Citation: Groskopf v. TD Insurance, 2025 ONLAT 24-002491/AABS

Licence Appeal Tribunal File Number: 24-002491/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:

Deborah Groskopf

Applicant

and

TD Insurance

Respondent

DECISION

ADJUDICATOR:

Amanda Marshall

APPEARANCES:

For the Applicant:

Daniella Montinaro, Paralegal

For the Respondent:

Maia Abbas, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Deborah Groskopf, the applicant, was involved in an automobile accident on August 6, 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 Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Is the applicant entitled to the treatment plans/OCF-18s proposed by Physiomed Roytec Road, as follows:

i. $2,099.48 for goods and services (concussion-based treatment), in a treatment plan dated July 11, 2022; and

ii. $2,443.81 for goods and services (concussion-based treatment), in a treatment plan dated November 28, 2022?

2. Is the applicant entitled to interest on any overdue payment of benefits?

3In her reply dated April 4, 2025, the applicant seeks to add the following: Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

4The issues in dispute were agreed upon at the July 11, 2024 case conference and there was no request for an award on the Case Conference Report and Order (“CCRO”) of July 16, 2024. The applicant did not submit a motion to add the issue of an award at any time prior to the hearing, nor did she request it in her written submissions of March 12, 2025. I find that the applicant trying to add an issue in her reply procedurally unfair to the respondent because the respondent has no automatic right of sur-reply, and therefore has no chance to respond to the award issue. Therefore, I find that the issue of whether the respondent is liable to pay an award under s. 10 of Regulation 664, is not properly before me and I will not be determining this issue.

PROCEDURAL ISSUE

Did the applicant comply with the reply submissions filing requirements?

5I find the applicant did not comply with the proper filing requirements.

6The CCRO sets out the timelines and documents required for the hearing. Parties’ submissions are to include all evidence and authorities they will be relying upon. The applicant’s reply submissions are a reply to the respondent’s submissions and any evidence the applicant wishes to highlight, or address would be contained within the Book of Documents submitted with their original submissions.

7On March 12, 2025, the applicant submitted her submissions along with a Book of Documents to the Tribunal and copied the respondent. The respondent submitted its submissions on April 1, 2025. On April 4, 2025, the applicant’s reply submissions were provided along with a different Book of Documents containing materials that were not included with her March 12, 2025 submissions.

8In E.M. and Aviva Insurance Company, 2020 CanLII 12741 (ON LAT), at para. 20:

The purpose of reply is for the party bearing the onus in the dispute to respond to any issues that were raised in the other party's submissions which could not have been reasonably raised in initial submissions. Reply is not an opportunity for the party to raise issues that should have been raised in initial submissions or to reformulate their argument.

9The applicant’s original Book of Documents should have contained all evidence and materials that the applicant would be relying upon. Submitting a second Book of Documents is considered improper. Improper reply deprives the responding party the opportunity to provide a more particularized response and to effectively participate in the hearing process. Therefore, I am striking the improper reply submissions and evidence as the respondent would be prejudiced by its inclusion.

RESULT

10I find that the applicant is not entitled to the concussion-based treatment plans in dispute.

11No interest is payable.

ANALYSIS

Is the applicant’s entitlement to the concussion-based treatment plans?

12I find the applicant has not demonstrated that the concussion-based treatment plans for vestibular and vision therapy are reasonable and necessary.

13To receive payment for a medical or rehabilitation benefit under the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the treatment is reasonable and necessary. To accomplish this, the applicant should identify the reasonableness of the treatment goals, how the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.

14The goals of both treatment plans are identified as pain reduction, increase strength, increase range of motion, decrease concussion symptoms and headaches, return to activities of normal living, return to pre-accident work activities, and return to modified work activities.

15The treatment plan dated July 19, 2022, for $2,099.48 recommends 14 sessions of exercise for multiple body sites, and 7 sessions of therapy for multiple sites, and the cost for documentation. An explanation is provided indicating that the plan is for concussion-based treatment focusing on vestibular therapy, vision therapy, and hands-on mobilizations/soft tissue, and acupuncture to help with concussion symptoms.

16The $2,443.81 treatment plan dated December 8, 2022, is almost identical except it recommends 16 sessions of exercise, and 8 sessions of therapy.

17The applicant submits that the treatment plans in dispute are reasonable and necessary as many medical professionals have confirmed the applicant’s need for concussion-based treatment. She relies on the clinical notes and records of Dr. Michelle Freeman, family doctor, and Dr. Daniel Wong, neurologist, along with the August 10, 2023 Disability Certificate (OCF-3) from Dr. Tim Damaso, chiropractor, and the s. 25 independent neurological report of Dr. Vincenzo Basile, neurologist, dated March 9, 2023.

18The respondent submits that the applicant did not attend at her family doctor for 10 months after the accident, and that the diagnosis of a concussion seems to have come from the applicant directly. In any event, there are no references to any complaints of vestibular and visual issues generally or as a result of the accident. The respondent relies on Dr. Freeman’s clinical notes and records, Dr. Wong’s records, as well as the s. 44 Insurer’s Examination (“IE”) neurological report of Dr. Jamsheed Desai, dated October 18, 2022.

19I find that the clinical notes and records of Dr. Freeman do not support the applicant’s need for vestibular and vision therapy. I note that the applicant attended a virtual appointment on August 9, 2021 and informed the doctor she was in car accident and that the Emergency Medical Services assessed her as possibly having whiplash and a concussion. The applicant reports that she visited with her chiropractor earlier that day for concussion management and is seeking a referral for physiotherapy. The doctor provides a referral for physiotherapy and chiropractor concussion management/whiplash treatment. There are no symptoms documented.

20The applicant spoke with her family doctor seven (7) times between August 9, 2021 and June 8, 2022 for medical issues unrelated to the accident. There are no mentions of headaches or concussion symptoms. It is not until June 15, 2022, wherein the doctor’s records mention the August 2021 accident and notes that the applicant is still having a few headaches a week. No other symptoms are recorded, no medications are prescribed, nor treatment recommendations suggested.

21I do not find the Disability Certificate completed by Dr. Damaso, chiropractor, on August 10, 2023 helpful. It lists that the applicant has a concussion and chronic post-traumatic headaches and mentions continuing with concussion therapy, but it does not provide specifics on exactly what type of concussion therapy the applicant has been receiving nor the outcomes.

22The applicant attended for an independent neurological assessment with Dr. Basile on March 9, 2023. The doctor recommends vestibular therapy for the applicant’s vertigo, and for her headaches suggests the applicant refrain from taking nonsteroidal anti-inflammatory drugs for two to three months. However, I place little weight on Dr. Basile’s report as it does not appear he reviewed the applicant’s medical records, the treatment plans in dispute, nor the IE assessments. Also, he finds no visual or physical abnormalities during his examination. It appears he relied heavily on the applicant’s self-reporting.

23Furthermore, I find it difficult to reconcile Dr. Basile’s conclusion with the language used in the report. In the body of the report, the assessor states that the applicant demonstrates “some features of post-concussive syndrome,” which clearly conveys a partial or suggestive presentation rather than a definitive diagnosis. This wording signals uncertainty and implies that the applicant does not fully meet the diagnostic criteria. Yet, in the conclusion, Dr. Basile asserts unequivocally that the applicant “has post-concussive syndrome.” This abrupt shift from qualified language to a categorical finding, without any explanation or supporting rationale, undermines the reliability of the conclusion. Such inconsistency raises concerns about the logical foundation of the opinion and whether the conclusion is supported by the evidence presented.

24I prefer the October 18, 2022 IE Report of Dr. Desai. Dr. Desai reviewed the treatment plans in dispute, the IE assessments of Dr. Ahmad Belfron, General Practitioner and Dr. Terra Seon, psychologist. His report also outlines the type of physiotherapy and chiropractor treatment the applicant was receiving. He concludes that the applicant does fulfill the International Headache Society D3 diagnostic criteria for persistent headaches attributable to whiplash and finds that the applicant has had an adequate trial of appropriate physiotherapy without any long-term benefits with respect to her neurologic impairment of a headache. As such, he finds there is no need for concussion therapy.

25In any event, there are no recommendations for vestibular and vision therapy by the applicant’s own treating neurologist, Dr. Wong. Dr. Wong recommends medications only to treat the applicant’s headaches.

26In summary, while there is evidence that the applicant suffers from headaches directly attributed to the accident, I find the applicant has not met her burden of demonstrating that the disputed concussion-based treatment plans for vestibular and vision therapy are reasonable and necessary.

Is the applicant entitled to interest?

27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the treatment plans are not payable nor overdue, no interest is payable.

ORDER

28For the reasons above, I find that:

i. The applicant is not entitled to the treatment plans in dispute.

ii. The applicant is not entitled to interest.