Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 24-007607/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:
Yuri Bolshan
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR: Laura Goulet
APPEARANCES:
For the Applicant: Frances Panganiban, Paralegal
For the Respondent: Priyanka Monpara, Counsel
HEARD: By way of written submissions
OVERVIEW
1Yuri Bolshan, the applicant, was involved in an automobile accident on June 19, 2019, 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, Security National 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 attendant care benefits (“ACBs”) in the amount of $1,532.94 per month from December 8, 2022, and ongoing?
ii. Is the applicant entitled to $7,160.31 for an orthopaedic mattress submitted on a treatment plan/OCF-18 (“plan”) dated December 1, 2022?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to ACBs, the plan for an orthopaedic mattress, or interest.
4The respondent is not liable to pay an award.
5The application is dismissed.
ANALYSIS
Attendant care benefits
6Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for ACBs provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the approved version of the document entitled Assessment of Attendant Care Needs (“Form-1”).
7Section 3(7)(e) provides that an expense is incurred if the insured person received the goods and services to which the expense relates and is liable for that expense.
8Section 3(8) of the Schedule permits the Tribunal to deem an expense to have been incurred if it finds that the insurer unreasonably withheld or delayed the payment of the benefit in respect of the expense.
The applicant is not entitled to ACBs
9For the following reasons, I find that the applicant has not met his onus of proving on a balance of probabilities that he is entitled to ACBs.
The applicant’s argument regarding sufficiency of notice
10The applicant submits that on December 8, 2022, Remik Zakrzewski, occupational therapist, prepared an assessment of attendant care needs report and Form-1 in support of the applicant’s claim for ACBs. The applicant refers to the respondent’s denial letter dated April 18, 2023, which indicates: “Based on our review of the Form 1 we are unable to determine if all of the benefits and expenses described are reasonable or necessary.” The applicant submits that the respondent fails to provide him with a proper denial of the ACBs.
11The applicant refers to the decision of M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT) (“M.B.”), where the Tribunal discusses what should be included in the “medical and any other reasons” in the insurer’s notice for an insurer examination (“IE”) under s. 44(5)(a) of the Schedule.
12The applicant makes no submissions with respect to how M.B. applies in this case, nor what the consequences of the respondent’s insufficient notice should be.
13I find that M.B. is not helpful to the applicant. M.B. is a reconsideration decision dealing with a situation where an applicant was barred from applying to the Tribunal pursuant to s. 55(1)2 of the Schedule for failing to attend an IE. On reconsideration, the Tribunal held that the respondent did not provide sufficient notice for the IE pursuant to s. 44(5)(a) and therefore the applicant was not barred from applying to the Tribunal.
14In this case, the applicant did attend the IE, and there is no issue before the Tribunal with respect to whether he should be barred from applying to the Tribunal. Even if I were to find that the notice was insufficient pursuant to s. 44(5)(a), the applicant does make submissions with respect to what the remedy would be, nor does he direct me to any provision in the Schedule indicating that he would automatically be entitled to ACBs.
15The applicant relies on the following evidence in relation to his entitlement to ACBs:
i. A letter from Dr. Ramin Safakish, interventional pain practitioner, dated February 4, 2021, to the applicant’s family physician, Dr. Franklin Sheps, indicating that the applicant reports back pain.
ii. The January 5, 2022 report of Dr. Ilya Gladshteyn, psychologist, which indicates that the applicant reported relying heavily on his family members to execute all household tasks which he used to share with his wife before the accident.
iii. The assessment results and recommendations that were made by Mr. Zakrzewski after his December 8, 2022 assessment.
iv. The chronic pain assessment report dated February 8, 2025, prepared by Dr. Grigory Karmy, physician, who indicates that the applicant reports continuing to experience difficulties with some personal care activities and that his daughter is only able to help him sometimes with housekeeping duties.
No evidence that ACBs were incurred
16The applicant does not direct me to evidence that he incurred any ACB expenses.
17Section 19 of the Schedule is clear. It deals with the respondent’s obligation to pay for all reasonable and necessary ACBs that are “incurred.” Since the Tribunal is a creature of statute, I find that it does not have jurisdiction to order the payment of ACBs that are not incurred, unless s. 3(8) applies.
18The applicant does not specifically make submissions with respect to the application of s. 3(8), however, in seeking an award, he submits that the respondent’s failure to properly adjust the file has caused an unreasonable delay in the applicant’s receipt of benefits.
19I find that the applicant does not direct me to specific examples with respect to how the respondent failed to properly adjust the file, or how it otherwise unreasonably withheld or delayed the payment of ACBs. Accordingly, I find that the applicant is not entitled to ACBs pursuant to s. 3(8).
20Since I have found that there is no evidence before me that the applicant incurred any expenses for ACBs, and that s. 3(8) does not apply, I find that the applicant has not met his onus of proving on a balance of probabilities that he is entitled to ACBs.
21To receive payment for a treatment and assessment plan under s. 15 and s. 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
The applicant is not entitled to the plan for an orthopaedic mattress
22The applicant has not met his onus to prove on a balance of probabilities that the plan for an orthopaedic mattress is reasonable and necessary.
23The plan in the amount of $7,160.31 was proposed by Mr. Zakrzewski. The plan proposes an orthopaedic mattress, a bed frame, a mattress protector, a cervical pillow, delivery, and completion of the OCF-18. The goals of the plan are pain reduction, increased range of motion, increase in strength, to alleviate the applicant’s discomfort and pain through the provision of recommended assistive devices, and to return to activities of normal living.
24The applicant points out that the plan refers to the s. 25 orthopaedic assessment report dated September 11, 2022, prepared by Dr. Tajedin Getahun, orthopaedic surgeon, recommending “equipment to maximize the applicant’s independence, safety, and accessibility.” I was unable to find this reference in Dr. Getahun’s report.
25The applicant relies on Dr. Getahun’s diagnoses of the following accident-related injuries: chronic myofascial strain of the cervical spine, chronic myofascial strain of the thoracic spine with mechanical back pain related to his compression fracture, and chronic myofascial strain of the lumbosacral spine. In his report, Dr. Getahun also notes the applicant continues to suffer from post concussion syndrome. Dr. Getahun indicates that an orthopedic mattress “would be helpful.”
26I am not persuaded by Dr. Getahun’s recommendation for an orthopedic mattress for the following reasons. Dr. Getahun did not review the disputed plan because his assessment was conducted prior to the preparation of the plan. As such, Dr. Getahun was unable to comment on its reasonableness and necessity. Further, Dr. Getahun does not explain why or to what extent he feels that an orthopedic mattress “would be helpful.”
27The applicant also relies on Mr. Zakrzewski’s December 8, 2022 report, which indicates that the applicant reported difficulties sleeping and that sleeping in a reclining position provided him with less strain and better sleep quality. Mr. Zakrzewski believed that the applicant’s sleeping surface did not provide optimal support for proper spinal alignment when sleeping, and recommended the disputed assistive devices, opining that “enhancing sleep quality is vital to facilitate tissue recovery during the client’s physical recovery process.” I note that there is no indication in the disputed plan that the proposed mattress is the type that reclines.
28The applicant further relies on the s. 25 case management report dated February 10, 2025, conducted by Isabelle Zonenberg, social worker, indicating that the applicant reported that he was frequently awakened by pain, nightmares, and discomfort, and that due to his sleep difficulties, he experienced significant daytime fatigue that has contributed to decreased energy and poor mood.
29The applicant submits that due to his physical impairments, he requires assistive devices to achieve proper sleep, which will assist him with both physical and psychological recovery.
30The respondent refers to the disputed plan, which indicates that the applicant’s current complaints were neck and back pain, submitting that this formed the basis for the items being requested. The respondent argues, however, that the clinical notes and records (“CNRs”) of the applicant’s treatment provider, Physiocare Physiotherapy (“Physiocare”), between December 2019 and November 2021 reveal that he attended thirty-nine sessions, but only mentioned back pain twice and neck pain once. The respondent further submits that the applicant’s other complaints were related to his elbow.
31In reply, the applicant submits that the Physiocare CNRs contain his constant complaints of feeling pain with cervical range of motion on flexion.
32I note that during the last recorded visit on November 19, 2021, the applicant reported that he fell down the week prior and could not bend his back forward, however, it was much better now and that “neck and L thoracic (med to lower), bother him sometimes.”
33The respondent also refers to a letter dated January 26, 2022, to Dr. Sheps, from Dr. Ada Yao, physician, from Allevio Pain Management, who was treating the applicant. In the letter, Dr. Yao indicates that the applicant’s treatments with the clinic’s osteopath had been quite helpful for the applicant’s pain symptoms. Dr. Yao further notes that the applicant described his pain as manageable, and as a result, Dr. Yao recommended that he need not try any oral medications, and that there was no need to pursue any pain-related interventions at that time.
34I note that Dr. Yao’s letter indicates that the applicant inquired if a “good mattress” would help his neck and mid back pain. Dr. Yao indicated that the applicant should continue with his osteopathic sessions since this had been helpful for his pain, and that he “may benefit from” a mattress. Dr. Yao also indicated that the applicant could advise further about this “after discussions with his osteopath” and that he could contact the clinic if he needed a prescription for a mattress or needed a follow up. The applicant does not refer to any CNRs from his osteopath, or any follow up with Dr. Yao.
35The respondent further refers to Dr. Shep’s CNRs dated August 25, 2022, indicating that the applicant made a mattress related inquiry. The respondent points out that the record does not include any recommendations for a mattress.
36The respondent also relies on the s. 44 assessment completed on June 13, 2023 by Dr. Edwin Urovitz, orthopaedic surgeon, who concluded that the disputed plan was not medically necessary or reasonable. Dr. Urovitz acknowledged that the applicant sustained a compression fracture to the thoracic spine, however opined that the anticipated healing of such a fracture would be within a period of about three to four months from the time of the injury. In addition, Dr. Urovitz indicates that, with an appropriate progressive program of rehabilitation and strengthening exercises to address any deconditioning, the use of the goods proposed in the disputed plan are not appropriate, nor is there any evidence that use of the goods would result in any substantial elimination of residual impairment.
37The respondent argues that despite the approval of multiple treatment plans, the applicant has not pursued any treatment for over two and a half years, submitting that no treatment has been billed since November of 2022. The respondent refers its email correspondence to the applicant dated May 29, 2025, confirming that it had approved a total of $51,761.40 in treatment to date, however only $8,495.40 had been paid in medical benefits and $23,997.66 for cost of examinations. The respondent submits that the applicant’s failure to use approved and available treatment demonstrates that the claimed benefits are neither reasonable nor necessary.
38I place more weight on the opinion of Dr. Urovitz, a medical doctor, who has been an orthopaedic surgeon since 1979 than on the opinion of Mr. Zakrzewski, who is an occupational therapist. I accept the opinion of Dr. Urovitz that there is no evidence that the use of the goods in the proposed plan would result in any substantial elimination of residual impairment.
39In addition to my findings noted above, I have also considered that the applicant has not directed me to any recommendations from any of his treating practitioners for an orthopaedic mattress, a bed frame, a mattress protector, or a cervical pillow.
40Based on the evidence, I am not satisfied on a balance of probabilities that the goals of the disputed plan would be met to a reasonable degree. I find that the applicant does not point to evidence that the use of an orthopaedic mattress would alleviate his discomfort and pain. Further, I find that the applicant does not direct me to evidence to establish how an orthopaedic mattress would address the goals of increased range of motion and an increase in strength.
41In addition, the applicant has not addressed how the overall costs of achieving the goals in the disputed plan are reasonable.
42For these reasons, I find that the applicant has not met his onus to demonstrate on a balance of probabilities that the plan for an orthopaedic mattress is reasonable and necessary.
Interest
43Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.
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 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Since no benefits were unreasonably withheld or delayed, the applicant is not entitled to an award.
ORDER
45For the above reasons, I find:
i. The applicant is not entitled to ACBs, the plan for an orthopaedic mattress, or interest.
ii. The respondent is not liable to pay an award.
iii. The application is dismissed.
Released: February 11, 2026
Laura Goulet
Adjudicator