Licence Appeal Tribunal File Number: 23-012994/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 Prosser
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Robert Fleming
APPEARANCES:
For the Applicant: Ryan Finlay, Counsel Brent McQuestion, Counsel
For the Respondent: Daniel MacDonald, Counsel Kristofer Angle, Counsel
HEARD: By way of written submissions
OVERVIEW
1Kevin Prosser, the applicant, was involved in an automobile accident on August 30, 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, Insurer, 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 $2,026.76 for massage therapy services, proposed by Stoney Creek Rehab and Wellness Centre in an OCF-18/treatment plan (“plan”) dated January 16, 2023?
ii. Is the applicant entitled to $3,268.68 for chiropractic services, proposed by Stoney Creek Rehab and Wellness Centre in a plan dated March 18, 2024?
iii. Is the applicant entitled to $2,026.76 for massage therapy services, proposed by Stoney Creek Rehab and Wellness Centre in a plan dated November 1, 2023?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3On November 26, 2024, adjudicator Lisa Yong filed a motion order for the following.
i. Withdraw the issue of non-earner benefit (NEB), which is issue 1 as listed in the Case Conference Report and Order (CCRO);
ii. Withdraw the issue of the treatment plan for a mechanical reclining chair, which is issue 5 as listed in the CCRO;
iii. To vacate the four-day videoconference hearing and convert the format of the hearing to a written hearing; and
iv. With respect to the written hearing submissions, to grant the parties with 10 pages each for their submissions and the applicant 5 pages for reply submissions.
4The motion order and CCRO list issue 1 above incorrectly as chiropractic services. The treatment plan in dispute for the same amount, from the same clinic and on the same day calls for massage therapy services. In their written submissions the parties describe the services in this treatment plan as massage therapy. The list of issues above reflects the correct services.
RESULT
5The applicant is entitled to the treatment plans in dispute.
6The applicant is entitled to interest in accordance with s. 51 of the Schedule.
PROCEDURAL ISSUES
MOTION
7The applicant sought an order from the Tribunal that the respondent be precluded from relying on its late served written submissions and that the Tribunal strike them from the record. The applicant relies on Rules 9.4.5 and 9.3 of the Licence Appeal Tribunal Rules, 2023. The applicant submitted that the respondent served his written submission on January 20, 2025, 3 days after the deadline, did not seek consent from the applicant, leave from the Tribunal or provide a reasonable explanation for its non-compliance.
8The respondent agreed that its written submissions were served January 20, 2025, 3 days after the deadline and acknowledged that to the applicant via email on January 19, 2025. The respondent submitted that there is no prejudice to the applicant if the respondent’s written submissions are heard by the Tribunal as the applicant has served and filed reply written submissions which include this motion. The respondent further submitted that it has a right to be heard and that it would be unfair to the respondent if their written submissions were not heard.
9Rule 9.4.5 states that the deadline for filing and serving submissions and hearing briefs for written hearings will be set by order of the Tribunal. Rule 9.3 states that if a party fails to comply with any Rule, direction or order with respect to disclosure, exchange, production, or inspection of documents or things, that party may not rely on the document or thing as evidence without permission of the Tribunal.
10I am denying the applicant’s motion. The applicant has not demonstrated that he would be prejudiced by the respondent’s filing of written submissions three days after the deadline. The respondent would be significantly prejudiced if its submissions were struck as it would not have an opportunity to make its case.
11In sum, my decision is that the respondent’s written submissions will be heard. I find that the applicant will not be prejudiced and that the respondent will be significantly prejudiced by the Tribunal not considering the respondent’s written submissions.
ANALYSIS
12To receive payment for a treatment plan under sections 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.
13In this matter, the applicant seeks entitlement to the treatment plans because they are reasonable and necessary.
14I find that the applicant has demonstrated that the treatment plans are reasonable and necessary.
15The goals of the treatment plans for the proposed massage therapy and chiropractic services were the same: pain reduction, increased range of motion, increased strength and return to activities of normal living. Progress of the stated goals would be evaluated using the same criteria: range of motion, palpitation and relying on both subjective and objective findings. On each of the treatment plans Dr. Frisina, chiropractor, and Ms. Taylor, massage therapist, indicated that the applicant was progressing slowly but steadily, and they identified a barrier to the applicant’s recovery as being residual injuries from a 2008 motor vehicle accident.
16The applicant argues that pain relief alone can be a legitimate rehabilitation goal, even for chronic conditions, that treatment providing temporary pain relief can be considered reasonable and necessary even without objective findings and that treatment after maximum medical recovery (MMR) can still be reasonable and necessary for chronic pain management.
17The respondent argues that there are extensive pre-existing conditions from a 2008 motor vehicle accident, that there is a lack of treatment benefits, and that causation is an issue.
18The applicant submitted that multiple healthcare providers confirm accident-related symptoms nearly 3 years post-accident. The applicant also submitted, that occupational therapist Laura Zuliani (May 3, 2024) recommended ongoing community-based physiotherapy, chiropractic care, and massage therapy to optimize mobility, endurance and pain management. The applicant further submitted that, Dr. Sean Shahrokhnia, psychologist (October 7, 2024), documented chronic pain affecting quality of life, sleep and daily activities. Finally, the applicant submitted that the applicant himself has paid thousands of dollars for treatment which indicates subjective benefit and that the applicant’s voluntary participation in treatment indicates perceived value.
19The respondent submitted that the applicant has been on long-term disability, with permanent restrictions, since a 2008 near fatal motorcycle accident and that prior to this accident (April 26, 2021), the LTD insurer noted the applicant’s condition is still the same. The respondent also submitted that the applicant reported to Dr. Feigelson, physiatrist, s. 44 IE assessor, (February 17, 2022, and March 8, 2023) that there have been no benefits to treatments. The respondent further submitted that an OHIP-funded pain specialist at the Michael G. Degroote Pain Clinic, Dr. Thuraya Salim Mohammed Al Hadifi, MD, noted (November 14, 2023) no benefits with treatments. Finally, the respondent submitted that medical imaging pre- and post-accident show the same changes to the applicants back and left shoulder from the 2008 accident.
20I find that the applicant has demonstrated on a balance of probabilities that the treatment plans are reasonable and necessary. I was persuaded by Laura Zuliani’s, occupational therapist, report dated May 3, 2024 recommending chiropractic care and massage therapy. I place significant weight on this report because Ms. Zuliani’s background as an occupational therapist is directly related to the type of treatments being sought and because the assessment was done in-home, over 2 days, evaluated the impact of the impairments on daily living activities and determined what treatments are needed for optimal functional improvement.
21Ms. Zuliani’s report specifically recommended ongoing community-based physiotherapy, chiropractic care and massage therapy to optimize mobility, endurance and pain management. Ms. Zuliani’s recommendations to optimize mobility, endurance and pain management indicate that the current treatments are beneficial, will provide ongoing benefit and are appropriate which further indicates that they are reasonable and necessary. Ms. Zuliani’s report is almost 3 years post accident and clearly states the applicant’s neck pain and headaches are new pains and were not present pre-accident. The report also states the new neck pain and headaches worsens the left shoulder and back pain that were pre-existing from the 2008 accident. Ms Zuliani’s report clearly states that the pain experienced by the applicant is from the most recent accident in August 2021.
22In addition, Ms. Zuliani’s report corroborates Dr. Shahrokhnia’s, psychologist, report from October 7, 2024, which is part of an interdisciplinary approach to the applicant’s care, and that stated the applicant continues to face limitations related to his accident, which negatively affect both his physical and mental well-being, preventing him from returning to his pre-accident level of functioning. Dr. Shahrokhnia’s report also stated that treatments have provided some temporary relief. While I acknowledged that Dr. Shahrokhnia is a psychologist and not qualified to opine on the worker’s physical condition, I nonetheless find that this reporting corroborates that the applicant continued to report experiencing physical limitations during this period. I also note that this report was done during an ongoing psychological treatment and was part of an ongoing interdisciplinary approach to the applicant’s care over time rather than a one-time assessment.
23While I note that this is a contradiction to the clinical notes and records from Dr. Feigelson of the Dr. Michael G. Degroote Pain Clinic, dated November 14, 2023, which found that the applicant receives no benefit from massage and chiropractic treatments. I also acknowledge that Dr. Feigelson indicated there had been no benefit from the treatment. However, I put less weight on this evidence because, as noted above, I find that the assessment conducted by Ms. Zuliani assesses real world functional capacity and provides a comprehensive review of the applicant’s functioning and need for accident-related treatment on a daily living basis which corroborates the treatment plans in dispute. I also find that it is consistent with the interdisciplinary team reporting of Dr. Shahrokia as set out above.
24I find that the applicant has met his burden to establish, on a balance of probabilities, that he is entitled to the treatment plans specified above.
Interest
25The applicant is entitled to interest in accordance with s. 51 of the Schedule
ORDER
26For the reasons set out above, I find that:
i. The applicant is entitled to the treatment plans in dispute.
ii. The applicant is entitled to interest in accordance with s. 51 of the Schedule.
Released: October 10, 2025
Robert Fleming
Adjudicator