Huynh v. TD General Insurance Company, 2025 CanLII 132431

Huynh v. TD General Insurance Company, 2025 CanLII 132431

Citation: Huynh v. TD General Insurance Company, 2025 ONLAT 24-014616/AABS

Licence Appeal Tribunal File Number: 24-014616/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:

Vi Thanh Huynh

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Aline Avanessy, Counsel

Zoe Meditskos, Paralegal

For the Respondent:

Crystal Law, Counsel

Jagdeep Khela, Counsel

Court Reporter:

Guido Riccioni

Heard by Videoconference

October 14-17, & 20, 2025

OVERVIEW

1Vi Thanh Huynh (“the Applicant”) was involved in an automobile accident on September 5, 2013, and sought benefits from TD General Insurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The Applicant was denied benefits by the Respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The preliminary issue to be decided is:

1. Is the Applicant barred from proceeding to a hearing for any benefits listed below because he failed to dispute the denials within the 2-year limitation period?

3The substantive issues to be decided are:

1. Has the Applicant sustained a catastrophic impairment as defined by the Schedule?

2. Is the Applicant entitled to the treatment and assessment plans (“plans”) proposed by Prime+ Care Health Centre, as follows:

i. $1,946.25 for physiotherapy services, dated December 27, 2018; and

ii. $2,570.41 ($3,370.33 less $799.92 approved) for chiropractic services, dated March 8, 2021?

3. Is the Applicant entitled to the plans proposed by MyoHealth Rehab and Wellness Centre, as follows:

i. $2,452.71 for psychological services, dated June 21, 2017;

ii. $4,718.04 for psychological services, dated August 21, 2017; and

iii. $3,603.58 for chiropractic services, dated June 16, 2017?

4. Is the Applicant liable to pay costs because he acted unreasonably, frivolously, vexatiously, or in bad faith in a proceeding?

5. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?

6. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

4The Applicant is permitted to proceed with his application to dispute entitlement to the plans in dispute pursuant to section 7 of the Licence Appeal Tribunal Act, 1999 (“LAT Act”).

5The Applicant has not demonstrated that he suffers from a catastrophic mental and behavioural impairment pursuant to criterion (f) in the Schedule.

6The treatment and assessment plans in dispute are reasonable and necessary as a result of the accident, and the Applicant is entitled to the treatment plans.

7Interest applies on any overdue payments in relation to the plans in dispute.

8The Applicant is entitled to an award of $1,077.43, representing 10% of the amounts withheld in relation to the plans dated June 16, 21, and August 21, 2017.

9No costs are payable.

PROCEDURAL MOTIONS

10Two motions were addressed at the outset of the hearing. First, the Respondent sought to exclude an occupational therapy (OT) community functional assessment report obtained by the Applicant, which is part of the Applicant’s catastrophic impairment assessment reports (“the OT community report”). Second, the Applicant sought to exclude insurer’s examination (“IE”) paper review rebuttal catastrophic impairment reports (“the rebuttal reports”).

The OT community report is excluded

11The Respondent sought to exclude the OT community report on the grounds that it was not disclosed in accordance with the Case Conference Report and Order (“CCRO”). The OT community report is part of the Applicant’s catastrophic impairment reports but was not sent to the Respondent when the rest of the catastrophic impairment reports were delivered. In fact, the OT community report was not delivered until two business days prior to the start of the hearing, when the Applicant served an updated document brief that included it. The Respondent submits that it is prejudiced by the late disclosure because it has not had an opportunity to properly respond to the report. It submits that any reasons for the delay are inexcusable.

12The Applicant agrees that the OT community report was disclosed late but submits that it was inadvertent and that there is no prejudice to the Respondent because the author of the report is set to testify at the hearing. The Applicant submits that the assessment facility served the updated catastrophic impairment reports on the Respondent and that the assessment facility inadvertently omitted the OT community report. The Applicant submits that the reports that were delivered included two references to the OT community report and that the Respondent co-authored the prejudice by failing to follow up with the Applicant once it discovered that the OT community report was missing. To the Applicant, the Respondent has a duty of good faith to adjust his claim and should to have discovered that a report was missing and that the Respondent ought to have contacted the Applicant or the assessment company to inquire about the missing report. The Applicant refers to Moffatt v Aviva General Insurance, 2025 CanLII 25845 (ON LAT) (“Moffatt”) to support his case that a report can be admitted after the disclosure deadline when the prejudice to the Respondent is minimal but the resulting prejudice to the Applicant is significant.

13Up front, I acknowledge that the Respondent could have followed up with the Applicant about the missing report. However, I think this is beyond the responsibility of the Respondent. While it has a role to continuously adjust the Applicant’s claim, it is not required to ensure proper disclosure by the other party and its failure to contact the Applicant following receipt of the report does not mitigate the fact that the Applicant never served the report upon it.

14I excluded the OT community report because it would not be fair to admit it and then have experts comment on it in short notice. Pursuant to rule 9.3 of the Licence Appeal Tribunal Rules, 2023 (“the Rules”), a party who fails to comply with any rule, direction, or Tribunal order with respect to the disclosure of a document may not rely on the document without permission from the Tribunal. When assessing whether to grant permission, the Tribunal must consider the reasons for the non-compliance, the prejudice to the other party and whether it can be mitigated by another order, the extent of the information that lies within the knowledge of the other party, whether the other party opposes the admission of the evidence, and the relevance of the document in the proceeding.

15I find Moffatt distinguishable from the Applicant’s case because in Moffatt, the untimely report was procured in response to new reports served by the insurer. Here, the untimely report is not in response to anything done by the Respondent, but instead was written following a potential change in the Applicant’s circumstances, in that he is no longer employed and has been unable to find gainful employment since losing his job.

16I find that the Respondent is prejudiced by the late-filing because the OT community report is a new report following a potential change in the Applicant’s circumstances, which warrants time for the Respondent to review and respond. I find that the Respondent cannot review and respond to the document after the hearing has started because it would be inefficient and prejudicial to adjourn the hearing due to the Applicant’s negligence in disclosure. The parties have prepared for the hearing, including securing their witnesses, and it would be inefficient and prejudicial to force them all to reschedule their attendance due to improper disclosure of a supplementary report.

17I also note that the service of documents is the responsibility of the Applicant and, if the service of documents is left to third parties, as was the case here, the Applicant is liable for the failures of the third party. In this case, it is the Applicant’s negligence in serving documents that resulted in the late disclosure. The Applicant left the service of documents up to the assessment facility and never took any action to ensure that all the documents were properly served upon the Respondent. The initial set of catastrophic impairment assessment reports were sent to the Respondent on May 5, 2025. That package of documents did not include the OT community report. The Applicant served a document brief on the Respondent on September 19, 2025, which did not include the OT community report. The Applicant served a supplementary document brief on September 26, 2025, but it did not include the OT community report. It was only on October 9, 2025, the last business day before the hearing, that the Applicant served an updated document brief which included the OT community report.

18I find virtually no prejudice to the Applicant in omitting the OT community report. The OT in-home assessment report, authored by the same OT as the OT community report, remains part of the hearing record and is the central part of the Applicant’s catastrophic impairment reports. In fact, the catastrophic impairment assessment report by, Dr. G. Ilacqua, psychologist, which is the basis for the Applicant’s claim that he sustained a catastrophic impairment, appears to rely entirely on the findings of the in-home assessment and makes virtually no reference to the OT community assessment in the report. The OT community report is supplemental to the OT-in-home report and is in addition to a considerable number of medical documents provided by the Applicant for this hearing, which speak to his functionality. In addition, the Applicant arranged for the author of the OT community report to testify at the hearing, who can also speak to the Applicant’s ability to function.

19Lastly, I highlight that the Applicant made no attempt to mitigate the issue. Upon discovering that the report was not disclosed, it was incumbent upon the Applicant to seek permission from the Tribunal to rely on the document. This was never done. Instead, the Applicant attempted to include the document in the hearing record without permission, despite it being disclosed late and not in accordance with rule 9.4.4 of the Rules.

The rebuttal reports are excluded

20The Applicant sought to exclude the rebuttal reports procured by the Respondent because they were obtained without the Applicant’s notice or consent. The Applicant submits that the Respondent is not permitted to disclose his medical information without his consent and that the Tribunal cannot be complicit with this breach of privacy.

21The Respondent relies on the authorization given by the Applicant in the OCF-1. Alternatively, the Respondent submits that the Applicant received notice of catastrophic impairment insurer’s examinations (“IEs”) in June 2022 which extend to the present. The Respondent is critical of the timing of the motion, submitting that it ought to have been served immediately after the breach was discovered by the Applicant, not on the eve of a hearing. Lastly, the Respondent submits that if it is found to have breached the notice provisions in section 44 of the Schedule, there is no remedy provided for the breach as outlined in Doran v Gore Mutual Insurance Company, 2023 CanLII 58490 (ON LAT).

22I granted the exclusion of the rebuttal reports because they were obtained without any consent from the Applicant or notice to the Applicant. Section 44(5) of the Schedule provides that all IEs require notice to the insured person, regardless of whether their attendance is required. Further, I do not accept the Respondent’s position that prior consent, or prior notice, is sufficient and applicable for future IEs. IEs are inherently intrusive and the notice provisions in section 44 of the Schedule are meant to provide insured persons with the information required to make an informed decision whether to attend the assessment and proceed with their claim. Here, the Respondent has not given the Applicant the opportunity to make that choice.

23Subsection 15(2) (b) of the Statutory Powers Procedure Act (“SPPA”) provides that nothing is admissible in evidence at a hearing that is inadmissible by the statute under which the proceeding arises or any other statute.

24Section 18 of the Personal Health Information Protection Act, 2004 (“PHIPA”) provides that any Act that requires the consent of an individual for the collection, use or disclosure of personal health information by a health information custodiam, the consent must be a consent of the individual, must be knowledgeable, must relate to the information, and must not be obtained through deception or coercion.

25I acknowledge that the Schedule does not provide a specific remedy for the Respondent’s breach of the notice provisions in section 44 of the Schedule. However, I find that IEs procured without any notice to the Applicant are not admissible because they were obtained without consent and contrary to section 18 of the PHIPA.

26Accordingly, I excluded the Respondent’s rebuttal reports because they were obtained without notice pursuant to section 44 of the Schedule, and without express consent of the Applicant.

PRELIMINARY ISSUE ANALYSIS

27I find that the Applicant may proceed with his application with respect to his claims for entitlement to the plans in dispute.

28The Applicant is untimely with his application to the Tribunal to dispute his entitlement to the treatment plans in dispute. He filed his application on November 28, 2024. This is more than two years after the Respondent’s denials, which occurred as far back as 2017 and as recently as 2021. Section 56 of the Schedule prescribes the two-year limitation period to dispute a denial.

29The Applicant asks that I waive the limitation period and permit his application, pursuant to section 7 of the LAT Act. Section 7 provides that I may extend the time to file an application if I am satisfied that there are reasonable grounds to extend the limitation period. When considering whether to extend the limitation period, I must consider the four factors outlined in Manuel v. Registrar, 2012 ONSC 1492 (“Manuel”). The factors are a bona fide intention to appeal within the appeal period, the length of delay, the prejudice to the other party, and the merits of the appeal. No one factor has precedence over the others; instead, the ultimate question is whether the “justice of the case” supports a time extension.

30I find that the four Manuel factors, and therefore the justice of the case, weigh in favour of the Applicant. I agree with the Applicant that he has demonstrated a bone fide intention to appeal the denials within the appeal period. This is demonstrated by his counsel’s attempts to obtain a copy of his file from the Respondent on June 13, 2017, July 26, 2017, November 3, 2017, and May 9, 2018. Additionally, the Applicant previously filed applications with the Tribunal to dispute entitlement to almost all the issues listed. There is little prejudice to the Respondent in having it defend its denials, because they were addressed for the most part in the IE report by Dr. A. Oshidari, physician, and Dr. A. Marino, psychologist, dated June 24, 2019, and the IE report by Dr. J. Gordon, physiatrist, dated June 17, 2021. I also find merit to the Applicant’s appeal in that his injuries are severe enough to warrant a catastrophic impairment application and rebuttal to same by the Respondent.

31I acknowledge that the length of delay weighs in favour of the Respondent. The Applicant ought to have disputed the denials within the 2-year limitation period. However, this is the only factor that weighs in favour of the Respondent and is greatly outweighed by the limited prejudice to the Respondent, the Applicant’s intention to appeal, and the merit to his appeal. Overall, the justice of the case supports a time extension.

32Accordingly, I find that the Applicant may proceed with his application to dispute entitlement to the plans in dispute.

BACKGROUND

33The Applicant was the driver of a vehicle which was struck from behind while stopped at a suburban traffic light. He sought no medical attention at the scene of the accident and was able to drive his vehicle home after the collision. However, within about a week of the accident, the Applicant began to experience significant pain in his back and left leg and met with his family physician, Dr. D. Woo.

34The clinical notes and records (“CNRs”) from Dr. Woo are largely illegible. However, it appears that Dr. Woo prescribed pain medication for the Applicant following the initial post-accident visit. Eventually, the records show, Dr. Woo referred the Applicant for a CT scan of the low back due to pain radiating to both lower limbs, worse on the left. The imaging of January 24, 2014 showed that the Applicant had a broad based diffuse posterior disc herniation at L4/5, together with mild hypertrophy of the ligaments flava, causing mild to moderate central spinal stenosis.

35The Applicant testified that he was unsatisfied with Dr. Woo and found a new family physician, Dr. A. Masellis, who arranged for an MRI of the low back. The October 17, 2016 MRI results showed severe central canal stenosis secondary to diffuse disc bulge with central disc protrusion, mildly ligamentum flavum thickening, and mild facet osteoarthritis, moderate left foraminal narrowing. Stenosis. Further testing revealed nerve abnormality in the Applicant’s left leg.

36The Applicant was then referred to a surgeon, Dr. L da Costa, who performed a microdiscectomy in May 2017, about three and a half years after the accident. The surgical intervention resolved the Applicant’s left leg pain, but did not improve his low back pain by any significant margin.

37Currently, the Applicant reports that his back pain remains, and he is prone to “disc attacks”. He describes the “disc attacks” as severe pain that limits his ability to stand up straight, requiring him to rest in bed for a few hours and take oxycontin, and that episodes can last up to three days. He reports the frequency of the “disc attacks” is about every three weeks to three months, but recently occurred twice in the same week.

38The Applicant reports that his back pain impacts his mood. He testified that he has anger and worries that he will suffer from it for the rest of his life. He feels that he has no meaning in life when he is unable to work due to his ongoing back pain.

39The Applicant was unemployed at the time of the accident. About a year following the accident, in December 2014, he became employed as the evening supervisor of a fast-food restaurant. He reported that he worked 6-hour shifts, 6-days a week. He characterized the work as light labour, not as busy, and that he could sometimes sit down during his shift. His duties included interacting with customers by taking and preparing orders, managing the point of sale, preparing the ingredients for the following day, counting his cash at the end of his shift, supervising new employees, and dealing with conflict within the restaurant. The Applicant held this role until December 2023, but for a break of about four months following his back surgery in May 2017.

40The Applicant suffered from pre-existing mental health impairments in his life prior to the accident. The Applicant suffered from chronic insomnia which led to him being hospitalized in 1988, 1998, 2001, 2003, and most recently in February 2013. According to the Applicant and his brother who also testified at the hearing, the 2013 hospitalization was induced by job loss at that time, combined with the pending birth of the Applicant’s daughter. The Applicant testified that he was under a lot of stress being the sole earner in the family and started to experience insomnia, which led to decreased function, after which he was admitted to the hospital.

41The Applicant’s medical record indicates that he was diagnosed with depression as young as 18 and bipolar disorder on July 13, 2001, by Dr. A. Josiukas, psychiatrist. The Applicant’s symptoms were severe enough to warrant shock treatment during his hospital stays in July 2001 and August 2003.

42The Respondent questions the cause of the Applicant’s current mental health struggles and suggests that it is more likely that this is the natural progression of his prior issues. It also suggests that other factors, such as his place of employment closing, are contributing to the Applicant’s current presentation.

SUBSTANTIVE ISSUES ANALYSIS

43The onus lies with the Applicant to demonstrate that he sustained a catastrophic impairment under criterion (f) of the Schedule as a result of the accident. Given that his accident occurred before June 1, 2016, the Applicant must demonstrate that he sustained an impairment in accordance with American Medical Association Guides (“the AMA Guides”), that results in a class 4 or 5 mental and behavioural impairment in any of the four areas of function due to mental or behavioural disorder.

44According to the AMA Guides, a class 4, marked, mental and behavioural impairment significantly impedes useful functioning. The AMA Guides note that a person with a marked impairment in a single domain would not completely preclude functioning but more than one might limit useful functioning. Moreso, the AMA Guides state that a marked limitation in one or more spheres would be likely to preclude performing complex tasks without special support or assistances, such as that provided in a sheltered environment.

45The Applicant claims that he sustained a marked impairment in the domains of activities of daily living (“ADLs”) and adaptation to work or work-like situations (“adaptation”). He relies predominantly on the report of Dr. G. Ilacqua, psychologist, dated April 22, 2025. In that report, Dr. Ilacqua concluded that the Applicant sustained marked impairments in the domains of ADLs and adaptation.

46Thus, my analysis on whether he sustained a catastrophic impairment will focus primarily on Dr. Ilacqua’s assessment and findings on the domains of ADLs and adaptation.

47I found Dr. Ilacqua’s report and testimony gave inadequate attention to the Applicant’s pre-existing mental health status. In the report, Dr. Ilacqua listed the outpatient reports from Markham Stouffville Hospital, and quoted the Psychological Assessment Report by Dr. Alfonso Marino, dated March 4, 2019, and he testified that he reviewed it for his assessment. In Dr. Marino’s report, it notes that the Applicant was hospitalized during his “remarkable history of mental health issues”. Specifically, Dr. Marino’s report states, and Dr. Ilacqua quotes in his report but I paraphrase here, that the Applicant minimised his pre-existing mental health history and denied significant issues until confronted with records confirming his prior hospitalizations. In the interview portion of the report, Dr. Ilacqua noted that the Applicant reported no prior mental health issues other than depression and denied any hospitalization, and it appears he accepted this over the medical documents he reviewed. Despite Dr. Marino’s report being quoted in Dr. Ilacqua’s review of documents, Dr. Ilacqua’s testimony was that the information at the time of the assessment did not reveal that he was previously hospitalized due to depressive symptoms. Dr. Ilacqua’s decision to not address the discrepancy between the two historical narratives undermines the overall persuasiveness of the report.

48I find that Dr. Ilacqua erroneously includes the Applicant’s physical impairments when assessing mental and behavioural impairments. Dr. Ilacqua appears to accept all the Applicant’s impairments, as reported by OT Kim in the functional assessment report, dated January 2, 2025, and applies them all to the criterion (f) analysis. Indeed, there is a connection between the Applicant’s mental and behavioural symptoms and the physical pain he experiences due to his herniated disc. Further, I agree that his physical impairments impact his mood. However, an analysis pursuant to criterion (f) should focus on the Applicant’s functioning as a result of mental and behavioural impairments, and not other factors like his inability to endure prolonged standing and sitting due to his herniated disc and associated physical symptoms. As I will outline below, it is not the Applicant’s mood that prevents him from engaging in activities, it is his physical impairments arising from his herniated disc and associated physical pain.

49I disagree with the applicant’s position that physical and mental and behavioural impairments cannot be separated, according to Kusnierz v. Economical Mutual Insurance Company, 2011 ONCA 823 (“Kusnierz”). In Kusnierz, the insured person’s catastrophic impairment claim was based on the whole person impairment. That assessment includes factoring both physical and psychological injuries. Here, the Applicant’s claim for a catastrophic impairment is based solely on mental and behavioural impairments pursuant to criterion (f) instead of criterion (e), which assesses the combined mental and behavioural and physical impairments.

50On the other hand, I find that Dr. Gavett-Liu slightly understates the Applicant’s accident-related impairments. Indeed, Dr. Gavett-Liu concluded that the Applicant developed a somatic symptom disorder as a result of the accident, resulting in a mild preoccupation with his physical symptoms. That is, Dr. Gavett-Liu found that the Applicant’s mental and behavioural impairments in ADLs and adaptation are compatible with most useful functioning, whereas I conclude that the Applicant’s impairment level in ADLs is compatible with some, but not all useful functioning, resulting in a moderate impairment.

ADLs

51I find that the Applicant sustained a class 3 moderate impairment in the sphere of ADLs.

52According to the AMA Guides, ADLs include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. ADLs also include adaptive activities such as cleaning, shopping, taking public transportation, paying bills, maintaining a residence, caring for self, grooming, using the telephone, using the post office, and working.

53According to the AMA Guides, any limitation in ADLs should be related to the mental disorder rather than to other factors such as a lack of transportation or money. The assessment is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.

54Dr. Ilacqua concluded that the Applicant sustained a marked impairment in the domain of ADLs. Dr. Gavett-Liu found that he sustained a mild impairment in ADLs. As noted above, I find that Dr. Ilacqua’s findings overstate the Applicant’s mental and behavioural impairments. On the other hand, I find that Dr. Gavett-Liu understates the Applicant’s functionality. By factoring these together, I find that the Applicant sustained a class 3 moderate impairment in the domain of ADLs.

55In Dr. Ilacqua’s assessment, the Applicant’s physical inability to pursue recreational activities, occasional need for dressing assistance, and assistance with household chores is factored into the conclusion that he has a marked impairment in ADLs. To me, the medical evidence is clear that the Applicant’s inability to engage in recreational activities, and even employment, are primarily, if not solely based on his physical impairments as a result of his herniated disc, which is not a mental and behavioural impairment. While I agree that the Applicant suffers from a preoccupation with his physical injuries and associated depressive symptoms due to his disability resulting from his herniated disc, including his inability to work, but this preoccupation do not impact his function in a significant way.

56My conclusion that the Applicant’s physical injuries are causing his impairments is based on several notes and reports. These include the IE report dated June 24, 2019, in which Dr. A. Oshidari, physician, confirms the Applicant’s central disc protrusion was caused by the accident. This is consistent with the Applicant’s medical records from Sunnybrook Health Sciences Centre, which note that being pain free is an unrealistic goal for him, despite surgical intervention for his herniated disc.

57There is further evidence that physical injuries are impairing the Applicant from completing his ADLs. The functional assessment, by OT Kim, dated January 2, 2025, supports a finding that the Applicant’s impairments and pain are from physical injuries. The Applicant reported to OT Kim that his low back pain is aggravated by prolonged standing, sitting, and driving. He relieves it with medication and laying in bed. He also reports that mood is down because he is unable to work. In the collateral interview with the Applicant’s brother, the report says that the Applicant cannot engage in activities due to back pain, that his back pain progressively worsened, and he is depressed since not working and feels ashamed due to not working.

58The Applicant’s family physician, Dr. Masellis, opined that his physical injuries are the dominant factor in his reduced functionality. The Applicant reported to Dr. Gavett-Liu that Dr. Masellis advised him to limit his recreational activities, such as jogging and playing badminton and ping-pong. This is consistent with the information in Dr. Masellis’ CNRs, which are dominated by inquiries into the Applicant’s ongoing lumbar pain from the disc herniation. Moreover, in the February 11, 2025 ODSP application, Dr. Masellis lists the primary disability being chronic lumbar disc herniation which keeps him in a state of chronic severe pain over his low back, radiating to his lower extremities. Depression is secondary in that application, which is less consistent with Dr. Masellis’ CNRs, as depressive symptoms are virtually non-existent in those records. According to the report of Dr. Gavett-Liu, the Applicant reported that he was advised by his physician to stop jogging and playing racket sports. This is similar to the accounts from the Applicant’s brother. He testified that the Applicant no longer goes for long jogs like he did prior to the accident, and that his pain bothers him and does not appear to be resolving.

59Overall, the evidence is that the Applicant was functional with his ADLs for a long time following the accident and continues to be so. He was unemployed at the time of the accident. A year later, he found employment and worked in a fast-food restaurant as the shift supervisor and held that role about nine years. In that role, he was responsible for training new employees, dealing with conflict, preparing orders, keeping inventory, and accounting for his sales. He testified to experiencing no performance issues during his employment and received no accommodations other than not being required to perform heavy lifting. During this same post-accident period, he was solely responsible for his own self-care, but for the periods immediately following the accident, and following his surgery in 2017. His testimony and the supporting evidence indicated that his employment would have ended regardless of the restaurant closing because his back pain was becoming unbearable. He reported a low mood because of this, but at no point did he, nor would I, conclude that it was his mood that was causing his inability to work.

60By all accounts, the Applicant remained independent with his instrumental ADLs following the accident. He uses the phone and computer independently and plays video games to entertain himself. He manages his own finances, administers his own medication and is aware of the dosage of his mediation to the point that in testimony he even discussed the dosage of it. The Applicant walks up to an hour at a time and continues to drive, albeit for less than hour long trips. He remains capable of his pre-accident cooking and food management as demonstrated in his post-accident employment and his ability to make simple meals like he did pre-accident.

61Considering the Applicant’s overall functionality in light of his somatic symptom disorder which leads to a preoccupation with his physical injuries, I conclude on a balance of probabilities that the Applicant sustained a moderate impairment in the sphere of ADLs.

Adaptation

62Adaptation assesses one’s ability to adapt to stressful circumstances. It assesses one’s ability to adapt to challenges, be able to manage attendance and scheduled activities, make decisions, complete tasks, and interact with supervisors and peers. In certain circumstances, an individual may withdraw from the situation or experience an exacerbation of signs and symptoms of a mental disorder.

63I find that Dr. Ilacqua overstates the Applicant’s impairment in his ability to adapt to stressful circumstances. In the report, dated April 22, 2025, Dr. Ilacqua determined that the Applicant sustained a class 4 marked impairment in adaptation on the basis that he has not returned to any employment, completes his ADLs with significant limitations including physical restrictions, reduced mobility, and pain interference. Dr. Ilacqua also noted that OT Kim reported a contrast in the Applicant’s functionality. In making the determination, Dr. Ilacqua highlighted OT Kim’s comments that prior to the accident the Applicant managed his time independently, remembered appointments, planned his day and followed through with those plans, and had no problems performing errands, whereas OT Kim reported that following the accident, the Applicant lives a sedentary life, wants to work but cannot due to pain, writes down appointments, and does not perform errands.

64I find that Dr. Ilacqua and OT Kim’s comments and observations do not reflect an impairment that significantly impedes useful functioning. Dr. Ilacqua’s comments on the Applicant’s employment are incorrect. The Applicant was unemployed at the time of the accident, re-employed following the accident at 30 hours per week, and kept that employment for nine years until the business closed. Dr. Ilacqua’s testimony that the Applicant would be unlikely to consistently, reliably, and safely return to work is without any basis and contrary to the Applicant’s years of employment post-accident in which he had no performance issues. Even today, about two years following the end of his employment at the fast-food restaurant, there is virtually no indication that his mental health would affect his performance and that his ongoing back pain is what is impairing him from working.

65Likewise, OT Kim’s observations are not indicative of a marked impairment and not an accurate reflection of the Applicant’s functionality. The evidence demonstrates that the Applicant continues to independently plan and manage his time, attends his appointments, and takes his mother to appointments and provides interpretation for her. With respect to time management, OT Kim noted that the Applicant writes down his appointments and was aware of the assessment that day, suggesting minimal impairment in time management. This was confirmed by the testimony of the Applicant’s brother, who stated that the Applicant regularly drives his elderly mother to and from appointments and provides interpretation for her. There is no evidence before me to suggest that the Applicant misses or is frequently late for his mother’s appointments that would upset the accounts of the Applicant’s brother and OT Kim. To me, restricting one’s participation in errands, and completing ADLs with limitations, while demonstrating an ability to find and maintain employment is not indicative of an impairment that significantly impedes the Applicant’s useful functioning.

66I disagree with the Applicant that his current state of unemployment is due to mental and behavioural impairments. Indeed, the Applicant has been unemployed for about two years now and receives benefits from Ontario Disability Support Program (“ODSP”). However, his unemployment is attributable to two key factors: first, the business closed down, which led to his termination. Second, the Applicant has severe and ongoing back pain related to his herniated disc and associated surgery, which are not mental and behavioural impairments. His testimony was that his back pain was getting worse as his employment went on and that he felt unable to work due to it following the closure. He did not report that his insomnia or other symptoms of mental or behavioural illness was precluding his work. While I agree that the Applicant experiences depression as a result of his inability to work, I conclude from the evidence and testimony that his depression and somatic symptom disorder do not preclude him from working and that he would most likely be working if not for his ongoing severe back pain.

67I also highlight the Applicant’s ability to cope with losing his employment, which is a profoundly stressful situation. Unlike in situations prior to the accident, the Applicant never required any additional counselling and was not hospitalized following the loss of his employment. Instead, his evidence was that he started a new job search for light labour roles and was successful in the hiring process at one place of employment but could not perform the work due to physical back pain. Moreso, the Applicant demonstrated no decomposition when he was unable to work at the fast-food restaurant or at the new place of employment – he never sought additional mental health services and, instead, made a rational decision to pursue supplementary support through ODSP and was successful in doing so. To me, this demonstrates an ability to cope with major stress.

68Overall, the Applicant’s mental and behavioural impairments since the accident have had less impact on his ability to adapt to stress and his ability to manage stress has been better than it was in the years prior to the accident. Throughout the Applicant’s medical history, it is noted that he decomposes during times of great stress. Most recently, in early 2013 at the time of his last hospitalization prior to the accident, he had just lost his job at a time when his wife was pregnant. The stress impacted his sleep, and he was admitted to hospital after several sleepless days. Since the accident, he has not had any bouts of hospitalization, not even when he lost his employment due to the location closing.

69Accordingly, I find on a balance of probabilities that the Applicant sustained, at most, a moderate impairment in the sphere of adaptation.

70Having found that the Applicant’s impairments in ADLs and adaptation are at most a moderate class 3 impairment, it follows that the Applicant has not met his onus to demonstrate that he sustained a catastrophic impairment as a result of the accident, pursuant to criterion (f) mental and behavioural impairments.

The treatment and assessment plans are reasonable and necessary

71I find the physiotherapy and chiropractic plans dated June 16, 2017, December 27, 2018, and March 8, 2021 (“the physical plans”), to be reasonable and necessary as a result of the accident.

72The physical plans all have similar goals of reducing pain, increasing range of motion (“ROM”) and strength, and to help return the Applicant to his pre-accident activities. All three plans were proposed to address the Applicant’s ongoing low back pain and limited mobility.

73The plans were denied for various reasons. For one denial, the Respondent advised that it was not reasonable and necessary because the Applicant was subject to the Minor Injury Guideline. For another, the Respondent denied it because, according to the Respondent, the Applicant experienced little improvement in function despite involvement in therapies over the years. The last of the three was partly denied based on the IE of Dr. Gordon, physiatrist, dated June 17, 2021. Dr. Gordon felt that the Applicant would benefit from the treatment but believed that fewer treatment sessions were necessary than was proposed in the plan. However, no basis was provided for the reduction in sessions. I also note that, in August 2021, the Respondent approved a plan for chiropractic and physiotherapy treatment.

74Recall the Applicant underwent a lumbar laminectomy and microdiscectomy on May 24, 2017 due to accident-related injuries. It is reasonable for him to be referred to and participate in physiotherapy following the procedure. Moreover, a physiatry consultation on March 25, 2019, with Dr. M. Kleinman, diagnosed the Applicant with chronic dysfunctional low back pain, and that he had symptomology remaining in his low back. Most recently, Dr. Masellis referred him to physiotherapy November 11, 2024, due to his chronic back pain.

75The Applicant’s ongoing chronic low back pain is the main contributor to his overall dysfunction. I am satisfied from the Applicant’s testimony and the medical records that his back pain is a symptom which must be treated on an ongoing basis. While the Applicant reports that physical treatment was unhelpful, I find that such a comment is in more in relation to his expectations for pain relief and overall functionality, compared to the reality that he hasn’t returned to his pre-accident functionality or pain levels and likely never will. Thus, it is reasonable for him to engage in treatment for ongoing management of his symptoms, and to deal with the Applicant’s ongoing “disc attacks”. Accordingly, I find on a balance of probabilities that the physical plans are reasonable and necessary as a result of the accident.

76I also find the psychological assessment and treatment plans, dated June 21, and August 21, 2017, respectively, to be reasonable and necessary as a result of the accident. The psychological assessment was proposed in light of the symptomology exhibited by the Applicant at that time. It was proposed to help the Applicant identify his psychological impairments and make any necessary treatment recommendations. In hindsight, I see that it may provide an additional benefit of helping differentiate his pre accident impairments from his post accident impairments and identify the impairments related to the accident.

77It is clear from my earlier analysis that the Applicant suffers from a depressed mood due to his physical injuries and inability to find gainful employment. From that, I conclude that the Applicant would benefit from psychological treatment that help return him to his baseline mood before he stopped working in 2023. Accordingly, I find on a balance of probabilities that the psychological assessment and treatment plans are reasonable and necessary as a result of the accident.

Costs

78The Respondent requested costs in the amount of $1,000.00 per day at the hearing. It submits that this is the Applicant’s fourth application for dispute resolution on his claims, but the first one to proceed to a hearing.

79The Applicant submits that no costs are payable. He acknowledges that he applied and subsequently withdrew three applications before proceeding with this current application. He submits that those applications nevertheless had merit, and the withdrawals occurred due to the Respondent’s failure to produce his AB file, changes in his health circumstances and a refusal for the Respondent to cooperate with a tolling agreement.

80Pursuant to rule 19.1, a party may make a request to the Tribunal for costs when they believe that the other party to the proceeding acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.3 provides that submissions on costs must include the amount being requested. When considering whether to award costs, the Tribunal shall consider all relevant factors such as the seriousness of the misconduct, whether the conduct was in breach of a tribunal order, whether the behaviour interfered with the Tribunal’s ability to carry out a fair and efficient process, the prejudice to the other partis and the potential impact an order for costs would have on individuals accessing the Tribunal system.

81I find no costs payable.

82I find that the act of filing an application and subsequently withdrawing the appeal is not behaviour that warrants an award. A party to a proceeding ought to put their best foot forward at first instance, and in the case where a party is not prepared, or requires additional evidence to support their application, it is entirely reasonable and legally permissible for the party to withdraw their application and re-file when they are prepared to proceed.

83Additionally, I find no evidence before me demonstrating that the Applicant’s behaviour during this proceeding warrants costs. The only issue for which the Applicant could be responsible for is the untimely disclosure of the OT community report. The late disclosure of the OT community report was addressed at the outset of the hearing and never impacted the Tribunal’s ability to carry out a fair and efficient process.

Interest

84Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule.

85Having found that the Applicant is entitled to the plans in dispute, it follows that the Applicant is entitled to interest on any overdue payments related to the plans.

Award

86The Applicant sought an award under section 10 of Regulation. 664. Under section 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.

87The Applicant submits that the Respondent failed to reassess his claim and act in good faith. He submits that it failed to secure IEs, ignored recommendations for treatment, and his conditioned worsened and required surgery. The Respondent contends that the Applicant’s claim for an award is without merit.

88I find that the Applicant is entitled to an award in the amount of $1,077.43, representing 10% of the amounts withheld or delayed. The award is connected to the plans dated June 16, 21, and August 21, 2017. The plans dated December 27, 2018 and March 8, 2021, do not attract an award because they were not unreasonably withheld or delayed.

89I find that the 2017 plans were unreasonably withheld or delayed because the denials occurred at a time when the Respondent failed to work together with counsel for the Applicant. Counsel for the Applicant was retained and, on June 13, 2017, requested a copy of his accident benefits file for their review. This request went unanswered, and another request was made on July 26, 2017. That request was also ignored, and another request was made on November 3, 2017. Finally, the Respondent delivered a copy of the AB file on November 17, 2017.

90This delay caused the Applicant to miss the IEs that the Respondent scheduled. This is because the Applicant was unsure whether he should attend the IEs because his counsel was precluded from providing fulsome advice on the issue due to the delayed delivery of his accident benefit file. Had the AB file been delivered in a timely manner, the Applicant would be in a better position to determine whether attending the IEs is in his best interest.

91I have limited the amount of the award to 10% of the amounts withheld because I find the delay of five to six months to be a minor delay, considering the Applicant’s claim has a 10-year lifespan.

CONCLUSION AND ORDER

92The Applicant is permitted to proceed with his application to dispute entitlement to the plans in dispute pursuant to section 7 of the LAT Act.

93The Applicant has not demonstrated that he suffers from a catastrophic mental and behavioural impairment pursuant to criterion (f) in the Schedule.

94The treatment and assessment plans in dispute are reasonable and necessary as a result of the accident. The Applicant is entitled to the plans.

95Interest applies on any overdue payments in relation to the plans in dispute.

96The Applicant is entitled to an award of $1,077.43, representing 10% of the amounts withheld in relation to the plans dated June 16, 21, and August 21, 2017.

97No costs are payable.