Licence Appeal Tribunal File Number: 24-000637/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:
Minh Ho
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Rasha El Sissi
APPEARANCES:
For the Applicant:
Aaron Atwal, Counsel
For the Respondent:
Joanne R. Witt, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Mihn Ho, the applicant, was involved in an automobile accident on April 26, 2019, 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 General Insurance, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant submitted that he previously sustained a head injury in 1998, following which he has not been able to sustain any form of employment. He further submitted that he has been under the consistent care of Dr. Albert Allen, his treating psychiatrist and that Dr. Allen diagnosed him with chronic pain, chronic headaches, post traumatic stress disorder (“PTSD”) and major depressive disorder.
3The applicant submitted that he experienced pain to his neck, back and shoulder, as well as exacerbation of his pre-existing medical conditions, as a result of the accident, and sought treatment.
4The applicant submitted that, as of March 4, 2020, the respondent placed his injuries outside the jurisdiction of the Minor Injury Guidelines due to the fact that he “has suffered specific phobia, vehicular, as well as an exacerbation of depressive symptoms, related to a pre-existing diagnosis of major depressive disorder, as a result of the subject MVA”.
5The respondent submits that on November 18, 2024, the Tribunal released a decision from a written hearing between the same parties in connection with benefits arising out of the same date of loss (Ho v. Aviva Insurance Company, 2021 CanLII 115431 (ON LAT)) (“Previous Decision”).
6The case conference and report of June 25, 2024 (“CCRO”) for the current proceeding included the substantive issue of whether the applicant had sustained a catastrophic impairment. The CCRO ordered a four-day videoconference hearing. A motion order dated December 3, 2024 (“Motion Order”), allowed the applicant to withdraw the CAT issue, and converted the format to a written hearing on February 7, 2025. The CCRO was otherwise unchanged.
ISSUES
7The issues in dispute are:
i. Is the applicant entitled to $2,019.64 ($3,416.64 less $1,397.00 approved) for psychological services, proposed by Disability Medicine Specialists in a treatment plan/OCF-18 (“treatment plan”) submitted February 25, 2022?
ii. Is the applicant entitled to $3,566.29 for psychological services, proposed by Disability Medicine Specialists in a treatment plan submitted November 17, 2022?
iii. Is the applicant entitled to $2,200.00 for a general practitioner’s assessment (incorrectly labeled, “multidisciplinary services” in the CCRO and Motion Order), proposed by Pain Rehabilitation Clinic in a treatment plan submitted February 8, 2022 (incorrectly dated February 2, 2022)?
iv. Is the applicant entitled to $2,600.64 for physiotherapy services, proposed by Pain Rehabilitation Clinic in a treatment plan submitted September 22, 2022?
v. Is the applicant entitled to $2,600.64 for physiotherapy services, proposed by Pain Rehabilitation Clinic in a treatment plan submitted February 25, 2022?
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
8The applicant is not entitled to the outstanding balance of the treatment plan for psychological services submitted on February 25, 2022.
9The applicant is entitled to $2,170.00, plus interest, under the treatment plan for psychological services submitted on November 17, 2022.
10The applicant is not entitled to the general practitioner’s assessment submitted on February 8, 2022.
11The applicant is not entitled to the treatment plans for physiotherapy services submitted on February 23, 2022 and September 22, 2022.
12No award is justified.
PROCEDURAL ISSUES
13The respondent submits that the applicant failed to comply with the CCRO, which required him to produce various documents, and requests that an adverse inference be drawn. The respondent submits that the following records have not been provided to date:
i. Updated clinical notes and records (“CNR”) from Pain Rehabilitation Clinic Inc. from August 23, 2023.
ii. Updated records from Disability Medicine Specialists from July 10, 2021.
iii. Updated file of Natalia Zhukova, Andrew Hinkle, Laiba Imran and Dr. Langis, including all contemporaneous notes and raw test data, from July 9, 2021.
iv. Updated file of Dr. Bismonte, including all contemporaneous notes and raw test data, from May 22, 2021.
v. Complete file of Dr. Rodrigo Castro, general practitioner, including all contemporaneous notes, from 1 year pre-accident.
vi. Updated summaries from all pharmacies attended by the applicant, from April 12, 2023.
vii. Updated CNR from Dr. Albert Allen from September 8, 2023.
viii. Updated decoded OHIP summary from May 2, 2023.
ix. Updated CNR from Dr. Hoang Nguyen from October 4, 2022.
x. Updated CNR from Dr. Joseph Truong from December 17, 2022.
xi. Updated CNR from D. Khan Vo from December 17, 2022.
xii. Updated record from North York General Hospital from April 5, 2022.
xiii. Updated ODSP file from October 3, 2022.
xiv. Complete file of any other treatment provider, clinic or s. 25 assessor from 1 year pre-accident.
xv. Particulars of the award on receipt of the adjuster’s log notes, which were delivered by the respondent on July 10, 2024.
14There is no evidence before me that the applicant provided any updated records or files, or the complete files requested in items (v) and (xiv). Nor did the applicant seek to rely on any of the items in the hearing. (I address the award below.) The applicant did not explain his lack of compliance with the CCRO in its submissions or make a reply.
15The respondent did not indicate what specifically it expected to find in the documents not produced. The respondent argued generally that the applicant has violated the principles of procedural fairness and hampered the respondent’s ability to defend itself fully and fairly.
16Item (i) is production of the updated CNR of Pain Rehabilitation Clinic from August 2023. The clinic proposed the three treatment plans in dispute that addressed the applicant’s physical symptoms (issues iii, iv and v). I am not persuaded that they likely contained information relevant to whether those plans are reasonable and necessary because the updates would post-date the treatment plans by almost a year or more. Therefore, I decline to make an adverse inference from the lack of production of item (i).
17The applicant submits that at all relevant times, the applicant has reported his ongoing physical and psychological issues to his treating psychiatrist, Dr. Allen. All the treatment plans in dispute were dated between February 2022 and November 2022. The respondent’s section 44 psychological reports are dated April 25, 2022 and February 9, 2023. I am not persuaded that the CNR of Dr. Allen from September 2023 (item (vii)) likely contained relevant information because the missing updates commenced months later than the dates of the plans and section 44 psychology reports. Therefore, I decline to make an adverse inference from the lack of production of item (vii).
18Item (ii) is the updated records from Disability Medicine Specialists from July 10, 2021 and item (iii), is the updated file of Laiba Imran and Dr. Langis, and others, including notes and raw test data, from July 9, 2021. The applicant relies on the psychological progress report completed by Dr. Erin Langis and Ms. Imran Laiba dated August 29, 2022. The latter individuals were identified as the treatment providers and supervisor in the psychological treatment plans proposed by Disability Medicine Specialists. Therefore, I find that these items likely contained information relevant to the psychological treatment plans in dispute. I infer that these missing documents were part of the applicant’s treating and supervising therapists’ CNR covering the period leading up to the proposal of the psychological treatment plans and the completion of the psychological progress report. The applicant has not provided any explanation for his failure to provide the requested records, or put forward an argument challenging their relevance. Accordingly, I find it appropriate to make an adverse inference because of their non-production, i.e., to infer that the documents would have been unhelpful to the applicant’s case that the psychological treatment plans in dispute were reasonable and necessary.
19Item (v) is the complete file of Dr. Rodrigo Castro, physician. Dr. San Bui, chiropractor, and Dr. Castro signed the treatment plan for a general practitioner’s assessment (incorrectly labeled “multidisciplinary services”) dated February 8, 2022, which was proposed by Pain Rehabilitation Clinic. The applicant provided in evidence a general practitioner’s assessment dated March 16, 2022 by Dr. Castro. While the complete file of Dr. Castro may be relevant, the report itself documents in some detail what Dr. Castro reviewed, his interview with the applicant and physical examination of the applicant. The respondent did not indicate what it was looking for in Dr. Castro’s records beyond what was in his report already. Therefore, I decline to make an adverse inference from the lack of production of item (v).
20Regarding the rest of the documents not produced, the respondent did not say how they are relevant to the remaining issues in dispute. Therefore, I make no finding in that regard and do not find it appropriate to make an adverse inference from their non-production.
ANALYSIS
21To receive payment for a treatment and assessment plan under section 15 and section 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.
Psychological Treatment Plan Submitted on February 25, 2022
22I find that the applicant is not entitled to the outstanding balance of psychological services totalling $2,019.64 under this treatment plan because he has not met his onus to prove that the denied services were reasonable and necessary.
23The treatment plan proposed treatment of 10, 1.5-hour sessions, along with 3 hours of documentation support activity, 10, 0.25-hour units of mental health testing, 1 hour of planning service, 1 hour of documentation support activity, and a claim form completion item, for a total cost of $3,416.64. The treating practitioner was listed as Dr. Langis, psychologist. The specified injuries were recurrent depressive disorder, and specific (isolated) phobia. The goals were pain reduction, return to pre-accident level of psychological functioning, and return to activities of normal living. Evaluation of progress toward the goals was to be evaluated by administration of psychological tests.
24This was a subsequent treatment plan. It referred to a psychological progress reported dated January 31, 2022 for information about the applicant’s improvement at the end of the previous plan. It indicated that the progress report was by Ms. Imran, registered psychotherapist, under the supervision of Dr. Langis. The January 31, 2022 progress report was not provided in evidence. As noted above, the updated records and file from July 2021 of Ms. Imran, Dr. Langis and Disability Medicine Specialists were not produced to the respondent in violation of the Tribunal’s order, from which I make an adverse inference that they were unhelpful to the applicant’s case.
25The respondent submitted a letter to the applicant dated March 10, 2022 that denied the treatment plan and required a section 44 psychology examination by Dr. Rakesh Ratti. Dr. Ratti assessed the applicant on April 8, 2022 and issued a report on April 25, 2022. Dr. Ratti opined that the lack of improvement in the applicant’s emotional state and the longstanding nature of his pre-accident mental health issues, suggested the likelihood that the applicant’s presentation reflected mostly his long-standing distress. Dr. Ratti recommended approval of 10, 1-hour sessions and 2 hours of documentation support activity (for progress reporting) to bring the treatment to a close. The respondent submitted a letter to the applicant dated April 26, 2022 that partially approved the proposed treatment plan in the amount of $1,397.00, reflecting Dr. Ratti’s recommendations, and a lower hourly rate ($99.75) for therapy provided by Ms. Imran, psychotherapist, rather than by Dr. Langis, psychologist.
26The applicant submitted generally that he was entitled to the treatment plan as a result of injuries from the accident and that the services were directly related to required treatments to assist in his recovery. He pointed to specific discussions with his treating psychiatrist, Dr. Allen, on March 14, 2022, June 6, 2022 and September 12, 2022.
27These CNR are not helpful with respect to this treatment plan. Firstly, they are all after the date of this treatment plan. Secondly, they do not address any of the issues in dispute with respect to this plan, such as the duration of sessions, the identity and qualifications of counsellor, or additional psychological testing. The applicant also pointed to the progress report of Dr. Langis and Ms. Imran dated August 29, 2022. I place limited weight on this report for the purposes of this treatment plan for the same reasons.
28I find that the applicant has not established that the denied services were reasonable and necessary. He did not address why the added cost of 1.5-hour sessions was reasonable, instead of the 1-hour sessions Dr. Ratti opined are “standard”. He did not dispute the respondent’s belief that his direct treatment provider for therapy was Ms. Imran not Dr. Langis. He did not address the hourly rate that should be paid for such treatment by a psychotherapist as opposed to a psychologist. He did not make any submissions on why additional services for testing, preparation and progress reporting were reasonable and necessary.
29Accordingly, given the lack of submissions and evidence on these points, I find that the applicant has not established that he is entitled to the denied services.
Psychological Treatment Plan Submitted on November 17, 2022
30I find that the applicant is partially entitled to the psychological treatment proposed in this treatment plan, in the reduced total amount of $2,170.00, for the reasons discussed below.
31This treatment plan proposed treatment of 10, 1.5-hour sessions of psychological counselling, along with services related to preparation, testing and progress reporting, and a claim form completion item, for a total cost of $3,566.29. The provider of psychological counselling was Ms. Imran and the provider of progress reporting was Dr. Langis. The specified injuries, goals and means for evaluating progress were the same as in the February 2022 treatment plan for psychological services discussed above.
32This also was a subsequent treatment plan. It referred to a psychological progress reported dated August 29, 2022 for information about the applicant’s improvement at the end of the previous plan. It indicated that the progress report was by Ms. Imran, under the supervision of Dr. Langis. The August 29, 2022 progress report was provided in evidence. However, I place no weight on it because of the adverse inference I have made due to the lack of production of updated records and file of Ms. Imran, Dr. Langis and Disability Medicine Specialists for the relevant time, also as discussed above.
33With respect to this treatment plan, the applicant relies on the CNR of his treating psychiatrist, Dr. Allen from sessions on (a) February 14, 2022 to March 14, 2022, and (b) from June 3, 2022 to September 12, 2022. The respondent denied this plan and required a further section 44 psychology examination with Dr. Ratti, which took place on January 26, 2023. The respondent confirmed denial of this treatment plan based on the section 44 psychology report of Dr. Ratti dated February 9, 2023. For reasons not explained or addressed by either party, in preparing his second report, Dr. Ratti did not review any clinical notes and records of Dr. Allen from anytime after December 2021.
34The applicant submits that the CNR of Dr. Allen on March 14, 2022, June 6, 2022 and September 12, 2022 demonstrate the reasonableness and necessity of this treatment plan. I agree with the applicant and do not find that the February 9, 2023 section 44 report of Dr. Ratti refutes this finding.
35In the March 12, 2022 CNR, Dr. Allen recorded the applicant’s subjective statements about his recently completed counselling. I infer from the applicant’s submissions that this was psychological treatment previously approved by the respondent and so I find these notes are relevant to whether additional treatment would be reasonable and necessary. Dr. Allen recorded what the applicant practiced, and did or did not find helpful, of his counselor’s advice. Dr. Allen stated that the applicant’s PTSD symptoms appeared to have flared up again after the accident. He further stated that cognitive strategies seemed not to work well for the applicant and that more body-based work like the progressive muscle relaxation might be more helpful. He also reported that the applicant was still getting some nightmares and waking up in the night. The plan was to adjust the applicant’s medication and follow-up in three months. From this CNR, I find that, at the time, the applicant was experiencing ongoing psychological issues from the accident (i.e., PTSD) and received a degree of benefit from the advice of his counsellor that he practised on his own (e.g. relaxation exercises / progressive muscle relaxation when he has a headache).
36In the June 6, 2022 CNR, Dr. Allen recorded the applicant’s complaints of continuing nightmares despite the medication adjustment. The applicant reported the nightmares happened every 1-2 days and were about his accident and being unable to brake in time to avoid T-boning a car. Dr. Allen stated that his impression was of MDD, PTSD and chronic headaches. The plan was to adjust the applicant’s medication, follow-up in three months, and to see if the applicant could engage with the nightmare to imagine swerving to avoid the accident, as well as breathing techniques for his headaches. From this CNR, I find that, at the time, the applicant was experiencing continuing psychological issues from the accident, specifically frequent nightmares about the accident, which Dr. Allen related to his PTSD.
37In the September 12, 2022 CNR, Dr. Allen made notes about 10 recently completed sessions of counselling for depression and muscle relaxation based on the applicant’s subjective report. Again, I infer from the applicant’s submissions that this was psychological treatment previously approved by the respondent and so is relevant to whether continuing treatment would be reasonable and necessary. Dr. Allen recorded that the applicant told him that nightmares are “on and off” and about the car accident but also about other things. The plan was for the applicant to get a journal and start writing down his dreams, continued medication, and follow-up in two months. From this CNR, I find that, at the time, the applicant was continuing to experience psychological issues from the accident, specifically nightmares about the accident, though their frequency had diminished. I also find that Dr. Allen recommended continuing to address his emotional and cognitive issues to provide relief from his symptoms.
38The applicant submits that Dr. Allen’s notes show that he had been practising techniques learned during treatment in his life, but so far with little success. The applicant submits that his exchange of ideas about nightmares with Dr. Allen in September were enabled by his previous treatment and showed that he needed more counselling to address his underlying concerns. I agree with this characterization of the CNR of Dr. Allen cited by the applicant. In addition, I find evidence in Dr. Allen’s CNR that the applicant was continuing to experience accident-related psychological issues and was receiving some benefit from counselling (i.e., relaxation, adjusted thinking, discussion of dreams), though limited and not necessarily enduring.
39In his February 9, 2023 report, Dr. Ratti diagnosed the applicant with major depressive disorder with anxious distress, mild to moderate and recurrent. He opined that this was a pre-existing condition that was exacerbated to some degree by the accident though the degree of exacerbation was difficult to determine, and, at the time, it was less than appreciable. Though the applicant mentioned to Dr. Ratti his accident-related nightmares, as well as mild anxiety when driving and sadness and fear, Dr. Ratti disputed that the applicant experienced specific phobia, vehicular (i.e., the reason for removal from the MIG) and did not test for phobia in this assessment.
40I place greater weight on Dr. Allen’s CNR than Dr. Ratti’s report because Dr. Allen was the applicant’s treating psychiatrist meeting with him quarterly or more frequently, and because his impression of PTSD, as well as MMD, was more consistent with the applicant’s complaints.
41The respondent submitted that if the treatment plan was found to be reasonable and necessary, that the cost of certain line items in the treatment plan must be adjusted. In this regard, I find that the cost of 10, 1.5-hour sessions is not reasonable, and that each of the 10 sessions should be 1-hour. The duration of the sessions was not addressed by the applicant in submissions or evidence. The respondent submitted that the duration should be 1-hour, because that is “standard” unless there is justification for sessions of longer duration, according to Dr. Ratti. Due to the lack of disputing submissions and evidence from the applicant on this point, I find that the applicant has not established that sessions longer than 1-hour are reasonable and necessary. In addition, I draw an adverse inference about the reasonableness of longer sessions from the lack of production of the updated records and file of Dr. Langis, Ms. Imran and Disability Medicine Specialists.
42I find that the hourly rate of $146.61 for services provided by Ms. Imran is not reasonable, and that Ms. Imran’s rate should be $99.75, which was the previously approved rate for her services. I find that $149.61 is the maximum hourly rate for a psychologist in the Professional Services Guide and that the Guide does not specify a maximum rate for psychotherapists, and accordingly the maximum rate for a psychotherapist should be determined by the parties. The respondent has indicated it will pay Ms. Imran $99.75 per hour. Due to the lack of disputing submissions and evidence from the applicant on this point, I find that the applicant has not established that Ms. Imran should be paid $149.61 per hour. In addition, I draw an adverse inference about the reasonableness of a higher rate for Ms. Imran’s services from the lack of production of the updated records and file of Dr. Langis, Ms. Imran and Disability Medicine Specialists.
43In sum, on a balance of probabilities, I find that the applicant was partially entitled to the cost of this treatment plan in the amount of $2,170.00 after the cost modifications for the duration of each session and Ms. Imran’s hourly rate.
44In his written submissions, the applicant states that this treatment plan is a general practitioner’s assessment to assess and evaluate the applicant’s ongoing physical conditions. The applicant submits it was proposed by Pain Rehabilitation Clinic in a treatment plan dated February 8, 2022 and signed by Dr. Bui, chiropractor, and Dr. Castro, physician.
45The respondent submits that this plan was incorrectly labeled “multidisciplinary services” in the CCRO and Motion Order and agrees with the applicant that it is for a general practitioner’s assessment.
46However, the respondent submits that the denial of this treatment plan was already considered by the Tribunal in the Previous Decision discussed above. In that decision, issued on November 18, 2024, the Tribunal found the plan was not reasonable and necessary. The respondent submits that the principle of res judicata applies.
47The applicant did not address this matter in his submissions or dispute the respondent’s submissions in a reply.
Issue Estoppel
48The test for issue estoppel, which is a branch of the broader doctrine of res judicata, is set out in the Supreme Court of Canada decision in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44. The doctrine of issue estoppel prevents a party from relitigating an issue that has already been decided. The Supreme Court of Canada in Toronto (City) v. CUPE Local 79, 2003 SCC 63 at paragraph 23 referred to Danyluk and set out that for issue estoppel to be successfully invoked, three preconditions must be met: (1) The issue must be the same as the one decided in the prior decision; (2) The prior judicial decision must have been final; and (3) The parties to both proceedings must be the same, or their privies.
49I find that issue iii in the current appeal is the same as issue x in the Previous Decision. In both appeals, the disputed treatment plan was proposed by Pain Rehabilitation Clinic in the amount of $2,200.00, dated February 8, 2022 and denied on February 22, 2022. In the Previous Decision, the proposed services were a general practitioner’s assessment. This is also how the treatment plan is described in the applicant’s written submissions for this appeal. Therefore, I find that the treatment plan in issue iii in this appeal has been incorrectly labeled as being for “multidisciplinary services”.
50The respondent submits that this treatment plan is therefore improperly before the Tribunal now. The respondent submits that the appropriate procedure to appeal the Tribunal’s Previous Decision was by reconsideration. The respondent further submits that the applicant did not file for reconsideration of this issue upon receipt of the Previous Decision released on November 24, 2024 and now is out of time to do so.
51I am satisfied that the preconditions for issue estoppel are engaged. The treatment plan in issue iii of this appeal is the same as the treatment plan decided in issue x of the Previous Decision. The issue is the same – whether the treatment plan is reasonable and necessary. The Previous Decision was a final judgment because the time for seeking reconsideration has passed. The parties to both proceedings are the same.
52As such, I find that the applicant is not entitled to the treatment plan because the doctrine of issue estoppel applies.
Physiotherapy Treatment Plans Submitted on February 25, 2022 and September 22, 2022
53I find that the applicant is not entitled to these plans because the applicant has not established that the treatment goal of pain relief from pain symptoms is reasonable and necessary due to his lack of improvement over time in functioning.
54Each treatment plan was completed by Mr. Mohit Rastogi, physiotherapist, and proposed 16 weekly sessions of physical rehabilitation by Dr. San Bui, chiropractor. The injuries were concussion, sprain and strain of cervical, thoracic and lumbar spine, abdominal pain, radiculopathy, anxiety and phobia. The goals of the plans were pain reduction, increased strength and range of motion so that the applicant could return to his activities of normal living. As each was a subsequent treatment plan, it was noted that the previous plans had resulted in pain reduction, slight increased range of motion at neck and shoulders and reduced arm pain and numbness. Finally, progress would be evaluated by “VAS [visual analogue scale] / Ortho Test”.
55The applicant submits that he received various therapies from the Pain Rehabilitation Clinic, particularly from Mr. Rastogi and Dr. Bui, including chiropractic treatments, physiotherapy and massage therapy, following the accident. He submits that despite not curing his ailments, these treatments have consistently been reported to be helpful, particularly for temporary relief from his chronic pain and other symptoms. The applicant pointed to the CNR of Dr. Allen for evidence that he found relief and benefit, if not long-lasting, following his physical therapy treatments at Pain Rehabilitation Clinic. The applicant pointed specifically to consultations with Dr. Allen on March 14, 2022, November 14, 2022 and March 3, 2023; however, I note that the last consultation post dates the treatment plans in dispute by several months so I have placed less weight on it.
56The applicant also pointed to the Tribunal’s decision in Lagoudis v Aviva Insurance Company, 2022 CanLII 6780 (ON LAT) (“Lagoudis”) for the proposition that the goal of a treatment plan need not be to cure the applicant. The applicant submitted that in Lagoudis, the Tribunal stated that the goal may be to alleviate pain and improve strength and range of motion leading to improved functional capacity. The respondent did not make any submissions on this or point to cases taking a contrary view. Though I am not bound by other decisions of the Tribunal, I agree with this proposition in Lagoudis. However, I find in this case that there is no evidence that the temporary relief from pain experienced during and shortly after treatment was leading to any improved functional capacity in the applicant’s activities of daily living. (The applicant was not employed.)
57The respondent submits that the applicant has not substantiated that ongoing physiotherapy treatment is reasonable and necessary in direct relation to the accident. The respondent submitted in evidence the opinion of Dr. Shafik Dharamshi, general practitioner and section 44 physician’s assessor for the respondent, in a report dated June 4, 2021 and a later report dated December 8. In the later report, Dr. Dharamshi diagnosed the applicant with cervicogenic (tension) headaches and whiplash associated disorder, grade 2 as a result of the accident. Dr. Dharamshi did not identify any accident-related musculoskeletal impairment on assessment and opined that the applicant’s reduction in range of motion was likely due to painful involuntary guarding. Dr. Dharamshi opined that the applicant had attained “maximum medical improvement” (“MMI”) given no measurable difference in his physical symptoms in the 18 months between assessments or any improvement in his functional abilities.
58I find evidence in the CNR of Dr. Allen that the applicant was experiencing pain and muscle tension symptoms contemporaneously with these treatment plans, with related headaches (March and November 2022 CNR, as well as the June 6, 2022 CNR discussed above). The relationship of these symptoms with the accident is based on the applicant’s subjective report, i.e., that they arose after and were continuing three years after the accident. Dr. Allen’s CNR also record the applicant’s self-reports that the physical therapy helped temporarily, but that the pain came back afterwards, and that when he would go back for treatment, it would help with pain again. He also recorded that the applicant was performing his home exercises and stretches. In addition to the continual recurrence of pain, Dr. Allen’s CNR do not indicate any improvement in the applicant’s functioning in the activities of his normal living as a result of temporary pain relief. To the contrary, the CNR covering the dates of these treatment plans indicate “everything is still the same”, “about the same” or “nothing new” in the applicant’s life since the previous visit.
59The applicant did not specifically refer to the general practitioner’s assessment of Dr. Castro, dated March 16, 2022 (assessed on February 14, 2022) in connection with these plans. Having reviewed the totality of the evidence, I note that Dr. Castro diagnosed the applicant with chronic myofascial pain, chronic cervicalgia with radiculopathy, chronic shoulder pain, chronic lumbago with radiculopathy from a physical perspective and opined that there is a causal relationship with the applicant’s current complaints and presentation and injuries reported in the accident. Dr. Castro opined that the applicant had not achieved MMI due to the need for further imaging (MRI of cervical and lumbar spine), consultation (neurological exam and chronic pain specialist) and therapy. Dr. Castro defined MMI as “the date after which further recovery and restoration of function can no longer be anticipated, based upon a reasonable degree of medical probability.” With regard to treatment, in addition to mental health support, Dr. Castro opined that treatment should be continuous in order to help the patient’s functional status and is expected to be life-long given the time that has elapsed since the date of the injury (the example given was the applicant may require increased treatment at the time of exacerbation of his symptoms of pain and discomfort).
60I prefer Dr. Dharamshi’s reports to Dr. Castro’s report. Dr. Dharamshi assessed the applicant twice according to the respondent’s evidence, once in May 2021 and again in January 2023. He noted no improvement between assessments, in physical symptoms or functioning. Dr. Castro assessed the applicant once, so his report reflects a point in time. With respect to the applicant’s history of symptoms and functioning, Dr. Dharamshi reviewed various medical CNR and assessments of the applicant since the accident that Dr. Castro did not, though I note that neither party provided these in evidence. Lastly, Dr. Dharamshi observed in his 2021 assessment of the applicant that his cervical spine range of motion was greater in informal circumstances than on examination. Based on these differences, though both physicians found muscle tenderness and reduced range of motion, Dr. Dharamshi was able to address the applicant’s lack of progress or improvement, which Dr. Castro was not.
61I note that the applicant did not make any submissions or provide any evidence relating to the CNR of a primary care physician or of Pain Rehabilitation Clinic, Mr. Mohit or Dr. Bui. The respondent submitted that it did not receive updated CNR of Pain Rehabilitation Clinic from August 2023, which had been ordered by the CCRO. Given my finding of lack of improvement, I have not made any adverse inference from this lack of compliance with the CCRO because the treatment plans in dispute were proposed before the requested updated CNR.
62On a balance of probabilities, based on the totality of the evidence, I am not satisfied that the additional physiotherapy proposed in these plans is reasonable and necessary.
Interest
63Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies to the payment of overdue benefits of $2,170.00 for psychological services.
Award
64The 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 or 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 this threshold.
65I find that the applicant has not met his onus to prove, on a balance of probabilities, that the respondent’s conduct met this threshold.
66The applicant’s position is that the insurer has routinely refused warranted treatments, while subjecting the applicant to repeat assessments, despite his ongoing commitment to rehabilitation and recovery. The applicant submits that this has resulted in a prolonged and unnecessary process of appeals, causing the applicant stress and unreasonably exacerbating his ongoing physical and psychological conditions.
67The respondent’s position is that it reviewed all documentation produced by the applicant about his claim in response to every submitted treatment plan. The respondent submits that the applicant failed to substantiate that the additional treatments proposed were reasonable and necessary and that it properly denied the treatment plans in issue on this basis. The respondent further submits that the applicant failed to produce particulars of the award sought after receiving the adjuster’s log notes, in contravention of the CCRO, and asks the Tribunal to draw an adverse inference (i.e., that the missing particulars would not be helpful to the applicant’s request for an award). Considering my finding that the applicant has not met its onus to justify an award, it is not necessary for me to decide whether to take an adverse inference from the lack of production of particulars.
68I find that the applicant has not met its burden of proof to show that, on a balance of probabilities, the respondent’s conduct has met the threshold for an award. The respondent has shown that it declined the psychological treatment plans based on the opinions of Dr. Ratti and that the applicant has not addressed why the higher rate and longer sessions were reasonable and necessary. While I have noted that Dr. Ratti did not review the CNR of Dr. Allen after December 2021 according to Dr. Ratti’s February 9, 2023 report, the applicant has not made any submissions or provided any evidence to address this. Otherwise, I have found that no benefits were withheld.
69Accordingly, I find no basis for an award in this case.
ORDER
70For the above reasons:
i. The applicant is not entitled to the outstanding balance of the treatment plan for psychological services submitted on February 25, 2022.
ii. The applicant is entitled to $2,170.00, plus interest, under the treatment plan for psychological services submitted on November 17, 2022.
iii. The applicant is not entitled to the general practitioner’s assessment submitted on February 8, 2022.
iv. The applicant is not entitled to the cost of the treatment plans for physiotherapy services submitted on February 23, 2022 and September 22, 2022.
v. No award is justified.
Released: October 24, 2025
Rasha El Sissi
Adjudicator