Tsouchlakis v. Intact Insurance Company, 2025 CanLII 97772

Tsouchlakis v. Intact Insurance Company

Citation: Tsouchlakis v. Intact Insurance Company, 2025 ONLAT 24-000577/AABS Licence Appeal Tribunal File Number: 24-000577/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:

Dimitrios Tsouchlakis Applicant

and

Intact Insurance Company Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Jane Conte, Counsel

For the Respondent: Eluxmeenah Rishihesan, Counsel

HEARD: By way of written submissions

OVERVIEW

1Dimitrios Tsouchlakis, the applicant, was involved in an automobile accident on November 25, 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, Intact 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 physiotherapy services proposed by The Physio Clinic, as follows:

1. $1,050.59 in a treatment plan submitted May 8, 2023; and
2. $2,890.32 in a treatment plan submitted June 7, 2023?

ii. Is the applicant entitled to $1,995.51 for concussion therapy, proposed by iScope Concussion and Pain Centres, in a treatment plan submitted May 11, 2023?

iii. Is the applicant entitled to medical services proposed by Innovative Occupational Therapy Services Inc. as follows:

1. $2,200.00 for an occupational therapy assessment in a treatment plan submitted May 18, 2023; and
2. $6,033.50 for occupational therapy services in a treatment plan submitted May 18, 2023?

iv. Is the applicant entitled to $354.29 ($2,000.00 less $1,645.71 approved) for a psychological assessment proposed by Mitsopulos and Associates in a treatment plan submitted May 4, 2023?

v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicant is entitled to the treatment plans for physiotherapy, submitted May 8, 2023 and June 7, 2023, plus interest.

4I find that the applicant is entitled to the treatment plan for concussion therapy, submitted May 11, 2023, plus interest.

5I find that the applicant is not entitled to the treatment plans for an occupational therapy assessment or occupational therapy services, submitted May 18, 2023.

6I find that the applicant is not entitled to the balance of the treatment plan for a psychological assessment, submitted May 4, 2023.

7I find that the respondent is not required to pay an award.

ANALYSIS

Entitlement to medical and rehabilitation benefits

8To receive payment for a treatment and assessment plan under sections 15 and 16 of the Schedule, the applicant must show, 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.

9In respect to the treatment plans in dispute, the applicant relies upon the decision in 16-003460 v. The Dominion of Canada General Insurance Company, 2017 CanLII 46348 (ON LAT) at paragraph 28, wherein the Tribunal held that pain relief is a valid medical care goal that insurers may be required to pay for. He further relies upon the decision in E.C. v. RSA Insurance, 2020 CanLII 14421 (ON LAT), wherein the Tribunal held that treatment providing short-term pain relief is reasonable and necessary for applicant’s suffering from chronic pain. Finally, he relies upon the decision in Kar v. Scottish & York, 2023 CanLII 1441 (ON LAT), wherein the Tribunal held that the presence of objective supporting evidence to justify treatment is key to determining whether the medical benefit is reasonable and necessary.

10The respondent in its submissions relies upon the decision in Janette Blas v. Aviva Insurance Canada, 2021 CanLII 127471, wherein the Tribunal held that “while the OCF-18s provide insight as to the reasonableness of the treatment goals, how the goals would be met and that the costs of achieving the goals is reasonable, an OCF-18 is not enough to establish that the treatment is reasonable and necessary.” It further submits that it is well settled that a treatment plan without supportive medical evidence is not enough to establish that the recommended treatment is reasonable and necessary”.

The applicant is entitled to the treatment plans for physiotherapy

11I find that the applicant has proven entitlement to the treatment plans for physiotherapy services, dated May 8, 2023 and June 7, 2023.

12The applicant claims entitlement to $1,050.59 in physiotherapy services proposed by The Physio Clinic in a treatment plan dated May 8, 2023. The treatment plan recommends a TENS unit and accessories, a back support, heating paid, and a cervical pillow. The goals of the treatment plan are listed as pain reduction, increase range of motion, increase in strength, reduce neurogenic symptoms, improve balance deficits caused by concussion and return to pre-accident work activities.

13The applicant also claims entitlement to $2,890.32 in physiotherapy services, proposed by The Physio Clinic, in a treatment plan submitted June 7, 2023. The treatment plan recommends 16 sessions of exercise, 16 sessions of physiotherapy, 4 sessions of massage therapy and a documentation fee.

14The applicant submits that the medical evidence supports the reasonableness and necessity of the treatment plans for physiotherapy. He submits that his physiotherapy treatment has consistently delivered pain relief, validating the need for continued care. He submits that multiple medical practitioners, including Dr. Sophia Nastis, family physician, Dr. Neville Schepmyer, neurologist, and Dr. Ashu Jain, physician, have advised him to continue physiotherapy, and that treatment would significantly improve his condition. He further relies upon the Clinical Notes and Records (“CNRs”) of The Physio Clinic and in his submissions references the key entries which he submits confirm that he was improving with treatment.

15The respondent submits the applicant has not met his onus of proving that the treatment plans for physiotherapy are reasonable and necessary at the time they were submitted and with reference to contemporaneous medical evidence. The respondent denied the treatment plan dated May 8, 2023, based on the Insurer Examination (“IE”) report of Dr. Mohamed Khaled, dated April 12, 2023, which concluded that the applicant suffered uncomplicated soft tissue injuries without objective evidence of ongoing accident-related impairment. The respondent denied the treatment plan dated June 7, 2023, based on the IE Paper Review report of Dr. Khaled, dated August 31, 2023, which concluded that the treatment plan was not reasonable and necessary because the applicant had received appropriate and adequate facility-based soft tissue rehabilitation therapy.

16I find that the applicant has provided sufficient medical evidence to support that the treatment plans for physiotherapy are reasonable and necessary. I find that the CNRs of Dr. Nastis, the report of Dr. Schepmyer and the report of Dr. Amos, all recommend that the applicant continue with physiotherapy for his accident-related complaints. I further find that the CNRs from The Physio Clinic support the applicant’s ongoing complaints and note his continuous attendance for physiotherapy sessions at the time the treatment plans in dispute were submitted. I further agree with the applicant’s submissions that the applicant was attending for and receiving physiotherapy which was benefitting his physical condition. I find that the applicant’s complaints and the recommendations for ongoing treatment are made contemporaneously with the treatment plans in dispute.

17While the IE reports of Dr. Mohammed indicate that the applicant’s injuries are minor, the CNRs and reports of the above noted practitioners demonstrate his ongoing pain complaints and the recommendation for ongoing physiotherapy. I find that the CNRs of a treating practitioner who regularly assesses the applicant should be given more weight than a report of an IE assessor who only sees the applicant for the purpose of an assessment or prepares a paper review report.

18I further find that in both IE reports of Dr. Khaled, the complete CNRs of Dr. Nastis, the reports of Dr. Schepmyer and Dr. Amos and the complete CNRs of The Physio Clinic were not provided for his review. While Dr. Mohamed was provided with Dr. Schepmyer’s report and summarized the findings in his Paper Review report, he did not comment on the recommendation for ongoing physiotherapy. I therefore find that Dr. Khaled’s conclusions did not take into consideration the totality of the medical evidence supporting the applicant’s ongoing complaints and symptoms.

19For the reasons outlined above, I find that the applicant has proven on a balance of probabilities that he is entitled to the treatment plans for physiotherapy.

The applicant is entitled to the treatment plan for concussion therapy

20I find that the applicant is entitled to the treatment plan for concussion therapy.

21The applicant claims entitlement to $1,995.51 for concussion therapy, proposed by Dr. Ashu Jain, physician, of iScope Concussion and Pain Centres, in a treatment plan dated May 11, 2023. The treatment plan recommends the following:

18 – 1-hour sessions of vestibular physiotherapy treatment: $1,596.00 1 hour for documentation support activity: $99.75 1 hour preparation of OCF-18: $200.00 .25 hour for planning, service: $99.76

The goals of the treatment plan are stated as, “decrease post-concussion symptoms and improve tolerance to everyday activities”.

22The applicant submits that the treatment plan for concussion therapy is reasonable and necessary. He submits that the proposed treatment is integral to improving his pain management, functionality and overall quality of life. The applicant states that he was seen by Dr. Jain on May 3, 2023, and reported suffering headaches, neck pain, shoulder pain, low back pain, memory issues, difficulty with concentration and multitasking, mood changes, and dizziness that limits daily activity. The applicant submits that Dr. Jain’s concussion evaluation highlighted the need for a multidisciplinary approach to address his persistent symptoms, including mild traumatic brain injury, post-concussion syndrome, and post-traumatic vestibulopathy.

23The respondent submits that the treatment plan for concussion therapy is not reasonable and necessary and by letter dated June 8, 2023, denied entitlement to the treatment plan based on the IE report of Dr. Khaled, dated April 12, 2023.

24I find that the applicant has provided sufficient medical evidence to support that the treatment plan for concussion therapy is reasonable and necessary. I find that the CNR of Dr. Nastis, family physician, dated December 14, 2022, indicates that the applicant was diagnosed with a concussion. The CNR dated January 5, 2023, confirms that the applicant suffers from post-concussive syndrome and sets out his complaints of ongoing daily symptoms of light-headedness, dizziness, headaches, insomnia and new onset mood symptoms of low mood and anxiety.

25I find upon review of the CNRs of The Physio Clinic, multiple complaints of headaches and dizziness are made by the applicant throughout the records. The Disability Certificate dated May 15, 2023, confirms a diagnosis of concussion and headaches.

26I find that the report of Dr. Jain supports the need for vestibular physiotherapy to treat the applicant’s intermittent vertigo and difficult with balance. Dr. Jain completed a thorough assessment of the applicant’s complaints and limitations. I find that his recommendations for vestibular physiotherapy are supported by his findings.

27I further give little weight to the IE report of Dr. Khaled in support of the respondent’s position that the treatment plan is not reasonable and necessary. I find that the applicant reported that, “He gets “dizzy” when he has to pay attention, focus, concentrate and when he is in a car or bus. He also has photophobia and phonophobia. The headaches are improving but the dizziness is still about the same. He now only gets one or two headaches a week.” Dr. Khaled diagnosed the applicant with mechanical low back pain as well as grade 2 whiplash of the neck with associated headaches and left shoulder sprain/strain, which he found to be uncomplicated soft tissue injuries without evidence of significant orthopedic or neurological sequela. I find that while Dr. Khaled noted the applicant’s reported dizziness and related difficulties in his report, other than finding that the applicant has associated headaches, he did not address the applicant’s complaints nor the diagnosis of concussion by Dr. Nastis, summarized within his report. I further find that the IE assessment assessed a previous treatment plan for physiotherapy, but did not address this specific treatment plan in dispute.

28For the reasons set out above, I find that the applicant has proven on a balance of probabilities that he is entitled to the treatment plan for concussion therapy.

The applicant is entitled to the treatment plans for an occupational therapy assessment and occupational therapy services

29The applicant claims entitlement to $2,200.00 for an occupational therapy assessment, proposed by Innovative Occupational Therapy Services Inc., in a treatment plan submitted May 18, 2023.

30The applicant also claims entitlement to $6,033.50 for occupational therapy services, in a treatment plan prepared by Innovative Occupational Therapy Services, dated May 15, 2023.

31The applicant submits that the treatment plans for an occupational assessment and occupational services are reasonable and necessary. He relies upon the recommendation made by Dr. Jain in his report dated May 3, 2023, for a multidisciplinary treatment approach to facilitate his recovery which included the recommendation for consultation with an occupational therapist.

32The respondent submits that the treatment plans in dispute are not reasonable and necessary. It relies upon the Paper Review report of Dr. Khaled, dated June 20, 2023. Dr. Khaled found that the applicant is independent with activities of personal daily care, is able to perform light housekeeping and home maintenance duties, and functions safely and independently within the home, and there is no accident-related impairment.

33I find that the applicant has not proven entitlement to the treatment plans for an occupational therapy assessment or services.

34I find that while general submissions are made by the applicant that the treatment plans in dispute are reasonable and necessary, the applicant has not specifically dealt with this treatment plan in his submissions. I find that other than providing the report of Dr. Amos that recommended consultation with an occupational therapist, he has not provided any further submissions as to why this treatment is reasonable and necessary or what functional limitations he suffers as a result of his injuries. I find upon review of the recommendations made by Dr. Amos, while he recommends a consultation with an occupational therapist for cognitive assessment and rehabilitation, there are no further particulars provided as to the basis for this consultation.

35In addition, while I was able to discern the details of the treatment plans in dispute from review of the Paper Report of Dr. Khaled, the treatment plans in dispute were not provided to the Tribunal for my review, and therefore the specific goals and particulars of the treatment plans are not before me for comparison.

36I therefore find that Dr. Khaled’s conclusion, that the applicant was able to perform his daily care and light housekeeping duties while functioning safely and being independent within the home to be persuasive. I find that the applicant has not provided any submissions to counter the conclusions reached by Dr. Khaled.

37For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that he is entitled to the treatment plans for an occupational therapy assessment or services.

The applicant is not entitled to the balance of the treatment plan for a psychological assessment

38I find that the applicant is not entitled to the balance of the treatment plan for a psychological assessment.

39The applicant claims entitlement to $354.29 ($2,000.00 less $1,645.71 approved) for a psychological assessment, proposed by Mitsopulos and Associates, in a treatment plan submitted May 4, 2023.

40By letter dated May 9, 2023, the respondent approved $1,645.71 and denied $354.29 of the treatment plan dated May 4, 2023. The respondent submits that the treatment plan was partially approved due to the fact that the treatment plan did not provide a detailed breakdown of the services to be provided, and the partially approved amount was based on ten hours of the practitioner’s hourly rate, which is the accepted range for a psychological assessment. The respondent further noted that to consider payment for more than ten hours, it required a copy of the report along with a detailed breakdown. The respondent also lowered the document fee, equivalent to one hour of the provider’s time to complete the treatment plan. The respondent noted that if the time for completing the form went over an hour, the provider needed to provide an explanation as to why further time was needed.

41I find that the applicant has not specifically dealt with this treatment plan in his submissions. I find that he has not provided any specific submissions or directed me to any supporting evidence with respect to his entitlement to the balance of the treatment plan in dispute.

42For the reasons outlined above, I find that the applicant has not met his onus of proving on a balance of probabilities that he entitled to the unapproved balance of the treatment plan submitted May 4, 2023.

Interest

43Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is entitled to the treatment plans for physiotherapy and concussion therapy, he is entitled to interest on these treatment plans.

Award

44The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

45The applicant claims an award in the amount of $5,809.80 which is 40% of the amount of the disputed treatment plans. The applicant claims entitlement to an award due to the respondent’s unreasonable delay or withholding of payments which created a significant barrier to the applicant’s recovery. He claims that the respondent’s behaviour in withholding or delaying payments can be characterized as excessive, imprudent, stubborn, inflexible, unyielding or immoderate. The applicant further submits that the respondent adopted an adversarial approach to the adjudication of his claim and scheduled unnecessary assessments at an unreasonable frequency and relied on inadequate assessments from its medical assessors to deny him medical benefits.

46The respondent submits that the applicant is not entitled to an award. No specific submissions were made in this regard.

47I find that just because I have found that the respondent was incorrect in its denial of the treatment plans for physiotherapy and concussion therapy, it does not automatically entitle the applicant to an award. An insurer is not held to a standard of perfection, but rather, it should be held to a standard of reasonableness. The purpose of an award is to make an insurer accountable for misconduct and to deter it and others from future similar actions.

48I find that the case law has established that an award should be granted only where there is unreasonable behaviour by an insurer in withholding or delaying payments, which can be seen as excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

49I find that the respondent was entitled to rely on the opinions of its assessors in the IE reports in denying the applicant’s entitlement to the treatment plans in dispute. I do not find that the respondent scheduled the applicant for assessments at an unreasonable frequency, as it was entitled to assess the submitted treatment plans in dispute. I therefore do not find that the applicant has proven that the respondent’s behaviour was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

50For the reasons outlined above, I do not find that the applicant has proven on a balance of probabilities that he is entitled to an award.

ORDER

51For the reasons outlined above, I find that:

i. The applicant is entitled to the treatment plans for physiotherapy, submitted May 8, 2023 and June 7, 2023, plus interest;

ii. The applicant is entitled to the treatment plan for concussion therapy, submitted May 11, 2023, plus interest;

iii. The applicant is not entitled to the treatment plans for an occupational therapy assessment or occupational therapy services, submitted May 18, 2023;

iv. The applicant is not entitled to the balance of the treatment plan for a psychological assessment, submitted May 4, 2023; and

v. The respondent is not required to pay an award.