Citation: Estabillo v. Aviva General Insurance Company, 2026 ONLAT 24-010388/AABS

Licence Appeal Tribunal File Number: 24-010388/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:

Kevin J. Estabillo

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Matthew Frontini

For the Applicant: Navneeth Krishnan, Counsel

For the Respondent: Jonathan White, Counsel

HEARD: By way of written submissions

1Kevin Estabillo, the applicant, was involved in an automobile accident on September 21, 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 $3,195.84 for physiotherapy services, proposed by E Clinic United Healing in a treatment plan/OCF-18 (the “physiotherapy treatment plan”) dated April 18, 2024?

ii. Is the applicant entitled to $1,945.78 for other assistive devices, proposed by Hydro Health Evaluations Inc. in a treatment plan/OCF-18 dated July 11, 2023?

iii. Is the applicant entitled to $2,460.00 for a chronic pain assessment (the “chronic pain assessment plan”), proposed by Hydro Health Evaluations Inc. plan March 21, 2023?

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

RESULT

3I find that:

i. The applicant is not entitled to $3,195.84 for physiotherapy services, proposed by E Clinic United Healing in a treatment plan dated April 18, 2024;

ii. The applicant is not entitled to $1,945.78 for other assistive devices, proposed by Hydro Health Evaluations Inc. in a treatment plan dated July 11, 2023;

iii. The applicant is entitled to $2,460.00 for a chronic pain assessment, proposed by Hydro Health Evaluations Inc. in a treatment plan dated March 21, 2023; and

iv. The applicant is entitled to interest in respect of the chronic pain assessment plan in accordance with s. 51 of the Schedule.

PROCEDURAL ISSUES

4Copies of the OCF-18s were not submitted as evidence for the purposes of this hearing. It is well-established that the Tribunal is obligated to ask parties to submit information that it believes a party meant to rely upon as evidence that formed the basis of the parties’ dispute. J.R. v. Certas Home and Insurance Company, 2018 CanLII 13161 at paras 22 – 25; [G.J] v. Aviva Insurance Canada, 2023 CanLII 84400 at para 9; Ahmadi v Intact Insurance, 2024 CanLII 106222 (ON LAT) at para 68, Cardoso v Definity Insurance Company, 2026 CanLII 4110 (ON LAT) at para 93. In accordance with this obligation, on April 2, 2026, the Tribunal reached out to both parties and allowed them to submit the complete OCF-18s by 5:00 PM on or before April 10, 2026.

5The respondent responded by declining the Tribunal’s request and providing email submissions on the alleged impropriety of the request. The respondent submitted that it was the applicant’s onus to prove his claim and to put the OCF-18s into evidence, that it had responded to the applicant’s submissions based on their totality. The respondent submitted that admitting the treatment plans now would be to admit new evidence and be unfairly prejudicial to the respondent. These submissions largely mirror the arguments advanced by the respondent in its hearing submissions, except, in those earlier submissions the respondent argued that the applicant was foreclosed from providing the OCF-18s in his reply, as they would constitute new evidence and argument.

6The applicant provided the OCF-18s on April 7, 2026, and also engaged with the respondent’s email submissions outlined above. The applicant’s submissions noted that the respondent had not identified any true prejudice and following the respondent’s arguments would be contrary to the Tribunal’s mandate to resolve disputes on their merits.

7While the Tribunal’s April 2, 2026, request to the parties did not include a request for submissions, given that they have made submissions and fully engaged on the issue, I have considered those submissions.

8I find that the respondent’s submissions are unpersuasive. As an initial matter, the Tribunal derives its authority from the Statutory Powers Procedure Act, RSO 1990, c S.22 (“SPPA”). Section 2 provides that its provisions and any tribunal rule made pursuant to the SPPA “shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.” (emphasis added). The SPPA’s emphasis on resolving disputes on their merits is reflected in Rule 3.1(b) of Licence Appeal Tribunal Rules, 2023. The SPPA’s emphasis on resolving disputes on their merits where OCF-18s have not been filed as evidence has been applied by Tribunal as reflected in jurisprudence set out above.

9The respondent has also failed to establish that the OCF-18s are new evidence, or that it would be prejudiced if these documents were submitted to the Tribunal. The respondent denied the OCF-18s, which form the basis of this dispute and as such, it was aware of both the existence of the OCF-18s and the reasons for their denials. Moreover, the respondent’s hearing submissions rely on section 44 assessment reports that specifically engage with the reasonableness and necessity of the OCF-18s in dispute. Cleary the respondent had the opportunity, and used it, to fully engage with the disputed OCF-18s. I do not accept the respondent’s argument.

10I have accepted the OCF-18s provided by the applicant and will now proceed to consider the merits of the issues before me.

ANALYSIS

The applicant is not entitled to the physiotherapy treatment plan

11I find that the applicant has not established on balance and probabilities that the goods and services in the physiotherapy treatment plan prepared by E Clinic United Healing, dated April 18, 2024, in the amount of $3,195.84, are reasonable and necessary.

12To 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.

13The applicant’s submissions describe his ongoing, accident-related pain and functional limitations as requiring facility-based physiotherapy treatment. The applicant’s ongoing pain and functional limitations are supported by the clinical notes and records of his attendance at E-Health United Healing Clinic following the accident up to May 9, 2024.

14The applicant also relies on a letter from his family doctor, Dr. Hsu, dated December 10, 2024, which, in a single sentence, provides a diagnosis of mechanical low back strain and states that the application “requires physiotherapy.” There are no details as to the nature of this recommended physiotherapy, its duration or cost. Further, the applicant’s submissions do not identify any evidence of a healthcare practitioner recommending the goods and services set out in the physiotherapy treatment plan in dispute.

15The applicant has not established on balance of probabilities that the physiotherapy treatment plan is reasonable and necessary. The applicant has not provided submissions or identified convincing evidence regarding the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable. As such, the applicant has not met his burden under the Schedule and is not entitled to the plan.

The applicant is not entitled to the treatment plan for other assistive devices

16I find that the applicant has not established on balance and probabilities that the goods and services in the treatment plan prepared by Hydro Health Evaluations Inc., dated July 11, 2023, in the amount of $1,945.78, are reasonable and necessary.

17As described above, the applicant’s submissions do not engage with the specifics of any of the treatment plans in dispute. The applicant’s submissions and evidence do not address the nature of the goods or services in this treatment plan whatsoever. His submissions do not identify the goals of the treatment, how the goals would be met to a reasonable degree by the goods and services and whether the overall costs of achieving them are reasonable.

18Given the absence of submissions on these key details, I find that the applicant has not established on a balance of probabilities that the treatment plan for other assistive devices is reasonable and necessary.

The applicant is entitled to the treatment plan for a chronic pain assessment

19I find that the applicant has established on balance and probabilities that the goods and services in the chronic pain assessment plan are reasonable and necessary.

20The plan, dated April 4, 2023, is recommended by Dr. Grigory Karmy, physician, Dr. David Huang, chiropractor. It describes the applicant’s persistent pain complaints and has the applicant’s return to normal living and restoration of function as goals.

21In considering the reasonableness and necessity of an assessment, the applicant bears the onus to demonstrate on a balance of probabilities that there are grounds on which to believe that a condition exists that would warrant further investigation.

22While the applicant’s submissions do not specifically engage with the chronic pain assessment plan, they do describe a consistent pattern of pain and functional impairment post-accident. These submissions are supported by medical evidence, which includes the diagnosis of back strain by the applicant’s family doctor on December 10, 2024, and the records of the applicant’s attendance at E-Clinic United Healing, which report complaints of pain and limitations up to May 9, 2024 – nearly three years post-accident.

23The respondent argues that the applicant has failed to meet his onus because he did not include the disputed OCF-18s as evidence. As discussed above, I rejected these arguments and have considered the OCF-18s in connection with the applicant’s initial hearing submissions.

24The respondent also raises three other arguments against the applicant’s entitlement to the chronic pain assessment plan: (1) the applicant does not meet the criteria for chronic pain syndrome under the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition; (2) that because the assessment is available through OHIP, s. 47(2) of the Schedule obviates payment; and (3) the assessment does not meet the eligibility criteria in s. 25(1) of the Schedule and is therefore not payable. I also do not find these arguments persuasive.

25First, the respondent’s argument that the applicant does not meet the AMA criteria for chronic pain syndrome is misplaced. The relevant test for entitlement to an assessment of a condition is whether the applicant has established that there is evidence that warrants further investigation into the condition, not that he has established that the condition requiring investigation exists.

26The respondent has also not established on a balance of probabilities that the exception to payment provided in s. 47(2) is warranted. The respondent submits that this assessment is available through OHIP and therefore reasonably available to the applicant through another plan. However, the respondent has not submitted any evidence in support of this submission. Submissions are not evidence and in the absence of supporting evidence, I find that the respondent cannot rely on s. 47(2).

27Finally, the respondent argues that the assessment is not payable because it does not meet the eligibility criteria for payment set out in s. 25(1). I disagree. This assessment satisfies s. 25(1)(3)(ii), which applies to reasonable fees charged for a treatment and assessment plan under s. 38, including any assessment or examination necessary for that purpose. Section 38(1)(b) clearly states that this section is applicable to all applications for approval of assessments or examinations. Further, the respondent has not provided any authority in support of its interpretation of s. 25(1), which, if accepted, would be contrary to the consumer protection and remedial intent of the Schedule.

28Finally, the respondent also submits that the applicant was diagnosed with “back strain” by his family doctor on June 13, 2019, which the respondent claims is “some three months before the accident.” While the respondent raises this argument in connection with the physiotherapy treatment plan, the implication is that the applicant’s chronic back pain was present shortly before the accident, rather than caused by the accident. I do not find this argument persuasive as it is founded on a factual error. The June 13, 2019 diagnosis predates the accident by over three years, not three months.

29I find that the applicant has established on a balance of probabilities that the chronic pain assessment plan is reasonable and necessary. The evidence establishes consistent reporting of pain and functional limitations nearly three years after the accident. This evidence is sufficient to warrant investigation into the applicant’s chronic complaints of pain as reflected in the disputed treatment plan for a chronic pain assessment.

Interest

30Interest applies on the payment of any overdue benefits in respect of the chronic pain assessment plan pursuant to s. 51 of the Schedule.

ORDER

31I find that: