Citation: Freeborn v. TD General Insurance Company, 2025 ONLAT 23-015236/AABS

Licence Appeal Tribunal File Number: 23-015236/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:

Julie Freeborn

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Leo Demarce

APPEARANCES:

For the Applicant:

David A Morin, Counsel

For the Respondent:

Francine Papadopoulos, Counsel

HEARD:

In Writing

OVERVIEW

1Julie Freeborn, the applicant, was involved in an automobile accident on September 6, 2022, 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, Insurer, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issue in dispute is:

i. Is the applicant entitled to $3,000.22 for physiotherapy, proposed by Stacey Van Schyndel in a treatment plan/OCF-18 (“plan”) dated August 10, 2023?

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

RESULT

3I find that the applicant is entitled to $3,000.22 for physiotherapy services plus interest.

ANALYSIS

Is the treatment plan reasonable and necessary?

4The applicant’s accident-related injuries are chronic pain in her back, neck and shoulders as well as left elbow and both knees. She also sustained a severe head injury causing cognitive emotional impairments that have preventer her from being able to return to work. This has also resulted in severe psychological injuries.

5The application hinges on my findings on whether the treatment plan is both reasonable and necessary. To 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.

6I find that the treatment plan is reasonable and necessary as it would assist in relieving some of the applicant’s chronic pain.

7The treatment plan is for 12 sessions of therapeutic intervention, 14 sessions of exercise to multiple body sites and 14 sessions of mobilization to multiple body sites. The goals of the treatment plan are pain reduction, and an increase in strength and range of motion. This is with an eye towards a return to activities of normal living and a return to modified work activities.

The applicant’s submissions

8The applicant argues that the Tribunal should put more weight on their treating physicians’ evidence then because they have more direct knowledge of the applicant. The applicant relies on: White v. Travelers Insurance, 2021 CanLII 2052 (ON LAT) to support this point.

9The applicant argues that the Tribunal should consider that the treatment will be held to be necessary where one of the goals of that treatment is to reduce pain rather than fully eliminate it. The applicant relies on 16-000960 v Northbridge Personal Insurance Corporation, 2017 CanLII 19189 (ON LAT).

Review of the evidence

10The applicant’s evidence that I gave the most weight to derives from:

i. Stacey van Schyndel, physiotherapist’s submissions from the OCF-18 (“plan”) submitted August 10, 2023 and her treatment plan update (“report”) dated February 6, 2023. The plan identifies the goals that are anticipated to be realized by the applicant, while the report outlines the progress the applicant has benefited from physiotherapy treatment up to the date of the report.

ii. Claudia Maurice, occupational therapist’s occupational therapy progress report dated January 2, 2024. This report identifies the exacerbation of the applicant’s injuries due to the decrease in physiotherapy services, which supports the necessity of the treatment.

iii. Dr. Dempster, the applicant’s family doctor’s medical legal report dated June 24, 2024 that supports the necessity of the physiotherapy treatment plan.

11This evidence provided a cohesive conclusion to the applicant’s condition.

12I am most persuaded by Dr. Dempster’s report dated June 24, 2024 because he is the applicant’s treating physician and has considerably more contact with the applicant than the respondent’s IE examiners. I agree with Dr. Dempster where she concludes:

i. Her physical therapy tests corroborate these subjective symptoms, and I strongly believe - as does her physical therapist - that she would benefit from ongoing rehabilitation. She progressed very well initially with rehabilitation but there is still much to do to help restore Julie to her pre-concussive level of function

The respondent’s submissions

13The respondent reminds the Tribunal that it is the applicant’s burden to prove on a balance of probabilities that the costs proposed are both reasonable and necessary. The respondent relies on 16-001934 v Aviva Insurance Company of Canada, 2017 CanLII 69464 (ON LAT).

14The respondent states that where a proposed treatment may be helpful, and therefore reasonable, it does not mean that it is therefore necessary. Hence the respondent is asking that I deny this treatment plan even if I agree that it is helpful, it doesn’t necessarily mean that it is also necessary. The respondent relies on Anthony v. Aviva General Insurance, 2023 ONLAT 20-006549/AABS.

15The respondent then relies primarily on the following evidence:

i. The assessment by Dr. Rabinovitch dated July 26, 2023 who concluded that there were no objective findings of a significant musculoskeletal impairment identified.

ii. The paper review by Dr. Rabinovitch dated September 14, 2023 concluded that with a lack of any significant musculoskeletal impairments as a direct result of the subject accident, and has been provided stretching/strengthening along with a home-based exercise program, the disputed plan is not reasonable and necessary.

iii. Surveillance photos from Winter of 2024 and Summer of 2024

16I considered the evidence from Dr. Rabinovitch and the surveillance photos with great care, but prefer the evidence from the applicant, specifically from the applicant’s family doctor. Furthermore, the respondent’s evidence is based on only one point in time; a paper review, and photos that lack context to the applicant’s injuries.

17I give the applicant’s evidence more weight because the physiotherapist and family doctor have a considerably more time spent with the applicant compared to that of the respondent Also, the applicant’s evidence shows that her progress has been measured using both subjective and objective testing methods.

18I find on a balance of probabilities that the applicant is entitled to the treatment plan for physiotherapy.

ORDER

19Based on the reasons stated above, I find that the applicant is entitled to $3,000.22 plus interest as per s.51 of the Schedule for physiotherapy, proposed by Stacey Van Schyndel in a plan dated August 10, 2023.