Licence Appeal Tribunal File Number: 24-003990/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:
Alisha Lalor
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Kathleen Wells
APPEARANCES:
For the Applicant:
Frank Comella, Counsel
For the Respondent:
Nabila Majidzadeh, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Alisha Lalor, the applicant, was involved in an automobile accident on October 1, 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, Aviva Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
Is the applicant entitled to $2,460.00 for a Chronic Pain Assessment, proposed by Elite Specialist Group Inc. in a treatment plan submitted March 18, 2022?
Is the applicant entitled to $1,553.72 for physiotherapy services proposed by Total Care Management in a treatment plan/OCF-18 (“treatment plan”) submitted November 9, 2022?
Is the applicant entitled to $1,553.72 for physiotherapy services proposed by Total Care Management, in a treatment plan submitted March 2, 2023?
Is the applicant entitled to interest on any overdue payment of benefits?
3The applicant withdrew her claim for $443.83 for psychological services set out as issue #3 in the Case Conference Report and Order (“CCRO”).
RESULT
4I find that:
The applicant is not entitled to the treatment plans in dispute.
The applicant is not entitled to interest.
The application is dismissed.
ANALYSIS
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 purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
Is the applicant entitled to $2,460.00 for a Chronic Pain Assessment in a treatment plan submitted March 18, 2022?
7I find that the applicant has not established on a balance of probabilities that there are grounds to believe that a chronic pain assessment is warranted.
8The treatment plan, dated March 15, 2022 and submitted on March 18, 2022, was prepared by Richard Tutak, chiropractor of Elite Specialist Group, Inc, and seeks funding of $2,460.00 for a chronic pain assessment. The goals of the treatment plan are: a return to the activities of normal living and “to assess the insured's musculoskeletal status to determine need for rehabilitative/medical treatment, chronic pain treatment and entitlement to benefits.”
9The applicant submits that the chronic pain assessment, which she incurred, is warranted because the applicant experienced ongoing pain and functional limitations as a result of her accident-related injuries, and was diagnosed with chronic pain disorder by Dr. Osama Benmoftah, orthopaedic surgeon in his chronic pain assessment report dated May 20, 2022. She also relies on the clinical notes and records (“CNRs”) of Dr. Omemine Barbara Aste, physician, of Nadia’s Medical Clinic, and the William Osler Health Centre.
10The respondent submits that the applicant has not met her burden to prove that a condition exists to warrant further investigation. The respondent relies on the s.44 insurer’s examination (“IE”) report of Dr. Lawrence Walters, physician dated May 5, 2022.
11The evidence reveals that the applicant did not attend the hospital after the accident, and first complained of pain to Dr. Aste five weeks later on November 8, 2021 in a telephone appointment, and visited her office on November 19, 2021. Dr. Aste noted pain in the applicant’s lower back, and advised the applicant to continue with physiotherapy and prescribed a muscle relaxant.
12The applicant next complained of back pain more than two months later on February 5, 2022, when she visited the William Osler Health Centre Emergency Department complaining of lower back and hip pain that she had been experiencing for the “last few days.” The CNRs reveal that the applicant was sent for imaging, which revealed no acute normalities and was discharged with a diagnosis of sciatica, with no further instructions, or prescriptions. As the respondent notes, the CNRs reveal a notation that the applicant was engaged in physiotherapy because of the accident, but also noted that she had “no significant medical history,” and did not attribute the applicant’s pain to her accident-related injuries.
13The applicant did not direct me to any further evidence of complaints of pain prior to the submission of the treatment plan on March 18, 2022, however the applicant attended an IE with Dr. Walters on April 20, 2022, and a s.25 chronic pain assessment with Dr Benmoftah on May 10, 2022.
14I am not persuaded by the applicant’s argument that Dr. Walters’ IE reports should be afforded less weight than Dr. Benmoftah’s s.25 chronic pain assessment because Dr. Benmoftah is an orthopaedic surgeon who specializes in chronic pain, and is therefore more qualified to make an assessment than Dr. Walters, because Dr. Walters is a family physician. I note that Dr. Walters’ reports extensive experience as an occupational health physician, in his IE report, which is not addressed by the applicant.
15The applicant further submits that Dr. Walters less detailed reports do not provide an explanation for his diagnosis. While I agree with the applicant that Dr. Walters’s report does not provide detailed findings of his test results, I find that the summary of the applicant’s physical examination is consistent with his diagnosis.
16The respondent takes the position that Dr. Benmoftah’s s.25 report should be afforded little weight, because Dr. Benmoftah reviewed CNRs which were not provided to the respondent, and did not review CNRs which were dated after his assessment was completed. I find these arguments unpersuasive.
17Therefore, I decline to assign less weight to either report based on the parties’ submissions.
18In his May 5, 2022 IE report, Dr. Walters noted that the applicant complained pain in her mid and lower back, and intermittent pain on the right side of her neck. The applicant told Dr. Walters that she was independent in her personal care and performed all of her precious household chores, including laundry.
19Dr. Walters noted that the applicant experienced pain in her thoracic and lumbar spine on examination, but that there was no tenderness to her cervical spine, and that she had a full range of motion in all areas. Dr. Walters further opined that the treatment plan for a chronic pain assessment was not reasonable and necessary, as the applicant was not taking any medication for her pain, and the applicant did not exhibit features of chronic pain during his examination.
20Dr. Benmoftah’s chronic pain assessment took place 3 weeks later on May 10, 2022 and he noted restrictions in the applicant’s range of motion and pain in multiple locations including her shoulders and knee in addition to pain in her mid and lower back, and neck. Dr. Benmoftah also opined that the applicant had significant psychological symptoms, and that she had reported assuming only light duties as a cleaner, and required her husband’s assistance to complete her household chores. He diagnosed her with chronic pain disorder, headaches, and sprains and strains to her spine, shoulders, hip and knee. He recommended extensive treatment including physical, medication, and other therapies, and additional assessments including a neurological assessment, a social work assessment and a psychological assessment.
21I find that the applicant’s reports to Dr. Walters with respect to her pain, function, and employment history are inconsistent with her reports to Dr. Benmoftah. I am persuaded by Dr. Walters’ IE report, because it is consistent with the medical evidence submitted for this hearing, while the reports of pain to Dr. Benmoftah are not corroborated by the CNRs of Dr. Aste or the William Osler Health emergency department, and the applicant did not direct me to any further evidence from any other treatment providers to corroborate her complaints of pain or functional impairment to Dr. Benmoftah.
22For these reasons, I find that the applicant has not met her onus to prove on a balance of probabilities that the treatment plan is reasonable and necessary.
23Accordingly, the applicant is not entitled to the treatment plan for a chronic pain assessment submitted on March 18, 2022.
Is the applicant entitled to $1,553.72 for physiotherapy services in a treatment plan submitted November 9, 2022 and Is the applicant entitled to $1,553.72 for physiotherapy services in a treatment plan submitted March 2, 2023?
24I find that the applicant has not established on a balance of probabilities that the treatment plans are reasonable and necessary.
25The treatment plans submitted on November 9, 2022 and March 2, 2023 are identical and were both prepared by Dr. Tejinderpaul Dhotar, chiropractor. The goals of the treatment plans are: pain reduction, increased range of motion, increase in strength, return to pre-accident function, activities of normal living and work activities, and chronicity prevention. The treatment plans set out 12 one-hour sessions of physiotherapy and $200.00 for a total body assessment for a total of $1,553.72.
26The applicant submits that the treatment plans are reasonable and necessary because the applicant finds that the treatments alleviate her pain, and relies on the CNRs Dr, George Elraheb, physician.
27The respondent argues that the applicant has not met her onus to prove that the treatment plans are reasonable and necessary, because she has not provided any contemporaneous medical evidence in support of the treatment plans, and relies on Dr. Walters’ IE addendum report dated July 15, 2022, and his subsequent IE report dated December 29, 2022.
28I agree with the respondent that the applicant has not directed me to contemporaneous medical evidence to support the treatment plans. The applicant submits that she was referred to physiotherapy by Dr. Elraheb in June 2024, which was 14 months after the most recent of the two treatment plans was submitted, and therefore does not shed any light on whether the treatment plans are reasonable and necessary.
29At the applicant’s December 15, 2022 IE, Dr. Walters reviewed recent medical records, conducted an interview with the applicant, and a physical examination. He and opined that the applicant did not have an impairment from her accident-related injuries, that she had reached maximum medical recovery, and that the November 9, 2022 treatment plan was not reasonable and necessary.
30The applicant has not directed me to any corroborating evidence that the May 2, 2023 treatment plan is reasonable and necessary, nor has the applicant made any submissions with respect to whether the costs of the treatment plans are reasonable.
31For these reasons, I find that the applicant has not met her onus to prove on a balance of probabilities that the chiropractic treatment plans are reasonable and necessary.
32Accordingly, the applicant is not entitled to the treatment plans for physiotherapy services submitted on November 9, 2022 and May 20, 2022.
Interest
33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are owing, no interest is due.
ORDER
34I find that:
The applicant is not entitled to the treatment plans in dispute.
The applicant is not entitled to interest.
The application is dismissed.
Released: December 16, 2025
Kathleen Wells
Adjudicator