Nita v. Economical Insurance Company, 2026 CanLII 15095

Citation: Nita v. Economical Insurance Company, 2026 CanLII 15095

Licence Appeal Tribunal File Number: 24-008462/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:

Paul Nita

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR: Jeff Chatterton

APPEARANCES:

For the Applicant: Jono Schneider, Counsel

For the Respondent: Nicholas Maida, Counsel

HEARD: In Writing

OVERVIEW

1Paul Nita, the applicant, was involved in an automobile accident on November 1, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Economical 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:

1. Is the applicant entitled to $3,951.20 for Physiotherapy Services, proposed by Aqua Wellness in a treatment plan/OCF-18 (“plan”) dated November 10, 2023?
2. Is the applicant entitled to 3,861.20 for Physiotherapy Services, proposed by Aqua Wellness in a plan date January 12, 2024?
3. Is the applicant entitled to $3,726.20 for Physiotherapy Services, proposed by Aqua Wellness in a plan dated April 16, 2024?
4. Is the applicant entitled to $2,460.00 for an Orthopaedic Assessment, proposed by Hydrohealth Evaluations Inc. in a plan dated September 30, 2024?
5. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
6. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is entitled to $3,951.20 for Physiotherapy services, as well as interest on the overdue payment of benefits (issue 1).

4The applicant is not entitled to the disputed plans in issues 2, 3 and 4.

5The respondent is not liable to pay an award.

PROCEDURAL ISSUES

Submissions length

6The respondent raises a procedural issue, raising an objection over the length of the applicant’s submissions.

7In the Case Conference Report and Order, dated October 25, 2024, the applicant was ordered to limit their submissions to 10 pages. The applicant has submitted 17 pages of written argument, and the respondent has requested the Tribunal not take into consideration the submissions after the tenth page. The respondent argues that allowing a lengthy submission puts undue prejudice on the ability of the respondent to argue their case.

8The applicant has not provided a reasonable explanation for the lengthy submission.

9While I note the Case Conference Report and Order limits submissions to ten pages, I also note that it allows me to choose whether or not to consider submissions in excess of page limits. I find that the prejudice to the applicant by limiting their submission would far outweigh the prejudice to the respondent should I allow the full submission. As the mandate of the Schedule is primarily, consumer protection, I have taken all 17 pages into consideration.

Document Exchange

10The respondent has requested that the Tribunal draw an adverse inference due to the applicant’s failure to produce five sets of clinical notes and records. The respondent argues that the applicant, despite agreeing to do so at the case conference, has failed to produce the following documents:

i) Complete clinical notes and records from Dr. Sorin Palcu from February 14, 2023 to October 25, 2024;

ii) Complete clinical notes and records from Dr. Tarun Mansukhani;

iii) Complete clinical notes and records from National Cannabinoid Clinic;

iv) Complete clinical notes and records from Dr. Neil Jamensky;

v) Complete decoded OHIP summary from July 26, 2024 to October 25, 2024.

11The applicant has not replied to the concerns raised by the respondent about document exchange. I do note that the Clinical Notes and Records (CNR’s) from Dr. Palcu were provided to the Tribunal with the applicant’s evidence.

12While it is not necessary for me to rule on whether or not I find an adverse inference, I shall take this information into consideration and consider the weight of the evidence as I rule on whether or not the applicant has met his onus to establish that the treatment plans in dispute are reasonable and necessary.

ANALYSIS

Physiotherapy Services ($3,951.20) dated November 10, 2023.

13The applicant is entitled to $3,951.20 in physiotherapy services.

14To 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.

15In dispute is an OCF-18 submitted by Aqua Wellness, proposing fifteen sessions of physical therapy, muscle manipulation and supervised exercise. The stated goals were pain reduction and increased strength and range of motion, with a functional goal of a return to activities of normal living and modified work duties.

16To support their claim, the applicant relies upon the Clinical Notes and Records (“CNRs”) from the family physician, Dr. Sorin Palcu. I note these CNRs were not shared with the respondent during document exchange as identified in the Case Conference Report and Order, however, they were produced as part of the applicant’s submissions. Dr. Palcu noted on at least two separate occasions, specifically October 13, 2023 and November 10, 2023, that the applicant was suffering from right knee, neck and lower back pain, but that the pain was made better with physiotherapy.

17While I am alive to the respondent’s claim that the applicant has not shared critical medical evidence, I will allow Dr. Palcu’s CNR’s to be entered as evidence because of the significant prejudice to the applicant’s case were that to be barred.

18The applicant also argues that the original denial letter, dated January 25, 2024, stated that the reason for the denial was because the applicant was being held to the MIG, however, the MIG is no longer an issue in dispute. It was not disclosed to me why the applicant has been removed from the MIG, but in any event, the respondent’s original claim that the applicant is being held to the MIG no longer applies.

19The respondent disagrees that the physiotherapy treatments are reasonable and necessary, and relies upon the s.44 assessment report authored by GP Dr. Dina Pohani, dated October 18, 2023. Dr. Pohani states that she “did not identify any musculoskeletal or neurological impairment related to the subject motor vehicle accident.” Of note, this IE was originally conducted to determine eligibility for income replacement benefits, as opposed to the disputed treatment plans. Therefore I give the s.44 assessment less weight because it does not refer specifically to the issues before us.

20The respondent further relies on a s.44 assessment report authored by GP Dr. Ahmad Belfon on July 4, 2024, where Dr. Belfon diagnosed the applicant with sprain and strain type injuries, but opined that such injuries were insufficient to remove the applicant from the MIG. Again, as the applicant has subsequently been removed from the MIG, I also give the s.44 assessment report from Dr. Belfon less weight, since his original recommendation has been overturned.

21Given that that the applicant has provided independent supportive and contemporaneous medical evidence that he was receiving benefit from physiotherapy, I find that the applicant has, on a balance of probabilities, met his onus to demonstrate entitlement to the treatment plan for physiotherapy dated November 10, 2023.

Physiotherapy Treatment Plans dated January 12, 2024 and April 16, 2024.

22The applicant is not entitled to two further physiotherapy treatment plans.

23The applicant’s submissions remain the same as the first issue in dispute.

24The respondent’s submissions are largely unchanged from the first issue in dispute.

25While I find that the applicant has established entitlement to the previous 15 sessions of physiotherapy, I do not find that the applicant has proven that additional sessions beyond that would be reasonable and necessary. The submissions from the applicant used to support the first treatment plan remain the same, but I have not been led to supportive medical evidence which indicates that even further treatment would be necessary. Nor have I been led to supportive medical evidence which indicates that the two treatment plans in dispute are not largely duplicative or unnecessarily repetitive.

26In the absence of supportive medical evidence to indicate even more sessions of physiotherapy are required, I find the applicant has not, on the balance of probabilities, met the onus to establish he is entitled to the two treatment plans for physiotherapy in dispute (issues 2 and 3.)

Issue 4 – Orthopaedic Assessment

27The applicant has not met his onus to establish that an orthopaedic assessment is reasonable and necessary.

28The purpose of an assessment is to determine whether a condition exists. For an insured, they bear 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.

29The applicant argues that an orthopedic assessment is reasonable and necessary, because he was suffering from mobility challenges. To support his claim, the applicant argues that he attended a surgeon assessment with Orthopedic Surgeon Dr. Paul West on October 29, 2024, who reported that the applicant suffered from chronic pain and should continue with physiotherapy and multi-disciplinary treatment. The applicant has submitted Dr. West’s report into evidence.

30The respondent argues that a decoded OHIP summary, which they were provided with, shows that the applicant underwent an orthopaedic consultation on January 11, 2024 with a Dr. Sattarian, and an anaesthesiology consultation on January 17, 2024 with Dr. Jamensky. While the OHIP summary indicating those consultations took place was shared with the respondent, the reports of both of those consultations have not been produced or shared with the respondent or provided as evidence at this hearing.

31In summary, we know that consultations have taken place, but the applicant has not shared with us what those consultations have reported. The applicant has not replied as to why those records have not been produced. Neither have they provided any evidence or submissions as to why further consultation would be necessary, considering the applicant underwent an orthopaedic consultation earlier in the year.

32For this reason, I find the applicant has not met his onus, on a balance of probabilities, to establish that an orthopaedic consultation is reasonable and necessary.

Interest

33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies on the awarded treatment plan, issue 1, as per the Schedule.

Award

34The 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.

35The applicant submits that he sent six written letters to the insurer over 11 months, but didn’t receive a single response. He argues this points to a pattern of stubborn, obstinate behaviour.

36The respondent counters that they have sent multiple letters to the applicant, continuing to request medical evidence. However, the respondent was not sent the requested evidence, or the evidence was submitted months after the initial request.

37I find that while the insurer was incorrect in denying benefits for issue 1, above it is well settled that an award should not be ordered simply because an insurer made an incorrect decision. I further note that the respondent was also, at the same time, waiting for requested medical evidence. While the applicant has submitted that the respondent was not responsive to communications, the respondent has also established that the applicant did not provide relevant medical documentation to enable it to continue to adjust the claim.

38In summary, I do not find that the insurer’s conduct rises to the level justifying an award.

ORDER

39The applicant is entitled to $3,951.20 for physiotherapy benefits, outlined in issue number 1, as well as interest as per s. 51 of the Schedule.

40The applicant is not entitled to the remaining issues in dispute, and an award is not payable.