Citation: Hoshing v. TD General Insurance Company, 2026 ONLAT 24-006335/AABS

Licence Appeal Tribunal File Number: 24-006335/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:

Lucien Hoshing

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Amar Mohammed

APPEARANCES:

For the Applicant:

Gerald Sternberg, Counsel

For the Respondent:

Yuki Qiu, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Lucien Hoshing, the applicant, was involved in an automobile accident on September 11, 2016, 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:

i. Is the applicant entitled to $4,620.73 for physical therapy services proposed by HealthMax in a treatment plan/OCF-18 (“plan”) submitted January 14, 2023 and denied February 7, 2023?

ii. Is the applicant entitled to interest on any overdue payment of benefits?

3I note that the plan was submitted on January 31, 2023 and that January 14, 2023, as noted in the description of the issue above, is the date of the plan rather than the submission date.

RESULT

4The applicant is entitled to $4,620.73 for physical therapy services and to interest under s. 51 of the Schedule.

PROCEDURAL ISSUES

5The respondent filed a Notice of Motion dated June 20, 2025 seeking the following relief:

i. An order excluding the expert report of Dr. Lauren Karatanevski served on June 3, 2025.

ii. An order excluding the affidavit of the applicant, Lucien Hoshing, dated April 30, 2025.

iii. An order excluding the notes of Dr. Veronica Kekosz.

iv. An order that issue #2 in the applicant’s initial submissions be excluded from the hearing.

v. An order for costs.

6A Notice of Motion To Be Heard At Scheduled Event issued June 23, 2025 by this Tribunal invited the applicant to respond by June 30, 2025 and invited the respondent’s reply submissions to be filed by July 4, 2025.

7The written hearing was scheduled for July 4, 2025. The applicant did not file responding submissions to the respondent’s motion. However, on July 11, 2025, the applicant filed his own motion seeking an order allowing late production of the medical evidence and applicant’s affidavit, and to extend the deadline to file reply submissions for the main substantive hearing which were originally due June 27, 2025.

8The Tribunal noted the applicant’s submissions indicate that the late service of documents was due to personal issues affecting their representative. The applicant also submits that they were unable to access the service link for the respondent’s submissions and therefore require an extension to file a reply in the substantive hearing.

9The applicant’s motion was denied without prejudice to my discretion in determining the admissibility of the late-filed materials. Further, the order is clear that it does not prevent the applicant from filing reply submissions and that admissibility of any such filing will be assessed by the hearing adjudicator. I note that the applicant did not ultimately file any reply submissions.

10It would be expected that the party filing late materials would be the one making a motion for relief and to provide its reasons as contemplated by Rule 9.3. I have considered the applicant’s motion materials as his response to the respondent’s motion to exclude because the Tribunal found the applicant’s motion is the inverse of the relief sought in the respondent’s motion.

11The respondent refers to Rule 9.3 of the Licence Appeal Tribunal Rules suggesting I consider the following:

i. the reasons for non-compliance;

ii. whether a party will be prejudiced by the admission or exclusion of the evidence and the extent to which that prejudice can be mitigated by any other order;

iii. the extent to which the substance of the information or testimony lies within the knowledge of the other party;

iv. whether the other party opposes the admission of the evidence or testimony; and

v. the relevance of the document, thing, or testimony to an issue in dispute in the proceeding.

Reasons for non-compliance

12The applicant submits that the late production of the affidavit and medical evidence is due to personal issues of the applicant’s counsel in the month of December 2024. I do not find it necessary to re-produce the details in this decision. However, there is no explanation as to why the applicant’s affidavit was not produced prior to the deadline, by November 29, 2024 as required by the CCRO. Further, it was sworn five months after the deadline, on April 30, 2025 and produced on May 6, 2025. This substantial delay after December is similarly not addressed by the applicant’s submissions.

13As to the applicant’s evidence, it was due by December 16, 2024, and responsive evidence was due by January 15, 2025. I accept that the applicant’s reasons provided in submissions address these due dates. However, there is no explanation addressing the substantial delay after December 2024. On April 24, 2025, the applicant delivered clinical notes and records from Dr. Veronica Kekosz, which had not previously been produced to the respondent. On June 3, 2025, the eve before the applicant's written submission due date, the applicant delivered the expert report of Dr. Lauren Karatanevski, which had not previously been produced to the respondent.

14I find that the reasons provided explain some of the delay, in and around December 2024. However, the submissions do not address the substantial delay after December 2024. I have considered this in coming to my decisions below.

Prejudice

15The respondent simply argues that it will be prejudiced, and that late production is an abuse of process without making arguments to establish prejudice. The applicant proposes that any prejudice to the respondent may be mitigated by allowing the respondent to submit a sur-reply and that if the evidence is excluded, the prejudice to the applicant outweighs any prejudice to the respondent. It is not for the Tribunal to make arguments on behalf of a party, therefore, there are no specifics regarding prejudice argued by the respondent that I can consider mitigating by extending this hearing to incorporate further steps.

Evidence of Dr. Lauren Karatanevski and Dr. Veronica Kekosz

16I find that this evidence is admissible.

17The applicant will be prejudiced by the exclusion of the evidence. Since this evidence was produced for the first time on June 3, 2025 and April 24, 2025 respectively, and the respondent’s submissions were due after these dates, it cannot be said that it was not in the knowledge of the respondent. The respondent opposes the admission of the evidence; however, the respondent’s submissions do not address its claim that it will be prejudiced by this late production. The applicant argues that this decision should be made on the merits of the case rather than on technical breaches, I agree because the respondent is not prejudiced for the following primary reason. Ultimately, the evidence of Dr. Karatanevski and Dr. Kekosz do not assist the applicant in establishing that the plan in dispute is reasonable and necessary, for reasons provided in my analysis below. Since entitlement to the sole plan in dispute does not turn on this evidence, the respondent is not prejudiced by its admission.

18For the reasons above, I find that the late produced evidence is admissible.

Affidavit of Lucien Hoshing dated April 30, 2025

19I find that the affidavit is partially admissible.

20The respondent argues that no affidavit evidence is allowed pursuant to the CCRO. I find that paragraph 15 of the CCRO allows up to two affidavits to be filed, one from the applicant and one from a character witness. I do not have an affidavit from a character witness before me and the proposed relevance of this type of affidavit to the issue in dispute is not clear.

21Ultimately, only an applicant’s affidavit was filed. It is a single page in length and contains three statements, out of which, only the first two are relevant to the issue in dispute. First, the affidavit states that the applicant was receiving treatment at Health Max that was necessary, beneficial, and provided relief from pain. Second, that Dr. Kekosz who the applicant sees regularly continues to recommend ongoing physiotherapy treatment. This second statement is hearsay, and it is duplicative because the applicant has filed Dr. Kekosz’s records which can speak for themselves. The last statement is that the applicant attended Back In Action for cognitive problems and expects them to perform testing and devise a plan for ongoing treatment, this is not relevant to the disputed plan before me.

22The applicant will be prejudiced by the exclusion of the affidavit to the extent that he cannot rely on his statement that treatment at Health Max gave him pain relief. The respondent opposes the admission of the affidavit; however, the respondent’s submissions do not address its claim that it will be prejudiced by this late production. Further, considering the only admissible, relevant and non-duplicative portion is a single statement that treatment provided pain relief, any prejudice to the respondent is limited.

23I find that the affidavit is partially admissible as it has only a single statement that appears to be relevant to the single plan in dispute at this hearing.

Added Issue

24The applicant’s submissions state that he was not attempting to expand the scope of the hearing when he referred to seeking further treatment in his initial submissions. Those issues form part of a subsequent application at this Tribunal relating to plans submitted in 2025. For this reason, the issues in dispute at the hearing are limited to the plan in dispute and to interest as noted in the CCRO and in the issue section of this decision.

Costs

25The respondent is not entitled to $1,000.00 in costs.

26In my view, for purposes of my decision, Rule 19.1 and Rule 19.5 must be read together. Rule 19.1 states costs may be requested when another party has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.5 states, in deciding whether to order costs and the amount of costs to be ordered, I must consider all relevant factors including:

i. the seriousness of the misconduct,

ii. whether the conduct was in breach of a direction or order issued by the Tribunal,

iii. whether or not a party's behaviour interfered with the Tribunal's ability to carry out a fair, efficient, and effective process,

iv. prejudice to other parties,

v. and the potential impact an order for costs would have on individuals accessing the Tribunal system.

27The respondent’s submissions do not directly address the factors I must consider, noted above. The respondent seeks the maximum amount of $1,000.00 because three out of the four documents in the applicant's brief were produced late. Further arguing that the applicant submitted two new OCF-18s on the day before his submission due date and attempted to add the issue to this application. The respondent argues that the applicant has demonstrated a clear disregard for the Tribunal's authority and its entitlement to a fair hearing.

28I find that there is no evidence of the applicant acting unreasonably, frivolously, vexatiously, or in bad faith. The applicant explained the delay as best he could and to some extent as explained above, I have accepted that explanation. I do not have any additional or new OCF-18s before me that the applicant wanted me to consider adding to or deciding at this hearing. Rather, the applicant’s submissions state that he did not intend to add any new issues to this hearing. To the extent that the applicant included “Further treatment as outlined from Lauren Karatanevski of Back in Action”, as an issue that remains unresolved, he does not ultimately make any argument in that regard in his submissions. While the relevance of the statement in submissions is certainly questionable, it does not amount to behaviour that would attract costs.

29For the reasons above, the respondent is not entitled to costs of $1,000.00.

ANALYSIS

Applicant’s evidence

30The applicant filed the following evidence for consideration at this hearing:

i. Dr. Kekosz notes dated February 1, 2022, July 20, 2022, November 15, 2022, March 21, 2023, May 31, 2023, and January 14, 2025

ii. Dr. Basile report dated August 16, 2022

iii. Dr. Lauren Karatanevski chart and reports dated June 2, 2025

iv. Affidavit of Lucien Hoshing

Causation

31It is well established law that the appropriate test to determine causation in accident benefit cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121 (“Sabadash”). To satisfy this test, the applicant must prove on a balance of probabilities that “but for” the accident he would not have suffered the impairments which form the basis for his application. The Court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability. Further, that the accident need not be the only cause of the impairment but a necessary cause. In analyzing causation, it is necessary to compare the applicant’s pre- and post-accident life to determine to what extent any accident-related impairment affected his ability to function.

32The applicant argues that his accident-related diagnoses include:

i. rotator cuff tear,

ii. neck pain and low back pain,

iii. headaches,

iv. sleep deprivation,

v. post concussive syndrome which is consistent with a traumatic brain injury,

vi. posttraumatic headaches,

vii. chronic pain syndrome with central sensitization which could form a barrier to recovery.

Findings on causation necessary for assessment of the disputed plan

33In the context of this hearing, I find it is unnecessary to make a finding on causation beyond what is required to assess whether the plan in dispute is reasonable and necessary. This is the sole substantive issue before me listed in the Case Conference Report and Order.

34Dr. Vincenzo Santo Basile’s s. 25 neurology assessment report dated August 16, 2022 states the applicant’s likely accident-related diagnoses are, post concussive syndrome, posttraumatic headaches, tinnitus, soft tissue injuries, and chronic pain syndrome. Dr. Basile’s report lists clinical notes and records reviewed between 2017 and 2020 including from Bombardier Medical Clinic and from the applicant’s family doctor, giving me reason to give weight to Dr. Basile’s opinion. The respondent did not refer to evidence or make submissions addressing the applicant’s 2022 chronic pain syndrome diagnosis directly but excluded it from the list of diagnoses it accepts. Accordingly, there is nothing rebutting this diagnosis for me to consider.

35Another factor supporting the applicant’s position is that the respondent approved in September 2022 what it refers to as a similar OCF-18 to the one in dispute before me. I find that that it is therefore a reasonable inference that causation as it relates to the disputed plan should be accepted without good reason or evidence that something has become apparent after September 2022 that brings this into question. This is not to suggest that causation for all of the applicant’s injuries and impairments is settled or should be treated the same way. Once again, it is unnecessary to assess anything beyond what is required in relation to the disputed plan before me.

Evidence on causation of his overall condition

36The applicant recognizes the causation issue and provides general submissions. The applicant argues it can be deduced from all of the medical evidence he relies on that all of the above-mentioned injuries are a result of the subject accident. The applicant further argues that he has consistently and continuously complained of the same injuries to his doctors and treatment providers post-accident.

Potential Parkinson’s Disease and Debate on Diagnosis

37The respondent argues that on November 18, 2017, the applicant was assessed by neurologist Dr. Mark Bryer regarding stiffness and limb pain. The applicant reported to Dr. Bryer that months after the accident, he noticed muscle stiffness in his neck, shoulders and mid-back and reported no limitation of movement. Dr. Bryer opined the applicant had "unambiguous features of parkinsonism, probable Parkinson's disease. This would account of his stiffness, nocturnal pain and gait instability." It is further noted that the applicant has taken Parkinson medication since, which was helpful to his symptoms according to the applicant’s reporting to Dr. Kekosz.

38Dr. Oshidari in his IE dated August 30, 2022, notes that the applicant developed movement disorder after the motor vehicle accident and the movement disorder was not caused by the accident.

39The respondent refers me to the January 14, 2025 note of Dr. Kekosz which states that his symptoms started a year after the accident and there is still debate surrounding a diagnosis. The relevant portion states:

[The applicant] is suffering ongoing pain in the neck, shoulders and it appears that the onset of his symptoms started one year after the collision. There is still some debate as to what the precise diagnosis is. He does not have the typical presentation of a Parkinsonian patient but he does have improvement in his tightness and stiffness with Levocarb.

40Dr. Karatanevski notes that testing for Parkinson’s was negative and offers a different diagnosis:

A CT scan returned normal results, and testing for Parkinson’s disease initiated through insurance came back negative. Nevertheless, the patient was prescribed Parkinson’s medication to manage ongoing joint and muscle stiffness.

Clinically, the patient’s presentation is consistent with a diagnosis of Sympathetic Overload Syndrome, a condition that reflects chronic autonomic nervous system dysregulation following traumatic stress. The syndrome is marked by persistent neuromuscular stiffness, heightened sensory sensitivity, cognitive and emotional changes, and the sensation of disconnect between mental and physical function.

41Accordingly, I find that the record is unclear as to the applicant’s diagnosis relating to his overall condition. Dr. Bryer opines there is potential that the applicant has Parkinson’s disease in 2017, and Dr. Oshidari opines in August 2022 that he has a movement disorder not caused by the accident. The applicant also relies on Dr. Kekosz, but she states as of January 2025 that the applicant’s diagnosis is still debated, and in June 2025 Dr. Karatanevski concludes that the applicant’s presentation is consistent with a diagnosis of Sympathetic Overload Syndrome. However, there is no criteria, diagnostics and testing, or review of medical records indicated as a basis for this conclusion. At most, the latest opinions add to the debate of the applicant’s diagnosis and to the question of causation for the applicant’s overall condition rather than settling it. On the evidence I find that I have not been referred to any evidence that would conclusively and reliably counter Dr. Basile’s diagnosis of chronic pain syndrome as a result of the accident.

42Based on the above, on a balance of probabilities, I find that the applicant is diagnosed with soft tissue injuries of the neck and back and chronic pain syndrome as a result of the accident.

Is the applicant entitled to $4,620.73 for physical therapy services

43I find that the applicant is entitled to this disputed plan.

44To 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.

45The applicant did not provide a copy of the disputed plan although argues that it clearly identifies relevant goals and barriers that I should review. Nonetheless, in this case I was able to locate a copy in the respondent’s materials.

46The plan identifies the following goals: pain reduction, increase range of motion, increase strength, a return to activities of normal living and to pre-accident work activities. The plan identifies the following barriers to recovery: “Severity of injuries, Multiple injuries, Sleeping difficulties, Psychological signs and symptoms Neurological signs and symptoms in L/S and C/S.” The plan recommends these strategies to overcome these barriers: “Comply with physical rehabilitation program, Co-management with physician and specialist, MRI of L shoulder, cervical and lumbar spine, Psychological consultation, Chronic pain management”.

47The plan proposed the following therapies: chiropractic, physiotherapy, manual therapy, laser therapy, shockwave therapy, acupuncture, spinal decompression therapy.

48In a s. 25 neurology assessment dated August 16, 2022, Dr. Basile recommends massage, physical, and chiropractic therapy for improvement of his soft tissue injuries because of worsening symptoms since treatment was reduced. Dr. Basile opines the applicant has soft tissue injuries in the neck and back and that he has likely converted to chronic pain syndrome. I find that the record does establish a diagnosis of chronic neck and back pain for which this disputed plan is reasonable and necessary.

49The respondent argues that the applicant sustained soft tissue injuries and a potential concussion as a result of the accident. The respondent relies on a s. 44 Multidisciplinary Assessment Report, dated March 21, 2017, referring to a physiatry and psychological opinion. Further, it argues that all of his injuries meet the definition of a minor injury except that he was removed from the MIG due to a possible concussion on September 7, 2022, as assessed by Dr. Brandon Kucher, neurologist. The reason behind removal from the MIG is not directly relevant to whether or not the disputed plan is reasonable and necessary. The respondent refers to Parkinson’s disease as the reason for the applicant’s current complaints, however, as reviewed above, a Parkinson’s disease diagnosis has never been provided and there is a debate as to the applicant’s diagnosis in the record before me as recently as 2025. I was not referred to any specific evidence rebutting the applicant’s chronic pain syndrome diagnosis.

50Further, the respondent argues this plan is not reasonable and necessary because it approved a similar plan in September 2022 in the amount of $4,820.48 over the course of ten weeks of treatment and there is still $670.00 remaining. I do not have any reasons from the applicant as to why the previous plan has not been fully incurred. I also do not have details from the respondent as to what portions of that approved plan have not been incurred. In that sense, I find that a decision on whether the current proposed plan is reasonable and necessary should not be based on speculation relating to the $670.00 not incurred yet on a previously approved plan.

51Based on the above, on a balance of probabilities, I find that the applicant is diagnosed with soft tissue injuries of the neck and back and chronic pain syndrome as a result of the accident for which I find that the disputed plan is reasonable and necessary. Beyond this, while the parties have argued many aspects of the file, I find that any other findings are beyond the scope of the disputed plan at issue before me.

Interest

52The applicant is entitled to interest because interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

ORDER

53For the reasons above, I make the following orders:

i. The applicant is entitled to $4,620.73 for physical therapy services and to interest under s. 51 of the Schedule.