Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 24-007275/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:
Charles Frankfurt
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR: Harouna Saley Sidibé
APPEARANCES:
For the Applicant: Lawson Hennick, Counsel
For the Respondent: Lyrica Roche, Counsel
HEARD: By way of written submissions
OVERVIEW
1Charles Frankfurt, the applicant, was involved in an automobile accident on April 13, 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, 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 $632.42 ($4,132.42 less $3,500.00 approved) for physiotherapy services, proposed by Focus Physiotherapy Inc. in a treatment plan/OCF-18 (“plan”) dated May 4, 2023?
ii. Is the applicant entitled to $3,165.66 for physiotherapy services, proposed by Focus Physiotherapy Inc. in a plan dated March 21, 2024?
iii. Is the applicant entitled to $598.44 ($3,491,39 less $2,892.95 approved) for psychological services, proposed by Injury Management and Medical Assessments in a plan dated July 12, 2023?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
3In his written submissions, the applicant withdrew the Minor Injury Guideline (“MIG”) issue because the respondent removed him from the MIG on July 19, 2023, due to psychological impairments.
RESULT
4For the reasons below, I find that:
The applicant is entitled to the outstanding amount of $632.42 and to $3,165.66 for physiotherapy services, plus interest.
The applicant is not entitled to the outstanding balance of $598.44 for psychological services.
The applicant is not entitled to an award.
PROCEDURAL ISSUES
(a) Document exclusion
5I find that the documents at issue should not be excluded. For the reasons that follow, the respondent has not established prejudice sufficient to warrant the extraordinary remedy of exclusion.
6The Case Conference Report and Order (“CCRO”) dated November 6, 2024, established a structured timetable for document production. It required the parties to exchange specified documents within 30 days of the case conference; all remaining documents intended for use at the hearing within 60 days; and any responsive documents arising from earlier disclosure within 90 days. The respondent submits that the applicant did not comply with these deadlines.
7The respondent argues that certain medical records and reports were served outside the CCRO timelines and should therefore be excluded. It submits that the late disclosure violates both the CCRO and the Licence Appeal Tribunal Rules (“LAT Rules”), thereby weakening its capacity to respond effectively during the hearing.
8The documents the respondent seeks to exclude are:
i. Updated records from Dr. Shirley Poon (family physician);
ii. Records of Dr. Emily Tam (physiatrist);
iii. Records of the Interventional Pain and Spine Specialists of Canada (“IPSSC”);
iv. A section 25 neurological assessment by Dr. Lance Majl; and
v. Any additional materials served after the CCRO deadlines.
9The applicant opposes the request. He submits that the documents are highly relevant and probative, and that their disclosure caused no actual prejudice. The applicant further submits that exclusion is reserved for deliberate or egregious conduct, which is not present in this case. He relies on Luu v Intact Insurance Company, 2025 CanLII 55813 (ON LAT), in which the Tribunal held that exclusion is an exceptional remedy and that the threshold for it is high.
10I accept the applicant’s position that the respondent has not shown actual prejudice arising from the timing of the disclosure. The respondent had ample opportunity to review the materials, and nothing in the record suggests deliberate withholding or improper conduct warranting exclusion.
11Records of Dr. Poon: The February 25, 2025, consultation note and the related X‑ray were disclosed promptly on March 3, 2025, approximately four months before the respondent’s submissions deadline. These records are clinically relevant to the right‑shoulder issue. A previously missing September 20, 2024, record was also produced and falls clearly within the relevant period. I accept the applicant’s explanation that the respondent’s allegation of “deliberate shielding” is unsupported; one of the allegedly missing visits relates only to a urinalysis and is not relevant to the issues before me.
12Neurological Assessment (Dr. Majl, s. 25): This s. 25 report, commissioned by the applicant, was received on May 14, 2025, and forwarded to the respondent the same day. It is relevant and forms part of the applicant’s assessment process. The respondent has not identified any meaningful prejudice arising from its timing.
13Physiatry Records (Dr. Tam): The referral occurred on February 25, 2025, and the report was finalized on March 7, 2025. I am satisfied that the disclosure was timely in the circumstances. The respondent also has multiple physiatry assessments from its own assessor, Dr. Marchuk, which further undermines any suggestion of prejudice.
14IPSSC Records: The respondent’s position that these records were not provided before the submissions is contradicted by an email dated June 2, 2025, submitted by the applicant, which demonstrates timely disclosure. The records were completed on May 27, 2025, and are only two pages long. Even if the disclosure were marginally late, the brevity and limited complexity of the materials significantly mitigate any impact.
15Respondent’s Concern Regarding s. 44 Review: The respondent argues that the alleged late disclosure prevented its assessor from reviewing updated materials. However, the evidence shows that the respondent failed to provide its assessor with Dr. Tajedin Getahun’s January 7, 2025, chronic pain report, a key document. This undermines the respondent’s claim of prejudice and suggests that its position is inconsistent with its own conduct.
16I am not persuaded that exclusion is warranted. The Tribunal exercises its discretion to exclude evidence sparingly. The evidence in dispute is medical in nature and contributes to a longitudinal understanding of the applicant’s impairments and treatment needs. Any concerns about timing or completeness can be addressed by adjusting the weight assigned to the evidence rather than by excluding it.
17Further, the purpose of the CCRO deadlines is to promote orderly preparation and ensure procedural fairness. In this case, the applicant’s disclosure, even if imperfect, does not compromise fairness. The respondent had sufficient opportunity to review and respond to all materials before the hearing. The late disclosure was neither deliberate nor strategic. The documents are relevant, probative, and necessary to the determination of the issues in dispute. Excluding them would unduly impair the fact‑finding process and would not serve the interests of justice.
18Accordingly, on a balance of probabilities, I admit the documents. Any concerns about timing or gaps in the record will be taken into account when assessing the overall weight of the evidence.
(b) Adverse inference
19I find that no adverse inference should be drawn.
20In his report dated October 13, 2023, the respondent’s physiatrist, Dr. Yuri Marchuk, deferred his treatment‑plan opinion pending further imaging of the applicant’s right shoulder. He advised that an MRI was required to confirm or exclude the suspected diagnosis.
21The respondent subsequently issued a letter dated July 26, 2024, declining to proceed with the treatment plan until the MRI was completed and inviting the applicant to contact the insurer if he wished to proceed with the imaging request. The applicant has not undergone the MRI and has not provided correspondence from his family physician stating that the imaging is unnecessary.
22The respondent argues that the Tribunal should draw an adverse inference because the applicant refused to undergo the recommended MRI and failed to produce a medical opinion contradicting Dr. Marchuk’s recommendation.
23The applicant disputes this. He states that he fully cooperated with the insurer’s assessments, including attending an in‑person examination with Dr. Marchuk, followed by two paper reviews conducted by the same assessor. He submits that an MRI is unnecessary given the substantial imaging and specialist assessments already obtained, and that he has not refused reasonable medical investigation but has instead provided ample diagnostic evidence addressing the disputed issues.
24I am not satisfied that an adverse inference is warranted. Although an MRI may have helped clarify the right‑shoulder diagnosis, the applicant has participated in all insurer‑initiated assessments and has provided extensive imaging and specialist evidence. The respondent has not shown that the absence of the MRI meaningfully impairs its ability to respond to the issues before me. Nor has it established that the applicant’s decision amounts to a refusal that justifies drawing an adverse inference.
25Accordingly, on a balance of probabilities, I find that no adverse inference will be drawn from the applicant’s decision not to undergo an MRI.
ANALYSIS
Is the applicant entitled to the disputed treatment plans?
26To receive payment for a treatment and assessment plan under s. 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 treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
27Sections 38(8) and 38(11) of the Schedule set out the consequences of an insurer’s non‑compliant treatment‑plan denial. Where an insurer fails to provide adequate medical and other reasons in accordance with s. 38(8), then s. 38(11) compels the insurer to pay for the goods and services of that treatment plan relating to the period starting on the 11th business day after the treatment plan is received and ending on the day that a proper denial notice is delivered: Aviva v. Catic, 2022 ONSC 6000 at para. 18 (Div. Ct.). If a deficient denial is not cured prior to the Tribunal hearing the dispute, then it is no longer open to the insurer to cure it: Aviva v. Suarez, 2021 ONSC 6200 at para. 36 (Div. Ct.)
The Plan dated May 4, 2023 (outstanding amount of $632.42)
28I find that the applicant is entitled to payment of the remaining balance of the physiotherapy plan.
29The May 4, 2023, treatment plan, totalling $4,132.42, was completed by physiotherapist Chandni Mehta. It identifies the treatment goals as pain reduction, increased range of motion, improved strength, improved posture, enhanced function, and return to activities of daily living and work. The proposed interventions include multiple‑site physiotherapy sessions, multiple‑site manual therapy, and TENS unit accessories.
30On May 24, 2023, the respondent partially approved the plan, authorizing 11 one‑hour physiotherapy sessions totalling $3,500 and denying the remainder, including 18 manual‑therapy sessions, 12 additional physiotherapy sessions, and the TENS accessories.
31The remaining amount in dispute is $632.42.
32The applicant submits that he sustained physical and psychological impairments in the accident and that physiotherapy was reasonably required to address pain, stiffness, weakness, and functional limitations. He argues that the medical evidence consistently supports the need for continued physiotherapy beyond the initial block of approved sessions.
33The respondent submits that its denial was appropriate because the applicant was within the MIG at the time and the disputed amounts exceeded the $3,500 funding limit.
34The denial letter confirms the insurer’s reliance on MIG limits and does not address the medical necessity of the disputed items. It merely states that the disputed services exceeded available MIG funding. However, the applicant was removed from the MIG on July 19, 2023, due to psychological impairment. This change in classification is significant because the MIG no longer governed entitlement after that date.
35The issue before me is whether, based on the full record and the post‑MIG framework now applicable, the remaining portion of the May 4, 2023, plan is reasonable and necessary.
36The ED consultation from Humber River Hospital on April 13, 2023, documents pain in the right shoulder and right‑sided back shortly after the accident, consistent with soft‑tissue injuries.
37On April 19, 2023, the applicant’s family physician, Dr. Poon, recommended massage therapy and physiotherapy for the right‑shoulder and back sprains.
38The applicant then began physiotherapy, as reflected in the SOAP notes from early May 2023 onward.
39On October 13, 2023, Dr. Marchuk’s physiatry IME diagnosed whiplash‑associated disorder (WAD II), bilateral shoulder myofascial dysfunction (right greater than left), right rotator cuff tears (query), thoracic myofascial dysfunction, and lumbar musculoskeletal dysfunction. In his July 22, 2024, addendum, he noted reduced right‑shoulder range of motion in abduction and internal rotation, along with positive Hawkins‑Kennedy and Empty‑Can tests, raising the possibility of a rotator cuff injury.
40On January 7, 2025, orthopaedic surgeon Dr. Getahun diagnosed chronic thoracic and lumbosacral myofascial strain, chronic right‑shoulder strain, and chronic pain syndrome. He explicitly recommended further physiotherapy in a multidisciplinary rehabilitation setting.
41On March 7, 2025, treating physician Dr. Tam again recommended physiotherapy, including a gradual strengthening program for the right shoulder and rotator cuff, as well as exercises to improve upper‑back strength and posture.
42I accept that the medical record demonstrates a consistent presentation of soft‑tissue and shoulder‑related impairments beginning immediately after the accident and continuing throughout the period in question. Both treating and independent assessors support physiotherapy as an appropriate modality to address these impairments.
43The disputed portion of the May 4, 2023, plan represents a relatively modest amount and is directed toward functional restoration, pain reduction, and improved range of motion, goals well supported by the clinical findings. The respondent’s sole basis for denial was that the MIG limit had been reached; however, once the applicant was removed from the MIG, the insurer’s MIG‑based denial no longer served as a barrier to funding.
44Given the longitudinal nature of the applicant’s symptoms, the clinical recommendations, and the relatively low cost of the remaining services, I find the disputed amount reasonable and necessary. I am therefore satisfied that the remaining portion of the physiotherapy plan is payable.
45Accordingly, on a balance of probabilities, I find that the applicant is entitled to $632.42 for the May 4, 2023, physiotherapy plan.
The Plan dated March 21, 2024 ($3,165.66)
46I find that the applicant is entitled to the physiotherapy treatment plan.
47The plan, dated March 21, 2024, totals $3,165.66 and was completed by physiotherapist Chandni Mehta. The goals align with those of earlier plans, including pain reduction, improved range of motion, strengthening, postural improvement, enhanced functional capacity, and return to daily and work activities. The plan proposes 14 sessions of physical rehabilitation, 14 sessions of manual therapy across multiple body regions, TENS‑unit use, and related clinical documentation.
48The applicant argues that the respondent acted unreasonably in denying the plan on the basis of an inconclusive physiatry opinion that deferred its conclusions pending an MRI, despite other medical evidence supporting continued physiotherapy. He submits that the insurer had no conclusive medical basis for the denial and that physiotherapy addresses multiple functional areas, not solely the right shoulder.
49The respondent submits that the plan was denied because the medical evidence was insufficient to establish that the physiotherapy was essential. It argues that its physiatrist recommended an MRI for diagnostic clarity, but the applicant refused to undergo it. Accordingly, the respondent maintains that the denial was justified until the MRI was completed.
50The applicant relies on Dr. Tam’s March 7, 2025, consultation, which states that advanced imaging would not alter management and that an MRI was unnecessary. It includes Dr. Tam’s physical exam and review of referral info, representing independent clinical judgment, not self-reported symptoms.
Regarding the MRI
51I acknowledge that insurers may reasonably seek diagnostic clarity when the evidence is genuinely insufficient to determine the necessity of treatment. However, the record does not establish that the insurer’s reliance on the pending MRI was grounded in a definitive medical opinion that the physiotherapy itself was not reasonable or necessary. Rather, the insurer’s rationale effectively conditioned coverage on the completion of an MRI, even though the proposed physiotherapy addressed multiple injuries beyond the right shoulder and was supported by treating‑physician evidence.
52I give greater weight to the treating specialist's opinion, Dr. Tam, who concluded that advanced imaging would not meaningfully alter clinical management and that an MRI was not required to proceed with physiotherapy. I also accept the applicant’s submission that the physiotherapy plan addresses multiple functional complaints, including back, thoracic, and postural impairments, and is not limited to shoulder pathology.
53I find that the respondent’s denial was not grounded in a substantive medical opinion but instead relied on the applicant’s lack of an MRI, which, in itself, is not a sufficient basis to deny treatment, particularly when treating specialists confirm that imaging would not affect treatment planning.
54In light of the above, I am satisfied that the applicant has provided sufficient medical evidence to establish, on a balance of probabilities, that the proposed physiotherapy treatment is reasonable and necessary. The plan is supported by treating‑provider assessments, corresponds to the applicant’s ongoing functional limitations, and is not contradicted by any substantive medical opinion. As the reasonableness and necessity of the treatment have been established, a s. 38 analysis is not strictly required to determine entitlement.
55Accordingly, on a balance of probabilities, I find that the March 21, 2024, plan is payable.
Psychological Services dated July 12, 2023 (outstanding amount of $598.44)
56I find that the applicant has not met his onus of establishing entitlement to the outstanding $598.44 for the psychological treatment plan.
57The July 12, 2023, plan totals $3,491.39 and was prepared by psychologist Leanne Wagner and registered psychotherapist Umair Malik. The plan identifies treatment goals of addressing clinical psychological symptoms, improving daily functioning, and supporting a return to pre‑accident work and activities. It proposes clinical documentation, 15 sessions of mental health and addictions counselling, 15 support‑activity documentation entries, a preparation service, and a treatment‑planning service.
58The respondent approved $2,892.95 for counselling sessions, support‑activity documentation, and core clinical components. It denied $598.44 for preparation and treatment‑planning services.
59The applicant submits that the denied items, including preparation, planning, and progress reporting, are integral to safe, effective psychotherapy, as they reflect therapeutic oversight, monitoring, and goal‑setting. However, beyond these submissions, the applicant did not file corroborating clinical evidence (such as a letter from the treating psychologist or psychotherapist explaining the specific tasks, duration, and necessity of the disputed items), nor did he direct me to any clarifying details addressing these charges.
60The respondent maintains that the disputed “Preparation” and “Planning” entries are administrative in nature and not payable under the Schedule.
61The respondent relies on the Professional Services Guideline (“The Guideline”) (FSCO Superintendent Guideline No. 03/14) to argue that the hourly psychotherapy rate is intended to include overhead and routine administrative activities, with a separate cap for form‑completion fees. On this record, the applicant did not provide evidence showing that the disputed entries fall outside what is ordinarily captured by the hourly rate or the form‑completion cap, or that they reflect distinct clinical interventions beyond routine charting and case management.
62The respondent also cites A.G. v. Aviva Insurance Canada, 2020 CanLII 42648 (ON LAT), where the Tribunal found that certain documentation and planning activities fall within the hourly psychotherapy rate. The applicant did not provide caselaw to the contrary, and did not distinguish A.G. with evidence showing that the specific preparation and planning here constituted separate, clinically necessary services.
63The determinative question is whether the disputed items constitute reasonable and necessary therapeutic services under the Schedule, rather than non‑payable administrative costs captured by the Guideline. The applicant bears the evidentiary burden.
64I accept that structured treatment planning and periodic review can be part of effective psychotherapy. However, in the absence of supporting clinical materials (e.g., a provider letter detailing the nature of the tasks, their frequency, and how they are not already encompassed by the hourly service) or explanatory OCF‑18 entries linking these items to specific therapeutic interventions, I am left with assertions rather than proof. On this record, there is insufficient evidence to conclude that the disputed entries reflect separate, reasonable, and necessary treatment components rather than activities contemplated within the hourly psychotherapy rate.
65Although I am not bound by prior LAT decisions, the respondent’s reliance on A.G. v. Aviva is persuasive on these facts. The applicant did not provide any authority or evidence supporting a different outcome. Further, there is no indication that these entries do not duplicate clinical services already funded, nor is there evidence that they were linked to discrete, clinically justified deliverables beyond routine treatment planning and documentation.
66In these circumstances, I find that the applicant has not met his burden, on a balance of probabilities, to establish that the disputed preparation and treatment‑planning items are reasonable and necessary within the meaning of the Schedule.
67Accordingly, on a balance of probabilities, I find that the applicant is not entitled to payment of the outstanding amount for the psychological treatment plan.
Interest
68Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that the applicant is entitled to interest on any overdue payments ordered in this decision, in accordance with the Schedule.
Award
69The 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.
70The applicant submits that the respondent failed to reasonably manage the file, failed to consider evolving medical information, maintained denials despite evidence supporting treatment, and insisted on completing an MRI contrary to treating‑provider recommendations. He argues that these actions prolonged his impairments and constitute an unreasonable withholding of benefits.
71The respondent submits that its decisions were grounded in the information available at the time. It maintains that the early denial was based on the applicable MIG limits and that the later physiotherapy dispute reflected a need for diagnostic clarity via MRI, which the applicant declined to pursue.
72An award is an exceptional remedy. The fact that an insurer is ultimately found liable to pay a benefit does not, without more, establish that the insurer acted unreasonably. The question is whether, in the circumstances at the time of adjudication, the insurer’s conduct amounted to unreasonable withholding or delay.
73In this case, although I have ultimately found the disputed benefits payable, I am not persuaded that the respondent’s conduct meets the high threshold for an award. This does not amount to conduct that is clearly unreasonable, reckless, or taken in disregard of the applicant’s rights.
74Accordingly, on a balance of probabilities, I find that the applicant is not entitled to an award.
ORDER
75For the reasons above, it is ordered that:
i. The applicant is entitled to the outstanding amount of $632.42 and to $3,165.66 for physiotherapy services, plus interest.
ii. The applicant is not entitled to the outstanding balance of $598.44 for psychological services.
iii. The applicant is not entitled to an award.
Released: February 19, 2026
Harouna Saley Sidibé
Adjudicator