Park v. Aviva Insurance Company of Canada, 2026 CanLII 8157

Park v. Aviva Insurance Company of Canada, 2026 CanLII 8157

Citation: Park v. Aviva Insurance Company of Canada, 2026 ONLAT 24-005986/AABS

Licence Appeal Tribunal File Number: 24-005986/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:

Jisu Park

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Kathleen Wells

APPEARANCES:

For the Applicant: Jun Ki Lee, Counsel

For the Respondent: Jessica Bacopulos, Counsel

HEARD: By way of written submissions

OVERVIEW

1Jisu Park, the applicant, was involved in an automobile accident on March 11, 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 to be decided in the hearing are:

1. Is the applicant entitled to $1,091.48 ($3,940.31 less $2,848.83 approved) for psychological services, proposed by Prime Medical Management Inc. in a treatment plan/OCF-18 (“treatment plan”) submitted on November 15, 2023?
2. Is the applicant entitled to $644.93 ($2,693.76 less $2,048.83 approved) for psychological services, proposed by Prime Medical Management Inc. in a treatment plan submitted on March 20, 2024?
3. Is the applicant entitled to $2,843.37 for psychological services, proposed by Prime Medical Management Inc. in a treatment plan submitted on March 16, 2024?
4. Is the applicant entitled to $3,744.22 for chiropractic services, proposed by Prime Medical Management Inc. in a treatment plan submitted on November 16, 2023?
5. Is the applicant entitled to $1,869.89 for chiropractic services, proposed by Sigma Chiropractic & Rehab Clinic in a treatment plan submitted on November 29, 2023?
6. Is the applicant entitled to $2,199.23 for chiropractic services, proposed by Prime Medical Management Inc. in a treatment plan submitted on March 27, 2024?
7. Is the applicant entitled to $2,200.00 for an advanced X-ray assessment and report, proposed by Prime Medical Management Inc. in a treatment plan submitted on August 16, 2023?
8. 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. As no payments are owing, no interest is due.
3. The application is dismissed.

PROCEDURAL ISSUES

4I decline to make an adverse inference with respect to the applicant’s evidence.

5The respondent submits that the applicant has not submitted the treatment plans in dispute as evidence for this hearing, and that the applicant has provided limited supporting medical evidence to support the treatment plans in dispute. As a result, the respondent requests that I draw an adverse inference.

6The Tribunal has long held that the Tribunal has a positive obligation with respect to information it believes a party meant to rely on as evidence. This is set out in the Tribunal’s Reconsideration Decision of J.R. v. Certas Home and Insurance Company, 2018 CanLII 13161 (ON LAT), in which the Tribunal highlighted the obligation of the Tribunal to ask parties to submit information that it believes a party meant to rely upon as evidence. While not binding on me, I agree with the reasoning in this decision.

7As the applicant filed the disputed treatment plans with the Tribunal, and served them on the applicant with the application on May 10, 2024. I will admit the treatment plans into evidence, because they form part of the Tribunal’s record of the application, and both parties have access to the treatment plans in their own records. I decline to draw the adverse inference as requested by the respondent.

8With respect to the medical evidence, I also decline to draw an adverse inference. The applicant argues where section 25 assessment reports and section 44 insurers examination (“IE”) reports exist, parties need not rely on clinical notes and records (“CNRs”).

9The respondent has not alleged that the applicant failed to comply with the Case Conference Report and Order, and it is not clear that CNRs from treating physicians or treatment providers exist. In my view, it would not be appropriate to draw an adverse inference in this instance. I will address whether the medical evidence in further detail below in the context of whether the applicant has met her onus.

ANALYSIS

10To 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.

11The 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 $1,091.48 ($3,940.31 less $2,848.83 approved) for psychological services, in a treatment plan submitted on November 15, 2023?

12I find that the applicant has not established on a balance of probabilities that the remaining balance of $1,091.48 in the treatment plan for psychological services is reasonable and necessary.

13The treatment plan, which was dated October 11, 2023 and submitted on November 15, 2023, was prepared by Dr. Amir Owliaei, chiropractor. It seeks $3,940.31 comprising 12, 90-minute, psychotherapy treatments, and a total of 4 hours for communication, planning, and file review at a rate of $149.61 per hour as well as $448.83 for a progress report and $200.00 for the fee for completing the OCF-18 form.

14The applicant submits that the treatment plan is reasonable and necessary because psychotherapy treatments were recommended by Dr. Atih Seif, psychiatrist, in her s. 25 assessment report.

15The respondent submits that treatment plan was partially approved and that the applicant has not met her 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 Azadeh Razbani Tehrani, 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 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.

16The applicant did not make submissions or direct me to evidence to address the difference in the hourly rate, or why the remaining balance of $1,041.48 is reasonable and necessary.

17As such, I find that the applicant has not met her onus to prove on a balance of probabilities that the remaining balance of $1,041.48 in the treatment plan for psychological services submitted on November 15, 2023 is reasonable and necessary.

Is the applicant entitled to $644.93 ($2,693.76 less $2,048.83 approved) for psychological services in a treatment plan submitted on March 20, 2024?

18I find that the applicant has not established on a balance of probabilities that the remaining balance of $644.93 in a treatment plan for psychological services is reasonable and necessary.

19The treatment plan, dated February 14, 2024 and submitted on March 20, 2024. It was prepared by Dr. Owliaei and seeks $2,604.76 for psychological services, inclusive of 12, one-hour, sessions of psychotherapy and one hour of communication with others at an hourly rate of $149.61, as well as $448.83 for a progress report, $100.00 for treatment manual handouts, and $200.00 for the completion of the OCF-18 form.

20The applicant submits that the treatment plan is reasonable and necessary to treat her accident-related psychological injuries, and is supported by the recommendations of the biopsychosocial report, prepared by Dr. Nazila Isgandarova, registered psychotherapist. In her February 24, 2024, Dr. Isgandarova recommended 12 sessions of psychotherapy.

21The respondent submits that it approved 12 sessions of psychotherapy, and the remaining balance is comprised of the difference between the $149.61 hourly rate sought in the treatment plan for psychotherapy treatment sessions and communications, and the $100.00 per hour that the respondent agreed to pay M. Razbani Tehrani, who is a social worker, and identified as the treatment provider for these services.

22As the applicant has not made submissions or directed me to evidence with respect to whether to the hourly rate sought is reasonable or necessary, or to rebut the respondent’s submissions, I find that the applicant has not met her onus to prove on a balance of probabilities that the remaining amount of $644.93 in the treatment plan for psychological services is reasonable and necessary.

Is the applicant entitled to $2,843.37 for psychological services in a treatment plan submitted on March 16, 2024?

23I find that the applicant has not established on a balance of probabilities that the treatment plan for $2,843.27 for psychological services is reasonable and necessary.

24The treatment plan, dated February 24, 2024, and submitted on March 16, 2024, was prepared by Dr. Owliaei. It seeks $2,843.37 inclusive of 12, one hour, sessions of psychotherapy, one hour of communication with others, $448.83 for a progress report, one hour of treatment planning and $100.00 for treatment manual handouts, as well as $200.00 for the completion of the OCF-18 form.

25The applicant submits that the treatment plan is reasonable and necessary to treat the applicant’s psychological symptoms. The respondent argues that the treatment plan is a duplicative of the treatment plan dated February 14, 2024, which was submitted on March 20, 2024, and was partially approved in the amount of $2,048.43. The evidence reveals that the sole difference in the treatment plans, which were dated 10 days apart, is that the February 24, 2024 treatment plan seeks an additional $149.61 for one hour of treatment planning.

26The applicant has not made submissions or directed me to any evidence to support the reasonableness and necessity of two nearly identical treatment plans submitted within four days of each other, nor has the applicant made submissions or directed me to any evidence to support the $149.41 for planning services set out in the treatment plan. As such, I find that the applicant has not met her onus to prove on a balance of probabilities that the treatment plan is reasonable and necessary.

27Accordingly, the applicant is not entitled to $2,843.37 for psychological services in the treatment plan dated February 24, 2024 and submitted on March 16, 2024.

Is the applicant entitled to $3,744.22 for chiropractic services in a treatment plan submitted on November 16, 2023?

28I find that the applicant has not established on a balance of probabilities that the treatment plan is reasonable and necessary.

29The treatment plan, dated October 11, 2023 and submitted on November 16, 2023, was prepared by Dr. Owliaei. The goals of the treatment plan are: pain reduction, a return to the activities of daily living, reducing disability and “preventing the patient’s pain and condition from becoming permanent.” The treatment plan refers to Dr. Owliaei’s advanced x-ray report, and the additional comments section indicates that the applicant has been assessed as having chronic pain.

30The treatment plan seeks $3,744.22 for:

• 16 sessions one-hour sessions of exercise at a cost of $1,760.00
• 16 sessions one-hour sessions of therapy at a cost of $ 560.00
• A progress report at a cost of $450.00
• Communication with others at a cost of $280.00
• Review of external file material at a cost of $299.22
• An initial chiropractic assessment at a cost of $225.00
• Completion of the OCF-18 form at a cost of $200.00

31The applicant submits that the treatment plan is reasonable and necessary to treat the applicant’s ongoing low back and ankle pain and is consistent with both the Dr. Owliaei’s August 31, 2023 advanced x-ray analysis, and the April 25, 2024 IE report of Dr. Eric Silver, physician.

32The respondent argues that the applicant has not met her onus to prove that the treatment plan is reasonable and necessary, because the treatment plan is not supported by contemporaneous medical evidence or any clinical notes and records (“CNRs”) of the applicant’s treatment providers. The respondent relies on Dr. Silver’s April 25, 2024 IE report and May 13, 2024 paper review report, in which Dr. Silver opines that the applicant does not have an accident-related impairment, and that the treatment plan is not reasonable and necessary.

33I assign less weight to Dr. Owliaei’s August 31, 2023 advanced x-ray analysis, because it does not identify the applicant’s current symptoms, or provide a clear opinion that the noted spinal misalignment and loss of lordosis is accident-related. While the report makes recommendations for spinal alignment, soft-tissue therapy, home exercise and nutritional counselling, it does not specifically address the applicant’s accident-related injuries.

34I place more weight on the April 25, 2024 IE report and May 13, 2024 IE paper review of Dr. Silver. At the March 19, 2024 IE, Dr. Silver conducted an interview, a review of the applicant’s medical records, and a physical examination. He diagnosed the applicant with sprains and strains to her cervical spine, lumbar spine, knees and right ankle, and opined that he found no “objective evidence of ongoing accident- related musculoskeletal impairment,” and that the that the applicant had reached maximum medical improvement from her accident-related injuries.

35Further, in his May 13, 2024 paper review, Dr. Silver opined that the treatment plan in question was not reasonable and necessary, that the applicant had received the maximum benefit from facility-based therapies, and provided no further recommendations for treatment.

36The applicant has not directed me to any other medical evidence in support of the treatment plan, nor has she made any submissions or directed me to evidence with respect to how the goals of the treatment plan will be met, or whether the overall cost of the treatment plan is reasonable.

37For these reasons, I find that the applicant has not met her onus to prove on a balance of probabilities that the treatment plan is reasonable and necessary.

38Accordingly, the applicant is not entitled to $3,774.22 for chiropractic services submitted on November 16, 2023.

Is the applicant entitled to $1,869.89 for chiropractic services in a treatment plan submitted on November 29, 2023?

39I find that the applicant has not established on a balance of probabilities that the treatment plan is reasonable and necessary.

40The treatment plan, dated November 15, 2023 and submitted on November 29, 2023, was prepared by Dr. Hyemi Ma, chiropractor. The goals of the treatment plan are: pain reduction, increase in strength, and a return to the activities of normal living. It seeks $1,869.89 inclusive of 6 chiropractic treatments, 6 physiotherapy treatments, 6 massage therapy treatments and $200.00 for the completion of the OCF-18 form, and $45.39 in taxes.

41The applicant submits that the treatment plan is reasonable and necessary to treat the applicant’s ongoing pain from her accident-related injuries, and is supported by Dr. Owliaei’s August 31, 2023 advanced x-ray report and Dr. Silver’s April 25, 2024 IE report.

42However, I note that, in his IE report, Dr. Silver opined that the applicant did not have an ongoing impairment as a result of the accident, and that the treatment plan submitted on November 29, 2023 was not reasonable and necessary.

43The respondent argues that the applicant has not met her onus to prove that the treatment plan is reasonable and necessary.

44I found above that the applicant is not entitled to the treatment plan for chiropractic services submitted on November 16, 2023. As the applicant has not made any additional submissions or directed me to any additional evidence, I find that the applicant has not met her onus to prove on a balance of probabilities that treatment plan submitted on November 29, 2023 is reasonable and necessary for the same reasons.

Is the applicant entitled to $2,199.23 for chiropractic services in a treatment plan submitted on March 27, 2024?

45I find that the applicant has not established on a balance of probabilities that the treatment plan is reasonable and necessary.

46The treatment plan, dated March 25, 2024 and submitted on March 27, 2024, was prepared by Dr. Owliaei. The goals of the treatment plan are: pain reduction, an increase in strength, increased range of motion, and return to activities of daily living. It seeks $2,199.99 for a home-based self-directed active exercise program, including an examination, report, exercise equipment, treatment manual handouts, delivery charges, and $200.00 for the completion of the OCF-18 form.

47The applicant argues that the treatment and assessment plan is reasonable and necessary to treat the applicant’s ongoing pain from her accident-related injuries, consistent with Dr. Owliaei’s August 31, 2023 advanced x-ray report, and Dr, Silver’s April 24, 2024 IE report. The respondent argues that the applicant has not met her onus to prove that the treatment plan is reasonable and necessary.

48The applicant’s submissions relate to chiropractic treatments and make no reference to the home-based treatment plan sought in the treatment plan. Further, the applicant has not directed me to contemporaneous medical evidence to support the treatment plan. While Dr. Owliaei did recommend a home-based exercise program in his advanced x-ray report, as explained above, I assigned less weight to his report. I assigned more weight to Dr. Silver’s April 25, 2024 IE report, in which Dr. Silver opined that the applicant did not have an ongoing impairment as a result of the accident, and that he had no recommendations for further treatment.

49For these reasons, I find that the applicant has not met her onus to prove on a balance of probabilities that the treatment plan is reasonable and necessary.

50Accordingly, the applicant is not entitled to $2,199.23 for chiropractic services in the treatment plan submitted on March 27, 2024.

Is the applicant entitled to $2,200.00 for an advanced X-ray assessment and report in a treatment plan submitted on August 16, 2023?

51I find that the applicant has not established on a balance of probabilities that the treatment plan is reasonable and necessary.

52The treatment plan, prepared by Dr. Owlieai, seeks $2,200.00 for an advanced x-ray assessment and report. It was dated August 14, 2023 and submitted on August 16, 2023.

53The applicant submits that the assessment, which was incurred, was warranted to identify postural and spinal alignment issues that are not visible through standard imaging. The applicant relies on Dr. Owliaei’s August 31, 2023 advanced x-ray analysis report, in which he opined that the applicant had severe lordosis in her cervical and lumbar spine, and recommended several different therapies.

54The respondent argues that the applicant has not met her onus to prove that the assessment is warranted. Additionally, the respondent argues that the assessment is available to the applicant under OHIP and that the respondent is not liable to pay for the treatment plan under s. 47(2) of the Schedule. Further, the respondent submits that Dr. Owliaei’s August 31, 2023 assessment report reveals that the assessment was conducted before the treatment plan was submitted, because a date of August 12, 2023 date was visible on the included x-ray images.

55The Tribunal has long held that a treatment plan must be supported by corroborating, contemporaneous medical evidence. In the present case, the plan was proposed by Dr. Owliaei, the assessment was conducted by Dr. Owliaei, and the report was authored by Dr. Owliaei, and the applicant has not directed me to any contemporaneous medical evidence from a treating physician or other treatment provider to support Dr. Owliaei’s treatment plan or report.

56As such, I find that the applicant has not met her onus to prove on a balance of probabilities that the treatment plan was reasonable and necessary.

57As I have found that the applicant has not met her onus to prove that the treatment plan is reasonable and necessary, I do not need to address the respondent’s arguments under s, 47(2).

58Accordingly, the applicant is not entitled to $2,200.00 for an advanced x-ray analysis and assessment in the treatment plan submitted on August 16, 2023.

Interest

59Interest 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

60I find that:

1. The applicant is not entitled to the treatment plans in dispute.
2. As no payments are owing, no interest is due.
3. The application is dismissed.