Fisher v. The Dominion of Canada General Insurance Company, 2025 CanLII 108591

Citation: Fisher v. The Dominion of Canada General Insurance Company, 2025 ONLAT 24-006155/AABS

Licence Appeal Tribunal File Number: 24-006155/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:

Mishel Fisher

Applicant

and

The Dominion of Canada General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Nicholas Whelan, Paralegal

For the Respondent:

James Armstrong, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Mishel Fisher, the applicant, was involved in an automobile accident on October 23, 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, The Dominion of Canada General 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 $3,795.50 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre Inc. in a treatment plan dated November 10, 2021?
Is the applicant entitled to $1,469.25 ($2,303.00 less $833.75 approved) for physiotherapy services, proposed by Back to Function in a treatment plan dated January 19, 2022?
Is the applicant entitled to $1,300.00 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre Inc. in a treatment plan dated January 31, 2022?
Is the applicant entitled to $2,026.55 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre Inc. in a treatment plan dated April 7, 2022?
Is the applicant entitled to $1,525.84 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre Inc. in a treatment plan dated May 18, 2022?
Is the applicant entitled to $1,525.84 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre Inc. in a treatment plan dated June 27, 2022?
Is the applicant entitled to $1,198.00 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre Inc. in a treatment plan dated January 2, 2023?
Is the applicant entitled to $710.00 ($2,560.00 less $1,850.00 approved) for psychological services, proposed by 101 Assessments in a treatment plan dated August 24, 2023?
Is the applicant entitled to $830.00 ($3,080.00 less $2,250.00 approved) for psychological services, proposed by 101 Assessments in a treatment plan dated November 30, 2023?
Is the applicant entitled to the following assessments proposed by 101 Assessments, as follows:

i. $2,460.00 for a neurological assessment, proposed in a treatment plan dated November 23, 2022?;

ii. $2,460.00 for a neuropsychological assessment, proposed in a treatment plan dated August 23, 2023?;

iii. $2,460.00 for a chronic pain assessment, proposed in a treatment plan dated January 15, 2024?; and

iv. $4,200 for an MRI of the cervical and lumbar spine in a treatment plan dated March 14, 2024?

Is the applicant entitled to $351.60 for transportation, submitted on a claim form (OCF-6) dated September 8, 2022?
Is the applicant entitled to $480.00 ($2,730.00 less $2,250.00 approved) for psychological services, proposed by 101 Assessments in a plan dated June 12, 2024?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?

3By way of motion order dated December 12, 2024, the issue of income replacement benefits, listed in the Case Conference Report and Order as Issue #1, was withdrawn.

RESULT

4I find that:

i. The applicant is not entitled to the outstanding balance of $1,469.25 for physiotherapy services proposed in the treatment plan from Back to Function dated January 19, 2022;

ii. The applicant is entitled to the remaining treatment plans for physiotherapy services, plus interest;

iii. The applicant is not entitled to the outstanding balance of the treatment plans for psychological services;

iv. The applicant is entitled to the treatment plan for a chronic pain assessment, plus interest;

v. The applicant is entitled to the treatment plan for a neurological assessment, plus interest;

vi. The applicant is not entitled to the treatment plan for a neuropsychological assessment;

vii. The applicant is not entitled to the cost of an MRI of the cervical and lumbar spine;

viii. The applicant is not entitled to the OCF-6 for transportation expenses;

ix. The respondent is not liable to pay an award.

ANALYSIS

5Sections 14 and 15 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.

6The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit of treatment.

Outstanding balance of $1,469.25 for physiotherapy services specified in the OCF-18 dated January 19, 2022

7I find that the applicant is not entitled to the outstanding balance of the treatment plan for physiotherapy services.

8The applicant submitted an OCF-18 dated January 19, 2022 from Back to Function clinic for $2,303.00 of physiotherapy services. The respondent partially approved the treatment plan in the amount of $833.75, up to the Minor Injury Guideline (“MIG”) limits.

9The respondent submits that the remaining balance of the OCF-18 is not reasonable and necessary, given the fact that the applicant had only attended three out of the nine approved physiotherapy sessions, and that to date, the applicant has not incurred the previously approved treatment. The applicant submits that the reason he has not completed the approved treatment, was because he had stopped attending Back to Function clinic and was now attending Mackenzie Medical Rehabilitation Centre.

10The applicant has submitted multiple treatment plans for physiotherapy services from his new treating clinic Mackenzie Medical, one of which was dated only a week after the OCF-18 dated January 19, 2022 from Back to Function clinic. Given that in the following section I have found that the applicant is entitled to the OCF-18s for physiotherapy services from Mackenzie Medical, including one dated January 31, 2022, I find that the remaining balance of $1,469.25 for physiotherapy services specified in the OCF-18 dated January 19, 2022 is duplicative, and no longer required.

11As such, the applicant has not established that the outstanding balance of the January 19, 2022 treatment plan is reasonable and necessary.

12The applicant has established that the treatment plans from Mackenzie Medical for physiotherapy services, are reasonable and necessary.

13The applicant submitted six OCF-18s for physiotherapy services from Mackenzie Medical dated November 10, 2021, January 31, 2022, April 7, 2022, May 18, 2022, June 27, 2022, and January 2, 2023. He argues that all of the treatment plans are reasonable and necessary, since he continued to suffer from physical impairments and chronic pain in the years post-accident.

14The applicant relies on the clinical notes and records (“CNRs”) of his family physician, Dr. Lisbi Eapen, to establish his post-accident pain symptoms. He submits that in the years post-accident, he consistently reported ongoing neck, back and left leg pain, and that he attended physiotherapy treatment until July 2022, paying out of pocket for some of the denied treatment. The applicant also points to his reports to Dr. Eapen and to various assessors that when he stopped physiotherapy, his pain had increased significantly.

15The respondent relies on its s. 44 assessment reports to argue that additional physiotherapy treatment is not reasonable and necessary. Its s. 44 physiatry assessor Dr. Khan found in reports dated March 10, 2022 and May 23, 2023 that further facility-based treatment would not provide any improvement but rather, alternative pain relief modalities, such as injections, nerve blocks and muscle relaxants could be considered. The respondent also points to the applicant’s reports to Dr. Khan in March 2022 that his previous physiotherapy treatments did not result in any improvement to his physical pain.

16I find that the applicant has met his onus to prove, on a balance of probabilities, that the treatment plans for physiotherapy services from Mackenzie Medical, are reasonable and necessary.

17The CNRs from Dr. Eapen establish that the applicant reported neck, back and left leg pain soon after the accident. The November 3, 2021 CNR entry also noted that the applicant was beginning physiotherapy for his soft-tissue injuries. The applicant continued to report such back, neck and leg pain in February 2022 and throughout 2023. Although the respondent points to the applicant’s reports to its assessor Dr. Khan in March 2022 that his previous physiotherapy treatment had not improved his pain, the applicant reported to his family doctor in August 2023 that his pain had worsened since he stopped physiotherapy. The applicant requested a referral letter for physiotherapy, which Dr. Eapen provided. In November 2023 the applicant stated that he will restart physiotherapy, even if he had to pay out of pocket.

18The various OCF-18s submitted by Mackenzie Medical also note the applicant’s progress with physiotherapy treatment, albeit slowly. The April 7, 2022 OCF-18 noted that the applicant had reported slow improvement with therapy. And the May 18, 2022 and June 27, 2022 OCF-18s noted the applicant’s decrease in pain and increase in range of motion. Although the respondent’s physiatry assessor Dr. Khan found that further facility-based treatment was not required, Dr. Khan noted the applicant’s ongoing pain reports. I further note that most of the OCF-18s were submitted in the first six months after the accident. Given the applicant’s persistent pain complaints and reports of improvement with treatment, I find that the applicant has established their reasonableness and necessity. Further, the subsequent OCF-18 dated January 2, 2023 is in the same timeframe when the applicant was reporting to Dr. Eapen that since he had stopped physiotherapy, his pain had increased. Dr. Eapen then provided a referral for such treatment.

19Accordingly, I find that the applicant has established entitlement to the six treatment plans for physiotherapy services from Mackenzie Medical.

Outstanding balance of OCF-18s for psychological services

20The applicant is not entitled to the outstanding balance of the OCF-18s for psychological services.

21The respondent partially approved three OCF-18s for psychological services, dated August 24, 2023, November 30, 2023 and June 12, 2024. The applicant submits that he is entitled to the denied portion of the treatment plans, since reassessments are not simply an administrative service, but rather, are crucial for ongoing treatment and to assess progress.

22However, I agree with the respondent that the denied portions of the OCF-18s did not relate to re-assessments. Rather, the denied items were for: planning – file review; documentation support; and planning notes. I agree with the Tribunal decision cited by the respondent, Haran v. Certas, 2024 CanLII 891 (ONLAT), that these fees are included in the hourly rate for services under the Professional Services Guideline, and are not an additional separate charge.

23As such, I find that the applicant has not established that the denied portion of the OCF-18s for psychological services are reasonable and necessary.

OCF-18 for a chronic pain assessment

24I find that the applicant has established that the proposed chronic pain assessment is reasonable and necessary.

25I agree with the applicant that the CNRs of Dr. Eapen establish the applicant’s ongoing pain reports in the three years post-accident. The applicant also consistently reported back, neck and left leg pain to his s. 25 and the respondent’s s. 44 assessors.

26The respondent relies on the s. 44 report of Dr. Alfonse Marchie, physiatrist, to deny the treatment plan. In his August 6, 2024 report Dr. Marchie opined that a chronic pain assessment would not provide prolonged symptom relief from the applicant’s musculoskeletal pain symptoms. Dr. Marchie also noted that the applicant had declined pain injections and that he should be focussed on self-directed exercises.

27However, I note that Dr. Marchie also diagnosed the applicant with injuries to his neck, left scapula, mid and lower back, left wrist and left leg as a result of the accident, noted the applicant’s restricted range of motion and that there had not been any pre-accident history of musculoskeletal pain. Dr. Marchie further noted that typically such impairments require nine months to a year to achieve maximum medical recovery, but stated that the applicant’s prognosis was “guarded” given the fact that it had been more than 2.5 years post-accident.

28The respondent further submits that the applicant has not pursued some of the recommended treatments, including nerve block injections, Botox injections for headaches or prescription pain medications. However, in my view, the fact that the applicant had not pursued injections or medications does not detract from the fact that he continued to suffer from ongoing pain and functional limitations in the years post-accident. I agree with the reasoning in the decision cited by the applicant, Mohamed v Aviva, 2023 CanLII 2697 (ONLAT), that in situations such as this, where the pain complaints are multifactorial, a chronic pain assessment would provide a holistic assessment of treatment modalities that can be of benefit to the applicant.

29Accordingly, I find that the applicant has established entitlement to the OCF-18 for a chronic pain assessment.

OCF-18 for a neurological assessment

30I find that the applicant has established that the proposed neurological assessment is reasonable and necessary.

31The applicant submitted an OCF-18 dated November 23, 2022 for a neurological assessment. The respondent denied the OCF-18 relying on the s. 44 neurological assessment report of Dr. Dost, dated May 23, 2023. Dr. Dost found that the applicant had not sustained a concussion, noting that at the time of the accident, there was no evidence of a “confusional state” from a concussion, which was one of the factors required to diagnose a concussion.

32The applicant relies on the s. 25 neurological report of Dr. Basile, dated January 25, 2023. Dr. Basile diagnosed the applicant with post concussive syndrome, consistent with a traumatic brain injury, post-traumatic headaches including occipital neuralgias on the left and likely left-sided cervical and lumbosacral radiculopathy.

33When comparing the neurological reports of Dr. Dost and Dr. Basile, I place greater weight on Dr. Basile’s findings of post concussive syndrome, as this diagnosis, in my view, is consistent with the medical record. The CNRs of Dr. Eapen indicate that the applicant reported headaches, nausea and vomiting a week after the accident. A few weeks later, the applicant continued to report headaches, in addition to blurring vision. The applicant was referred to a concussion clinic and in a January 10, 2022 assessment was diagnosed with post concussion syndrome. I agree with the applicant that the medical record supports Dr. Basile’s diagnosis of an accident-related concussion. As such, I find that the applicant has established that the OCF-18 for a neurological assessment is reasonable and necessary.

OCF-18 for a neuropsychological assessment

34I find that the applicant has not met his onus to prove that the proposed neuropsychological assessment is reasonable and necessary.

35To establish his claim for a neuropsychological assessment, the applicant relies in large part on the s. 25 psychological assessment report of Dr. Papazoglou dated August 4, 2022. The applicant submits that Dr. Papazoglou noted the applicant’s reports of changes in his memory and concentration levels, which the applicant argues is evidence of a cognitive disorder due to his head injury.

36However, I agree with the respondent that Dr. Papazoglou noted that the applicant’s difficulties in focussing and concentrating were reportedly due to distraction caused by his pain and discomfort, not due to post concussion symptoms. The applicant does not direct me to additional medical evidence to support his position that he sustained concussion-related cognitive impairments, or that a neuropsychological assessment is reasonable and necessary. Accordingly, I find that the applicant has not established entitlement to the OCF-18.

OCF-18 dated March 14, 2025 in the amount of $4,200 for an MRI of the cervical and lumbar spine

37I find that the applicant has not established that the cost of an MRI is reasonable and necessary.

38The applicant submits that post-accident he has been reporting ongoing symptoms, and that in his s. 44 neurological report, Dr. Dost had recommended an MRI of the lumbar spine. The applicant argues that if the respondent’s assessor required an MRI, the applicant should be able to obtain one in a timely manner.

39The respondent submits that the applicant has not established that a privately funded MRI is reasonable and necessary. It argues that the applicant has not provided any explanation as to why an MRI was not sought through the OHIP system. It further notes that the applicant had previously requested a brain MRI from his family physician on March 13, 2024 and shortly thereafter, he had an OHIP-funded MRI of the brain on April 8, 2024. The respondent further submits that Dr. Dost had suggested the MRI in his May 23, 2023 report, however, the applicant did not submit the OCF-18 until 10 months later, which undermines the applicant’s claim that the MRI must be obtained in a timely manner through a private clinic.

40I agree with the respondent. The evidence establishes that the applicant was previously able to obtain an MRI through OHIP within a month of requesting it. The applicant has not provided any evidence as to whether the cervical and lumbar spine MRI had been requested through his family doctor, and what the wait time would be. I agree with the Tribunal decision cited by the respondent on this point, Geraldes v. Peel Mutual, 2024 CanLII 81210, that an MRI is an expense covered by OHIP under s. 47(2) of the Schedule, and that without any evidence as to the wait time through OHIP to obtain the MRI, the applicant has not established that a privately funded MRI is reasonable and necessary.

OCF-6 in the amount of $351.60 for transportation expenses

41I find that the applicant has not established that the transportation expenses are reasonable and necessary.

42The applicant’s sole argument in support of the expense is that the respondent’s denial of the claim form was unreasonably delayed. The OCF-6 was submitted on September 8, 2022, and the applicant argues that it was not denied until May 14, 2024, 20 months later. Accordingly, the applicant argues that this delay is in contravention of the Schedule, and the OCF-6 is therefore payable.

43I am not persuaded by the applicant’s argument. The respondent has submitted an Explanation of Benefits (EOB) dated September 19, 2022 denying the OCF-6. Therefore, I do not agree that the claim form was not denied for 20 months. The EOB stated that the reason for the denial was that it had previously told the applicant that further transportation expenses would not be payable, as attending a clinic such a far distance from the applicant’s residence was not reasonable and necessary. The respondent states that the clinic was 108.6km from the applicant’s home but that he had previously attended a closer clinic.

44The applicant has not provided any submissions on the reason why this physiotherapy clinic was selected and why he could not attend a clinic closer to home. Without specific submissions on the transportation expenses, I find that the applicant has not established the reasonableness and necessity of same.

Interest

45Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest is payable on the chiropractic treatment plans from Mackenzie Medical, and the treatment plans for a chronic pain assessment and a neurological assessment.

Award

46The 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 applicant has not provided any submissions on the grounds for an award. Without specific submissions as to how the respondent unreasonably withheld or delayed payment, I find that the applicant has not established that the respondent is liable to pay an award.

ORDER

47I find that:

i. The applicant is not entitled to the outstanding balance of $1,469.25 for physiotherapy services proposed in the treatment plan from Back to Function clinic dated January 19, 2022;