Citation: Henlin v. Wawanesa Mutual Insurance Company, 2025 ONLAT 24-001479/AABS

Licence Appeal Tribunal File Number: 24-001479/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:

Lawrence Henlin

Applicant

And

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Daniela Algieri-Boileau, Counsel

For the Respondent:

Alanna Pink, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Lawrence Henlin, the applicant, was involved in an automobile accident on November 16, 2021, 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, Wawanesa Mutual 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:

Is the applicant entitled to $1,622.19 for chiropractic services, proposed by Mackenzie Medical in a treatment plan (“OCF-18”) submitted December 15, 2021, and denied December 30, 2021?
Is the applicant entitled to $1,620.65 for chiropractic services, proposed by Mackenzie Medical in an OCF-18 submitted April 13, 2022, and denied May 2, 2022?
Is the applicant entitled to $1,417.70 for chiropractic services, proposed by Mackenzie Medical in an OCF-18 submitted June 15, 2022, and denied June 30, 2022?
Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Princeton Hills Medical in an OCF-18 submitted August 4, 2022, and denied August 16, 2022?
Is the applicant entitled to $1,417.70 for chiropractic services, proposed by Mackenzie Medical in an OCF-18 submitted August 17, 2022, and denied August 26, 2022?
Is the applicant entitled to $2,851.68 for physiotherapy services, proposed by Mackenzie Medical in an OCF-18 submitted February 27, 2022, and denied January 9, 2023?
Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

i. The applicant is entitled to the chiropractic and physiotherapy treatment plans, plus interest in accordance with s. 51 of the Schedule;

ii. The applicant is not entitled to the OCF-18 for a psychological assessment.

PRELIMINARY ISSUE

4In its written hearing submissions, the respondent raised a preliminary issue with respect to one of the substantive issues in dispute. The respondent submits that the applicant should be barred from proceeding with the OCF-18 dated December 10, 2021 for chiropractic services (Issue #1 as listed in the Case Conference Report and Order), since the applicant failed to dispute the denial of the OCF-18 within the two-year limitation period. As such, the respondent argues that the applicant is barred from proceeding with this issue pursuant to s. 56 of the Schedule.

5I decline to add this preliminary issue as an issue in dispute in this written hearing. The respondent did not raise this preliminary issue at the case conference held on June 3, 2024 and it was not included as an issue in dispute in the Case Conference Report and Order. Nor did the respondent bring a motion in the period before this hearing to request to add the preliminary issue. Rather, the respondent appears to have raised this preliminary issue for the first time in its written hearing submissions, after the applicant had already provided his initial written hearing submissions. I find that to add this preliminary issue at this late stage would be prejudicial to the applicant. Moreover, the respondent has not provided any explanation as to why this preliminary issue could not have been raised at any point prior to the written hearing.

ANALYSIS

6To 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.

OCF-18s for chiropractic and physiotherapy treatment are reasonable and necessary

7The applicant submitted four OCF-18s for chiropractic services, dated December 15, 2021, April 13, 2022, June 15, 2022 and August 17, 2022 and an OCF-18 for physiotherapy services dated February 27, 2022. They all proposed a combination of chiropractic treatment, physical therapy, active therapy and massage. The respondent partially approved the December 15, 2021 OCF-18 up to the Minor Injury Guideline (“MIG”) limits, and initially denied the April 13, 2022 OCF-18 on the basis that the MIG was exhausted.

8The applicant was subsequently removed from the MIG on June 1, 2022 due to a concussion diagnosis. The respondent maintained its denial of the April 13, 2022 OCF-18 on the basis that similar treatment was being incurred, and that a progress report would be necessary to approve further treatment. The respondent also conducted a physiatry insurer’s examination (“IE”) and based on the August 31, 2022 and September 29, 2022 reports, denied the remaining treatment plans for chiropractic and physiotherapy treatment as not being reasonable and necessary.

9The applicant submits that all of the treatment plans are reasonable and necessary. He argues that his family physician Dr. Olanrewaju’s clinical notes and records (“CNRs”) establish his post-accident chronic pain symptoms, including ongoing neck, upper and lower back pain, shoulder pain and recurring headaches. He was prescribed nerve pain medication and muscle relaxants, which he submits that he continues taking to date. The applicant also relies on the CNRs of his treating clinic MacKenzie Medical, to establish that he attended for therapeutic treatment throughout 2022 and reported ongoing pain symptoms. He cites Tribunal decisions 16-003921 v. Certas Home and Auto Insurance Co., 2018 CanLII 141005 (ONLAT) and 17-003735 v. Certas Direct Insurance Company, 2018 CanLII 39445 (ONLAT) to argue that it is well-settled that pain reduction is a legitimate goal for treatment.

10The applicant also argues that the respondent’s physiatry IEs should be disregarded, as the underlying Notices of Examination (“NOEs”) were all non-compliant with s. 44(5) of the Schedule. The applicant relies on the Tribunal decision Taksali v. Aviva Insurance Company, 2023 CanLII 96347 (ONLAT) to argue that improperly obtained IE reports should be excluded as evidence.

11The respondent submits that the applicant has not provided sufficient medical evidence to support the reasonableness and necessity of the denied treatment plans. It argues that the applicant relies solely on his subjective pain complaints to his family physician, and that Dr. Olanrewaju never diagnosed the applicant with anything beyond “musculature pain”, that all diagnostic imaging was normal, and that the applicant was not referred for further assessment for his pain. The respondent also submits that the medical records of MacKenzie Medical are outdated and that the applicant did not make any pain complaints to his family doctor between May 2023 to February 2, 2024.

12It further relies on the physiatry IE reports of Dr. Michael Ko dated August 31, 2022 and September 29, 2022, who diagnosed the applicant with sprain and strain injury of the cervical spine, bilateral trapezii and bilateral knees. Dr. Ko further found no objective evidence of a structural musculoskeletal injury or nerve impingement. With respect to the applicant’s argument that the IE reports should be excluded due to purported deficiencies with the underlying NOEs, the respondent argues that its NOEs were sufficient and that a number of Tribunal decisions declined to follow the reasoning in Taksali.

13With respect to the applicant’s argument that the IE reports were improperly obtained, I deny the applicant’s request to exclude Dr. Ko’s IE reports as evidence. I note the applicant’s submissions with respect to the Tribunal decision Taksali. However, I agree with the reasoning in the decisions cited by the respondent, Dietrich v. CAA Insurance Company, 2025 CanLII 5856 (ONLAT) and Berisa v. Intact Insurance Company, 2025 CanLII 5894 (ONLAT) that the remedy under the Schedule for an insufficient NOE is that an applicant is not obligated to attend the IE, not that the resulting IE report is to be excluded as evidence.

14I further find that the applicant has met his onus to prove, on a balance of probabilities, that the OCF-18s for chiropractic and physiotherapy treatment are reasonable and necessary.

15The medical evidence submitted by the applicant establishes his ongoing pain reports after the accident. The CNRs of the applicant’s family physician reveal that in the year post-accident, during the period that all of the OCF-18s were submitted, the applicant consistently reported accident-related pain. Dr. Olanrewaju noted the applicant’s ongoing post-accident musculoskeletal pain, decreased range of motion due to pain and prescribed muscle relaxants and medication for nerve pain. I further note that the applicant continued to seek treatment for his accident-related pain.

16On December 9, 2021, Dr. Olanrewaju noted that the applicant was about to start physiotherapy. The CNRs of MacKenzie Medical establish that the applicant attended for treatment throughout 2022 to address his ongoing pain complaints. Dr. Ko’s physiatry IE report dated August 31, 2022 noted that the applicant reported starting treatment including physiotherapy, chiropractic treatment acupuncture and massage after the accident, initially twice a week but now he was going once a week. He reported the treatment reduced his pain for three to four days. I agree with the reasoning in the decisions cited by the applicant that pain relief is a legitimate goal of treatment, even if it is temporary. I further note that the applicant appears to have sought and incurred treatment for almost a year post-accident to address his ongoing pain.

17With respect to the IE reports of Dr. Ko, while I note that he found no objective evidence of a structural musculoskeletal injury or nerve impingement, Dr. Ko also noted the applicant’s pain complaints and that the applicant’s prognosis was “guarded given symptom duration”. In my view, the proposed treatment was reasonable and necessary to address the applicant’s ongoing accident-related pain.

18I further am not persuaded by the respondent’s argument that the CNRs of Dr. Olanrewaju and MacKenzie Medical do not corroborate ongoing pain reports because they are “outdated” or because the applicant did not make any pain complaints to his family doctor between May 2023 to February 2, 2024. Both the family physician and the treatment provider’s CNRs establish consistent pain reports throughout 2022, the period contemporaneous with the submission of the OCF-18s in dispute. The fact that the applicant did not report pain to his family doctor between May 2023 to February 2, 2024, in my view, is not persuasive on the issue of whether he required treatment in 2022.

19In his submissions the applicant also raised arguments relating to whether the respondent’s denial letters complied with s. 38(8) of the Schedule. Given my finding on the reasonableness and necessity of the OCF-18s, it is not necessary for me to address the applicant’s s. 38 submissions.

OCF-18 for a psychological assessment is not reasonable and necessary

20The applicant submitted an OCF-18 dated August 4, 2022 for a psychological assessment. He argues that the pre-screening interview summary attached to the OCF-18 establishes that the applicant suffered from accident-related psychological impairments including feelings of sadness, frustration and irritability, worrying about the future, sleep and concentration issues. The applicant further submits that the CNRs of Dr. Olanrewaju confirm his psychological impairments.

21I find that the applicant has not established entitlement to the proposed psychological assessment.

22Firstly, although the applicant references the pre-screening interview summarized in the August 4, 2022 OCF-18, he has not provided a copy of this OCF-18 in his evidence for this hearing. Without a copy of the OCF-18, I am not able to confirm the applicant’s submissions as to the contents of the pre-screening interview, the treatment goals or the details of the proposed assessment.

23Further, I agree with the respondent that the CNRs of Dr. Olanrewaju do not establish accident-related psychological impairments warranting an assessment. Although the applicant consistently reported pain complaints to his family physician throughout 2022, the only CNR entry the applicant directs me to regarding accident-related psychological symptoms in that year was on September 10, 2022. The applicant reported low mood, irritability, issues with sleep and appetite, and flashbacks.

24However, I agree with the respondent that in the previous visit on August 10, 2022, the applicant reported that work had been giving him stress, that he had bought an expensive truck and that he felt he needed a break as he had been getting insomnia. Further, in the September 10, 2022 entry, Dr. Olanrewaju did not diagnose the applicant with any psychological impairment or make any referrals or recommendations regarding the psychological complaints. The only other reference to psychological symptoms that the applicant directs me to was a CNR entry from Dr. Olanrewaju on February 2, 2024, a year and a half after the submission of the OCF-18 and the previous reporting of symptoms. The applicant reported anxiety and flashbacks relating to the accident. I do not find that these isolated reports establish ongoing accident-related psychological symptoms that require additional investigation by way of an assessment.

25The applicant also argues that the OCF-18 for a psychological assessment should be payable pursuant to s. 38(11) of the Schedule, as the respondent was non-compliant with s. 38(8). The applicant argues that the denial letter dated August 16, 2022 failed to identify specific details of his condition or any of the applicant’s specific psychological diagnoses.

26I find that the respondent’s denial letter complied with s. 38(8) of the Schedule. The denial referenced the lack of medical documentation supporting a psychological impairment or pre-existing psychological history, and the fact that the family doctor’s records did not reveal psychological complaints, or referrals for counselling. The August 16, 2022 letter engaged in specific details about the applicant’s condition and provided medical and other reasons for the denial. Accordingly, the applicant has not established that the OCF-18 should be payable under s. 38(11) of the Schedule.

Interest

27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the chiropractic and physiotherapy treatment plans.

ORDER

28I find that: