Joseph Lera v. Aviva Insurance Company of Canada, 2026 CanLII 8145

Citation: Lera v Aviva Insurance Company of Canada, 2026 ONLAT 25-001867/AABS

Licence Appeal Tribunal File Number: 25-001867/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:

Joseph Lera

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

VICE-CHAIR: Neil Levine

APPEARANCES:

For the Applicant: Daniel D'Urzo, Counsel

For the Respondent: Kevin H. Griffiths, Counsel

Reporter: Danice Earle

HEARD: by Videoconference: December 1-3, 2025

OVERVIEW

1Joseph Lera, the applicant, was involved in an automobile accident on March 6, 2023, 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:

1. Is the applicant entitled to a non-earner benefit of $185.00 per week from April 7, 2023 ongoing?
2. Is the applicant entitled to $3,651.22 for physiotherapy services proposed by We Care Rehabilitation Clinic in a treatment plan/OCF-18 (“plan”) submitted March 29, 2023?
3. Is the applicant entitled to $3,042.56 for psychological services proposed by Oshawa Physiotherapy and Rehabilitation in a plan submitted February 6, 2024?
4. Is the applicant entitled to the following assessments proposed by Oshawa Physiotherapy and Rehabilitation: i. $2,200.00 for a psychological assessment proposed in a plan dated August 31, 2023; and ii. $2,460.00 for a chronic pain assessment proposed in a plan submitted November 21, 2023?
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

3The applicant is not entitled to a non-earner benefit.

4The applicant is entitled to $3,651.22 for physiotherapy services.

5The applicant is not entitled to $3,042.56 for psychological services.

6The applicant is not entitled to $2,200.00 for a psychological assessment.

7The applicant is not entitled to $2,460.00 for a chronic pain assessment.

8The applicant is entitled to interest on the payment of any overdue benefits.

PROCEDURAL ISSUES

Admissibility of New Respondent Insurers’ Examinations (IEs) reports

9The applicant objected to the admission of insurer’s examination reports by Dr. Pankaj Bansal (neurology) and Dr. Alan Chan, PhD (psychology). These reports were filed after the deadline for productions noted in the Case Conference Report and Order of June 10, 2025. The respondent submitted that these reports reference treatment plans. The applicant submitted that these reports are not related to issues in dispute and their admission would be a breach of the CCRO.

10I order that these IE reports be allowed into evidence. The test for admission of evidence is relevance, though any productions must comply with any deadlines. Given that the applicant put into evidence new treatment plans that triggered these IE reports, I will admit these reports as evidence and I find that any prejudice to the applicant is limited given that Dr. Chan and Dr. Bansal were cross-examined by the applicant on the final day of the three-day hearing.

Section 10 Award

11At the beginning of the hearing, the respondent submitted that the applicant did not submit particulars for their award claim, as ordered in the Case Conference Report and Order of June 10, 2025. The respondent asked that the applicant’s s. 10 award claim be dismissed, because the applicant did not notify the respondent of the particulars of the award as ordered in the Case Conference Report and Order (CCRO) of June 10, 2025. The applicant relied on the Rules which state that an award claim can be brought at any time during the hearing.

12I order the award claim dismissed because the particulars for an award relating to this case were not provided in advance, as ordered in the Case Conference Report and Order of June 10, 2025. The parties have a right to know in advance the particulars of the case that is being brought against them. The respondent was not given this opportunity and therefore I find that a s. 10 award claim may not proceed because the applicant failed to produce particulars by 30 days after the production of the adjusters’ log notes as required by the case conference order.

ANALYSIS

Non Earner Benefit

13The applicant is not entitled to a non-earner benefit.

14Section 12(1) provides that an insurer shall pay a NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Co., 2009 ONCA 391, which focuses on a comparison of the applicant’s pre- and post-accident activities.

15The applicant was injured in a motor vehicle accident on March 6, 2023. His health before the accident had been good, save for some heart issues in 2015 and depression. As a result of the accident he experienced soft tissue injuries, neck stiffness, headaches, and lower back pain. The applicant submits that these injuries continue to affect him and have substantially and significantly prevented the applicant from carrying on with his pre-accident activities.

16The respondent argues that an OCF-3 was not filed until five and a half months after the accident, and an OCF-1 was filed in March 2024. The respondent further argues that the applicant continues to carry on a normal life and has carried on with substantially all of his activities post-accident. The respondent relies on the s. 44 assessment and testimony of Dr. Alan Chan, a psychologist which found that the applicant suffered from no diagnosed psychological conditions but rather psychological sequelae to the accident, and the s. 44 assessment and testimony of Dr. Pankaj Bansal, a physiatrist, who found that the applicant was not limited in his post-accident activities.

17Based on the applicant’s testimony, the applicant’s pre-accident activities included golfing three times per week, travelling, socializing, playing with his grandchildren, personal care and activities of daily living like laundry, cooking, and light yard work.

18Two days post-accident he sought medical attention from his family doctor, Dr. Ralph Profetto, complaining of stiffness and headaches. X-rays were normal, and massages prescribed by the doctor helped the pain but the pain returned after two days. Dr. Profetto prescribed nerve blocks twice per week at We Care Clinic which helped. Dr. Profetto’s CNRs stated that the injuries the applicant sustained were soft-tissue injuries.

19The applicant testified that he took Tylenol 2 for the pain in the morning and the evening, and lorazepam for the anxiety that resulted from the accident. He also testified that he would experience panic attacks as a result of the pain, and was no longer comfortable driving. He also stated that psychological counselling sessions over the phone helped him to calm down.

20Indeed, the applicant was already the beneficiary of a disability tax credit from 2010 onwards, presumably for existing disabilities. His family doctor stated for these tax purposes that the applicant suffered from severe anxiety and a major depressive disorder. However, the applicant testified that he believed that his health was fine, though he did not disclose this to the CRA. I find it difficult to reconcile this information with the applicant’s testimony and evidence that he was in excellent health before his accident and that his post-accident activities were significantly curtailed after the accident – given that this disability designation still apparently applied for CRA purposes. I did not find the applicant to be a particularly reliable witness, given that his description of his pre- and post-accident life and activities was contradicted by medical records, especially those of his own family doctor. In summary, this calls into question the credibility of the applicant.

21I do not doubt that the applicant suffers from back and neck pain, headaches and some psychological sequelae post-accident. However, the applicant has not shown on a balance of probabilities that he had a complete inability to engage in these activities after the subject accident. While his frequency of golf was curtailed from three times per week to perhaps once per week (he stated he played 15-18 rounds of golf in 2023, with not all rounds completed), all other activities have continued without significant qualitative or quantitative changes. The applicant travelled to Florida by car in 2024, continued to socialise with friends at his social club and swam, and visited with his grandchildren (albeit with some reduced frequency). He stated that he was not as comfortable driving as he was before but continued to drive almost every day, or in any case, regularly. And in activities of daily living and self care, there has been no evidence presented that he has been unable to perform these activities.

22In fact, witnesses and assessors consistently showed or demonstrated in testimony that the applicant more or less carried on a normal life post-accident with only a few restrictions. For example, the respondent’s s. 44 expert, Dr. Pankaj Bansal, asserted that the applicant had self-resolving soft-tissue injuries, could perform household tasks independently, and walked normally. Indeed, even the applicant’s s. 25 assessor, Dr. Getahun, an orthopedic surgeon, noted that the applicant had some reduced activities but was not aware of how big or small the reduction in activities was nor how pre-accident activities compared to post-accident activities.

23I point also to previous precedents from the Tribunal which state unequivocally that the applicant’s impairment must prevent substantially all activities (for e.g., H. P. v Aviva Insurance Company, 2023 CanLII 9219 (ON LAT)) and that the test for the NEB is a complete inability to carry on a normal life where a reduced frequency of activities and pain does not satisfy that test (see: S.M v Aviva Insurance Canada, 2018 CanLII 81898 (ON LAT)). The applicant in this case has some reduced frequency of activities and some pain but has fallen well short of meeting his burden to demonstrate a complete inability to carry on a normal life. Accordingly, the applicant’s claim for an NEB is denied.

24To 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.

25The applicant is entitled to this treatment plan for physiotherapy services.

26This treatment plan is for physiotherapy, medical rehabilitation and devices. Its goals were pain reduction, an increased range of motion, increased strength and a return to activities of daily living.

27The applicant relies on his family doctor’s assessments of lower back pain, headaches, and neck stiffness along with headaches and difficulties related to these injuries that resulted from his accident. The applicant’s family doctor testified that these physiotherapy treatments helped the applicant, albeit on a temporary basis. In addition, the assessment report by Dr. Tajedin Getahun has shown that the applicant had pain symptoms in his back, neck and legs that resulted from the accident. Dr. Getahun diagnosed a chronic myofascial sprain of the cervical spine, affecting the applicant’s neck.

28The respondent asserts that Dr. Getahun’s report missed key issues including the fact that the applicant had pain before the accident, and the assessor missed the fact that the chronic pain did not affect the applicant’s activities significantly.

29I find that the applicant has shown that there is enough evidence of pain issues to justify the reasonableness and necessity of this treatment plan. The applicant’s family doctor noted in his CNRs that prior physiotherapy treatments helped the applicant. The applicant’s family doctor testified that the applicant suffered from ongoing pain, particularly in his neck. Furthermore, Dr. Getahun’s assessment – though flawed in other respects – confirmed that these pain issues persisted for the applicant. I find that Dr. Profetto’s referral to physiotherapy treatment is valid, reasonable and necessary in that the physiotherapy treatment is designed to treat the very symptoms the applicant has complained to his doctor about.

30The applicant is not entitled to this treatment plan.

31To 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.

32Ms. Ladak, the treating and assessing psychologist, testified that, as per her report, the applicant had a compromised mood post-accident and was reporting anxiety symptoms. She diagnosed an adjustment disorder with depressed mood and anxiety, and she said that it was important to do an assessment to determine the appropriate specific diagnosis and treatment, recommending 12 sessions of therapy and a reassessment.

33The respondent submits that this treatment plan was denied because the applicant did not submit sufficient clinical notes and records. The respondent asked the applicant to undergo an insurer’s examination which was performed by Dr. Chan, and based on that assessment, the treatment plan was denied. The respondent also submits that the original treatment plan was not signed by a health professional.

34Dr. Chan’s assessment noted that as a result of the accident, the applicant experienced some psychological sequelae, but no psychological impairment or disorder and does not require any psychological treatment.

35I find that the insurer’s examination by Dr. Chan, in this case, was more reliable than the original report by Ms. Ladak, which was based on the applicant’s medical and health history which has not been consistently reported. Under cross-examination by the respondent, Ms. Ladak was under the mistaken impression that the applicant could not golf at all after the accident (when actually he could golf but not as frequently), and that he could not perform housekeeping chores after the accident (while paying no attention to what he could or could not do before). In addition, from the applicant’s medical history and CNRs, the applicant suffered from bipolarity and anxiety issues pre-accident which Ms. Ladak seemed not to be aware of. It is for these reasons I place less weight on Ms. Ladak’s s. 25 report and testimony.

36In addition, there are records in Dr. Chan’s IE assessment which show that the applicant did not himself see the need for psychological treatment and did not see the need nor value in psychological treatment which I find undermines the applicant’s argument that this assessment and analysis are required.

37Accordingly, I do not find this assessment to be reasonable or necessary. The applicant has not demonstrated that he requires additional psychological assessment or treatment.

38The applicant is not entitled to this treatment plan for psychological services.

39The treatment plan’s goals were to return to activities of daily living. However, given previous testimony and evidence from the applicant and from the respondent’s IE assessment by Dr. Chan, it is not clear that the applicant has experienced significant challenges with his activities of daily living as a result of his psychological symptoms. Dr. Chan’s report noted that the applicant has psychological sequelae from the accident but no psychological impairment or disorder. The applicant’s psychologist, Dr. Ladak, asserted that the applicant required treatment for his psychological issues, but I find her to be a less reliable witness than Dr. Chan because her report and testimony lacked records from prior to the accident and also included other inconsistencies such as a lack of understanding of the extent to which the applicant was unable to perform pre-accident activities.

40Furthermore, the applicant’s family doctor CNRs noted on June 23, 2023 that the applicant did not want to use SSRI medication or cognitive behavioural therapy, and then told his family doctor on May 30, 2024 that he was sleeping and resting well and had minimal depression. I do not believe this treatment plan for psychological services is reasonable or necessary given the professional recommendations by witness and assessor Dr. Chan in addition to the applicant’s assertions to his family doctor that he did not want or need psychological treatment.

41The applicant is not entitled to $2,460 for a chronic pain assessment.

42To 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.

43The applicant requested this treatment plan based on the need to determine a correct diagnosis for the applicant’s persistent pain issues. It is documented in Dr. Getahun’s assessment and in the applicant’s family doctor’s clinical notes and records that the applicant has had pain that has persisted more than a year following his March 6, 2023 accident.

44The respondent submits that the IE assessment by Dr. Bansal (dated January 18, 2024) showed that a chronic pain assessment was not required, and that the applicant’s injuries are soft-tissue injuries and the applicant has already reached maximal medical improvement. I find Dr. Bansal’s assessment to be the most comprehensive and credible, while Dr. Getahun’s report lacked critical context regarding the applicant’s pre-accident conditions which included other musculoskeletal neck and back issues and pain.

45I find that on a balance of probabilities, this chronic pain assessment is not necessary nor reasonable. Both the respondent’s IE assessment by Dr. Bansal and the applicant’s own family doctor have confirmed that the applicant has soft-tissue injuries and does not require further assessment.

Interest

46Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies to the unpaid treatment plans above that were found to be reasonable and necessary.

ORDER

47I order that:

i. The applicant is not entitled to a non-earner benefit.

ii. The applicant is entitled to a treatment plan for $3,651.22 for physiotherapy services from We Care Rehab Clinic.

iii. The applicant is not entitled to a treatment plan for $2,200.00 for psychological services.

iv. The applicant is not entitled to a treatment plan for $2,200.00 for a psychological assessment from Oshawa Rehabilitation.

v. The applicant is not entitled to $2,460.00 for a chronic pain assessment from Oshawa Rehabilitation.

vi. The applicant is entitled to interest on the unpaid treatment plan (number ii, above).