Licence Appeal Tribunal File Number: 23-010779/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:
Mushtaq Ahmad
Applicant
and
Unifund
Respondent
DECISION
ADJUDICATOR:
Aric Bhargava
APPEARANCES:
For the Applicant:
Olga Poznyakova, Paralegal
For the Respondent:
Robbie Brar, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Mushtaq Ahmad, the applicant, was involved in an automobile accident on July 12, 2022, 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, Unifund, and applied to the Licence Appeal Tribunal — Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The respondent did not provide any written submissions for this hearing.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from December 8, 2023 to January 26, 2024?
ii. Is the applicant entitled to $3,342.39 for physiotherapy services, proposed by 101 Assessment Centre in a treatment plan/OCF-18 (“plan”) dated February 6, 2023?
iii. Is the applicant entitled to $2,694.24 for physiotherapy services, proposed by Prime Health Care Inc. in a plan dated April 12, 2023?
iv. Is the applicant entitled to $87.19 ($1,301.07 less $1,213.88 approved) for physiotherapy services, proposed by Prime Health Care Inc. in a plan dated May 16, 2023?
v. Is the applicant entitled to $2,098.64 for physiotherapy services, proposed by Prime Health Care Inc. in a plan dated June 22, 2023?
vi. Is the applicant entitled to $2,000.00 for an attendant care needs assessment, proposed by Prime Health Care Inc. in a plan dated April 12, 2023?
vii. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by Prime Health Care Inc. in a plan dated June 13, 2023?
viii. Is the applicant entitled to $2,200.00 for an in-home assessment, proposed by Alcat Assessments Inc. in a plan dated August 23, 2023?
ix. Is the respondent liable to pay an award under s. 10 of Reg 664 because it unreasonably withheld or delayed payments to the applicant?
x. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is not entitled to a NEB.
5The applicant is not entitled to:
i. $3,342.39 for physiotherapy services proposed by Prime Health Care Inc.
ii. $2,694.24 for physiotherapy services proposed by Prime Health Care Inc.
iii. $2,098.64 for physiotherapy services proposed by Prime Health Care Inc.
iv. $2,200.00 for an in-home assessment proposed by Alcat Assessments Inc.
v. $87.19 for the physiotherapy services proposed by Prime Health Care Inc.
vi. $2,000.00 for an attendant care needs assessment proposed by Prime Health Care Inc.
vii. $2,460.00 for a chronic pain assessment proposed by Prime Health Care Inc.
6The applicant is not entitled to interest.
7The respondent is not liable to pay an award.
PROCEDURAL ISSUES
8The respondent did not file any written submissions for this written hearing. Section 7(2) of the Statutory Powers Procedure Act provides that where a party has been given notice of the written hearing and has not brought a motion to change the hearing format, the Tribunal may proceed with the written hearing without the absent party’s participation.
9Having reviewed the Tribunal’s file, I am satisfied that the respondent received notice of written hearing and I proceeded with this hearing.
10The respondent failed to provide evidence, nor did they request an extension of time to provide evidence. To date, no written hearing submissions have been received from the respondent. The applicant’s submissions were received on October 16, 2024, via email.
11Next, the applicant submits that the respondent failed to produce relevant records in accordance with the Case Conference Report and Order (“CCRO”) and an adverse inference should be drawn from this. The applicant argues that the respondent should not be able to rely on the s. 44 reports.
12I agree with the applicant that the respondent failed to provide evidence and did not meet the requirements of the CCRO. However, the applicant has not identified what documents were not produced and has not directed me to what inference he is seeking or what prejudice was created as a result.
13Accordingly, because the s. 44 reports are not in evidence, they are not before me to consider and therefore I find the applicant’s argument is moot.
ANALYSIS
Is the applicant entitled to a non-earner benefit?
14I find the applicant has not met his burden to demonstrate, on a balance of probabilities, that he is entitled to a non-earner benefit for the period in dispute.
15Section 12(1) of the Schedule provides that an insurer shall pay NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) of the Schedule defines a complete inability to carry on a normal life as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (“Heath”), which generally focuses on a comparison of the applicant’s pre- and post-accident activities.
16The applicant argues that the physical and psychological impairments sustained in the accident prevented him from returning to activities of normal living. He relies on the clinical notes and records (CNRs) from Prime Health Care and the Disability Certificate dated January 17, 2023. In the OCF-18 “Part 6 Disability Tests and Information” Dr. Chad Hefford, chiropractor, selected “Yes” for a complete inability to carry on a normal life. Dr. Hefford’s OCF-18 notes the applicant’s injuries include strain/sprain of shoulder, thoracic and lumbar spine, knee, foot and other anxiety and sleep disorders, and notes that his injuries prevented him from working following the accident. The anticipated recovery time was more than 12 weeks.
17The applicant submits that the NEB was approved by the respondent in a letter dated March 6, 2023, and states under s. 57(7) of the Schedule the respondent is required to provide suspended benefits once treatment has been complied with. The applicant has not directed me to evidence of the suspended NEB payment, or of the treatment that was required by the respondent to receive the NEB, or that the treatment was completed by the applicant.
18I find the applicant is not entitled to a NEB for the period of December 8, 2023 to January 26, 2024.
Is the applicant entitled to $3,342.39 for physiotherapy and assistive devices?
19I find on a balance of probabilities the applicant has not demonstrated the physiotherapy services treatment plan is reasonable and necessary. I also find the denial notice dated March 7, 2023 complies with the requirements under s. 38(8) of the Schedule.
20To receive payment for an OCF-18 under sections 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 the treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
21The applicant submits the treatment plan is reasonable and necessary and he is entitled to the physiotherapy plan because the respondent’s denial contained deficiencies under s. 38(8). The treatment plan was submitted February 6, 2023, and was partially incurred for $709.14. The applicant relies on the account summary from Prime Health Care Inc. and argues the respondent’s denial letter is not valid.
22I will deal first with the alleged deficient notice.
23Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well as the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.
24If any insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:
The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).
25I find the respondent’s denial notice dated March 7, 2023, is compliant with the requirements under s. 38(8) of the Schedule as it clearly states the benefits in dispute, it refers to the insufficient medical documentation by the applicant, and it allows for an unsophisticated person to understand the denial and make an informed decision.
26The applicant directed me to the insurer’s response dated March 7, 2023 that stated, “This is our revised response to our correspondence dated February 7, 2023 …”. I take this to mean there were two notices of denial, one dated February 7, 2023, and a second notice dated March 7, 2023. The first denial letter was within ten days of the treatment plan being submitted.
27The applicant has not submitted the correspondence of February 7, 2023 with his submissions and I am unable to conclude whether the first notice was deficient. I now turn to the question of whether the plan is reasonable and necessary.
28The treatment plan for $3,342.39 is submitted by Dr. Hefford. The plan intends to address the applicant’s injuries including dislocation, sprain and strain of joints and ligaments of shoulder girdle, thorax, lumbar spine and pelvis, knee, ankle and foot, and other anxiety and sleep disorders. The provider proposed 56 sessions including 12 sessions for exercise, 12 sessions for acupuncture, 12 sessions for stimulation of back muscles, 16 sessions for therapy, 4 sessions for manipulation, including assessment, a gel pack, analgesic cream, back support, and a TENS unit, over a period of 6 weeks. The goals for this plan are pain reduction, increase in strength and range of motion, and return to activities of daily living, return to modified work, and return to pre-accident work activities. The provider notes progress will be evaluated through questionnaire and orthopaedic testing.
29It is well established a treatment plan in itself is not persuasive evidence that it is reasonable and necessary. However, the applicant has directed me to an account summary from Prime Health Care Inc. and no other contemporaneous medical evidence. The account summary states an invoice dated January 17, 2023 was issued for the period of January 24, 2023 to March 21, 2023 with “Treatment” in the Comments sections and no other details provided. I find the account summary to lack any kind of persuasive evidentiary value as there is no medical evidence to support the reasonableness and necessity of the treatment plan. Simply stating “Treatment” without further detail does not assist either because it does not tell me what the treatment consists of or how it may relate to any accident-related impairment sustained by the applicant.
30I find on a balance of probabilities the applicant has not met his onus to demonstrate entitlement to the treatment plan.
Is the applicant entitled to $2,694.24 for physiotherapy?
31I find on a balance of probabilities the applicant has not demonstrated the physiotherapy services treatment plan is reasonable and necessary. I find the denial notice dated April 21, 2023 complies with the requirements under s. 38(8) of the Schedule.
32The applicant submits he is entitled to the physiotherapy plan because the respondent’s denial contains deficiencies under s. 38(8), the treatment was incurred, and the treatment was reasonable and necessary. The applicant relies on the respondent’s denial letter and the account summary from Prime Health Care Inc. I turn first to the alleged deficient notice.
33The treatment plan for $2,694.24 is dated April 3, 2023, and submitted by Dr. Hefford on April 12, 2023. The plan intends to address dislocation, sprain and strain of joints and ligaments of shoulder girdle, thorax, lumbar spine, knee, ankle and foot, anxiety and sleep disorders. The provider proposed 46 sessions including 12 sessions for exercise, 10 for stimulation of back muscles, 12 for therapy, 8 for acupuncture, 4 for manipulation, including assessment over a period of 6 weeks. The goals for this plan include pain reduction, increased range of motion and strength, and return to activities of normal living. The provider notes progress will be evaluated through questionnaire and orthopaedic testing.
34I find the denial notice dated April 21, 2023 complies with the requirements under s. 38(8) of the Schedule. The respondent reviewed the applicant’s health practitioner description of his injuries, explained the purpose of the MIG and provided examples of available interventions, and that a s. 44 insurer’s examination was being rescheduled at the applicant’s request. I find the reasons cited by the respondent were clear and sufficient to allow an unsophisticated person to understand and make an informed decision as to whether to dispute the decision. I find that the respondent provided adequate medical reasons to deny the disputed OCF-18. I now turn to the substantive claim for reasonableness and necessity of the treatment plan.
35The applicant has directed me to an account summary from Prime Health Care Inc. and no other contemporaneous medical evidence. The account summary states an invoice dated June 12, 2023 was issued for the period of April 3, 2023 to June 12, 2023 with “Treatment” in the Comments sections and no other details provided.
36I apply the same line of reasoning I discussed about the physiotherapy and assistive devices plan at paragraph 28 to this treatment plan to find that the applicant is not entitled to the treatment plan for physiotherapy services.
Is the applicant entitled to the remaining $87.19 ($1,301.07 less $1,213.88 approved) for physiotherapy?
37I find on a balance of probabilities that the applicant is not entitled to the remaining $87.19 in assessment fees for the physiotherapy treatment.
38The applicant submits he is entitled to the remaining balance of the treatment plan. In the treatment plan for $1,301.87, the respondent approved $1,213.88 for therapy, exercise, acupuncture, stimulation, TENS unit, and manipulation. The respondent also approved $112.81 of the $200.00 assessment cost, denying $87.19. The applicant submits the fee is in accordance with the hourly rates and the Professional Services Guideline – Superintendent’s Guideline No. 03/14 (“Guideline”).
39I have reviewed the respondent’s letter dated May 29, 2023. The explanation states the respondent “lowered the documentation fee”. According to the Guideline, $200.00 is the maximum payable for completion of the treatment and assessment form. The applicant has not directed me to evidence to support why the respondent is entitled to the unapproved $87.19.
40I find on a balance of probabilities that the applicant is not entitled to the unapproved $87.19 for this treatment plan.
Is the applicant entitled to $2,098.64 for physiotherapy?
41I find on a balance of probabilities that the applicant is not entitled to $2,098.64 for physiotherapy. I also find the denial notice dated July 6, 2023 complies with the requirements under s. 38(8) of the Schedule.
42The applicant submits he is entitled to the physiotherapy plan because the respondent’s denial was late under s. 38(8), the treatment was incurred, and the treatment was reasonable and necessary. The applicant relies on the respondent’s denial letter and the Account Summary from Prime Health Care Inc. I turn first to the alleged deficient notice.
43The applicant submits that the OCF-18 was submitted June 22, 2023, and the respondent denied the treatment in a letter dated July 6, 2023.
44I find the respondent has provided proper notice within the timeframe prescribed in s. 38(8) of the Schedule. The letter states that the treatment plan includes assessment, therapy, exercise, manipulation, and acupuncture and that the applicant has not provided sufficient medical information to be able to “identify any accident-related notes/entries that would support that your accident-related impairment falls outside of the definition of a “minor injury””. Accounting for July 3 being the “make-up” statutory holiday for Canada Day, the respondent’s notice was due on July 7, 2023 at the latest. I find the respondent’s letter dated July 6, 2023 is within ten business days after the applicant’s submission of the treatment plan and complies with s. 38(8). I now turn to the substantive claim of reasonableness and necessity of the plan.
45The treatment plan for $2,098.64 is submitted by Dr. Hefford. The plan intends to address sprain and strain of shoulder, thoracic and lumbar spine, knee and foot, and anxiety and sleep disorders. The goal of the plan is pain reduction, increased range of motion and strength, and return to activities of normal living. The provider proposed 32 sessions including 4 sessions for massage, 8 for active/passive therapy, 8 sessions for chiropractic treatment, 4 sessions for osteopath manual treatment, 8 sessions for acupuncture, and a follow up assessment. The treatment will be evaluated through questionnaire and orthopaedic testing.
46The applicant has directed me to an account summary from Prime Health Care Inc. and no other contemporaneous medical evidence. The account summary states an invoice dated October 31, 2023 was issued for the period of June 19, 2023 to October, 2023 with “Treatment” in the Comments sections and no other details.
47Again, I apply my reasoning in paragraph 28 to find that the applicant has not met his onus to establish entitlement to this treatment plan.
Is the applicant entitled to $2,000.00 for an attendant care needs assessment?
48I find on a balance of probabilities that the applicant is not entitled to the attendant care needs assessment. I also find the denial notice dated April 21, 2023 complies with the requirements under s. 38(8) of the Schedule.
49The applicant submits he is entitled to the attendant care needs assessment because the respondent’s denial did not comply with s. 38(8) of the Schedule and the assessment was reasonable and necessary. The applicant relies on the respondent’s denial letter and the OCF-18.
50The attendant care needs assessment for $2,000.000 is dated January 17, 2023, and prepared by Dr. Hefford. The assessment was submitted on April 12, 2023. The plan includes completion of the attendant care benefit Form 1 and documentation.
51I find the denial notice dated April 21, 2023 complies with the requirements under s. 38(8) of the Schedule. The respondent’s notice refers to the attendant care assessment and states “[t]he description of injuries listed by your health practitioner appear to fall within the definition of a “minor injury”.” Additionally, it states a s. 44 insurer’s examination is being rescheduled at the applicant’s request. I now turn to the substantive claim of reasonableness and necessity of the plan.
52The applicant has not directed me to contemporaneous medical evidence or any third-party professional recommendation in support of the assessment. An OCF-18 by itself is not compelling evidence, but rather a form used to apply for treatment.
53I find on a balance of probabilities that the applicant has not met his onus to establish entitlement to the attendant care assessment.
Is the applicant entitled to $2,460.00 for a chronic pain assessment?
54I find on a balance of probabilities that the applicant is not entitled to the chronic pain assessment. I also find the denial notice dated June 21, 2023 complies with the requirements under s. 38(8) of the Schedule.
55The applicant submits he is entitled to the chronic pain assessment because the respondent’s denial did not comply with s. 38(8) of the Schedule and the assessment was reasonable and necessary. The applicant relies on the respondent’s denial letter and the OCF-18.
56The chronic pain assessment for $2,460.00 was prepared by Dr. Hefford, dated June 5, 2023 and submitted June 13, 2023. The plan includes completion of the assessment and documentation.
57I find the respondent has provided proper notice in the letter dated June 21, 2023. The denial notice states the applicant’s injuries are minor, refers to the assessment and advised the applicant that a s. 44 insurer’s examination is pending and being rescheduled at the applicant’s request. I now turn to the substantive claim for reasonableness and necessity of the plan.
58The applicant has not directed me to contemporaneous medical evidence or any third-party professional recommendation in support of the assessment. An OCF-18 by itself is not compelling evidence, but rather a form used to apply for treatment.
59I find on a balance of probabilities that the applicant has not met his onus to establish entitlement to this assessment.
Is the applicant entitled to $2,220.00 for an in-home assessment?
60I find, on a balance of probabilities, that the applicant is not entitled to an in-home assessment. I also find the denial notice dated September 5, 2023 complies with the requirements under s. 38(8) of the Schedule.
61The applicant submits he is entitled to an in-home assessment because the respondent’s denial did not comply with s. 38(8) of the Schedule and the treatment is reasonable and necessary. The applicant relies on the respondent’s denial letter and the OCF-18.
62The in-home assessment for $2,200.00 was prepared by Malin Lingren, occupational therapist, dated and submitted August 23, 2023. The plan includes education and documentation. I turn first to the alleged deficient notice.
63I find the respondent has provided proper notice within the timeframe prescribed in s. 38(8) of the Schedule. The applicant submitted the treatment plan on August 23, 2023, and the respondent’s denial would be due September 7, 2023 (accounting for Labour Day). The insurer’s letter dated September 5, 2023 is within ten business days after the applicant’s submission. The insurer’s letter references the assessment details and costs, it states that the specific medical details for denial include the “medical information on file does not support that [the applicant] require an in-home assessment for the purpose of assessing attendant care benefits” or as it relates to the applicant’s accident-related injuries. The letter also stated the applicant’s diagnosis included “uncomplicated grade II whiplash injury and a thoracolumbar spine sprain/strain”. In my review, the letter sufficiently explained the medical reasons for the denial in lay terms and I find the respondent’s notice complies with s. 38(8).
64The applicant has not directed me to contemporaneous medical evidence or any third-party professional recommendation in support of the assessment. An OCF-18 by itself is not compelling evidence, but rather a form used to apply for treatment.
65I find on a balance of probabilities the applicant has not met his onus to establish entitlement to this treatment plan.
Interest
66Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having determined that no benefits are payable, it follows that no interest is payable.
Award
67I find the applicant has not established that the respondent unreasonably withheld or delayed payment of the NEB or the treatment plans in dispute.
68The 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 Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.
69The applicant argues that the respondent’s denials were stubborn and had a detrimental effect to the applicant both financially and psychologically. The applicant did not direct me to compelling evidence in support of this argument.
70The applicant argues that he was removed from the MIG on August 18, 2023, and on this basis the respondent ought to have re-evaluated all the previously denied and disputed OCF-18s. The applicant states the denial notices were insufficient and lead to an unreasonable withholding of payment. While I agree that the respondent has a duty of good faith to continually adjust the applicant’s file, the onus of proving entitlement never shifts away from the applicant.
71The applicant argues that the respondent’s denials were not compliant with s. 38(8) of the Schedule and it unreasonably withheld and delayed payment of benefits in violation of the Schedule. I have reviewed the denial letter above and I find the applicant has not met the high standard of demonstrating the respondent acted in a manner that was “excessive, imprudent, stubborn, inflexible, unyielding, or immoderate”. Specifically, in this regard, the applicant has not referred me to compelling evidence to support this argument.
72More importantly, I find that none of the benefits claimed in this application were unreasonably withheld or delayed. It follows that no award can be ordered.
73For these reasons, I find on a balance of probabilities that the applicant is not entitled to an award.
ORDER
74For the reasons outline above, I find that the applicant is not entitled to:
i. The non-earner benefit.
ii. The treatment plans.
75The applicant is not entitled to interest.
76The respondent is not liable to pay an award.
77The application is dismissed.
Released: August 18, 2025
Aric Bhargava
Adjudicator