Licence Appeal Tribunal File Number: 23-014948/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:
Sara Hussain
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harouna Saley Sidibé
APPEARANCES:
For the Applicant:
Ian Drong, Counsel
For the Respondent:
James Kolumbus, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Sara Hussain, the applicant, was involved in an automobile accident on April 15, 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, 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 $349.21 for physiotherapy services, proposed by Huron Crossing Physiotherapy in a treatment plan/OCF-18 (“plan”) dated July 19, 2022?
ii. Is the applicant entitled to $5,768.23 for assistive devices, proposed by Kristen Wood OT in a treatment plan dated August 12, 2023?
iii. Is the applicant entitled to $2,464.84 for assistive devices, proposed by Kristen Wood OT in a treatment plan dated July 5, 2023?
iv. Is the applicant entitled to $2,849.86 for personal training and gym membership, proposed by Kristen Wood OT in a treatment plan dated September 16, 2023?
v. Is the applicant entitled to $17,625.82 for assistive devices, proposed by Kristen Wood OT in a treatment plan dated March 31, 2024?
vi. Is the applicant entitled to $6,947.33 for assistive devices, proposed by Kristen Wood OT in a treatment plan dated March 26, 2024?
vii. Is the applicant entitled to $98.63 for physiotherapy services, proposed by Huron Crossing Physiotherapy submitted on an OCF-21 dated February 26, 2024?
viii. Is the applicant entitled to $282.49 for physiotherapy services, proposed by Huron Crossing Physiotherapy submitted on an OCF-21 dated February 26, 2023?
ix. Is the applicant entitled to $2,200.00 for a Psychological Assessment, proposed by Verity Medical Assessments in a treatment plan dated April 2, 2024?
x. Is the applicant entitled to $2,699.05 for assistive devices, submitted on a claim form (OCF-6) dated January 20, 2020?
xi. Is the applicant entitled to $925.00 for psychological therapy, submitted on a claim form (OCF-6) dated March 21, 2023?
xii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons below, I find that:
The applicant is entitled to the costs for psychological assessment for $2,200.00, plus interest.
The applicant is not entitled to the personal training sessions, physiotherapy services, assistive devices, or psychological therapy.
PROCEDURAL ISSUES
4A case conference was held on May 28, 2024. The resulting Case Conference Report and Order (“CCRO”), issued on June 25, 2024, ordered final document exchange by August 26, 2024 (90 days from the case conference), including any responsive materials intended for use at the hearing.
5On February 26, 2025, the respondent brought a motion seeking to:
Exclude the expert reports of Dr. Ahmed Jwely and Mr. Scott Blad;
Strike the applicant’s written submissions as late;
Dismiss the application under Rules 3.4(a) and (d) of the Licence Appeal Tribunal Rules, 2023 (“LAT Rules”).
6The motion was set to be heard at the event.
Expert Reports
7The respondent argues the reports were served on February 11, 2025, over five months past the August 26, 2024, deadline, and beyond the five-year post-accident period. It submits that this delay is prejudicial and warrants exclusion under Rule 9.3.
8The respondent argues that the late service hinders its ability to respond, prevents it from obtaining rebuttal evidence, and amounts to procedural unfairness.
9The applicant acknowledges the delay but explains that the reports were obtained for a related tort matter and received in November 2024. Upon realizing they had not been served, counsel promptly forwarded them. The applicant argues that the reports are highly relevant to her functional and psychological condition.
10Under Rule 9.3, a party cannot rely on documents served late without Tribunal permission.
11Tribunal jurisprudence requires balancing fairness and proportionality. The respondent relies on both Z.A. v. Unifund Assurance Company, 2018 CanLII 76444 (ONLAT), where late reports were excluded as prejudicial, and Reid v. Dow Corning Corp., 2001 O.J. No. 2365 (S.C.), where the court considered factors such as explanation, promptness, and prejudice. I note that Tribunal caselaw is not binding on me.
12Although the reports were served late, I am satisfied that the delay was not intentional, and that counsel provided a reasonable explanation. Counsel acted promptly upon obtaining the reports, and the respondent received them more than a month before its own submissions were due. The respondent has not demonstrated specific prejudice arising from the delay, particularly as it had an opportunity to address the evidence in its written submissions, which further limits any potential prejudice. Accordingly, the Rule 9.3 factors — explanation, promptness, and prejudice — support the admission of the reports.
13The reports are directly relevant to the applicant’s impairments. Applying Rule 9.3, I deny the respondent’s request to exclude the reports.
Late Filing of the Applicant’s Submissions
14The CCRO required the applicant to file her submissions by June 28, 2024. However, they were only filed on February 24, 2025, which is approximately nine months late.
15The respondent requests dismissal of the application and an order preventing the applicant from raising these issues in future LAT proceedings, citing disregard for Tribunal timelines.
16The applicant did not submit responses addressing the late filing.
17Rule 3.4 concerns dismissing an application without a hearing if it is frivolous, vexatious, or filed in bad faith. It also applies when the applicant is found to have abandoned the proceeding. This Rule is relevant when an applicant fails to submit her submissions and evidence for a written hearing, resulting in the application being deemed abandoned. However, in my view, this does not apply in the present case, where the applicant filed her submissions and evidence late.
18Therefore, I decline to exclude the applicant’s submissions. The respondent has not provided evidence of specific prejudice resulting from the late filing. It filed its submissions addressing the applicant’s materials. The applicant would be significantly prejudiced if her submissions were excluded. In the interest of procedural fairness, the respondent’s request to disregard the applicant’s submissions is denied.
ANALYSIS
Is the applicant entitled to the disputed treatment plans?
19To 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.
20The purpose of assessments is to determine whether a condition warrants further investigation. The applicant must show that there is a reasonable basis to believe that such a condition exists and that the assessment is necessary to clarify the diagnosis or guide treatment.
Physiotherapy Services amounting to $349.21, $98.63, and $282.49
21I find that the applicant is not entitled to the expenses for physiotherapy services amounting to $349.21, $98.63, and $282.49.
22The Auto Insurance Standard Invoice (OCF-21) dated July 19, 2022, relates to a Treatment Plan (OCF-18) dated June 8, 2022, which was approved for $3,444.16. The amount claimed in the OCF-21 is $349.21. The respondent denied payment of this invoice. An additional OCF-21 dated February 26, 2024, also relates to the June 8, 2022, OCF-18 and claims $98.63. A separate OCF-21 dated February 26, 2024, pertains to a different OCF-18 dated December 6, 2023, which was approved for $1,681.87. The amount claimed in this invoice is $282.49.
23The applicant asserts that the respondent wrongfully refused payment for physiotherapy due to a misunderstanding about her collateral benefits. She explains that she divorced her spouse, whose insurance included extended health care (EHC) coverage, benefits which the applicant no longer has and that the respondent was informed multiple times. Despite this, the respondent continued to deny the payment. The applicant states that the services were necessary and requests reimbursement to the clinic, plus interest.
24The respondent claims that physiotherapy was denied because the applicant had EHC coverage through Canada Life and requested documentation, which was not provided. Under section 47(2) of the Schedule, the respondent is not required to pay for expenses that are reasonably available through any insurance plan. The respondent also relies on Dr. Zeeshan Waseem’s opinion as a physiatrist, stating that the applicant has reached maximum medical improvement (MMI) and is unlikely to benefit from further treatment.
25In his July 13, 2023, assessment, Dr. Waseem noted the applicant showed no pain behaviours or symptom magnification. His exam revealed no pain on superficial palpation, negative axial loading, and no non-anatomic sensory changes. He concluded that complete recovery was unlikely due to chronic symptoms, physical findings, psychological stress, disturbed sleep, and pre-existing degenerative changes. While some improvement might occur, the condition was chronic and likely permanent.
26Dr. Shariff Dessouki, in a physiatry report dated January 3, 2024, diagnosed the applicant with musculoskeletal injuries to the cervical and lumbar spine. However, he found no objective accident-related musculoskeletal impairments that would necessitate the requested treatment.
27The applicant states that her EHC coverage through her former spouse’s insurance plan ended after their separation in April 2022 and supports this claim with a Canada Life summary. While the document does not definitively confirm the termination or its timing, it shows a summary of medical and dental benefit expenses from January 15, 2021, to February 21, 2023. Under sections 46 and 47 of the Schedule, the applicant has a duty to provide information reasonably required to determine entitlement, including details of any collateral benefits. On the evidence before me, the applicant has not provided explicit confirmation of the termination date.
28Even if collateral benefits were no longer available, the applicant must still establish that the remaining disputed physiotherapy amount is reasonable and necessary. The respondent partially approved the treatments, and the only dispute concerns small outstanding amounts. The applicant did not make any submissions or direct me to evidence showing that these remaining expenses meet the reasonable and necessary standard. In light of this and the medical opinions of Dr. Waseem and Dr. Dessouki, both of whom concluded that further treatment was unlikely to result in significant improvement, I find that the applicant has not met this burden.
29Accordingly, on a balance of probabilities, I find that the applicant is not entitled to the disputed OCF-21s.
Assistive Devices totaling $5,768.23, $2,464.84, $17,625.82, $6,947.33, and $2,699.05.
30I find that the applicant is not entitled to the disputed assistive devices, totalling $5,768.23, $2,464.84, $17,625.82, $6,947.33, and $2,699.05.
31The Treatment Plan dated August 12, 2023, amounting to $5,768.23, was submitted by occupational therapist Kristen Wood. The stated goals include pain reduction, improved physical tolerances, and returning to modified work activities. The plan recommends an ergonomic office chair, a height-adjustable desk, and documentation to support the activity.
32Ms. Wood also submitted a previous Treatment Plan dated July 5, 2023, for $2,464.84. The goals include reducing pain, improving mood and physical tolerances, returning to daily activities, and resuming modified work. The plan features various items: a back roll, a personal massager, an adjustable lap desk, two laundry pedestals with storage, a retractable garden hose, a wheeled backpack, a long-handled snow brush, a wireless keyboard and mouse, a footrest, two cervical pillows, custom orthotics, and two orthopedic shoes.
33A subsequent Treatment Plan dated March 31, 2024, states a claim amount of $17,625.82. The goals reflect those of earlier plans. Recommended items include exercise equipment, a reclining power chair, a lightweight vacuum cleaner, two power-adjustable exam tables, and supporting documentation.
34Another plan dated March 26, 2024, claims $6,947.33 for a mattress, pillows, base, and supporting documentation.
35The OCF-6 dated January 20, 2020, claims $2,699.05 for ergonomic equipment. A quotation from Office Outfitters Inc. dated December 21, 2020, details an ergoCentric Air Centric high-back ergonomic multi-tilter chair with an adjustable headrest, an Artopex electric frame with a 30x60 surface, an ergoCentric adjustable angled foot flexor, a laptop holder, and a document holder.
36The applicant submits that injuries from the accident forced her to give up her ambition of becoming a cardiac surgeon, and she is now working as a family physician. Although her current role is less physically demanding, she still suffers from ongoing pain that impacts her ability to perform at work and at home. She depends on continuous therapy and various assistive devices to manage her daily activities.
37The applicant states that the lack of suitable equipment has worsened her symptoms, including postural pain. She asserts that the proposed devices align with her treatment providers’ advice and are crucial for her to continue working and managing her condition.
38In support of her claim, the applicant relies on reports from occupational therapist Kristen Wood, kinesiologist Scott Blad, physiatrist Dr. Zeeshan Waseem, and psychiatrist Dr. Ahmed Jwely. These reports, along with clinical records, and significant physical and psychological impairments.
39The respondent submits that the proposed devices were denied through several Explanation of Benefits (EOBs), including those dated September 13, 2023, January 5, 2024, and April 3, 2024. Initially, the treatment was denied pending a s. 44 assessment. After Dr. Dessouki's assessment, the respondent submits that no objective accident-related musculoskeletal impairments were identified to justify the requested devices.
40The respondent argues that items like a reclining chair ($3,500), a vacuum cleaner ($1,020), and an adjustable exam table ($6,367.91) are not reasonably priced or aligned with treatment goals. According to sections 16(3)(h) and 16(3)(l) of the Schedule, workplace modifications and rehabilitative equipment must be “essential,” meaning strictly necessary. The respondent also notes the applicant has returned to work as a family physician and opened her own practice, showing successful reintegration.
41The respondent further states that the applicant was approved for assistive devices costing $2,340 and argues that the current request duplicates these items without sufficient justification. They also note the lack of recent clinical notes from the family doctor and that almost five years have passed since the accident.
42Ms. Wood’s report dated June 26, 2023, recommends several pieces of equipment, citing functional limitations arising from the collision that contribute to challenges and safety concerns in completing routine tasks. These recommendations align with the items listed in the submitted plans.
43Mr. Scott Blad’s June 19, 2024, evaluation confirms the applicant is currently a family physician. While the role offers flexibility and is less physically demanding than cardiac surgery, the applicant still has functional challenges and symptom aggravation. Continued postural changes and avoidance of activities requiring left-hand precision or prolonged non-neutral neck postures are recommended.
44Dr. Waseem’s report indicates that the applicant did not exhibit pain behaviours or symptom magnification. His physical examination revealed no significant findings. He recommended an ergonomic assessment to assist with office adaptations.
45Psychiatrist Dr. Ahmed Jwely, in his April 29, 2024, assessment, found that the applicant experiences significant vocational limitations due to psychiatric symptoms, including difficulty concentrating, anxiety, and depression. These symptoms have reduced her productivity and efficiency at work.
46Dr. Dessouki concluded that the applicant’s physical presentation did not support the need for the proposed equipment. He noted a normal range of motion and functional capacity, including squatting. Although he diagnosed musculoskeletal injuries, he found that the proposed devices were neither reasonable nor necessary for ongoing symptoms.
47Although the applicant submitted several reports recommending ergonomic support and assistive devices, I do not find these opinions persuasive because they lack contemporaneous clinical findings or clear justification for the proposed items. While the applicant’s need for ergonomic support is credible, the evidence does not demonstrate that the proposed devices are reasonable and necessary for rehabilitation. Dr. Dessouki’s assessment showed a full range of motion and minimal residual impairment, underscoring the lack of need for costly equipment. The recommendations for items such as a mattress and orthopedic pillows appear aimed at comfort rather than functional improvement, and there are no recent medical records supporting these measures. Given that five years have passed since the accident and the applicant continues to function effectively in her current role, the cost of the proposed devices is disproportionate to any expected therapeutic benefit.
48I find that the applicant has not met the burden of proof to show that the proposed assistive devices are reasonable and necessary under the Schedule. While several reports recommend ergonomic support, the applicant did not provide evidence addressing the reasonableness of the cost of these items. Without such information, I cannot conclude that the expenses claimed are justified
49Accordingly, on a balance of probabilities, I find that the applicant is not entitled to the disputed assistive devices.
Personal Training and Gym Membership
50I find that the applicant is not entitled to the personal training portion of the claim.
51The Treatment Plan dated September 16, 2023, submitted by occupational therapist Kristen Wood, proposes funding of $2,849.86. The stated goals include pain reduction, improved mood and physical tolerance, and a return to daily activities. The plan includes 26 personal training sessions, a gym membership, and supporting documentation.
52The applicant reports ongoing neck and back pain, low mood, disrupted sleep, and limited physical tolerance. Ms. Wood recommends access to a community gym and support from a personal trainer to maintain proper posture during activity. The applicant considers this intervention essential for her rehabilitation and daily participation.
53The respondent states the gym membership was approved in the September 29, 2023, EOB, but personal training remains disputed. It cites Dr. Waseem's conclusion that the applicant reached MMI, and that further improvement is unlikely even with treatment or accommodations. Dr. Waseem recommends self-directed exercises instead of supervised personal training. Therefore, the respondent argues that personal training is unnecessary and unreasonable.
54The respondent further asserts that, since ongoing physiotherapy was no longer considered necessary, guided exercise is likewise not required.
55As the gym membership part has been approved, it is no longer in dispute.
56While the applicant might benefit from physical activity, I am not persuaded that supervised personal training is reasonable or necessary. I have considered Ms. Wood’s report and the treatment plan she signed; however, her recommendations are based on general goals, such as pain reduction and improved mood, rather than on specific clinical findings demonstrating that personal training is essential to recovery. In contrast, Dr. Waseem’s assessment indicates the applicant has reached maximum medical improvement and recommends self-directed exercise. Given the absence of objective evidence supporting the need for supervised sessions and the lack of submissions addressing why this intervention is necessary at this stage, I place limited weight on Ms. Wood’s opinion.
57Accordingly, on a balance of probabilities, I find that the applicant is not entitled to personal training sessions.
Psychological Assessment for $2,200.00
58I find that the applicant is entitled to the psychological assessment.
59The Treatment Plan dated April 2, 2024, is signed by Anthony Grande, a physiotherapist, and identifies emotional disturbance related to injuries from the motor vehicle accident as the primary concern. The goals include addressing psychological distress and helping with a return to daily activities. The plan suggests a mental health and addictions assessment and includes supporting documentation.
60The applicant argues that the psychological assessment is reasonable and necessary given the psychological impairments she experienced following the accident. Records from KV Psychological document symptoms such as sleep disturbances, depression, and anxiety. These findings were later confirmed by psychiatrist Dr. Ahmed Jwely, who conducted a psychiatric assessment. The applicant maintains that the assessment and associated therapy were essential to address her accident-related psychological condition.
61The respondent argues that the proposed psychological assessment was denied in the EOB dated April 11, 2024, because the expense was incurred after the five-year limit outlined in section 20 of the Schedule. The accident occurred on April 15, 2019, and the assessment was conducted on April 29, 2024, beyond the April 8, 2024, deadline. The respondent also points out that the applicant’s injuries have not been classified as catastrophic and that treatment must be incurred within the five-year period to qualify for compensation.
62I accept the applicant’s submission that the treatment plan was submitted prior to the expiry of the five-year limitation period under s.20 of the Schedule. That section provides that no medical, rehabilitation, or attendant care benefit is payable for expenses incurred more than 260 weeks after the accident. The applicant cites Han v. Wawanesa, 2023 CanLII 1465 (ON LAT), where the Tribunal held that a treatment plan submitted before 260 weeks remains eligible, even if treatment occurs later. This prevents denying approved treatment just because it occurs after the limitation. The Tribunal stressed that the relevant date is the submission or denial date, not the decision or treatment date. Although not bound by past decisions, I find Han persuasive and aligned with a fair reading of s. 20. The plan was submitted before April 8, 2024, within 260 weeks of the accident, so the limitation period does not bar treatment.
63Furthermore, there is no conflicting medical evidence challenging the necessity of the psychological assessment. The applicant’s psychological impairments have been consistently documented and verified by qualified professionals (Records from KV Psychological and Dr. Ahmed Jwely). I find the assessment to be reasonable and necessary to support the applicant’s recovery. I conclude that the applicant has met the burden of proof to demonstrate that the psychological assessment is reasonable and necessary, and that the timing of the expense does not prevent entitlement under the Schedule. There are grounds to reasonably believe that such a condition exists and that the assessment is necessary to clarify the diagnosis or guide treatment.
64Accordingly, on a balance of probabilities, I find that the applicant is entitled to funding for the psychological assessment.
Psychological Therapy for $925.00
65I find that the applicant is not entitled to the payment of the psychological therapy expense.
66The OCF-6 dated March 21, 2023, details seven sessions of psychological therapy and a related report. The applicant submits that this treatment is reasonable and necessary because of psychological impairments stemming from the accident.
67In support of her claim, the applicant cites clinical records from KV Psychological that document symptoms such as sleep disturbances, depression, and anxiety. These findings were later confirmed by psychiatrist Dr. Jwely, who performed a psychiatric assessment. The applicant asserts that therapy was crucial to address the psychological effects of the accident and to aid her recovery.
68The respondent states that psychological therapy wasn't covered under the March 24, 2023, EOB because it occurred before the treatment plan was submitted. Section 38(2) of the Schedule limits the insurer's responsibility for benefits incurred before submitting a plan, unless exceptions apply. The respondent claims therapy doesn't meet the exceptions in sections 15(1)(g) and 16(1)(l). The OCF-6 shows therapy sessions from February 8, 2021, to July 8, 2022, before plan submission. Hence, expenses are not payable. The respondent also argues the applicant hasn't proved the treatment goals were reasonable, achievable, or cost-effective, especially given alternative options.
69I find that the applicant is not entitled to payment for the claimed psychological therapy expenses. The treatment occurred between February 8, 2021, and July 8, 2022, prior to the submission of the treatment plan dated March 21, 2023. Under section 38(2) of the Schedule, an insurer is not liable to pay for expenses incurred before a treatment and assessment plan is submitted unless specific exceptions apply. The applicant did not make submissions addressing any of the exceptions listed under section 38(2), such as emergency services, prescribed drugs, or low-cost items. Furthermore, there is no evidence that the insurer agreed to pay these expenses without a treatment plan. In the absence of such submissions or agreement, the statutory bar applies.
70While the psychological impairments are documented by Dr. Jwely, and the treatment may have been beneficial, the timing of the incurred expenses renders them non-payable under the Schedule. I find that the applicant has not established entitlement to funding for psychological therapy expenses incurred prior to the submission of the treatment plan.
71Accordingly, on a balance of probabilities, I find that the applicant is not entitled to funding for psychological therapy.
Interest
72Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on any overdue benefits payments in accordance with section 51.
ORDER
73For the above reasons, it is ordered that:
i. The applicant is entitled to the costs for psychological assessment for $2,200.00, plus interest.
ii. The applicant is not entitled to the personal training sessions, physiotherapy services, assistive devices, or psychological therapy.
Released: December 2, 2025
Harouna Saley Sidibé
Adjudicator