Citation: Brown v. Aviva Insurance Canada, 2026 ONLAT 24-001247/AABS

Licence Appeal Tribunal File Number: 24-001247/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:

Oscar Lupeter Brown

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Kathleen Wells

APPEARANCES:

For the Applicant: Dayana Soto Santana, Paralegal

For the Respondent: Tresa Zacharia, Counsel

HEARD: By way of written submissions

OVERVIEW

1Oscar Lupeter Brown, the applicant, was involved in an automobile accident on June 3, 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 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:

1. Is the applicant entitled to the remaining $860.00 ($2,560.00 less $1,700.00 approved) for psychotherapy services, proposed by 101 Assessments in a treatment plan dated May 29, 2023?
2. Is the applicant entitled to $2,460.00 for neurological assessment, proposed by 101 Assessments in a treatment plan/OCF-18 (“treatment plan”) dated May 29, 2023?
3. Is the applicant entitled to $2,460.00 for a social work assessment, proposed by 101 Assessments in a treatment plan dated June 21, 2023?
4. Is the applicant entitled to $2,460.00 for a functional cognitive assessment, proposed by 101 Assessments in a treatment plan dated June 2, 2023?
5. Is the applicant entitled to $2,403.83 for chiropractic, acupuncture, and massage, proposed by 101 Assessments in a treatment plan dated May 25, 2023?
6. Is the applicant entitled to $2,633.01 for physiotherapy services, proposed by 101 Physiotherapy Clinic Rehabilitation Centre in a treatment plan dated September 7, 2023?
7. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

1. The applicant is not entitled to the treatment plans in dispute.
2. The applicant is not entitled to interest.
3. The application is dismissed.

PROCEDURAL ISSUE

4The respondent requests that the clinical notes and records (“CNRs”) of the applicant’s family doctor, Dr. Shazia Latif, dated July 10, 2023 to June 24, 2024 not be admitted into evidence because they were not submitted within the timelines set out in the Case Conference Report and Order (“CCRO”).

5The respondent submits that it first received the CNRs in question with the applicant’s submissions for the hearing, on March 12, 2025 although the fax date stamp indicates that the CNRs had been sent to the applicant on June 24, 2024, and the due date for the exchange of documents was September 2, 2024. The respondent argues that it was prejudiced because there was insufficient time to obtain a medical review of the CNRs prior to the deadline for the respondent’s submissions.

6The respondent relies on Tribunal decision N.K. v. Aviva General Insurance, 2020 CanLII 45479 (ON LAT) (“N.K. v. Aviva”) wherein the Tribunal held that the applicant could not rely on medical evidence which was submitted 20 days after the document exchange deadline, because it did not give the respondent sufficient time to obtain expert review of the medical evidence.

7The applicant did not address the issue of the late disclosure of the CNRs in question in his reply submissions.

8I agree with the rationale in N.K. v. Aviva that the respondent must be given an opportunity to know the case against it. In the present case, the applicant’s disclosure was due on September 2, 2024 and was not provided until the filing of his hearing submissions on March 12, 2025. However, I find that the respondent’s concern about the late submission is partially mitigated by the fact that the applicant underwent s.44 insurer examinations (“IEs”) with Dr. Allan Kopyto, physician, on June 28, 2023 and Dr. Barbara Connolly, neurologist, on September 26 2023, and their respective reports are contemporaneous with Dr. Latif’s CNRs and the submission of the September 7, 2023 treatment plan.

9I also considered the prejudice to the applicant of striking the evidence. I note that all but one of the treatment plans in dispute were submitted to the respondent prior to July 10, 2023, and as such, the CNRs in question would shed little light on the applicant’s condition at the time the treatment plans were submitted. However, the CNRs are the applicant’s only medical evidence contemporaneous with the September 7, 2023 treatment plan. As a result, in my view, the prejudice to the applicant of excluding the CNRs outweighs the prejudice to the respondent.

10For these reasons, I will consider Dr. Latif’s CNRs. However, due to the length of the delay, the timing of the applicant’s disclosure, and the fact that the applicant did not provide any submissions to explain the late disclosure, I will assign the CNRs dated July 10, 2023 to June 24, 2024 less weight.

ANALYSIS

11To 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.

12The 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.

Is the applicant entitled to the remaining balance of $860.00 for psychotherapy services in a treatment plan dated May 29, 2023?

13I find that the applicant has not established on a balance of probabilities that the remaining balance of $860.00 in the May 29, 2023 treatment plan is reasonable and necessary.

14The treatment plan, prepared by Bill Nikols, chiropractor sets out the following:

• $1,200 for 12 1-hour sessions of counseling, mental health therapy,
• $180.00 for counseling notes, evaluation,
• $180.00 for file review pre session,
• $450.00 for a progress report,
• $350 for psychologist follow-up, and
• $200 for the completion of the OCF-18 form

15The applicant submits that the treatment plan should be approved in full, because it was recommended by the treatment provider, Caroline Vintu, registered psychotherapist, in her progress report dated April 30, 2023. However, the progress report only includes a recommendation for 12 sessions of psychotherapy, and does not mention the additional line items requested in the treatment plan.

16The respondent argues that it approved the 12 sessions of treatment recommended in Ms. Vintu’s report, as well as three additional hours for documentation and support activity, and $200.00 for completion of the OCF-18 form. The remaining balance in dispute, consists of $860.00 in additional planning and documentation fees, which the respondent denied based on the line-by-line recommendations made by Dr. Rakesh Ratti, psychologist, in his July 24, 2023 IE report.

17Dr. Ratti conducted an in-person examination of the applicant, which included a clinical interview and psychometric testing. He opined that the applicant’s psychological symptoms had worsened since his previous assessment of the applicant on October 27, 2022, and that the 12 one-hour sessions of counselling were reasonable and necessary. He further opined that the additional documentation and planning fees were excessive, and could be completed within the one-hour therapy sessions.

18I agree with the respondent that Ms. Vintu’s progress report does not recommend the additional documentation and support activity. In his reply submissions, the applicant argues that the additional fees are necessary, because the applicant’s psychotherapy treatment time would be reduced if it was included in the one-hour sessions, however the applicant has not directed me to any evidence in support of this submission or any evidence with respect to whether the $860.00 cost of the additional line items is reasonable and necessary.

19For these reasons, I find that the applicant has not met his onus to prove on a balance of probabilities that the $860.00 balance of the treatment plan is reasonable and necessary.

20Accordingly, the applicant is not entitled to the remaining balance of $860.00 in the treatment plan dated May 29, 2023.

Is the applicant entitled to $2,460.00 for neurological assessment in a treatment plan dated May 29, 2023?

21I find that the applicant has not established on a balance of probabilities that there are grounds to believe that a neurological assessment is warranted.

22The treatment plan dated May 29, 2023, was prepared by Dr. Bill Nikols, chiropractor, of 101 Assessment Centre and seeks $2,460.00 for a neurological assessment, comprised of $2,000 for the assessment, $200.00 for the completion of the OCF-18 form and $160.00 in taxes. The treatment plan includes an excerpt from the s.25 psychological report of Dr. Konstantinos Papazoglou, psychologist, dated August 4, 2022.

23The applicant did not make any specific submissions with respect to a neurological assessment, nor did the applicant direct me to any medical evidence to corroborate the treatment plan. As the respondent notes, neither the treatment plan nor Dr. Papazoglou’s s.25 report identify any neurological issues as injuries or recommend a neurological assessment in his report.

24I am persuaded by the October 13, 2023 s.44 insurer examination (“IE”) report of Dr. Barbara Connolly, neurologist, who conducted a physical examination of the applicant, as well as an interview and review of the applicant’s medical records. Dr. Connolly opined that neurological examination was normal, the applicant did not sustain a neurological impairment as a direct result of the accident, and that the treatment plan for a neurological assessment was not reasonable and necessary.

25For these reasons, I find that the applicant has not met his onus to prove on a balance of probabilities that a condition exists to warrant a neurological assessment.

26Accordingly, the applicant is not entitled to $2,460.00 for a neurological assessment in the treatment plan dated May 29, 2023.

Is the applicant entitled to $2,460.00 for a social work assessment in a treatment plan dated June 21, 2023

27I find that the applicant has not established on a balance of probabilities that there are grounds to believe that a social work assessment is warranted.

28The treatment plan, dated June 21, 2023, was prepared by Isabelle Zonenberg, social worker, and seeks $2,460.00 for a social work assessment. The goals of the treatment plan are to assess the applicant’s management of resources and coping skills. In the additional comments section, the treatment plan quotes extensively from Dr. Papazoglou’s s. 25 report, which did not recommend a social work assessment.

29The applicant submits that multiple treatment providers endorsed the need for the assessment, but did not direct me to any such endorsements or specify who these treatment providers were. The respondent submits that the applicant did not meet his onus to prove that the assessment was warranted and that Dr. Ratti opined that a social work assessment was not reasonable and necessary in his July 24, 2023 IE report.

30As the applicant has not directed me to any medical evidence to support his claim, I find that the applicant has not met his onus to prove that the treatment plan is reasonable and necessary.

31Accordingly, the applicant is not entitled to $2,460.00 for a social work assessment in the June 21, 2023 treatment plan.

Is the applicant entitled to $2,460.00 for a functional cognitive assessment in a treatment plan dated June 2, 2023?

32The June 2, 2023 treatment plan was prepared by Remik Zakrewski, occupational therapist, and seeks $2,460 for a functional cognitive assessment.

33The goals of the treatment plan are to address the applicant’s cognitive difficulties, working memory problems, and sleeping difficulties, and refers to Dr. Papazoglou’s August 4, 2022 s. 25 report.

34The applicant submits that multiple treatment providers endorse the treatment plan, but has not directed me to such endorsements.

35In his August 4, 2022 psychological assessment, Dr. Papazoglou diagnosed the applicant with Major Depressive Disorder, single episode, Mild, and specific (isolated) Phobia (driving/passenger). In addition to psychotherapy, Dr. Papazoglou recommended occupational therapy treatments and intervention to assist with his reported functional limitations.

36I assign little weight to the recommendation in Dr, Papazaglou’s report as his examination was conducted on July 2, 2022, one month after the accident, and is not contemporaneous with the treatment plan which was submitted one year later on June 2, 2023.

37The respondent submits that the applicant has not met his onus to prove that the functional cognitive assessment is warranted, and that Dr. Ratti opined that the applicant did not have any functional limitations as a result of his psychological symptoms and that the treatment plan was not reasonable and necessary in his July 24, 2023 IE report. Additionally, Dr. Ratti noted that the applicant reported that his memory and concentration were intact.

38I assign more weight to Dr. Ratti’s report, because he conducted a thorough 3-hour examination, which consisted of a clinical interview psychometric testing, and a review of the applicant’s medical records and is contemporaneous with the treatment plan.

39As the applicant has not directed me to any other evidence in support of the treatment plan, I find that the applicant has not met his onus to prove that the treatment plan is reasonable and necessary.

40Accordingly, the applicant is not entitled to $2,460.00 for a cognitive assessment in the treatment plan dated June 2, 2023.

Is the applicant entitled to $2,403.83 for chiropractic, acupuncture, and massage in a treatment plan submitted on May 25, 2023?

41I find that the applicant has not established on a balance of probabilities that the May 25, 2023 treatment plan is reasonable and necessary.

42The goals of treatment plan, prepared by Dr. Coghlan, are: pain relief, increased range of motion, increase in strength, and a return to the activities of daily living and pre-accident work activities. It seeks $2,403.83 inclusive of 13 sessions of physical rehabilitation, 7 sessions of therapy, and 6 sessions of acupuncture, an assessment and $200.00 to complete the OCF-18 form.

43The applicant submits that the treatment plan is reasonable and necessary because the applicant is experiencing ongoing back and knee pain as a result of his accident-related injuries which are affecting his activities of daily living. He relies on the CNRs of his family doctor, Dr. Latif, as well as the CNRs of 101 Physio.

44The respondent argues that the applicant has not established that the treatment plan is reasonable and necessary and relies on the IE report of Dr. Allan Kopyto, physician, dated July 12, 2023.

45I assign the CNRs of 101 Physio little weight because they are dated in June and July 2022, in the six weeks following the accident, and 10 months before the applicant submitted the treatment plan on May 25, 2023. Further, I agree with the applicant that the CNRs are handwritten, and mostly illegible, and where they are legible, they do not contain details about the applicant’s pain, or comments about the applicant’s progress. As such, I find that the CNRs shed little light on whether the treatment plan is reasonable and necessary at the time it was submitted.

46Dr. Latif’s CNRs reveal that he saw the applicant on June 11, 2022, eight days after the accident, and diagnosed the applicant with whiplash, cervicogenic headaches, and mechanical pain in the back, left neck and right knee. Dr. Latif prescribed pain and anti-inflammatory medication, and recommended physiotherapy. The applicant complained of back pain again on August 4, 2022, and Dr. Latif noted “back pain disc?” and prescribed an NSAID.

47The applicant did not complain of back pain again until more than six months later on February 23, 2023. He advised Dr. Latif that he continued to attend physiotherapy. Dr. Latif prescribed Celebrex on an as needed basis, and noted an impression of “back pain mechanical?” The applicant complained of back pain again two weeks later on March 7, 2023, and was prescribed Advil on an as needed basis for pain. Dr. Latif did not prescribe further physiotherapy.

48I am persuaded by Dr. Kopyto’s July 12, 2023 IE report, wherein Dr. Kopyto opined that the applicant did not have an ongoing impairment related to his accident-related injuries. He conducted a thorough examination including an interview, a physical examination, and a review of the applicant’s medical records, and found that the applicant had normal range of motion throughout his neck, shoulder, and back, and that applicant reported some pain in his shoulder and lower back during the examination. Dr. Kopyto opined that the applicant had reached maximum medical recovery and that the treatment plan was not reasonable and necessary.

49While I agree with the Tribunal precedents cited by the applicant that pain relief is a legitimate goal of treatment, I find that the applicant has not met his burden to prove that the treatment plan is reasonable and necessary. While the applicant did report some pain to his lower back and shoulder during Dr. Kopyto’s IE, he had not complained of pain to his family doctor in almost three months at the time that the treatment plan was submitted on May 25, 2023. The only functional limitation he reported to Dr. Kopyto was that he had not resumed playing cricket since the accident. The applicant told Dr. Kopyto that his back pain had not improved in 6-9 months and that his therapy helped his pain “a little.”

50Further, the applicant did not make submissions or direct me to evidence with respect to whether or to what extent his previous treatments ameliorated his pain, or how the goals of the treatment plan would be met.

51For 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.

52Accordingly, the applicant is not entitled to the treatment plan for chiropractic, acupuncture, and massage in the treatment plan dated May 25, 2023.

Is the applicant entitled to $2,633.01 for physiotherapy services, proposed by 101 Physiotherapy Clinic Rehabilitation Centre in a treatment plan dated September 7, 2023?

53I find that the applicant has not established on a balance of probabilities that the September 7, 2023 treatment plan is reasonable and necessary.

54The goals of treatment plan, prepared by Dr. Coghlan, are: pain relief, increased range of motion, a return to the activities of daily living, and a return to pre-accident employment activities. It seeks $2,633.01 inclusive of 14 sessions of physical rehabilitation, 14 sessions of acupuncture, a body pillow, and $200.00 to complete the OCF-18 form.

55The applicant submits that the treatment plan is reasonable and necessary because the applicant has suffered from ongoing neck, shoulder and back pain, and that he has been diagnosed with spinal stenosis as a result of his accident- related injuries.

56The respondent argues that the applicant has not met his onus to prove that the treatment plan is reasonable and necessary, because the applicant has not reported ongoing accident-related pain, and it relies on the IE reports of Dr. Kyopto and Dr. Connolly, dated July 12, 2023 and October 13, 2023 respectively. As noted above, Dr. Kyopto opined that the applicant had achieved maximum medical improvement, and did not recommend further treatment. Dr. Connolly noted that the applicant reported he had achieved 70% improvement in his pain at his September 26, 2023 IE.

57The applicant relies on Dr. Latif’s CNRs. As I noted above at paragraph 10, I assign less weight to Dr. Latif’s contemporaneous CNRs, because of the applicant’s late disclosure.

58Dr. Latif’s CNRs reveal that the applicant complained of lower back pain on August 2, 2023, and that Dr. Latif advised him to continue with physiotherapy and prescribed pain medication. The CNRs reflect that, after a physical examination, Dr. Latif noted “Mechanical back pain, facet joint pain, spinal stenosis, nerve compression, MVC,” and suggested follow up including “consider Xray”.

59However, I am not persuaded that the applicant was “formally” diagnosed with spinal stenosis, because Dr. Latif did not refer the applicant for imaging at the time, nor did she refer him to a specialist.

60Dr. Latif’s CNRs further reveal that the applicant made two subsequent complaints of pain on September 29, 2023 and October 12, 2023. The only imaging on his lower spine was conducted on November 23, 2023 and revealed a normal study. There were no further references to back pain, referrals, diagnostics, or physiotherapy in Dr. Latif’s CNRs.

61I place more weight on Dr. Kopyto’s July 12, 2023 report for the reasons set out above. His IE was conducted on June 28, 2023, a little over a month before the applicant’s complaint of back pain to Dr. Latif, and Dr. Kopyto opined that he did not identify any “ongoing impairment attributable to the accident.”

62I also place more weight on Dr. Connolly’s neurological IE report. At the IE, which was conducted on September 26, 2023, less than three weeks after the treatment plan was submitted, the applicant told Dr. Connolly that he continued to work full-time, had resumed all of his household and maintenance responsibilities, and had resumed his social and recreational activities including playing cricket. The only functional limitation he reported was requiring assistance to wash his back. He reported that he experienced intermittent low back pain, which is aggravated by working, and is alleviated somewhat by medication. As noted above, he reported a 70% improvement in pain since the accident.

63In his reply submissions, the applicant submits that it is “entirely plausible” that the 70% improvement he reported in his pain to Dr. Connolly is “transient, and not reflective otherwise of his material level of improvement.” However, the applicant bears the onus to prove on a balance of probabilities that the treatment plan is reasonable and necessary, and the applicant has not made submissions or directed me to evidence with respect to his level of improvement, or how his previous treatment has ameliorated his pain, or how the goals of the treatment plan will be met.

64For these reasons, I find that the applicant has not met his onus to prove that the treatment plan is reasonable and necessary.

65Accordingly, the applicant is not entitled to $2,633.01 in the treatment plan for physiotherapy dated September 7, 2023.

Interest

66Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are owing, no interest is due.

ORDER

67I find that:

1. The applicant is not entitled to the treatment plans in dispute
2. The applicant is not entitled to interest.
3. The application is dismissed.