Licence Appeal Tribunal File Number: 24-003196/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:
Kevin Simmers
Applicant
and
Gore Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Sherilyn Pickering, Counsel
For the Respondent:
Aly Pabani, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Kevin Simmers, the applicant, was involved in an automobile accident on September 15, 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, Gore Mutual 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 $2,147.00 for physiotherapy services, proposed by Sarah Khalil in a treatment plan submitted February 1, 2023?
ii. Is the applicant entitled to $1,637.00 for physiotherapy services, proposed by Riyal Parmar in a treatment plan submitted June 1, 2023?
iii. Is the applicant entitled to $1,437.50 for physiotherapy services, proposed by Riyal Parmar in a treatment plan submitted July 21, 2023?
iv. Is the applicant entitled to $1,030.00 ($1,280.00 less $250.00 approved) for occupational therapy services, proposed by Hands on Health Wellness Centre East in a treatment plan submitted June 23, 2022?
v. Is the applicant entitled to attendant care benefits (“ACBs”) in the amount of $1,034.58 per month from June 14, 2022 to date and ongoing?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
3In his written hearing submissions, the applicant confirmed that he was withdrawing the two partially approved treatment plans dated July 12, 2022 and October 14, 2022 as issues in dispute (Issues #1 and #2 as listed in the Case Conference Report and Order dated August 16, 2024 (“CCRO”)).
RESULT
4I find that:
i. The applicant is partially entitled to the treatment plan for physiotherapy services dated February 1, 2023, plus interest;
ii. The applicant is partially entitled to the treatment plan for occupational therapy services dated June 23, 2022, plus interest;
iii. The applicant is not entitled to the remaining treatment plans in dispute;
iv. The applicant is entitled to ACBs in the amount of $1,034.58 per month from June 14, 2022 to date and ongoing. However, the applicant has not established that any ACBs are payable to date, since he has not led evidence of the services being incurred; and
v. The respondent is not liable to pay an award.
PROCEDURAL ISSUES
5In his reply submissions, the applicant argues that the respondent included a surveillance report with its written hearing submissions which had not been served on his counsel previously. As a result, the applicant requests that the surveillance report be found inadmissible for this written hearing.
6The applicant’s request to exclude the surveillance report is denied. The respondent provided sur-reply submissions, which were not opposed by the applicant, establishing that the complete surveillance file was provided to applicant’s counsel well in advance of the hearing and within the timeline specified in the CCRO. Accordingly, the surveillance report is admissible and will be considered as evidence at this written hearing.
ANALYSIS
7To 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.
OCF-18s for physiotherapy services
8I find that the applicant is partially entitled to the OCF-18 dated February 1, 2023 for physiotherapy services and assistive devices. The applicant has not established entitlement to the remaining two OCF-18s for physiotherapy services dated June 1, 2023 and July 21, 2023.
9The applicant submitted three treatment plans for physiotherapy services. The OCF-18 dated February 1, 2023 proposed 12 sessions of physiotherapy treatment, 6 sessions of education, a physiotherapy assessment and assistive devices, including a knee brace, an aqua pillow and a sleep roll. The OCF-18s dated June 1, 2023 and July 21, 2023 both similarly proposed a physiotherapy assessment, 6 sessions of education, and 10-12 sessions of physiotherapy treatment. All three OCF-18s had the stated goals of pain reduction, increase in range of motion and strength and to facilitate a return to activities of normal living.
Background and the applicant’s accident-related impairments
10The applicant submits that all of the proposed physiotherapy treatment sessions and assistive devices are reasonable and necessary to address his severe, ongoing chronic pain. While the applicant does not dispute that he had a complex pre-accident medical history and had suffered from chronic pain prior to the accident, he argues that post-accident his pain increased considerably. The applicant relies on the clinical notes and records (“CNRs”) of his family physician Dr. Sargolzaei which reveal that soon after the accident, the applicant reported significant pain in his back, shoulder and neck at a 10/10, and his Oxycodone prescription was increased from 6 tablets a day pre-accident, to 8 tablets post-accident.
11He continued to report ongoing chronic pain throughout 2021, and a March 9, 2022 X-ray of the lumbar spine revealed a compression fracture at T12 and L2. On March 16, 2022 the applicant continued to report worsening pain and his Oxycodone prescription was increased from 5 mg 8 times a day, to 10 mg six times a day. The applicant argues that as a result of his accident-related pain, he suffers from serious functional restrictions, including difficulty walking (he uses a cane), sitting, standing, twisting, engaging in household tasks, grooming and bathing, leading to a loss of balance and post-accident falls.
12The applicant argues that the physiotherapy treatment sessions and proposed assistive devices are reasonable and necessary to address his ongoing chronic pain. The applicant cites the FSCO decision Pedisic v State Farm Mutual Automobile Insurance Company, 2009 ONFSCDRS 7, in support of the principle that pain relief is a legitimate goal of treatment and similarly, if through the reduction of pain an insured’s level of function can be improved, this is also a legitimate goal of treatment.
13The respondent submits that it has already funded $17,658.09 in medical treatment, including seven physical therapy treatment plans. It argues that its assessors have found that the applicant has achieved maximum medical recovery and that further physiotherapy treatment would not be of benefit. It relies on the s. 44 physiatry addendum report of Dr. Heitzner dated May 24, 2022 where Dr. Heitzner noted the March 9, 2022 lumbar spine X-ray showing a compression fracture, but he opined that he did not know when these fractures occurred. Dr. Heitzner concluded that the applicant had sustained only soft tissue injuries with aggravation of pre-existing chronic mechanical lumbar pain. He concluded that a previous treatment plan proposed was reasonable and necessary, but that once these treatment plans were completed, the applicant would have achieved maximum medical recovery. Dr. Heitzner noted that the applicant had indicated only temporary relief to date with treatment.
14In the reassessment report dated May 18, 2023, Dr. Heitzner found that although the applicant had a complicated medical picture, further treatment was not required for the applicant’s accident-related injuries. He noted that the subject accident had resulted in soft tissue strains and sprains and had aggravated pre-existing lower back pain. However, these injuries were further aggravated by another car accident in August 2022, and a fall where he injured his left knee on December 25, 2022. Dr. Heitzner found that these aggravating factors, together with the applicant’s high level of perceived disability and pain behaviour, contribute to a complicated picture.
15With respect to the applicant’s accident-related impairments, I do not agree with the respondent’s assessors that the accident caused only soft tissue strains and sprains or a temporary aggravation of lower mechanical back pain. I agree with the applicant that the compression fracture at T12 and L2 revealed by the March 9, 2022 X-ray can be linked to the accident. The respondent submits that it is more likely that the compression fracture was due to a November 2021 fall, rather than the subject accident. I am not persuaded by the respondent’s argument.
16I note that the applicant’s family physician Dr. Sargolzaei repeatedly linked the compression fracture to the subject accident. In an April 6, 2022 referral, Dr. Sargolzaei noted that the applicant presented with a “new compression fracture” of the thoracic and lumbar spine “after a minor car accident in Sep 2021”. At that time, Dr. Sargolzaei diagnosed the applicant with a new compression fracture and increased chronic back pain. Similarly, in an August 4, 2022 CNR entry, Dr. Sargolzaei noted that in 2021, the applicant had been in a car accident “and has developed new spine fracture at T12”.
17While I agree with the respondent that the applicant’s December 25, 2022 fall and resulting knee impairment cannot be linked to the accident, I do not agree that the compression fracture is unrelated to the subject accident. Moreover, while I agree with the respondent that there are multiple subsequent complicating events with respect to the applicant’s chronic back pain, including two post-accident falls and an August 2022 accident, the compression fracture has consistently been identified as an important factor in the applicant’s ongoing chronic pain.
Physiotherapy treatment plans
18I find that the applicant is partially entitled to the OCF-18 dated February 1, 2023 for physiotherapy services and assistive devices. The applicant has not established entitlement to the remaining two OCF-18s for physiotherapy services.
19I agree with the applicant that pain relief is a legitimate goal of treatment and that if pain relief can lead to functional improvement, this is also a legitimate goal of treatment. However, from my review of the evidence submitted, the applicant has reported only limited benefit from the ongoing physiotherapy treatment. In a report from the Hamilton Pain Clinic dated November 11, 2025, it was noted that in the past, the applicant had tried physical modalities such as physiotherapy, massage, chiropractic, acupuncture, heat/cold and TENs with “transient benefits”.
20The applicant points to his incurred physiotherapy treatment plans and progress reports to show his improved pain reports. He argues that, for example, in a December 6, 2021 progress report he had a score of 19/24 on the Roland-Morris Low Back Pain and Disability Questionnaire (RMQ), but in a subsequent October 3, 2022 report his score had dropped to a 14/24. However, I note that in a later February 2023 report, the applicant’s pain level had now increased to 16/24 and he continued to report significant functional restrictions, “pt is so limited ADL’s, not able [to] sit or stand for longtime, walking limited by pain, decreased ROM in lumbar spine, decreased stability lumbo-sacroiliac”. I agree with the respondent that the applicant reported greater benefit from his family doctor guided opioid treatment, injections and home based therapy like his TENs machine or Jacuzzi tub.
21However, I find that one additional course of physiotherapy treatment would be reasonable and necessary to see if the applicant can sustain an improvement in either his pain reports or functionality. The respondent states that it had approved physical treatment plans proposed between September 27, 2021 to October 3, 2022. However, in the November 25, 2022 report from the Hamilton Pain Clinic, a wide variety of treatment options were recommended, including: trigger point injections, multiple prescription medications, home based therapies, a physical conditioning program including aqua therapy/swimming, yoga and cardiovascular fitness. It was noted in the report that the applicant could also be referred to manual care providers such as physiotherapists, to assist the patient with this fitness program. Therefore, while physiotherapy was not specifically listed as one of the recommended treatments, it was listed as a possible supportive measure to help with physical conditioning.
22Given that the respondent had only approved treatment until October 2022, but the report from the clinic came out in November 2022, I find that the additional course of physiotherapy treatment specified in the February 1, 2023 OCF-18 would be reasonable and necessary to see if any improvement can be achieved with physical therapy. In my view, it would be reasonable to assess the applicant’s improvement after this session block, to determine whether additional physiotherapy would be reasonable and necessary.
23I further find that the applicant has not established that the assistive devices, being a knee brace, pillow and sleep roller, listed in the February 1, 2023 OCF-18 are reasonable and necessary. With respect to the knee brace, I agree with the respondent that the applicant’s knee impairment was due to a December 2022 fall, and was not as a result of the accident. Further, the applicant has not replied to the respondent’s argument that a previous pillow had already been approved, nor explained why an additional aqua pillow is required. Finally the applicant has not provided any submissions on why a sleep roller is reasonable and necessary. Accordingly, the applicant has not established entitlement to the proposed assistive devices.
OCF-18 dated June 23, 2022 for assistive devices in the amount of $1,280.00
24The applicant is partially entitled to the OCF-18 for assistive devices.
25The applicant submitted an OCF-18 in the amount of $1,280.00 for assistive devices including: a long-handled reacher, perching stool, crutches, cervical pillow, ortho cushion, cane, knee elevator and a back brace. The respondent approved the long-handled reacher and perching stool, but denied the remaining assistive devices.
26I find that the applicant is entitled to the cervical pillow, orthopedic cushion and back brace. Given the applicant’s compression fracture and chronic back pain, a back brace would be reasonable and necessary to alleviate his pain. With respect to the cervical pillow and orthopedic cushion, I agree with the applicant that around the time the OCF-18 was submitted, in May 2022, the applicant reported sleep disruption. In a May 19, 2022 report from the applicant’s treating clinic, it was noted that even though he had sleep disruption pre-accident and he slept 4-5 hours a night, post-accident he now sleeps only 3 hours a night and when he wakes in the middle of the night, he cannot get back to sleep. Accordingly, I find that the cervical pillow and orthopedic cushion are reasonable and necessary to help with his sleep.
27However, the applicant has not established that the crutches and cane are reasonable and necessary. I agree with the respondent that the applicant used a cane pre-accident and had suffered from mobility issues. The applicant has not established that his ongoing mobility issues are due to the accident. The applicant also has not provided specific submissions on why the knee elevator is reasonable and necessary, and as previously noted, I have not found that the applicant established a knee impairment due to the accident.
Attendant care services for the period of June 14, 2022 to date and ongoing
28I find that the applicant has established entitlement to attendant care services in the amount of $1,034.58 per month from June 14, 2022 ongoing. However, the applicant has not established that any ACBs up to the date of this decision are payable, since the applicant has not led evidence that ACB expenses were incurred.
29Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (ACBs) provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).
30The applicant’s Form 1 was prepared by occupational therapist (OT) Ms. Vitali-Perrier and proposes 10 minutes per week in grooming/toenail clipping, 630 minutes per week with meal preparation, and 175 minutes per week with cleaning the tub, shower, sink and toilet, changing linens, tidying the bedroom, preparing hanging and sorting clothes to wear and launder. Ms. Vitali-Perrier found that this assistance was required as the applicant had limited cervical, lumbar and bilateral shoulder range of motion. The applicant further had difficulties with prolonged standing, bending, squatting, diminished strength and reduced mobility due to the use of his cane.
31The respondent relies on the Form 1 and s. 44 OT assessment of Ms. Wendt dated September 19, 2022, who found that the applicant reported that he was generally independent with dressing showering, feeding and grooming, and was able to perform housekeeping tasks, with pacing. However, Ms. Wendt noted that the applicant had denied range of motion testing due to pain. In an earlier s. 44 OT report from February 2022, the applicant had reported being independent with dressing, grooming, and that he was able to participate with meal preparation, with pacing. Ms. Wendt found that the applicant was functional to perform his personal care tasks, but that given his accident-related psychiatric diagnoses, ACBs of 2.63 hours per week were recommended to “cue” him in completing his tasks, in the amount of $188.71/month. The respondent argues that the medical record establishes that the applicant had reduced strength and used a cane well-before the accident. As such, it submits that Ms. Vitali-Perrier’s justifications for ACBs are not accident-related.
32I find that the applicant has established entitlement to ACBs in the amount of $1,034.58 per month, as specified in the Form 1 of Ms. Vitali-Perrier. I agree with the applicant that the respondent’s submissions that he had resumed personal care tasks and was able to participate with meal preparation with pacing, is inaccurate. The s. 44 OT report of Ms. Wendt indicates that the applicant reported that he was independent with dressing and grooming generally, but that some days he cannot perform even basic personal care tasks and that trimming his toenails was difficult. Further, he reported that his ability to perform housekeeping and home maintenance tasks was dependent on his pain level. I also do not agree with the respondent that Ms. Vitali-Perrier’s primary justification for ACBs was due to the applicant’s use of a cane. For example, when expanding on the reasons for assistance with meal preparation. Ms. Vitali-Perrier noted that the applicant had reduced mobility (i.e. dependence on a cane), but this was in concert with reduced neck and bilateral shoulder range of motion with neck, bilateral shoulder, bilateral hip pain. I agree with the applicant that his chronic pain was the key cause of his functional limitations.
33I further note that this is supported by the medical record. The CNRs of Dr. Sargolzaei reveal that soon after the accident, the applicant reported that he was not able to stand enough to prepare simple meals. On October 27, 2022 Dr. Sargolzaei summarized the applicant’s complicated medical history and functional limitations when he applied for the disability tax credit on behalf of the applicant. Dr. Sargolzaei stated that the applicant had reduced mobility due to multiple car accidents since 1999, that “(r)ecently he has sustained vertebral fracture T12, L2 after a motor vehicle collision”. In the form Dr. Sargolzaei noted that the applicant had moderate to severe limitations with walking due to significant chronic pain in his spine due to osteoarthritis, vertebra fracture T12-L2 in MVC, fusion at C4-C5, fibromyalgia”. The same was noted with respect to the applicant’s limitations with dressing.
34Accordingly, given the applicant’s functional limitations due to chronic pain, I find that the applicant has established entitlement to ACBs in the amount of $1,034.58 per month. However, I agree with the respondent that the applicant has not led any evidence that ACBs have been incurred.
35Pursuant to subsection 3(7)(e) of the Schedule, for the applicant to receive payment for ACBs, there must be evidence that the expense was incurred. The applicant has not provided any evidence to prove that he received the service to which the expense relates, or that he paid or promised to pay for the expense. Nor did he provide any evidence to support that anyone provided him with any ACB services.
36Since the applicant has not met his onus to prove that he incurred ACBs as required by s. 3(7)(e), he has not established that any ACBs are payable up to the date of this decision.
Interest
37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest with respect to the OCF-18s dated February 1, 2023 and June 14, 2022.
Award
38The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The applicant submits that the respondent failed to give appropriate weight to all information in a fair and even-handed manner, particularly given the inherent problems in Dr. Heitzner’s reports.
39I find that the applicant has not established that an award is warranted. While I have found that two of the treatment plans were partially reasonable and necessary, and that the applicant is entitled to ACBs, I do not agree with the applicant that there were inherent problems with the respondent’s IEs. While I did not agree with all of the findings in the reports, I note that parties may disagree with determinations, and I do not find that this is evidence of behaviour that was excessive, imprudent, stubborn or immoderate in withholding the benefits. As such, an award is not payable.
ORDER
40I find that:
i. The applicant is partially entitled to the treatment plan for physiotherapy services dated February 1, 2023, plus interest;
ii. The applicant is partially entitled to the treatment plan for occupational therapy services dated June 23, 2022, plus interest;
iii. The applicant is not entitled to the remaining treatment plans in dispute;
iv. The applicant is entitled to ACBs in the amount of $1,034.58 per month from June 14, 2022 to date and ongoing. However, the applicant has not established that any ACBs are payable to date, since he has not led evidence of the services being incurred; and
v. The respondent is not liable to pay an award.
Released: December 2, 2025
Ulana Pahuta
Adjudicator