Licence Appeal Tribunal File Number: 24-008247/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:
Mona Ashiger
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Kathleen Wells
APPEARANCES:
For the Applicant:
Bianca Crocetti, Paralegal
For the Respondent:
William Lewer, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Mona Ashiger, the applicant, was involved in an automobile accident on August 3, 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, TD General 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 a non-earner benefit of $185.00 per week from August 31, 2022 and ongoing?
Is the applicant entitled to the assessments and services proposed by Body Dynamics, as follows:
i. $19.74 ($2,219.74 less $2,200.00 approved) for a psychological assessment, in an OCF-18/treatment plan (“treatment plan”) submitted October 12, 2022; and
ii. $158.73 ($3,587.99 less $3,429.26 approved) for physiotherapy services, in a treatment plan dated August 8, 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?
3The respondent submits that issue #2(i), as set out in the Case Conference Report and Order (”CCRO”) with respect to the applicant’s entitlement to $4,395.00 for chiropractic services in a treatment plan submitted August 5, 2022 is no longer in dispute, as the respondent has approved the treatment plan.
4The respondent submitted a letter dated May 26, 2025 approving the treatment plan. As the evidence indicates there is no longer a dispute with respect to this treatment plan, I will not consider it further in this decision.
5With respect to issue #2(ii), as set out in the CCRO, and identified above as issue #2(i), the CCRO indicates that the initial amount sought in the treatment plan was $3,607.73 of which $3,587.99 was approved. However, the evidence reveals that the OCF-18 for a psychological assessment sought $2,219.74 of which $2,200.00 was approved. Therefore, I have corrected the amounts sought by the applicant and approved by the respondent.
RESULT
6I find that:
The applicant is not entitled to an NEB of $185.00 per week from August 31, 2022 and ongoing.
The applicant is not entitled to the remaining balance of $19.74 for a psychological assessment in the treatment plan submitted October 12, 2022.
The applicant is not entitled to the remaining balance of $158.73 for physiotherapy services, in a treatment plan dated August 8, 2024.
As no payments are owing, no interest is due.
The applicant is not entitled to an award.
The application is dismissed.
PROCEDURAL ISSUE
7The respondent seeks to exclude the s. 25 assessment reports of Mandeep Kaur Singh, psychological associate, dated July 22, 2022, and Dr. Vincente Santo Basile, neurologist, dated August 15, 2024, because the applicant did not provide signed Acknowledgment of Expert’s Duty forms in accordance with Rule 10.2 of the Licence Appeal Tribunal Rules.
8The applicant did not make submissions in reply with respect to this issue.
9While the applicant did not provide signed Acknowledgement of Expert’s Duty forms, I note that both Mr. Kaur and Dr.Basile provided extensive information about their qualifications and experience in their respective s.25 reports. Further, the respondent did not identify how it would be prejudiced if the s. 25 reports were included.
10As a result, I decline to strike the s. 25 assessment reports.
ANALYSIS
Is the applicant entitled to a non-earner benefit (“NEB”)?
11I find that the applicant has not established on a balance of probabilities that she is entitled to an NEB in the amount of $185.00 a week from August 31, 2022 and ongoing.
12Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
13The applicant submits that she suffered a complete inability to carry out a normal life as a result of her accident-related injuries. She relies on the May 5, 2023 s.25 assessment of Mandeep Kaur Singh, psychological associate; the August 15, 2024 neurological assessment of Dr. Vincente Santo Basile, neurologist; and the concussion assessment of Roja Rohani, physiotherapist. They all opined that the applicant suffered a complete inability to carry on a normal life as a result of her accident-related injuries. She also relies on the November 15, 2024 chronic pain assessment of Dr. Igor Wilderman, chronic pain consultant, who also opined that the applicant suffered a substantial inability to carry out her pre-accident activities of normal life.
14The respondent argues that the applicant has not met her onus to prove that she has suffered a complete inability to carry on her normal life within 104 weeks of the accident, because the applicant has not made submissions with respect to her pre-accident function, and the applicant has repeatedly indicated to assessors that she is independent in her personal care and participates in her household responsibilities with assistance from her children. The respondent further argues that the applicant has not established that her complaints of weakness and pain are a result of the accident. and that the reports of Mr. Singh, Dr. Basile, and Dr. Wilderman should be afforded little weight.
15The respondent relies on the January 5, 2023 s. 44 multidisciplinary insurer’s examination (“IE”) report, which consisted of the in-home occupational therapy assessment of Faye Perreras, occupational therapist; the neurology assessment of Dr. Robert Yufe, neurologist; the general practitioner assessment of Dr. Frank Loritz, physician; and the psychological assessment of Dr. Arpita Biswas, psychologist. They all opined that the applicant had not suffered a complete inability to carry on a normal life as a result of her accident-related injuries.
16The applicant submitted an OCF-1 on August 12, 2022, which indicates that she was not employed at the time of the accident, and an OCF-3 on August 10, 2022, which was completed by Solmaz Zanjani, chiropractor, and indicated that the applicant suffered a complete inability to carry on a normal life as a result of her accident related injuries. The accident-related injuries were identified as soft tissue injuries to her back, shoulders, ribs, hip, and extremities, as well as concussion, headaches, and radiculopathy and psychological symptoms.
17The applicant submits that it is “important to note” that she suffered a stroke in 2010, and had been hospitalized with right-sided pain and weakness, as well as chest and back pain for 3 days in April, 2021, more than a year before the accident. The applicant directs me to the clinical notes and records(“CNRs”) of the St. Michael’s Hospital which reveal that the applicant reported that she had experienced intermittent right-sided weakness since her 2010 stroke, and that she had been attending physiotherapy for back pain for a year. She underwent diagnostic testing and a neurological examination and was diagnosed with a functional neurological disorder and was referred to the St. Michael’s Hospital functional neurological clinic, and was discharged with a recommendation for physiotherapy.
18The applicant has not made submissions with respect to any further neurological treatment, however the applicant made additional visits to the emergency departments at St. Michael’s Hospital and Humber River Hospital. The CNRs of the applicant’s family doctor reveal that she complained of right-sided pain and weakness again in April and November 2024.
19The CNRs of the applicant’s family doctor shed little light on the applicant’s pre-accident function, and the ODSP form Activities of Daily Living checklist completed by Dr. Abdelsalam on January 25, 2025, does not support a finding that the applicant suffers a complete inability to carry on a normal life as a result of her accident-related injuries, as it indicates that the applicant is independent in her personal care, and has mild to moderate impairment with respect to her household responsibilities. He notes a severe impairment in the areas of socializing, hobbies, and sustained exercise or strength commensurate with her age.
20The respondent argues that Mr. Singh’s s. 25 psychological report should be assigned little weight, because Mr. Singh conducted a virtual assessment and the only medical document he reviewed was the OCF-3.
21Mr. Singh conducted a virtual interview and diagnosed the applicant with Adjustment Disorder, and, Specific Phobia, Driver, and opined that the applicant had suffered a complete inability to carry on a normal life as a result of her accident-related psychological impairment and physical injuries. I assign little weight to Mr. Singh’s s. 25 report because the only listed medical document reviewed was the OCF-3, which listed multiple injuries that were not corroborated by contemporaneous medical evidence. Further, Mr. Singh did not conduct a physical examination of the applicant, and as he is a psychological associate, not a physician, physical medicine is outside his scope of practice.
22I assign also assign little weight to the August 15, 2023 s. 25 neurology report of Dr. Basile, neurologist, who also opined that the applicant suffered a complete inability to carry on a normal life as a result of her accident-related injuries. Dr. Basile conducted his assessment 2 years after the accident, and based his findings with respect to the applicant’s pre- and post accident medical history and function on the reports of the applicant, which were not consistent with her reports to previous assessors. For instance, the applicant told Dr. Basile that she had not been on any medication prior to the accident, but told Dr. Biswas and Dr. Lovitz at their respective IEs that she had been on Gabapentin at the time of the accident for pain to her right side that had persisted after her 2010 stroke. She also told Dr. Basile that she had been treated at the hospital after the accident, which is inconsistent with the applicant’s submissions and her reports to other assessors that she had left the hospital prior to being seen by a physician.
23Further, it is unclear how Dr. Basile concluded that the applicant’s injuries were a direct result of the accident, because he did not have access to the applicant’s complete medical records. Dr. Basile states that he was not provided any hospital CNRs, but found imaging records through Connect Ontario from St. Michael’s Hospital in 2021. Dr. Basile does not mention the applicant’s 2021 hospitalization, symptoms or neurological diagnosis in his report.
24I also assign little weight to the November 15 s. 25 chronic pain assessment of Dr. Igor Wilderman, chronic pain consultant, in which Dr. Wilderman diagnosed the applicant with chronic pain, and opines that she suffered a substantial inability to perform her pre-accident activities. The report reveals that the only medical records reviewed for the assessment were the s. 25 reports of Mr. Singh and Dr. Basile, which I have assigned little weight. Further, the applicant’s reported medical and work history are inconsistent with the applicant’s submissions.
25Finally, the applicant has not made submissions or directed me to evidence with respect to her pre-accident activities in which she ordinarily engaged. The applicant does not identify the activities she values or how often she engaged in these activities. Absent this information, it is not possible for me to compare and assess the applicant’s pre- and post- accident activities as required by Heath.
26For these reasons, I find that the applicant has not met her onus to prove on a balance of probabilities that she has an inability to carry out a normal life as a result of the accident.
27As a result, I find that the applicant has not met her onus to prove on a balance of probabilities that she is entitled to an NEB in the amount of $185.00 per week from August 31, 2022 and ongoing.
28To 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.
29The 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.
Is the applicant entitled to the remaining balance of $19.74 ($2219.74 less $2,200.00 approved) for a psychological assessment, in a treatment plan submitted October 12, 2022?
30I find that the applicant has not established on a balance of probabilities that the remaining balance in the treatment plan for a psychological assessment dated October 12, 2022 is reasonable and necessary.
31The treatment plan, prepared by Mandeep Singh seeks $2,219.74 for a psychological assessment.
32The respondent submits that it approved the $2,200.00, which is the maximum amount set out in s. 25 of the Schedule for an assessment. It denied $19.74, which was the amount in excess of $2,200.00.
33As the applicant has not made submissions or directed me to evidence that the psychological assessment should be funded in excess of the amount set out in s. 25, I find that the applicant has not met her onus to prove on a balance of probabilities that the remaining balance of $19.74 is reasonable and necessary.
34Accordingly, the applicant is not entitled to the remaining balance of $19.74 in the treatment plan for a psychological assessment dated October 12, 2022.
Is the applicant entitled to the remaining balance of $158.73 ($3,587.99 less $3,429.26 approved) for physiotherapy services, in a treatment plan dated August 8, 2024?
35I find that the applicant is not entitled to the remaining balance of $158.73 in a treatment plan for physiotherapy services dated August 8, 2024.
36The treatment plan was prepared by Manali Patel, physiotherapist, and seeks $3,587.99 for physiotherapy services, including 12 sessions of physical rehabilitation at a rate of $112.81 per hour and 8 sessions of physiotherapy at a rate of $100.00 per hour.
37The applicant submits that the treatment plan is reasonable and necessary to treat the applicant’s accident-related injuries.
38The respondent submits that it approved $3,429.26 of the amount sought in the treatment plan, and that the remaining balance reflects the difference between the hourly rate of a physiotherapist set out in the treatment plan, and the rate of $99.75 set out in the Professional Services Guideline Number 03/14 (“Guideline”), published by Financial Services Commission of Ontario.
39The Guideline establishes the maximum expenses payable by automobile insurers under the Schedule related to services provided by health care professions, or health care providers listed within the Guideline. The maximum rate for a physiotherapist (non-catastrophic impairments) is $99.75. Insurers are not prohibited from paying above any maximum amount or hourly rate established in the Guideline.
40As the applicant does not make submissions or direct me to evidence to support a rate higher than the maximum Guideline rate for a physiotherapist, I find that the applicant has not met her onus to prove that the remaining balance of $158.73 is reasonable and necessary.
41Accordingly, the applicant is not entitled to the remaining balance of $158.73 in the treatment plan for physiotherapy services dated August 8, 2024.
Interest
42Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are owing, no interest is due.
Award
43The 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.
44As the applicant as not made submissions or directed me to evidence with respect to an award, I find that the applicant has not met her onus to prove on a balance of probabilities that she is entitled to an award.
45Accordingly, the applicant is not entitled to an award.
ORDER
46I find that:
The applicant is not entitled to an NEB in the amount of $185.00 per week from August 31, 2022 and ongoing.
The applicant is not entitled to the remaining balance of $19.74 for a psychological assessment in the treatment plan submitted October 12, 2022.
The applicant is not entitled to the remaining balance of $158.73 for physiotherapy services, in a treatment plan dated August 8, 2024.
As no payments are owing, no interest is due.
The applicant is not entitled to an award.
The application is dismissed.
Released: March 2, 2026
Kathleen Wells
Adjudicator