Licence Appeal Tribunal File Number: 24-001481/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:
Fozia Khokhar
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Matthew Frontini
APPEARANCES:
For the Applicant:
Tal Eshel, Counsel
For the Respondent:
Yann Grand-Clement, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Fozia Khokhar, the applicant, was involved in an automobile accident on February 14, 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.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to $3,292.28 for physiotherapy and massage services, proposed by Rouge Valley Physiotherapy Ajax in a treatment plan/OCF-18 (“treatment plan”) dated September 13, 2022?
ii. Is the applicant entitled to $4,534.15 for assistive devices, proposed by ALCAT Assessments Inc in a treatment plan dated December 15, 2023?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant is not entitled to the disputed treatment plans;
ii. The applicant is not entitled to interest on any overdue payment of benefits; and
iii. The application is dismissed.
ANALYSIS
The applicant is not entitled to the treatment plan for physiotherapy and massage dated September 13, 2022
4I find that the applicant has not established on balance of probabilities that this treatment plan is reasonable and necessary.
5To 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.
6The applicant’s submissions set out of the procedural history regarding the applicant’s accident and prior application to the Tribunal. This context is particularly relevant to the analysis of the applicant’s submissions in this application. The applicant previously commenced an application on February 4, 2022 (the “First Application”), which sought the applicant’s removal from the minor injury guideline (“MIG”) and entitlement to six treatment plans. Among the treatment plans in dispute in the First Application were two treatment plans for physiotherapy, dated July 29, 2019, and November 12, 2019. While these treatment plans are not in evidence, the applicant’s submissions characterize them as being of the same nature as the treatment plan for physiotherapy and massage that is currently in dispute. The applicant’s submissions state that the First Application was withdrawn on June 1, 2023, because the respondent removed the applicant from the MIG and approved all but one of the disputed treatment plans (the unapproved treatment plan pertaining to attendant care benefits).
7The applicant submits that the September 13, 2022 treatment plan in dispute is reasonable and necessary because the applicant is still experiencing pain, pain reduction is a legitimate goal of a treatment plan and the respondent already approved treatment plans of a similar nature when it removed the applicant from the MIG. In support of these submissions, the applicant relies on the treatment plan itself and refers to the s. 44 reports of Dr. Oshidari, physiatrist, dated October 18, 2021, and January 31, 2024. The applicant focuses on specific references in these reports to the applicant’s self-reporting of pain and discomfort and submits that it is clear that the applicant is still dealing with pain.
8The applicant has not established on a balance of probabilities that this treatment plan is reasonable and necessary. One of the major weaknesses in the applicant’s position is the lack of contemporaneous supporting evidence in respect of the treatment plan in dispute. It is important to recall from the applicant’s own submissions that the First Application was withdrawn on June 1, 2023, because the respondent approved, among other things, two treatment plans of the same nature as the treatment plan currently in dispute and that these two treatment plans were incurred at some time, although there is no evidence as to this date. The applicant does not refer to any medical evidence regarding the success of these treatment plans. The applicant also does not refer to any medical evidence that would support the reasonableness and necessity treatment of this disputed treatment plan when it was submitted on September 13, 2022.
9The applicant criticizes the assessment s. 44 reports of Dr. Oshidari. In this regard, the applicant cites Tribunal caselaw for the proposition that the respondent has a duty to conduct further investigations when it is presented with new information. However, other than the treatment plan itself, the applicant’s submissions do not identify any such new information. Other than Dr. Oshidari’s s. 44 report of 2024, the respondent already had the evidence referred to in the applicant’s submissions in June 2023 when the First Application was withdrawn. It is also well-established that treatment plans themselves do not comprise evidence that alone can prove their reasonableness and necessity. The respondent had all this information when removed the applicant from the MIG and approved the treatment plans in dispute in the First Application in June 2023.
10Given the above, the applicant has not met her onus to establish on a balance of probabilities that this treatment plan is reasonable and necessary.
The applicant is not entitled to the treatment plan for assistive devices dated December 15, 2023
11I find that the applicant has not established on balance of probabilities that this treatment plan is reasonable and necessary.
12The applicant’s submissions in respect of this treatment plan are similar to those made in support of the treatment plan for physiotherapy and massage discussed above. The applicant relies on the treatment plan itself and then references various medical records that pre-date this treatment plan and the withdrawal of the First Application. One of these records that the applicant relies on pre-dates the accident itself and indicates that the applicant was suffering from various impairments unrelated to the accident. The applicant also references other records and reports dated in 2019 and 2020 and submits that this establishes her ongoing pain, which renders the treatment plans reasonable and necessary.
13The applicant’s submissions regarding this treatment plan do not establish that it is reasonable and necessary. The applicant has not referred to any contemporaneous evidence related to her ongoing pain at the date of this treatment plan was submitted. The applicant has also not referred to any evidence, other than the treatment plan itself, from a medical professional that suggests that the assistive devices set out in the treatment plan are recommended. Even the older evidence relied upon by the applicant only references her reported pain and functional limitations in 2019 and 2020 and does not endorse the goods set out in treatment plan in dispute.
14I find that the applicant’s submissions and the evidence do not establish on a balance of probabilities that the treatment plan for assistive devices is reasonable and necessary. As such, I find that she is not entitled to this treatment plan.
Interest
15Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the applicant is not entitled to the disputed treatment plans, no payments are overdue, and interest does not apply.
ORDER
16I find that:
i. The applicant is not entitled to the disputed treatment plans;
ii. The applicant is not entitled to interest on any overdue payment of benefits; and
iii. The application is dismissed.
Released: December 1, 2025
Matthew Frontini
Adjudicator