Licence Appeal Tribunal File Number: 24-001840/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:
Daniel Baum
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR: Jeff Chatterton
APPEARANCES:
For the Applicant: David Shellnutt, Counsel
For the Respondent: Ibrahim Farag, Counsel
HEARD: In Writing
OVERVIEW
1Daniel Baum, the applicant, was involved in an automobile accident on September 2, 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, TD 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:
i. Is the applicant entitled to $1,867.52 for chiropractic treatment, proposed by Dr. Samira Razmy in a treatment plan/OCF-18 (“plan”) submitted July 11, 2023?
ii. Is the applicant entitled to $2,594.08 for chiropractic treatment, proposed by Dr. Samira Razmy in a plan submitted November 1, 2023?
iii. Is the applicant entitled to $2,200.00 for an in-home assessment, proposed by John Duong in a plan submitted November 7, 2023?
iv. Is the applicant entitled to $4,888.06 for in-home treatment, proposed by John Duong in a plan submitted November 7, 2023?
v. Is the applicant entitled to interest on any overdue payment of benefits?
3The applicant withdrew his request for an award.
RESULT
4The applicant is not entitled to the treatment plans in dispute or interest.
5The application is dismissed.
PROCEDURAL ISSUES
6The respondent has requested the Tribunal not take into consideration affidavit evidence provided by the applicant. Specifically, the applicant has submitted an affidavit from himself.
7The respondent argues that the Case Conference Report and Order specifically refers to affidavit evidence, with paragraph 15 stating “The parties agree no affidavits will be submitted.”
8The applicant’s reply submission did not address this submission.
9I agree with the respondent for the following reasons:
i. The Case Conference Report and Order clearly indicates that both parties agreed, no affidavit evidence would be submitted.
ii. The applicant could have filed a motion seeking to introduce an affidavit, but did not do so.
iii. The respondent was not given the opportunity to cross examine the applicant on their affidavit.
10For these reasons, I grant the respondent’s request that the applicant’s affidavit be excluded from evidence.
ANALYSIS
Is the applicant entitled to chiropractic treatments?
11The applicant is not entitled to chiropractic treatments.
12To 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.
13The applicant has requested chiropractic treatment from Chiropractor Dr. Samira Ramzy in two treatment plans, dated July 11, 2023 and November 1, 2023. The treatment plans are for 14 weeks and 16 weeks of treatments, with the stated goal of pain reduction and increased range of motion, with an intent to return to the activities of normal living.
14The applicant argues the treatment plans are reasonable and necessary, and relies upon the Physiatry Assessment of Physiatrist Dr. Milan Unarket, dated February 14, 2023. In this assessment, Dr. Unarket states that the applicant “would benefit from enrollment in a comprehensive multi-modal chronic pain program that incorporates physical rehabilitation, biofeedback, CBT and behavioral interventions.” He further states that Mr. Baum will benefit from engaging in physiotherapy, massage therapy and psychotherapy.
15The respondent disagrees. It argues that Dr. Unarket’s assessment shows only limited restriction to the range of motion in the applicant’s left ankle. It also relies upon a s.44 Insurer’s Examination (IE) conducted by Orthopaedic Surgeon Dr. Edwin Urovitz, dated August 21, 2023. In Dr. Urovitz’s report, he stated that the applicant had already achieved maximal recovery, and “it is my opinion that the proposed goods and services listed in this plan are not deemed to be medically necessary and/or reasonable and are unlikely to result in any substantial change in the claimant’s health status.”
16The respondent also refers to a Functional Abilities Evaluation conducted by Chiropractor Doctor Paul Cha, dated July 12, 2022, where Dr. Cha reported the applicant had already achieved functional range of motion.
17The respondent also points to the stated goal of “a return to normal living” as being unnecessary, since the applicant had already reported a full time return to his employment as a nurse, and is resumed walking his dog, going for hikes and taking yoga classes.
18I agree with the respondent’s position, based on the evidence submitted which indicates that the applicant’s ankle injury has achieved a functional range of motion and otherwise maximal recovery. I give little weight to Dr. Unarket’s physiatry report because it does indicate the applicant is walking his dog for up to an hour a day and otherwise participates in hiking, yoga and cycling.
19For these reasons, I find on the balance of probabilities that the applicant has not met his onus to demonstrate that the chiropractic treatment plans are reasonable and necessary.
Is the applicant entitled to in-home treatment and an in-home assessment?
20The applicant is not entitled to in home treatment or an in-home assessment.
21The 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.
22The applicant’s argument is based on the fact the respondent has denied an in-home assessment request and instead, undertook their own. The applicant argues that such conduct constitutes an improper denial.
23The respondent submits that they were adjusting the file in good faith, and point to Section 38(10) of the Schedule, which states an insurer is entitled to request that the applicant undergo an examination under Section 44 to determine if the applicant is entitled to a benefit.
24I find a Section 44 examination is a routine request for a respondent to make of an applicant. The act of ordering a s.44 examination does not, in and of itself, indicate that a condition exists which warrants further investigation.
25Although the onus is on the applicant to demonstrate entitlement to a benefit in dispute, I was led to no further submissions which demonstrate that a condition existed which merits further investigation.
26For this reason, I find the applicant has not, on the balance of probabilities, met the onus to merit entitlement to an in-home assessment.
Is the applicant entitled to in-home treatments?
27The applicant is not entitled to in-home treatments.
28The applicant requested 24 in-home sessions, consisting of education to promote health and prevent disease. The applicant also requested compensation for provider travel time and documentation support activity.
29To support their claim, the applicant is relying on the OCF-18 for the in-home treatments, and has referenced a Future Needs Assessment with Occupational Therapist Deena Rogozinsky, dated August 26, 2023.
30The Future Needs Assessment indicates the applicant is unable to participate in cleaning and maintenance of his home. It recommends two visits per month (24 sessions total) to integrate ongoing education/strategies “as required to support participation in all life roles.”
31The respondent argues the treatment plan is not reasonable or necessary, and relies upon the s.44 IE conducted by Occupational Therapist Arash Sasani, dated January 30, 2024. In his assessment, Mr. Sasani noted that the applicant ‘had adequate functional ability to complete all tested tolerances.’ Mr. Sasani also noted that the applicant was able to function within normal tolerances for sitting, standing, and routine activities like making his bed. Furthermore, Mr. Sasani noted that the applicant had returned to full time employment as a nurse.
32I agree with the respondent. Mr. Sasani has noted that the applicant is able to function with adequate levels of functionality. In my opinion, the fact that the applicant has returned to full time employment supports this conclusion.
33Furthermore, I note that the applicant’s own experts, Ms. Rogozinsky and Dr. Unarket, have both reported that the applicant was able to clean, cook, do laundry, walk the dog, engage in hikes, cycling, and participate in yoga.
34For these reasons, I find the applicant has not, on the balance of probabilities, met the onus to establish entitlement to in-home treatments.
Interest
35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.
ORDER
36The application is dismissed.
i. The applicant is not entitled to treatment plans for chiropractic services.
ii. The applicant is not entitled to an in-home assessment or in-home treatments.
iii. Interest is not payable.
Released: November 27, 2025
Jeff Chatterton
Adjudicator