Licence Appeal Tribunal File Number: 24-003808/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:
Leslie Hemming
Applicant
and
The Personal Insurance Company
Respondent
DECISION
ADJUDICATOR: Laura Goulet
APPEARANCES:
For the Applicant: Lawson Hennick, Counsel
For the Respondent: Andrew Franklin, Counsel
HEARD: By way of written submissions
OVERVIEW
1Leslie Hemming, the applicant, was involved in an automobile accident on February 11, 2023, 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, The Personal 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:
Is the applicant entitled to the following services proposed by Downsview Healthcare Inc. (“Downsview”): i. $200.00 for psychological services in a treatment plan/OCF-18 (“plan”) dated April 14, 2023? ii. $1,775.13 for psychological services in a plan dated February 22, 2024? iii. $25.00 for occupational therapy services in a plan dated June 21, 2023? iv. $142.68 for psychological services in a plan dated July 19, 2023? v. $116.68 for psychological services in a plan dated October 30, 2023? vi. $25.00 for occupational therapy services in a plan dated September 15, 2023? vii. $4,204.32 for psychotherapy services in a plan dated May 13, 2024? viii. $760.77 for psychological services in a plan dated April 6, 2024?
Is the applicant entitled to $4,694.00 for optometric services proposed by Dr. Shalu Pal in a plan dated January 31, 2024?
Is the applicant entitled to $2,486.00 for a dietary assessment proposed by Complete Balance Health Centre in a plan dated May 4, 2023?
Is the applicant entitled to the services proposed by Do Axis Therapy and Performance (“Axis”) as follows: i. $1,900.00 for chiropractic and physiotherapy services in a plan dated April 8, 2024? ii. $4,963.80 for massage, chiropractic and physiotherapy services in a plan dated June 27, 2024?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
3In her submissions, the applicant withdrew the following issues as set out in the Case Conference Report and Order (“CCRO”) dated August 1, 2024: 1(vii), 2, 3, 6, 7, 8, and 9 (i) to (iii). Accordingly, they are no longer in dispute, above.
RESULT
4The applicant is entitled to the plan for optometric services and the plan for a dietary assessment. The applicant is not entitled to the remaining plans in dispute.
5The respondent is not liable to pay an award.
6The applicant is entitled to interest on any overdue payment of benefits.
PROCEDURAL ISSUES
Documentary evidence produced beyond the deadlines
7The respondent submits the applicant’s documentary evidence that was produced beyond the deadlines set out in the CCRO should be excluded from consideration or afforded little weight. The respondent relies on Rule 9.3 of the Licence Appeal Tribunal Rules, 2023, (“Rules”) which provides that if a party fails to comply with an order with respect to production of documents, that party may not rely on the document as evidence without the permission of the Tribunal.
8The respondent points out that the deadlines stipulated in the CCRO were September 24, 2024, and October 24, 2024. The respondent submits that on November 25, 2024, the applicant served the Orthopaedic Report of Dr. Tajedin Getahun dated November 9, 2024, and that on February 14, 2025, the applicant served the clinical notes and records (“CNRs”) of Dr. Ginette Moores, neurologist, dated February 13, 2025. The respondent further submits that on April 2, 2025, the applicant served a Document Brief containing the following: the applicant’s pain journal (pages 2664 to 2727), neurosurgeon Dr. Charles Tator’s CNRs (pages 2057 to 2061), Downsview CNRs (pages 1850 to 4032), Dr. Shalu Pal & Associates (pages 1985 to 2006), and Axis CNRs (pages 749 to 790; 835 to 936; and 982 to 1005).
9The respondent argues that the applicant did not seek permission from the Tribunal to rely on the documents, nor has she offered any explanation for the late disclosure. The respondent submits that it is prejudiced because it was not afforded the opportunity to review the documents as part of its assessment of the applicant’s entitlement to benefits, and it could not provide the documents to its assessors for review and comment. Further, the respondent submits that the late disclosure amounts to “trial by ambush,” citing as an example the applicant’s sixty-two-page journal dating back to February 11, 2023. The respondent points out the applicant relies on the journal as evidence of her “well documented” emotional issues, however this document was known to the applicant but was not produced until April 2, 2025, with her Document Brief.
10The applicant takes the position that the respondent has not sustained any prejudice by the late production of the evidence.
11The applicant submits that she served Dr. Getahun’s report expeditiously after it was received, and nearly five months prior to the date the respondent’s submissions were due. The applicant also submits that the respondent has obtained a physiatry report of its own, and it did not request an adjournment to consider Dr. Getahun’s report. Further, the applicant argues that the report is directly relevant to the issues in dispute, therefore meeting the low threshold for the admission of evidence, pursuant to s. 15(1) of the Statutory Powers Procedure Act, RSO 1990, c S.22. Lastly, the applicant submits that the Tribunal should consider the report to be able to fully assess the evidence and that she would be greatly prejudiced if it were to be excluded.
12The applicant submits that she served Dr. Moores’ CNRs as soon as she received them, which was more than one month before the respondent’s submissions were due, therefore there is no prejudice to the respondent. The applicant also submits that CNRs from Downsview, Dr. Pal, and Axis were initially produced in compliance with the CCRO, and that only the following documents were served outside the deadlines: Dr. Tator (pages 2057 to 2061); new CNRs from Downsview (pages 1851 to 1862); and new CNRs from Dr. Pal (pages 2008 to 2033). The applicant further submits that the CNRs from Axis that were served outside the deadline is new documentation she received. The applicant argues that, to the extent that any CNRs were first produced in the Document Brief, the respondent had already received earlier versions from the same facilities containing similar information.
13The applicant also argues that her journal contains no materially new information and is consistent with her pain complaints and other noted symptoms in the multitude of medical records available.
14The applicant also points out that the respondent’s submissions were due on April 18, 2025, but were served three days later, and that she took no issue with this. The applicant submits that the respondent has therefore been provided with a reasonable extension to review any new information.
15Each party cited a Tribunal decision in support of their respective position. I am not bound by other decisions of the Tribunal, and in any event, I find that my decision should be based on the specific facts of the case, as well as the Rules. I have considered the factors enumerated in Rule 9.3, with particular regard to the reasons for non-compliance, prejudice caused by the admission or exclusion of the evidence, the extent to which the information lies within the knowledge of the other party, and the relevance to an issue in dispute.
16I am denying the respondent’s request. I am satisfied that Dr. Getahun’s report, as well as the other CNRs and the applicant’s journal, are relevant to the issues in dispute because they address the applicant’s medical issues. I have also weighed the potential prejudice to the applicant of excluding the documents, compared to the prejudice to the respondent of including them.
17I find that the respondent had sufficient time to consider and respond to Dr. Getahun’s report (almost five months) and Dr. Moores’ CNRs (over one month) before its submissions were due. Further, I find that the applicant provided a reason for their late service in that she served these items shortly after receiving them. I accept the applicant’s submission that most of the information contained in the CNRs that were served with the Document Brief is updated treating records, and the respondent had already received earlier versions from the same facilities containing similar information. I note that the applicant did not provide a reason for not serving her journal within the production deadlines. Although the respondent argues that this is “trial by ambush,” it does not direct me to any information in this journal that was not already within its knowledge.
18I find that, because the respondent served its response on April 21, 2025, it had nineteen days to consider the additional CNRs that were served with the applicant’s Document Brief, as well as her journal. In the circumstances, I do not find that the respondent would be prejudiced by the admission of this evidence. Conversely, I find that to exclude the applicant’s evidence, which I find to be relevant to the issues in dispute, would cause prejudice to the applicant.
19For these reasons, I deny the respondent’s request to exclude the above referenced evidence or to afford it little weight due to non-compliance with the deadlines in the CCRO.
Applicant’s Document Brief
20In coming to my decision, I had considerable difficulty locating the medical evidence of the applicant. I note that at paragraphs 25 and 26 of the CCRO, the Tribunal orders that all submissions, evidence and authority briefs filed with the Tribunal must be bookmarked/tabbed and that submissions must make specific reference to the evidence and authorities by tab and page number. Further, at paragraph 26, there is an order that the hearing adjudicator has the discretion to determine whether to consider submissions that do not comply with the Tribunal’s filing requirements.
21Since the onus of proof is on the applicant, it is of utmost importance that they clearly point to the evidence they want the Tribunal to consider. I find that this is the only way for the Tribunal to reach a reasoned and fair decision. It is not this Tribunal's role to search through the evidence and make the argument on behalf of the applicant: see Dooman v. TD Insurance Co., 2025 ONSC 184 (“Dooman”) at para. 50.
22The applicant’s Document Brief contains sixty-eight tabs totalling four thousand and thirty-two pages. Although there is a Table of Contents listing the tabs, the tabs are not searchable by clicking on them, nor are they identified by page number. Further, I note that, of fifty-three items referred to in the applicant’s submissions, only thirteen of the items were referenced by page number in the Document Brief.
23I have made best efforts to locate and consider all evidence referred to by the applicant. However, where the applicant has not directed me to the evidence, and I am unable to locate it, I have noted this below, and I have exercised my discretion not to consider that evidence in making my decision, in accordance with the CCRO and consistent with the Divisional Court’s decision in Dooman.
ANALYSIS
24To 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.
25For the following reasons, I find that the applicant is entitled to the plan for optometric services and the plan for a dietary assessment, however she is not entitled to the remaining plans in dispute.
The applicant is not entitled to the remainder of the plan for psychotherapy services referred to in issue 1(vii)
26The applicant is not entitled to the remainder of the plan for psychotherapy services referred to in issue 1(vii).
27The plan was prepared by Dr. Brunshaw. The plan proposes documentation and support activity ($628.00), as well as fourteen 1.5-hour counselling sessions ($3,141.88). The goals of the plan are to provide psychological counselling to help the applicant manage her emotional response to the difficulties she is experiencing and to return to activities of normal living.
28The applicant submits that her need for ongoing psychological services is reasonable and necessary because her psychological issues have become significant and persistent post accident, permeating all aspects of her life. She refers to the following medical evidence in relation to the plans for psychological services.
29Dr. Jacqueline Brunshaw, psychologist, conducted an assessment on April 21, 2023, and diagnosed the applicant with Adjustment Disorder with Anxiety, Major Depressive Disorder, Recurrent Episode, and Specific Phobia, Situational Type (Vehicular: driver, passenger), Moderate-to-Severe level of severity. The applicant points out that her Beck Anxiety Inventory score indicated that she was experiencing a severe level of symptoms of anxiety, and she reported becoming angry and frustrated easily because she was in constant pain, faced so many limitations, and felt that she lost her independence. The applicant also reported being upset that she had been unable to return to work, causing financial strain.
30The applicant submits that her emotional issues have been well documented in the medical records, although she does not direct me to any specific records. The applicant also refers to her journal of accident-related symptoms, submitting that it is replete with her ongoing pain and mood concerns such as irritability, lack of patience, regrets about being unable to engage with her children like before the accident, as well as mood swings caused by switching medications.
31The applicant also refers to an attendant care needs assessment completed on April 19, 2023 by Elizaveta Lianos, registered nurse. The applicant points out that the report indicates that she was taking Cipralex prior to the accident for anxiety, which was under control. However, post-accident, because her anxiety was aggravated, her medication dose was increased, and she was prescribed new medication. The applicant also submits that the report indicates that barriers to the applicant’s recovery included emotional disturbance regarding her injury, and her history of psychological disturbance.
32The applicant also relies on her consultation with Dr. Tator on February 19, 2025, who noted that while the applicant had anxiety since her mid twenties and had been taking Cipralex for quite some time, no doubt the accident heightened her anxiety. The applicant also submits that a “family doctor note” from the Toronto Western Family Health Team dated March 16, 2023 noted that she was tearful when talking about the pain. The applicant did not direct me to this evidence in the Document Brief and I was unable to find this entry.
33The applicant refers to a progress report from her psychotherapist Habib Alkayat dated April 24, 2024, which indicates that she completed twelve out of fourteen sessions. Mr. Alkayat also states that she has reliably attended and actively participated in all sessions, noting that she continued to make progress in managing her physical and mental health. Mr. Alkayat recommended an additional fourteen sessions to continue facilitating her recovery by helping her to persist in her efforts to adapt to the lifestyle changes she has experienced as a result of the accident.
34The applicant also refers to Downsview CNRs, submitting that they contain reference to her psychological struggles, including isolation from friends as she is unmotivated to socialize, her irritability and its impact on her children, driving anxiety, frustration about not being able to work, inability to turn off intrusive thoughts, difficulty sleeping, feelings of guilt for putting more responsibility on her husband, and worries about re-injuring herself. The applicant does not direct me to where in the 4032-page Document Brief these references can be located.
35On August 28, 2024, the respondent partially approved the disputed plan in the amount of $428.00 for documentation and $1,795.32 for twelve one-hour sessions of psychotherapy, in accordance with the s. 44 assessment that was completed by Dr. Rod Day, psychologist, on August 6, 2024. The respondent submits that the applicant has not provided any opinion evidence from Dr. Brunshaw indicating why fourteen ninety-minute sessions are needed in the applicant’s third course of therapy, as opposed to the conventional course of twelve one-hour sessions. The respondent further submits that Dr. Day’s assessment is more recent than the applicant’s psychological reports and that there is no rebuttal report from Dr. Brunshaw addressing the amount of treatment required.
36In reply, the applicant submits that her psychological situation is anything but conventional, relying on the following notations from Dr. Day’s report: the applicant reported experiencing occasional, distressing suicidal thoughts, specifically when her pain level was severe; she had not returned to work since the accident and remained on Long Term Disability; she was quite tearful discussing her work situation; she reported that her previous anxiety was significantly exacerbated leading to a change in medication and she gained thirty pounds; she reported having recurrent panic attacks; her neck and shoulder pain was the most intense she had ever experienced; she had an unusual degree of concern about her physical health; and she exhibited a clinically significant level of psychological symptoms that were exacerbated by the accident.
37I note that Dr. Day diagnosed the applicant with Major Depressive Disorder, Recurrent Episode, in partial remission, and Generalized Anxiety Disorder, with panic attacks, opining that these conditions have a major degree of relationship with her pre-existing anxiety and depression symptoms and a minor degree of relationship with the accident. Dr. Day noted that the applicant had received two courses of fourteen, ninety-minute telephone-based sessions of psychological treatment to date. Dr. Day opined that, given the applicant’s history and her moderate response to two courses of psychotherapy, it was likely that some degree of her symptoms would be persistent. However, given the applicant’s desire for further treatment and in consideration that she was planning to return to work in September 2024, Dr. Day believed one final allocation of twelve, one-hour sessions of treatment to consolidate treatment gains and support her return to work was reasonable and necessary.
38I find that Dr. Day conducted a thorough assessment, and I accept his opinion, because he reviewed significant medical documentation from March 2020 to April 2024 and conducted a four-hour assessment which included an in-person interview and three psychometric tests, two of which contained validity testing. I am persuaded by this evidence over that of Dr. Brunshaw because I find that Dr. Day specifically addressed the length and the number of sessions, which is at issue here. I am not directed to evidence from Dr. Brunshaw or from the applicant’s psychotherapist, Mr. Alkayat, rebutting Dr. Day’s report, and addressing the need for fourteen 1.5-hour counselling sessions as opposed to twelve one-hour sessions, especially considering the applicant has already had two courses of treatment.
39Based on the evidence before me, I find that the applicant has not established, on a balance of probabilities, that fourteen ninety-minute sessions, as opposed to twelve one-hour sessions, would be reasonable and necessary. I am persuaded by Dr. Day’s opinion, and I find that, given that this would be the third course of psychological treatment, twelve, one-hour sessions are appropriate. As indicated in Dr. Day’s report, this last extension of psychotherapy would allow for a discharge process to be completed.
40For these reasons, I find that the applicant is not entitled to the remainder of the plan for psychotherapy services referred to in issue 1(vii).
The applicant is not entitled to the $200.00 referred to in issue 1(i)
41The applicant is not entitled to the $200.00 referred to in issue 1(i).
42The applicant does not make submissions with respect to this issue.
43The respondent relies on s. 38(2) of the Schedule, which states that an insurer is not liable to pay an expense for a medical or rehabilitation benefit or assessment or examination incurred before the insured person submits a treatment plan.
44The respondent refers to a plan in the amount of $2,486.00 for a psychological assessment that was submitted by Downsview on April 13, 2023, which it approved. The respondent also refers to an OCF-21 that was submitted by Downsview on April 14, 2023, seeking payment of $200.00 for “test, mental health and addictions,” a service which took place on March 24, 2023. The respondent submits that it denied payment because the invoice did not relate to a specific OCF-18 or HCAI reference number, that it requested this information from Downsview, and there is no evidence that Downsview provided it.
45The respondent argues that the $200.00 fee is for a pre-screen assessment invoice, and not treatment, and that it is not liable to pay for this service that was provided on March 24, 2023, before the submission of the OCF-18 for a psychological assessment.
46The applicant does not direct me to evidence that any of the exceptions set out in s. 38(2)(a) to (c) apply. I find that, in accordance with s. 38(2), the respondent is not liable to pay for the $200.00 invoice, because it is in relation to a service that was incurred before the applicant submitted a treatment plan.
47For these reasons, I find that the applicant is not entitled to the $200.00 referred to in issue 1(i).
The applicant is not entitled to the plans referred to in issues 1(ii) and 1(viii)
48The applicant is not entitled to the plans for psychological services referred to in issue 1(ii) in the amount of $1,775.13 and in issue 1(viii) in the amount of $760.77.
49The applicant makes general submissions, as set out above, with respect to why psychological services are reasonable and necessary.
50The respondent relies on s. 47(2) of the Schedule, which states that payment of a medical or rehabilitation benefit is not required for that portion of an expense for which payment is reasonably available to the insured person under any insurance plan or law or under any other plan or law.
51The respondent refers to the OCF-1 that discloses that Canada Life is the applicant’s collateral carrier. The respondent submits that it responded to both invoices requesting that the expenses be submitted to the collateral benefit carrier before coverage was applied, and that the applicant has not provided any evidence that these expenses were submitted to Canada Life. In the circumstances, the respondent argues that it is not liable to pay these expenses.
52In reply, the applicant relies on the Tribunal decision of V.V. v. Aviva Insurance Canada, 2019 CanLII 101706 (ON LAT) (“V.V.”) in submitting that there is no evidence before the Tribunal to show the amount of collateral benefits coverage that is available to pay for the benefits in dispute, and therefore the Tribunal is not able to find that collateral benefits coverage is available. The applicant further submits that “much has been paid out of pocket” and that these services are not available through OHIP.
53I am not bound by other decisions of the Tribunal, and I respectfully disagree with the reasoning in V.V. I prefer the reasoning in the decision of TLD v. Aviva General Insurance Company, 2020 CanLII 57428 (ON LAT) (“TLD”) that was referred to by the respondent. In TLD, the Tribunal held that the respondent was not required to pay any expense claims until the applicant provided it with proof of submission to the collateral benefits provider. I agree with the reasoning in TLD because I find that the applicant is in the best position to show the amount of collateral benefits coverage that is available under her plan.
54For these reasons, I find that the applicant is not entitled to the plans for psychological services referred to in issue 1(ii) in the amount of $1,775.13 and in issue 1(viii) in the amount of $760.77.
The applicant is not entitled to the $142.68 referred to in issue 1(iv)
55The applicant is not entitled to the $142.68 referred to in issue 1(iv).
56The applicant did not make submissions on this issue. The respondent refers to a plan for psychological services in the amount of $1,240.36 that was submitted by the applicant on July 19, 2023. The respondent also refers to a letter dated July 26, 2023 to the applicant indicating that it paid $1,097.68 directly to the treatment provider and that $142.68 for taxes were not payable as the services are not taxable. The respondent relies on s. 7 of Part II of Schedule V to the Excise Tax Act, R.S.C., 1985, c. E-15.
57I note that the plan dated July 19, 2023 lists $1,097.68 in psychological services, as well as $142.68 in tax. I find that the portion allocated to tax is not payable as psychological services are tax exempt.
58For these reasons, I find that the applicant is not entitled to the $142.68 referred to in issue 1(iv).
The applicant is not entitled to the $116.68 referred to in issue 1(v)
59The applicant is not entitled to the $116.68 referred to in issue 1(v).
60The applicant does not make submissions on this issue. The respondent refers to an OCF-21 seeking $253.59 for “counseling, mental health and addictions” submitted by Downsview on October 30, 2023, in connection with a previous plan dated May 30, 2023, which was billed in the amount of $3,950.67, and approved up to $3,769.88. In a letter to the applicant dated November 1, 2023, the respondent indicated that it paid a further $136.91 to Downsview in relation to the OCF-21. The respondent submits that it paid the remaining amount available in approved funds and denied the balance of $116.68 because there is no liability to pay for the excess amount billed.
61Since the applicant does not make submissions on this issue, I find that she has not demonstrated on a balance of probabilities that the additional funds on the OCF-21 are reasonable and necessary.
62For these reasons, I find that the applicant is not entitled to the $116.68 referred to in issue 1(v).
The applicant is not entitled to the $25.00 for occupational therapy services referred to in issues 1(iii) and 1(vi)
63The applicant is not entitled to the $25.00 for occupational therapy services referred to in issues 1(iii) and 1(vi).
64The applicant does not make submissions with respect to these issues.
65The respondent refers to the plan dated June 21, 2023, in the amount of $1,975.17, as well as its letter to the applicant dated July 4, 2023, indicating that the plan was approved except for $25.00 for mileage. The respondent also refers to an OCF-21 submitted by the applicant on September 15, 2023, seeking $1,975.17, as well as its letter to the applicant dated September 20, 2023, indicating that the invoice was approved except for $25.00 for mileage. With respect to both documents, the respondent points out that it approved 1.25 hours of travel time for the chiropractor, i.e., the maximum hourly rate of $112.81 x 1.25 hours, totalling $141.01, for travel time.
66The respondent refers to the Professional Services Guideline, FSCO Superintendent’s Guideline No 03/14 (“PSG”), submitting that there is no basis to add mileage in addition to travel time, which would effectively increase the hourly rate for travel beyond the maximum hourly rate in the PSG.
67Since the applicant has not made submissions with respect to these issues, I find that she has not met her onus to prove on a balance of probabilities that the amounts allotted for mileage are reasonable and necessary.
68For these reasons, I find that the applicant is not entitled to the $25.00 for occupational therapy services referred to in issues 1(iii) and 1(vi).
The applicant is entitled to the plan for optometric services
69The applicant has met her onus to demonstrate on a balance of probabilities that the plan for optometric services is reasonable and necessary.
70The plan was proposed by Dr. Shirley Blanc, optometrist and fellow of the Neuro-Optometric Rehabilitation Association. The plan proposes prescription computer/reading single vision glasses with prism and blue light filter, training, sight and other senses NEC, assessment (examination), prescription distance glasses with prism and high-quality anti-glare coating, and prescription sunglasses with prism. The goals of the plan are to provide glasses to help with visual function and a vision rehabilitation plan, and to return to activities of normal living. The applicant submits that she has fully incurred the plan.
71The applicant refers to an OCF-3 dated April 5, 2023 from her family physician, Dr. Gabilan Sivapatham, indicating that she has the following accident-related injuries: post-concussion syndrome (headaches, photophobia, imbalance, and irritability). In a letter dated October 13, 2023, Dr. Sivapatham referred the applicant to Dr. Blanc, indicating that the applicant was being seen by Dr. Laura Cruz, sports medicine, who recommended a neuro-optometric assessment for abnormal/low computer tolerance and convergency insufficiency.
72A December 30, 2023 report by Dr. Blanc noted that the applicant reported headaches, nausea, dizziness, light and noise sensitivity, brain fog, concentration and memory issues, fatigue, eyestrain, intolerance to busy environments, visual motion or patterns and looking at screens. The results of Dr. Blanc’s assessment included: sensitivity to busy visual stimuli, particularly if high contrast and blue light from screens, visual motion sensitivity, cervical proprioception dysfunction, and dysfunction in horizontal pursuit eye movements. Dr. Blanc recommended two pairs of prism glasses: one for distance, which can be made into sunglasses, and one for computer/reading use with a blue light filter. In an addendum report dated January 30, 2024, Dr. Blanc recommended three pairs of prescription glasses: prism distance (clear pair), prism for computer/reading, and prism distance sunglasses.
73In a letter to Canada Life dated March 9, 2024, Dr. Sivapatham referred to Dr. Blanc’s assessment and recommendations, and noted that the applicant continued to experience post-concussive headaches, which could be exacerbated by screen time.
74The applicant refers to a June 10, 2024 exam note in Dr. Shalu Pal & Associates CNRs indicating that the applicant does visual therapy every day. She has felt more energy than she has in a long time and attributes it to the prism glasses and vision therapy, since there were no changes in medicine or therapies. The note also indicates that normally, the applicant was “spent” by 2:00 p.m. but was now able to function for the whole day.
75The applicant also refers to Vizual Edge Score test sheets, indicating that on October 20, 2024, her visual skills were assessed as “very poor,” however by February 2, 2025, her score improved to “excellent.” The applicant submits that this is due to her hard work and commitment to her vision therapy treatment.
76The applicant also refers to a letter dated September 3, 2024 from Dr. Blanc, raising concerns about challenges the applicant will face being immersed too quickly into full time work because her system shows signs of fatigue and stress with visual demands reflective of extensive screen work demands. Dr. Blanc also noted the applicant was still struggling with headaches, fatigue, and sensory overstimulation. Dr. Blanc opined that the applicant required continued multidisciplinary care, including vision rehabilitation and management of her headaches, neck, and shoulder pain. Dr. Blanc indicated in the letter that part of the vision rehabilitation program going forward would include a computer-based vergence strengthening program (Vizual Edge), not provided by the office but that can be purchased by the applicant.
77The respondent denied the plan based on the s. 44 assessment that was completed on April 16, 2024 by Dr. Jonathan Micieli, ophthalmologist. Dr. Micieli concluded that the applicant was considered to have normal visual function and convergence amplitude, and the examination did not reveal any objective abnormalities related to the accident.
78The respondent submits that Dr. Blanc saw the applicant ten months after the accident and the reports contain subjective complaints and provide recommendations. Further, the respondent argues that there is no evidence that Dr. Blanc reviewed the applicant’s history or medical documents, and she offers no opinion on causation. The respondent also submits that Dr. Miceli’s opinion is more recent, more thorough, and ought to be given more weight.
79In reply, the applicant submits that Dr. Micieli’s report fails to make proper inquiries about specific issues noted in the treatment plan, including sensitivity to light, blurred vision, eye strain, reading abilities, and dizziness. The applicant argues that Dr. Micieli concludes that the applicants “main vision complaint” is related to headaches and dizziness, however, in the complaints section he fails to make inquiries about dizziness. In addition, the applicant indicates that Dr. Micieli notes that the applicant’s eyes are “worse with computer use” but makes no inquiries about how or why they are made worse, for example, blurry vision, eye fatigue/strain, headaches, etc.
80I am satisfied that causation has been established here considering the OCF-3 dated April 5, 2023 prepared by Dr. Sivananthan, indicating that the applicant suffered from accident-related post-concussion syndrome with headaches, photophobia, imbalance, and irritability.
81I place less weight on Dr. Micieli’s report for the following reasons. I find that it did not address Dr. Sivananthan’s CRNs past the applicant’s report of the accident on February 14, 2023. I note that on October 13, 2023, Dr. Sivapatham referred the applicant to Dr. Blanc, recommending a neuro-optometric assessment for abnormal/low computer tolerance and convergency insufficiency, and that in a letter dated March 9, 2024, Dr. Sivapatham indicated that the applicant continued to experience post-concussive headaches. Further, I note that in the “Current Symptoms” section, Dr. Micieli does not address many symptoms that are listed in the disputed plan, such as sensitivity to light, blurred vision, eye strain, reading abilities, and dizziness. Finally, although there is no mention of “dizziness” in the body of the report, Dr. Micieli indicates in the “Summary and Conclusion” section that one of the applicant’s main vision complaints was dizziness.
82I am persuaded by the fact that the applicant has incurred this plan and that CNRs indicate that she actively participates in visual therapy and has reported considerable benefits from the prism glasses and vision therapy. Further, I have considered the Vizual Edge Score test sheets, which indicate a significant improvement in the applicant’s visual skills from October 20, 2024, to February 2, 2025, because of her vision therapy treatment.
83For these reasons, I find that the applicant has met her onus to prove on a balance of probabilities that the plan for optometric services is reasonable and necessary.
The applicant is not entitled to the plans for chiropractic, physiotherapy and massage services set out in issue 4
84The applicant has not met her onus to demonstrate on a balance of probabilities that the plans for chiropractic, physiotherapy and massage services are reasonable and necessary.
85In her submissions, the applicant addresses the two treatment plans together.
86The plan dated April 8, 2024 in the amount of $1,900.00, prepared by William Chow, physiotherapist, proposes ten sessions each of physiotherapy and chiropractic services. The plan dated June 27, 2024 in the amount of $4,963.80, prepared by William Chow, proposes twenty sessions each of massage therapy, chiropractic services, and physiotherapy. The goals for both plans are pain reduction, increase in strength, to return to activities of normal living, to return to modified work activities, and to return to pre-accident work activities.
87The applicant refers to Dr. Getahun’s s. 25 orthopedic evaluation on November 9, 2024, noting a rotator cuff impingement and subacromial subdeltoid bursitis identified in an ultrasound of the shoulder dated June 21, 2023. Dr. Getahun further refers to an MRI of the thoracic spine dated May 4, 2023, indicating small T6-T7 left paracentral disc herniation with mild flattening of the cord, and an MRI of the left shoulder dated June 25, 2024, indicating posttraumatic severe left shoulder pain identifying moderate partial thickness tear and abnormal signal of the labrum junction. Dr. Getahun recommended physiotherapy, massage therapy and chiropractic interventions.
88The applicant also refers to a s. 25 orthopedic assessment by Dr. Olga Finlayson, neurologist, on July 28, 2023, who diagnosed the applicant with the following accident-related injuries: post-concussive syndrome, chronic neck and back pain, chronic bilateral shoulder pain worse on left, and left knee pain and swelling. Dr. Finlayson noted that the applicant had been receiving rehabilitative treatments including massage and physiotherapy since the accident, with good benefit, and recommended that she continue with those treatments.
89The applicant further relies on a letter dated April 14, 2023 from Dr. Sivapatham who recommends physiotherapy treatment.
90The applicant submits that she has incurred the proposed physiotherapy and chiropractic treatment and would not have done so had it not been helpful to her. She submits that she derives great benefit from it, pointing out that a review of the Axis CNRs notes numerous references to reduced pain and improvement, which is in line with the goals of the treatment plans. The applicant does not direct me to the dates or page numbers relating to the references to reduced pain and improvement that she submits are in the Axis CNRs (which total four hundred and twenty-four pages). As such, I am unable to pinpoint these references, nor whether they are contemporaneous with the disputed plans.
91The respondent relies on the May 13, 2024 s. 44 physiatry assessment by Dr. Deborah Rabinovitch, specialist in physical medicine and rehabilitation, where Dr. Rabinovitch opined that the applicant did not have any significant musculoskeletal impairments given that she showed full range of movement and full strength throughout the examination. Dr. Rabinovitch concluded that the disputed plan dated April 8, 2024 was not reasonable and necessary.
92The respondent submits that William Chow does not provide any opinion or reason for the ongoing therapy and what benefits would be derived. The respondent points out that the applicant received courses of therapy at both Lifemark and Axis, however she reported to Dr. Rabinovitch that the facility-based care only provided her with a “few hours of transient relief from pain related symptoms and reduced range of movement.” The respondent submits that this raises an issue about the effectiveness of treatment, relying on Jolly v. The Commonwell Mutual Insurance Group, 2023 CanLII 40076 (ON LAT) (“Jolly”), where the Tribunal held that treatment plans are not reasonable or necessary where the benefit of the therapy is unclear. I agree with the reasoning in this decision.
93The respondent also argues that, given that the applicant completed courses of therapy between 2023 and 2024, her reliance on outdated recommendations by her family doctor in April 2023, and by Dr. Finlayson in July 2023 to justify a further eighty sessions of treatment in 2024 should be given little weight.
94In reply, the applicant submits that Dr. Rabinovitch’s report was completed more than a year following her assessment. I do not agree because I find that there was a typographical error on the cover page of the report, where the assessment was dated May 13, 2023. The report is dated May 28, 2024, and the second page of the report clearly indicates that the applicant was assessed on May 13, 2024.
95The applicant also submits that Dr. Rabinovitch notes the applicant’s continuous pain to her left shoulder, upper and lower back, bilateral hip, and headaches, and that physiotherapy is ongoing, and the applicant notes partial improvement. The applicant points out that Dr. Rabinovitch noted that the applicant reported that physiotherapy was one of the alleviating factors for her headaches, back, hip, neck, and shoulder pain.
96The applicant also notes that Dr. Rabinovitch indicated that she would appreciate the opportunity to review the ultrasound of the left shoulder dated June 21, 2023 (which was referred to in Dr. Getahun’s report) to confirm her diagnosis and provide further recommendations if needed. The applicant argues that the important results in this ultrasound were not considered in Dr. Rabinovitch’s conclusion. The applicant points out that Dr. Rabinovitch diagnoses her with mechanical neck and left shoulder pain and mechanical back pain and endorses long-acting inflammatory medication, which is indicative of the presence of impairments, consistent with the ultrasound findings. On a review of the report, I note that Dr. Rabinovitch suggested a trial of the inflammatory medication “for two to three weeks.”
97I place little weight on Dr. Getahun’s report for the following reasons. Although Dr. Getahun reviews the applicant’s treatment records, he does not indicate that he had any discussion with the applicant with respect to any benefits derived from her treatment to date. Further, I find that Dr. Getahun does not explain why he recommends physiotherapy, massage therapy and chiropractic interventions. Finally, Dr. Getahun did not review the disputed plans, and accordingly, he did not address the reasonableness and necessity of the plans, or how additional treatment might achieve the stated goals in the plans.
98I am not persuaded by the recommendation made by Dr. Sivapatham in April 2023 for physiotherapy treatment and by Dr. Finlayson’s recommendation for massage and physiotherapy in July 2023, because I find they are not contemporaneous with the disputed plans dated April 8 and June 27, 2024.
99Further, although Dr. Rabinovitch indicates that she would like to review the ultrasound dated June 21, 2023, I find that her opinion that the disputed plans are not reasonable and necessary is based on her finding that the applicant did not have any significant musculoskeletal impairments. I note that Dr. Rabinovitch’s report indicates that active range of motion testing of the cervical spine revealed full range of motion in all directions; active shoulder range of motion was full and pain free in all directions bilaterally; active range of motion of the lumbar spine was normal in all planes; and range of motion of the hips was normal and symmetric bilaterally and there was no pain with flexion.
100Although the applicant has incurred the disputed plans, I find that the benefit she received from the rehabilitative services remains unclear. The applicant reported to Dr. Rabinovitch that physiotherapy was one of the alleviating factors for her various pain, but she also reported that the facility-based care only provided her with a few hours of transient relief from pain related symptoms and reduced range of movement. Further, I find that the applicant has not directed me to evidence with respect to how the goals of the disputed plans would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
101For these reasons, I find that the applicant has not met her onus to establish on a balance of probabilities that the plans for chiropractic, physiotherapy and massage services are reasonable and necessary.
Assessment
102The purpose of an assessment is to determine whether a condition exists. The applicant bears the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
The applicant is entitled to the plan for a dietary assessment
103The applicant has met her onus to demonstrate on a balance of probabilities that the plan for a dietary assessment is reasonable and necessary.
104The plan was prepared by Dr. James Fung, chiropractor. The plan proposes documentation and support activity and a total body test. The goals of the plan are pain reduction, to assess the dietary intake and dietary impact as it relates to the recovery of the injuries, to return to activities of normal living, and to improve energy level and promote recovery through dietary recommendations. The treatment plan refers to a recommendation that was made by Dr. Sivapatham in a letter dated April 14, 2023.
105The applicant relies on a concussion evaluation that was conducted by Dr. Fung on March 31, 2023, where Dr. Fung concluded that the metabolic/inflammatory domain is best addressed by nutritional modification and intervention and recommended a nutritional consultation on brain recovery. The applicant points out that she reported to Dr. Fung that she has never had any discussion on nutrition for brain recovery. The applicant also refers to Dr. Fung’s concussion progress report dated July 27, 2023, submitting that Dr. Fung found that difficulty controlling her diet and nutrition posed a barrier to the applicant’s recovery.
106The applicant also relies on CNRs from Toronto Western Family Health (“Western”) dated April 28, 2023, indicating that, following a sports medicine appointment, it was suggested the applicant take supplements, magnesium, B2, Omega-3, and reduce white carbohydrates. The note indicates that this may help her get a dietician.
107The applicant further refers to Dr. Moores’ CNRs dated February 13, 2025, which note the importance of lifestyle modifications including adequate hydration, eliminating caffeine, and consuming regular meals and protein in the morning, to help with the applicant’s concussion-related headaches.
108The respondent submits that Dr. Fung is a chiropractor and not a dietician or nutritionist, and that there is no supporting opinion evidence from a qualified expert which explains the proposed consultation and the benefits to be derived. The respondent further argues that absent evidence to the contrary, it is not liable to pay for this experimental assessment, pursuant to s. 15(2) of the Schedule.
109I am satisfied that the applicant has demonstrated that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment. I am persuaded by Dr. Sivapatham’s recommendation in a letter dated April 14, 2023, for a nutritional assessment consultation, which I find is more likely than not based on Dr. Fung’s concussion evaluation on March 31, 2023. I have also considered the Western CNRs dated April 28, 2023, indicating that suggestions made at the applicant’s sports medicine appointment may help her get a dietician. I am also persuaded by Dr. Fung’s concussion progress report dated July 27, 2023, indicating that difficulty controlling her diet and nutrition posed a barrier to the applicant’s recovery, and Dr. Moores’ opinion that nutritional changes would help with the applicant’s concussion-related headaches.
110For these reasons, I find that the applicant has met her onus to establish on a balance of probabilities that the plan for a dietary assessment is reasonable and necessary.
Interest
111Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on any overdue payment of benefits.
Award
112The 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. To attract an award, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
113The applicant refers to the decision of Personal Insurance Company v. Hoang, 2014 ONSC 81 (“Hoang”), in submitting that the effect of the insurer’s unreasonable withholding or delaying of payments on the applicant is a factor to be taken into consideration in making an award, and that the award should be proportionate to the blameworthiness of the insurer’s conduct, the vulnerability of the insured, the advantage wrongfully gained by the insurer, and the need for deterrence.
114The applicant submits that her case fits squarely within the type of situation contemplated by Hoang and calls for maximum deterrence considering how the respondent failed to approve her treatment in the face of clear and persuasive medical evidence which it ignored or failed to reasonably consider, and that it failed to justify its denials.
115It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. I find that the applicant has made general submissions but has not directed me to specific examples with respect to how the respondent failed to justify its denials or how its behaviour was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.
116For these reasons, I find on a balance of probabilities that the applicant is not entitled to an award under Reg. 664.
ORDER
117For the above reasons, I find:
i. The applicant is entitled to the plan for optometric services and the plan for a dietary assessment. The applicant is not entitled to the remaining plans in dispute.
ii. The applicant is entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.
iii. The respondent is not liable to pay an award.
Released: February 17, 2026
Laura Goulet
Adjudicator