 in the treatment plan for chiropractic services dated June 22, 2022.

Is the applicant entitled to $320.00 ($4,069.56 less $3,749.56 approved) for physiotherapy services in a treatment plan submitted August 23, 2022?

15I find that the applicant has not established that the remaining balance of $320.00 in the treatment plan for physiotherapy services dated June 22, 2022 is reasonable and necessary.

16The treatment plan dated August 23, 2022 and prepared by Ahmed Afifi, physiotherapist, seeks a total of $4,069.56, including $200.00 for an assessment, $1,596.00 for physiotherapy, $798.08 for active therapy, $931.04 for massage therapy, $224.44 for a progress report, and $320.00 for travel assistance.

17The applicant submits that the treatment plan is reasonable and necessary, because it has been incurred and the applicant requires further psychological treatment. The applicant but does not address the remaining amount of $320.00.

18The respondent submits that it approved $3,749.56, and denied the $320.00 because the applicant was not catastrophically impaired and lived 4.7 kilometres from the treatment provider at the time the treatment plan was submitted. The respondent argued that it is not liable to pay for travel expenses in accordance with the Transportation Expenses Guideline, as outlined above.

19As the applicant has not made submissions or directed me to evidence with respect to the $320.00 amount remaining in the treatment plan, or his eligibility for transportation expenses, I find that the applicant has not met his onus to prove on a balance of probabilities that the remaining balance of $320.00 is reasonable and necessary.

Sections 38(8) and 38(11)

20The applicant further submits that the remaining balance of $320.00 is payable under s. 38(11) because the EOB did not provide sufficient medical or other reasons for the denial to comply with s. 38(8). The respondent argues that the September 6, 2022 EOB is a valid denial.

21I find that the September 6, 2022 EOB is a valid denial, as it clearly approves the amount of $3,749.56, and provides a detailed explanation for its denial of the transportation charge of $320.00, and the Transportation Expenses Guideline, as well as information about the applicant’s right to dispute the notice, and the process by which to do so. Overall, I find that the EOB is sufficiently clear and detailed for an unsophisticated person to make an informed decision whether to dispute the denial. As a result, the remaining balance of $320.00 is not payable under s. 38(11).

22Accordingly, the applicant is not entitled to the remaining balance of $320.00 in the treatment plan for physiotherapy services dated August 23, 2022.

Is the applicant entitled to $4,383.90 for chiropractic services in a treatment plan submitted January 25, 2023?

23I find that the applicant has not established on a balance of probabilities that the treatment plan for chiropractic services dated January 25, 2023 is reasonable and necessary.

24The goals of the treatment plan prepared by Dr. Palantzas are pain reduction, increased strength, increase in range of motion, return to the activities of normal living, return to pre-accident work levels, return to modified work activities, “to minimize compensatory strain,” and “to promote soft tissue healing.”

25The treatment plan seeks a total of $4,383.90, including $200.00 for a reassessment, $1,804.96 for chiropractic treatment, $902.56 for exercise/strength and balance training, $902.56 for acupuncture, $254.82 for a progress report, and $320.00 for travel assistance.

26The applicant submits that the treatment plan is reasonable and necessary because he is experiencing ongoing pain from his accident-related injuries, and he has noted an improvement with physiotherapy.

27The respondent argues that the applicant has not met his onus to prove that the treatment plan is reasonable and necessary, because the goals of the treatment plan are not reasonable and the applicant has not addressed how the specific goals of the treatment plan will be met. The respondent further submits that Dr. Esmat Dessouki, orthopaedic surgeon, opined in his April 14, 2023 s.44 orthopaedic surgeon insurer’s examination (“IE”) report, that the applicant had reached maximum medical improvement from his accident-related injuries, and that the treatment plan was not reasonable and necessary.

28The applicant contends that the treatment plan is necessary to restore the applicant’s pre-accident function, however, I find that the evidence reveals that the applicants reports with respect to his function are inconsistent, With respect to his work function, the applicant told Raymond Wong, occupational therapist that he was on sick leave from work at his June 22, 2022 in-home assessment, however, a year earlier, he told Dr. Gilbert Yee, orthopaedic surgeon, at his April 14 2021 IE that he had returned to work as a part-time property manager after the accident, and could continue to work, but that his job was no longer available after the onset of the pandemic and the tenants moving out of the building he managed.

29Further, with respect to a return to his activities of daily living, the applicant reported to Mr. Wong and Dr. Naisi that he could no longer participate in cooking or cleaning. However, at his activities of daily living functional assessment IE on June 11, 2024, he told Laura Youm, occupational therapist that he did not perform meal preparation or housekeeping duties prior to the accident and that had not changed after the accident.

30In the treatment plan, Dr. Palantzas does not address the applicant’s level of improvement from previous rounds of physiotherapy, and as the respondent notes, the CNRs of Total Rehab Recovery do not reveal significant improvement from the more than 50 treatments previously approved by the respondent.

31The applicant submits that the CNRs of his family doctor, Dr. Yip, and the July 4, 2022 s. 25 psychological report of Dr. Sedigheh Naisi, psychologist, support that the applicant has experienced improvement from physiotherapy. I find, however, that Dr. Yip’s CNRs are handwritten and only partially legible, and where they are legible, they do not reveal contemporaneous comment about improvement as a result of physiotherapy, in the pages cited by the applicant.

32I assign more weight to Dr. Dessouki’s April 14, 2023 IE report, because he conducted an in-person assessment of the applicant which included an interview, a thorough review of the applicant’s medical records, and a physical examination. Dr. Dessouki observed that the applicant had a functional range of motion in the applicant’s neck, back, and shoulders. He noted some tenderness in the applicant’s neck and shoulders but no overt pain behaviours. The applicant’s medical history revealed the applicant reported that he had suffered neck and bilateral shoulder pain from a previous accident in 2017, and his x-ray imaging conducted revealed mild degenerative changes in his shoulders. Dr. Dessouki opined that based on the medical history, his interview and examination, there was no objective evidence of continuing impairments as a result of the applicant’s January 3, 2023 accident-related injuries.

33While pain relief is a legitimate goal of treatment, and I accept that the applicant has continued to complain of back and neck pain to his treatment providers and assessors in the 3 years since the accident, the evidence does not establish that the treatment plan is reasonable and necessary to achieve pain relief.

34The evidence reveals that the applicant’s reports of pain relief from physiotherapy are limited and inconsistent. The applicant reported to Dr. Naisi that his neck pain was relieved by physiotherapy, and told Dessouki that he had a 40% overall improvement in his symptoms in the more than 3 years since the accident. He also reported to Dr. Dessouki that acupuncture provided some relief from his neck pain, but that his shoulder pain was alleviated by medication. However, at his March 8, 2023 appointment, Dr. Mak, psychiatrist, noted that the applicant reported that he suffered from chronic pain in his neck and that he had received physiotherapy “to no avail.” As a result, I find that the applicant has not established on a balance of probabilities that further chiropractic treatment is reasonable and necessary to achieve pain relief.

35Finally, the applicant has not made submissions with respect to whether the overall cost of the treatment plan is reasonable and necessary.

36For these reasons, I find that the applicant has not met his onus to prove on a balance of probabilities that the treatment plan is reasonable and necessary.

37Accordingly, the applicant is not entitled to $4,383.90 in the treatment plan for chiropractic services, dated January 25, 2023.

Sections 38(8) and 38(11)

38The applicant further submits that the treatment plan was payable under s. 38(11) because the denial notice gave insufficient medical reasons for the denial. The applicant has not provided copies of the EOB in their submissions. The respondent provided the EOB, dated February 8, 2023, which I find to be a compliant denial, because the respondent explained that the applicant had not provided updated medical evidence to support the treatment plan, and informed the applicant that a s. 44 examination would be scheduled.

39Accordingly, the treatment plan is not payable under s. 38(11).

Is the applicant entitled to $1,250.56 ($4,150.56 less $2,900.00 approved) for psychological services in a treatment plan submitted July 7, 2022?

40I find that the applicant has not established on a balance of probabilities that the remaining balance of $1,250.56 in the treatment plan for psychological services is reasonable and necessary.

41The treatment plan dated July 7, 2022 was prepared by Dr. Sedigheh Naisi, psychologist. It seeks $4,150.56, comprising $2,393.76 for 16 one-hour psychotherapy treatments, $598.40 for a total of 4 hours for communication with others, $598.40 for a total of 4 hours of ongoing evaluation, $360.00 for a progress report, and $200.00 for the completion of the OCF-18 form.

42The applicant submits that the treatment plan is reasonable and necessary because the applicant has incurred the treatment plan, and his family doctor reports that the applicant has improved due to physiotherapy, but that the applicant has not returned to his pre-accident function.

43The respondent submits that treatment plan was partially approved in the amount of $2,900.00 and that the applicant has not met his onus to prove that the remaining balance is reasonable and necessary. The respondent argues that the remaining balance reflects a dispute over the hourly rate sought for the services to be provided by Samantha Szeto, social worker. The rate of $149.61 sought in the treatment plan is the hourly rate for psychologists as set out in the Professional Services Guideline Number 03/14 (“Guideline”), published by the Financial Services Commission of Ontario. As there is no rate set out in the Guideline for social workers, the amount is to be determined by the parties, and the respondent agreed to pay $100.00 per hour for a social worker.

44The applicant did not make submissions or direct me to evidence to address the difference in the hourly rate, or why the remaining balance of $1,250.56 is reasonable and necessary.

45As such, I find that the applicant has not met his onus to prove on a balance of probabilities that the remaining balance of $1,250.56 in the treatment plan for psychological services submitted on July 7, 2022 is reasonable and necessary.

Sections 38(8) and 38(11)

46The applicant further submits that the remaining balance of $1,250.56 is payable under s. 38(11) because the October 12, 2022 EOB did not provide sufficient medical or other reasons for the denial to comply with s. 38(8). The respondent argues that the October 12, 2022 EOB is a valid notice.

47I find that the October 12, 2022 EOB complies with s. 38(8) because it clearly states that the reason for the partial denial is due to the discrepancy between the hourly rate for a psychologist sought in the treatment plan, and the amount that the respondent agrees to pay for the services of a social worker, a valid “other reason” for a denial. The EOB also contains information about the applicant’s right to dispute the denial, and the process by which to do so. Overall, I find that the EOB is sufficiently clear and detailed for an unsophisticated person to make an informed decision whether to dispute the denial.

48Accordingly, the treatment plan is not payable under s. 38(11).

Interest

49Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are owing, no interest is due.

Award

50The 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. 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 these criteria.

51As the applicant has not made submissions or directed me to evidence that the respondent’s conduct was unreasonable, as defined above, I find that the applicant is not entitled to an award.

ORDER

52I find that:

1. The applicant is not entitled to the remaining balance of $320.00 for chiropractic services in the treatment plan submitted June 22, 2022.
2. The applicant is not entitled to the remaining balance of $320.00 for physiotherapy services in the treatment plan submitted August 23, 2022.
3. The applicant is not entitled to $4,383.90 for chiropractic services in the treatment plan submitted July 7, 2022.
4. The applicant is not entitled to the remaining balance of $1,250.56 in the treatment plan for psychological services submitted July 7, 2022.
5. As no payments are owing, no interest is due.
6. The applicant is not entitled to an award.
7. The application is dismissed.