Licence Appeal Tribunal File Number: 24-013908/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:
Ron Bekman
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Jeff Chatterton
APPEARANCES:
For the Applicant: Julia Logoutova, Paralegal
For the Respondent: Adel Pippo, Counsel
HEARD: In Writing
OVERVIEW
1Ron Bekman, the applicant, was involved in an automobile accident on November 17, 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 $1,270.27 for physiotherapy services, proposed by 2430303 Ontario Inc in a treatment plan/OCF-18 dated October 23, 2023?
ii. Is the applicant entitled to $1,270.27 for physiotherapy services, proposed by 2430303 Ontario Inc in a treatment plan/OCF-18 dated November 28, 2023?
iii. Is the applicant entitled to $2,300.00 for a chronic pain assessment, proposed by 2430307 Ontario LTD in a treatment plan/OCF-18 dated October 26, 2023?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not met his onus to demonstrate that the treatment plans in dispute are reasonable and necessary. 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.
Are the physiotherapy treatment plans reasonable and necessary?
5The applicant has not met his onus to determine that the treatment plans for physiotherapy are reasonable and necessary.
6In dispute are two treatment plans submitted by chiropractor Dr. Paul Bruni, calling for multiple sessions of massage and chiropractic treatments. The applicant is claiming to require the treatments to address pain in his back and neck, as well as difficulty sleeping and periodic headaches.
7The applicant argues there is abundant evidence outlining the benefits of the facility-based therapy in dispute. He has included multiple reports from 2430307 Ontario Limited and 2430303 Ontario Limited, which include (but are not limited to):
(a) Independent Psychological Assessment Report dated June 6, 2023;
(b) Functional Abilities Evaluation report dated June 2, 2023;
(c) Self-Directed Exercise Progress Report dated June 28, 2023;
(d) Neurology assessment report dated June 28, 2023;
(e) Driving Reintegration Evaluation report dated July 13, 2023;
(f) Aquatherapy report dated August 30, 2023; and
(g) Independent Orthopedic Examination report dated September 15, 2023.
8The applicant has also included for my consideration the Clinical Notes and Records (CNRs) from his primary care physician, Dr. Irina Safir.
9The respondent argues the applicant has not met his onus and has failed to provide objective medical evidence to demonstrate that the proposed treatments are reasonable and necessary. It also relies on a s.44 IE report from GP Dr. Alikhan, dated February 15, 2024.
10In his submissions, the applicant argues that Dr. Alikhan’s report should be given little weight. The applicant claims that Dr. Alikhan is clearly mistaken. This is because the report states that the applicant admitted he only attended one session of physiotherapy. The applicant argues it is abundantly clear that the applicant attended multiple sessions over many months, and the clinical notes and records and sign-in sheets support this fact.
11I am aware Dr. Alikhan states the applicant has only attended one session of physiotherapy. While I understand the applicant’s argument, I do not read that as a statement of fact, but merely reporting what he was told by the applicant. The other findings regarding treatments and healing times are not contested by the applicant, and regardless of what was said, I do note that Dr. Alikhan found the applicant has achieved maximum medical recovery and would receive no further benefit from physiotherapy services.
12While I am alive to the evidence from the applicant stating that he has attended far more than a single session of physiotherapy, I cannot use that as a reference to determine what was said to Dr. Alikhan during the insurer’s examination itself.
13Quite simply, I was not present during the examination, nor do I have the ability to ask questions directly of either the applicant and/or Dr. Alikhan to determine what was said.
14For this reason, I will include Dr. Alikhan’s report in my consideration of evidence.
15However, even without Dr. Alikhan’s report, I am not convinced by the applicant’s evidence. The reason I find this is because while there are multiple reports (partially outlined in paragraph 10, above) I have not been led to specific evidence which recommends physiotherapy.
16Upon review of the family doctor CNRs, I further note only one medical visit after the accident to the applicant’s primary care physician, several months prior to the treatment plans’ creation, referencing that the applicant had sore ribs. The applicant has not directed me to any additional evidence, such as follow-up visits to the primary care physician, to indicate that physiotherapy was being recommended by his doctor, or that the applicant was receiving benefit from physiotherapy treatments.
17I do not find that the applicant has met his onus, based primarily on the lack of objective medical evidence to indicate he requires further facility based care 14 months after a rib fracture. This finding is supported by Dr. Alikhan’s IE report.
18For these reasons, I find the applicant has not, on the balance of probabilities, met his onus to demonstrate that the physiotherapy treatment plans are reasonable and necessary.
Is the applicant entitled to a Chronic Pain Assessment?
19The applicant is not entitled to a chronic pain assessment.
20The 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.
21The applicant argues he is entitled to a chronic pain assessment, and to support his claim, he relies on the CNRs and medical reports outlined in paragraph 7, above.
22The respondent states that the applicant has not met his onus, and has not provided any objective medical evidence to indicate he is dealing with chronic pain.
23I agree with the respondent for much the same reason I stated in paragraphs 14 through 16. I have not been led to medical evidence which supports the finding that the applicant is suffering from chronic pain, that he is dealing with chronic pain symptoms, or that further investigation by way of a chronic pain assessment, is warranted.
24Upon my review of the CNRs from the family doctor, I have been directed to only one CNR entry from the applicant’s family doctor where he reported pain symptoms post-accident. This does not support the narrative of an applicant who is struggling with chronic pain.
25For these reasons, I find, on the balance of probabilities, that the applicant has not demonstrated entitlement to a chronic pain assessment.
Is the applicant entitled to any of the treatment plans because the respondent was non-compliant with s. 38(8)?
26The applicant claims he is entitled to the treatment plans in dispute because the denial letters he received from the insurance company violate section 38(8) of the Schedule, in that the insurer failed to provide an explanation as to which goods and services they refused to pay for.
27Section 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.
28I have reviewed all of the denial letters provided in the applicant’s submission of evidence, where the applicant has included denial letters dated November 1, 2023, November 15, 2023, December 1, 2023, and February 16, 2024.
29I do not find the respondent has violated s. 38(8) of the Schedule. The denial letters clearly identify the treatment plan, the services being requested, as well as a clear explanation of the fact that the insurer did not agree to pay for those services, and why they did not agree to pay for those services.
30In this particular case, the language used is similar, but complies with the Schedule, when the respondent wrote “At this time the medical documentation in file consists of 2 pages from Mackenzie Richmond Hill Hospital that has documented mildly displace fractures of the 10th and 11th ribs. The frequency of care does not generally diminish over time.” In all the letters, I find the respondent has clearly identified the treatment plan, the services requested, and the medical reason for the denial.
31While the applicant claims the insurer is incorrect about the nature of the treatment plans being proposed, as to what constitutes passive care versus active rehabilitation, I must point out that even if an insurance company were mistaken on a point of fact, that does not render the notice of denial out of compliance with the Schedule. I find that even IF a mistake has been made, this does not rise to the level of rendering the denial letters non-compliant.
32As I have found that the respondent has complied with s. 38(8) of the Schedule, I find the applicant has not, on the balance of probabilities, met their onus to demonstrate he is entitled to the treatment plans in by virtue of s.38(11).
Interest
33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.
ORDER
34The application is dismissed.
i. The applicant is not entitled to the treatment plans for physiotherapy.
ii. The applicant is not entitled to the treatment plan for a chronic pain assessment.
iii. The respondent has not violated section 38(8) of the Schedule.
iv. No interest is payable.
Released: April 20, 2026
Jeff Chatterton
Adjudicator