Licence Appeal Tribunal File Number: 23-011457/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:
Ameer Hussein (A minor by their litigation guardian, Ibrahim Hussein)
Applicant
and
Pembridge Insurance Company
Respondent
DECISION
ADJUDICATOR: Edward Langley
APPEARANCES:
For the Applicant: Michael Yermus, Counsel
For the Respondent: Ryan Kirshenblatt, Counsel
HEARD: By way of written submissions
OVERVIEW
1Ameer Hussein, the applicant, was involved in an automobile accident on December 28, 2018, 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, Pembridge 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:
i. Is the applicant entitled to $2,700.00 for psychological services, proposed by New Path Psychology, Psychotherapy, and Counselling Centre in a treatment plan/OCF-18 (“plan”) dated March 9, 2019?
ii. Is the applicant entitled to $1,210.77 for other goods and services, (karate and skating classes, skates and helmet, and five days of camp), proposed by Innovative Case Management Inc., in a plan dated January 13, 2020?
iii. Is the applicant entitled to $1,735.44 for physiotherapy services, proposed by Active-Med Health and Wellness Centre, in a plan dated February 5, 2020?
iv. Is the applicant entitled to $8,200.00 for a Neuropsychological Assessment, proposed by Dr. David Kurzman and Associates, in a plan dated February 7, 2020?
v. Is the applicant entitled to $5,387.00 for occupational therapy services, proposed by Arin Shuster & Associates, in a plan dated August 19, 2023?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant is entitled to the treatment plans for psychological services, other goods and services, a neuropsychological assessment, and occupational therapy services.
4I find that the applicant is not entitled to the treatment plan for physiotherapy services.
5The applicant is entitled to interest and an award.
ANALYSIS
6To receive payment for a treatment plan under s.15 and s.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.
The applicant is entitled to the treatment plan for psychological services
7I find that the applicant has proven, on a balance of probabilities, that the treatment plan for psychological services is reasonable and necessary.
8The treatment plan, recommended by Mohammad Dehganpour, Psychologist, is for psychological treatment and follow-up testing comprised of three sessions for a brain test and fifteen sessions for mental health and addiction therapy. The stated goals are, helping the applicant process his accident experience, express his feelings and reduce his anger and isolation, and to return to activities of normal living.
9I find that the applicant identifies how the goals of the treatment plan would be met to a reasonable degree, specifically the behavioral improvements expected in the applicant from such treatment. The applicant has been diagnosed with numerous psychological conditions, including PTSD, from a consulting report by Pediatrician Dr. Bishay, completed March 20, 2021, depression, diagnosed by Psychologist Dr. Dehganpour during a psychological evaluation on June 18, 2019, and post-concussion syndrome, which is identified by Pediatrician Dr. Anchala in a report dated January 12, 2019.
10The respondent has submitted an approval letter dated June 26, 2019 for the treatment. What is not clear, however, is whether or not this treatment plan was paid, as there have been no submissions from the respondent that this was in fact done. If it were paid, this plan should have been resolved at the case conference, and therefore settled. The applicant submits that the treatment plan is reasonable and necessary. There is no evidence from the respondent to prove that the plan was previously paid.
11I was not persuaded by the respondent’s evidence on this issue and place more weight on the applicant’s evidence. If the treatment plan for psychological services was approved by the respondent, any reasonable person would expect that the treatment would have been covered by them. The respondent presented no evidence that the treatment plan was paid.
12On a consideration of the applicant’s evidence, I find that the applicant has proven on a balance of probabilities that the treatment plan for psychological services is reasonable and necessary.
The applicant is entitled to the treatment plan for other goods and services (karate and skating lessons, skates and a helmet, and a five-day camp attendance)
13I find that the applicant has proven, on a balance of probabilities, that the treatment plan for karate and skating lessons, skates and a helmet, and a five-day camp attendance is reasonable and necessary.
14The plan, recommended by Kristin Popowich, Occupational Therapist (OT), is comprised of six months of karate classes, four weeks of skating lessons, hockey skates and helmet, and a five-day March break summer camp. The stated goals are, to support the applicant’s overall developmental skills, and to facilitate and coordinate a return to activities of daily living.
15The applicant submits that the treatment plan is reasonable and necessary. In the progress report completed by Occupational Therapist Kristin Popowich, Ms. Popowich notes that the applicant has been engaged in OT treatment, with numerous goals in mind, one of which is supporting the family with respect to structured recreational activities.
16In its submissions, the respondent states that the treatment plan is neither reasonable nor necessary because there is a danger to the applicant from the recommended activities. The respondent states that the applicant has a diagnosis of “post concussion syndrome”, but that the plan recommends the applicant be enrolled in a “serious contact sport such as karate”.
17I was not persuaded by the respondent’s submission. The respondent makes arguments against the treatment plan but presents no supporting medical evidence to support same.
18As a result, I find that the applicant has proven on a balance of probabilities that the treatment plan for other goods and services (karate and skating lessons, skates and a helmet, and a five-day camp attendance) are reasonable and necessary.
The applicant is not entitled to the treatment plan for physiotherapy services
19I find that the applicant has not proven, on a balance of probabilities, that the treatment plan for physiotherapy services is reasonable and necessary.
20The plan, recommended by Dr. Miryam Nik, Chiropractor, is comprised of an evaluation and 16 sessions of physical rehabilitation. The stated goals are, increased range of motion and strength, to support the applicant’s overall developmental skills, and to facilitate and coordinate a return to activities of daily living.
21The applicant has not identified how the proposed treatment plan is reasonable and necessary, what the treatment goals are and if they are reasonable, how the goals will be met to a reasonable degree, and if the overall cost of achieving the goals is reasonable. The applicant has received physical rehab treatment post-accident, which, as confirmed in the assessment from Physiotherapist Kim Moody, has led to reduced back, leg, and arm pain. The applicant submitted a report by Psychiatrist Dr. Showraki, which states the reported body pain by the applicant appears more “psychosomatic” in nature. The applicant’s physiotherapy assessment from Holland Bloorview also opines that the applicant’s neck pain is “once every few days”, and there is a pain decrease overall.
22In its submissions, the respondent states that the treatment plan is neither reasonable or necessary. The respondent relies on a physiotherapy assessment completed by Physiotherapist Kim Moody, who reports that the applicant measured as within normal limits, or (greater than ¾ full on a wide variety of range of motion testing). The applicant was also assessed by her using visual observations, which is stated as appropriate methodology given the applicant’s age. The physiotherapist opined that the applicant would “definitely benefit” from increasing his overall physical activity, as recent evidence suggests that this can improve outcomes in children post-concussion.
23I am not persuaded by the applicant’s evidence on this issue. As documented in a report by Psychiatrist Dr. Showraki, the reported body pain by the applicant appears more “psychosomatic” in nature. The applicant’s physiotherapy assessment from Holland Bloorview also opines that the applicant’s neck pain is “once every few days”, and there is a pain decrease overall.
24Upon consideration of the applicant’s evidence, I find that the applicant has not proven on a balance of probabilities that the treatment plan for physiotherapy services is reasonable and necessary.
The applicant is entitled to the treatment plan for a neuropsychological assessment
25I find that the applicant has proven, on a balance of probabilities, that the treatment plan for a neuropsychological assessment is partially reasonable and necessary.
26The 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.
27The plan, recommended by Dr. Caroline Roncadin, Psychologist, is comprised of $2,000.00 for an “Other measurement NEC total body” test, $2000.00 for “Assessment (examination), total body” test, $2000.00 (x2) for two “test, total body” tests, and $200.00 for documentation/support recommended by Dr. David Kurzman, Psychologist. The stated goals are, to assess current level of psychological and neurocognitive functions in relation to the index MVA and to monitor recovery to date.
28The applicant submits that the treatment plan is reasonable and necessary. They rely on the neuropsychological assessment report of Doctors’ Kurzman (Psychologist) and Roncadin (Psychologist) dated September 2, 2023 (4 years and 9 months post-accident), in which they state it was their medical opinion that the applicant sustained a mild-traumatic brain injury which “disrupted early brain development and contributed materially to his current neurocognitive and emotional/behavioural sequelae.”
29In its submissions, the respondent submits that the treatment plan is neither reasonable or necessary because there was no reason for this assessment if the applicant’s own treating specialist did not think that the applicant’s symptoms were consistent with a concussion.
30I put weight on the report of Doctors’ Kurzman and Roncadin. Given that I have put weight on this report, I am not persuaded by the respondent’s argument that the assessments were not required based only on a comment from the applicant’s Dr. Anchala that symptoms were not consistent with a concussion.
31The treatment plan is for $8,200.00. Section 25(5)(a) of the Schedule states that insurers shall not pay “more than a total of $2,000.00, in respect of fees and expenses, for conducting any one assessment”.
32Upon consideration of the evidence, I find that the applicant has proven on a balance of probabilities that the treatment plan for a neuropsychological assessment is reasonable and necessary, subject to the limit in Section (25)(5) of the Schedule.
The applicant is entitled to the treatment plan for occupational therapy services
33I find that the applicant has proven on a balance of probabilities that the treatment plan for occupational therapy services is reasonable and necessary.
34The plan, recommended by Arin Shuster and Associates, was submitted on August 21, 2023 for OT services treatment. A copy of the OCF-18 was not provided, therefore, details have not been included in this order.
35The applicant submits that the treatment plan is reasonable and necessary. They rely on the progress report completed by Occupational Therapist Kristin Popowich, in which Ms. Popowich notes that the applicant has been engaged in OT treatment, with numerous goals in mind, one of which is supporting the family with respect to structured recreational activities. A progress report from this OT dated March 13, 2020, opines that the applicant would benefit from additional occupational therapy and family support. Finally, an OT status and future recommendations report from Arin Shuster, the applicant’s case manager and OT, recommends on-going treatment of occupational therapy.
36In its submissions, the respondent opines that the treatment plan is neither reasonable or necessary and refers solely to a recommendation from only the applicant’s medical professional, Dr. Ladha, Pediatrician, as the sole referral for OT services. The respondent submits that the treatment plan is not reasonable or necessary based on what is lacking in the applicant’s evidence. However, the respondent does not submit any medical evidence to contradict the reasonableness or necessity of the treatment plan.
37I am persuaded by the applicant’s evidence. The applicant submitted recommendations for the treatment plan from multiple medical professionals which corroborate the need for on-going OT treatment.
38I find that the applicant has proven on a balance of probabilities that the treatment plan for occupational therapy services is reasonable and necessary.
Interest
39The applicant is entitled to interest pursuant to s. 51 of the Schedule.
Award
40The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay of withholding of benefits by the insurer is unreasonable conduct, meaning behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.
41As outlined in Persofsky v Liberty Mutual Insurance, 2000 ONFSCDRS 113, determining the quantum of the award is grounded in the principles of rationality and proportionality. Rationality requires that the determination of the amount of the award sufficiently promotes the objectives of punishment and deterrence without exceeding what is necessary to fulfill those goals. Proportionality ensures that the consequences imposed bear a rational connection to the misconduct.
42In determining the appropriate quantum, the Tribunal has outlined six non-exhaustive factors to consider, which include: (1) the overall length of the delay; (2) the blameworthiness of the insurer’s conduct; (3) the vulnerability of the insured person; (4) the harm or potential harm directed at the insured person; (5) the need for deterrence; and (6) the advantage gained by the insurer from the misconduct.
43The applicant submits that the respondent failed in its on-going duty to properly adjust the applicant’s claim for accident benefits by ignoring the recommendations of medical professionals without obtaining any medical opinions if its own. The applicant argues that the respondent has relied on the “medical opinion” of its claims adjuster. Further, the respondent failed to provide requested productions that were ordered by the Tribunal in its Case Conference Report and Order dated March 6, 2024, including providing the adjuster’s log notes to the date of the Tribunal application. The applicant submits this is grounds for the Tribunal to draw a negative inference, which should be factored into an award decision. Finally, the applicant submits that the respondent’s handling of the claim is “especially egregious given the vulnerable nature and age of the applicant”.
44The respondent submits that little to no medical evidence has been submitted as requested for the purpose of reviewing requested treatment plans, and therefore no award should be given. Further, the respondent submits that there were several requests for medical documentation in 2019 on May 1, October 16, and November 7. Finally, the respondent submits that the applicant’s own conduct and role is a factor in the adjustment of its own claim, and the applicant did not proceed with diligence to provide the respondent with relevant medical records, despite several requests for same from the respondent.
45Based on factors including the overall length of delays, the need for deterrence, and the vulnerability of the applicant, I am more persuaded by the applicant’s evidence with respect to an award. The respondent has a duty to the applicant to properly handle its own claims process. Although the respondent should not be held to a standard of perfection, it should be held to a standard of reasonableness. I find that the respondent has failed to meet that standard. Although the actions of the respondent do not rise to the level that would require a maximum award of 50%, there is evidence that an award is appropriate. Therefore, I order an award of $2,000.00 of the total benefits payable, plus interest.
ORDER
46I find that:
i. The applicant has demonstrated on a balance of probabilities that the treatment plans and assessments on the application are partially reasonable or necessary.
ii. The applicant is entitled to $2,700.00 for psychological services with interest.
iii. The applicant is entitled to $1,210.77 for other goods and services with interest.
iv. The applicant is not entitled to $1,735.44 for physiotherapy services.
v. The applicant is entitled to $2,200.00 for a neuropsychological assessment with interest.
vi. The applicant is entitled to $5,387.00 for occupational therapy services with interest.
vii. The applicant is entitled to an award of $2,000.00 plus interest under the Schedule, plus compound interest calculated as per s.10 of Regulation 664. I leave it to the parties to calculate the interest payable.
Released: October 14, 2025
__________________________
Edward Langley
Adjudicator