Licence Appeal Tribunal File Number: 24-011741/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:
Le Man Luong
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
David Carranza, Paralegal
For the Respondent:
Elizabeth Scott, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Le Man Luong, the applicant, was involved in an automobile accident on August 12, 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, Wawanesa Mutual 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 $2,071.62 for Botox Injections, proposed by Dr. Nhan Thien Tong, physician, in a treatment plan dated October 13, 2022?
ii. Is the applicant entitled to $1,896.25 for an Occupational Therapy In-Home Assessment and Form 1, proposed by Sonia Sharma, occupational therapist (“OT”) of Excel Medical Diagnostics, in a treatment plan dated September 19, 2022?
iii. Is the applicant entitled to $2,968.50 for a Physiatry Assessment, proposed by Dr. Rahim Jessa, in a treatment plan dated July 12, 2023, 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?
3I find upon review of the treatment plans in dispute, that the Case Conference Report and Order has incorrectly listed the dates of the treatment plans in dispute for issue ii and iii. I have therefore amended the issues in dispute to correctly identify the treatment plan dates as September 19, 2022 and July 12, 2023 respectively.
RESULT
4I find that the applicant is not entitled to the treatment plan for Botox injections dated October 12, 2022.
5I find that the applicant is entitled to the treatment plan for an Occupational Therapy In-Home Assessment and Form 1, dated September 19, 2022, plus interest.
6I find that the applicant is entitled to the treatment plan for a Physiatry Assessment, dated July 12, 2023, plus interest.
7I find that the respondent is not required to pay an award under s. 10 of Reg. 664.
PROCEDURAL ISSUES
Exclusion of the Psychological Assessment Report of Dr. Knolly D. Hill
8The respondent submits that the applicant’s submissions include a Psychological Assessment report, prepared by Dr. Knolly D. Hill dated December 14, 2022, that was not previously provided. The respondent argues that this report should be excluded from evidence as it does not comply with the production order and would be contrary to procedural fairness to allow it.
9The applicant in reply submits that the report of Dr. Hill was provided on December 22, 2022 by Yorkstar Rehabilitation Centre and has provided a copy of the Fax Confirmation.
10I find that the Fax Confirmation confirms that the report of Dr. Hill was sent to the respondent on December 22, 2022, and therefore the respondent was in receipt of this report prior to the applicant’s submissions. I therefore deny the respondent’s request to exclude the report from the evidence before me.
Exclusion of the Physiatry Insurer Examination Report of Dr. Adam Kassam
11The applicant submits that the respondent’s submissions include a Physiatry Insurer’s Examination (“IE”) report by Dr. Adam Kassam, dated May 12, 2025, that is new evidence. The applicant argues that the Tribunal should strike paragraphs 14 and 15 of the respondent’s submissions as they refer to a new medical report that was not previously disclosed or reviewed by the applicant’s medical experts. The applicant submits that inclusion of this report at this stage of the proceedings is procedurally unfair and prejudicial to the applicant.
12The respondent at paragraph 14 of its submissions, states that the applicant attended an IE assessment with Dr. Kassam, in relation to a subsequent treatment plan dated December 19, 2024, which is not part of the current application. At paragraph 15, the respondent sets out the findings of this assessment.
13As the respondent has acknowledged that this report deals with a treatment plan that is not part of the current application, I find that it is irrelevant to the issues in dispute. While I do not agree to strike paragraphs 14 and 15 of the respondent’s submissions, the report of Dr. Kassam has not been considered in determining the issues in dispute because it does not address any of the treatment plans in dispute.
ANALYSIS
Medical and Rehabilitation Benefits
14To receive payment for a treatment and assessment plan under sections 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. In the context of an assessment, while the applicant does not need to prove the condition exists, he must prove with persuasive evidence that there is some accident-related condition that warrants investigation via the proposed assessment.
Entitlement to the Treatment Plan for Botox Injections
15The applicant claims entitlement to $2,071.62 for Botox Injections, proposed by Dr. Nhan Thien Tong, physician, in a treatment plan dated October 13, 2022.
16The goals of the treatment plan are listed as pain reduction, increase in strength, increase range of motion, return to activities of normal living and return to pre-accident work activities.
17The applicant submits that she is entitled to Botox injections based on the Clinical Notes and Records (“CNRs”) of her family physician, Dr. Sy Hoang Nguyen, the CNRs of Dr. Tong, and the Physiatry Assessment report of Dr. S.W. Joseph Wong, dated December 8, 2023. She submits that she is entitled to the treatment plan because the treatment enabled her to return to work, albeit with difficulty, and to perform some of her activities of daily living.
18The respondent submits that the treatment plan is not reasonable and necessary. It denied the subject treatment plan by correspondence dated October 28, 2022, based on the applicant’s injuries being in the Minor Injury Guideline (“MIG”) and also based on the fact that Dr. Tong had not provided medical evidence to support that the applicant required Botox injections to her neck and back. Additional medical information, including the family doctor’s CNRs and specialist records, was requested. By correspondence dated January 19, 2024, following the applicant’s removal from the MIG, the respondent reassessed the treatment plan dated October 13, 2022, and denied it based on insufficient evidence that any other path of treatment was explored as Botox is considered a second line of treatment.
19I find that the applicant has not proven on a balance of probabilities that the treatment plan for Botox injections is reasonable and necessary.
20I find upon review of the CNRs of Dr. Nguyen, the applicant was first seen post-accident on August 13, 2022, at which time she requested a referral to Dr. Tong. There was no discussion or mention of any accident-related injuries in the CNR. I agree with the respondent that while the CNR dated August 13, 2022 was transcribed, the subsequent CNRs of Dr. Nguyen provided are not legible and were therefore increasingly difficult to decipher. If the applicant sought to rely on those subsequent CNRs that I found illegible, then it was up to the applicant to put their ”best foot forward” (see: Dooman v. TD Insurance, 2025 ONSC 184 at para. 59-64). I further find that the applicant has not pointed or directed the Tribunal to the specific CNRs of Dr. Ngyuen which supports or recommend Botox injections.
21Upon review of the CNRs of Dr. Tong, while the subject treatment plan is dated October 13, 2022, the first CNR on file is dated November 12, 2022. It therefore appears from the records that the treatment plan in dispute was prepared without an assessment by Dr. Tong. I find that in the subject treatment plan, Botox injections are recommended for the applicant’s back and neck, but no further particulars are provided which would inform the Tribunal of the basis for this recommendation. I further find that while the CNRs support that the applicant continued to see Dr. Tong until July 8, 2023, there is no mention or discussion of the proposed Botox injections anywhere in the records.
22I find that while the applicant submits that the treatment enabled her to return to work and her activities of daily living, she has not pointed the Tribunal to evidence that she actually received the Botox injections. The Auto Insurer Standard Invoice, dated September 19, 2024, lists the date of the Botox injections as October 13, 2022. However, upon review of the records of Dr. Tong provided, there is no record of the applicant receiving the Botox injections as the first date of the CNRs is November 12, 2022.
23The applicant in her reply submissions states that the respondent ignored the fact that the applicant pursued treatment by way of physiotherapy, massage therapy, acupuncture and medication. She argues that at the time of submission of the treatment plan, Botox injections were introduced as part of a comprehensive pain management program. However, I find upon review of the medical evidence provided by the applicant, there are no treatment records provided which set out the treatment received by the applicant prior to the submission of the treatment plan. While the applicant submits that she had received other forms of treatment, there is no evidence provided by the applicant which indicates the treatment she received prior to the submission of the treatment plan for Botox injections and no CNRs which support the recommendation for Botox injections at the time of submission of the treatment plan.
24I give little weight to the report of Dr. Wong in support of the subject treatment plan. I find that in his report, dated December 8, 2023, there is no specific recommendation for Botox injections, but rather he states that trigger point injections, Botox injections and nerve blocks can control muscle stiffness and control the pain. I find that there is no specification provided as to which body part requires Botox injections or which of the three types of injections Dr. Wong is recommending for the applicant. I find that Dr. Wong is generally making a statement that these types of injections can control muscle stiffness and pain without reference to the applicant specifically.
25For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities, that the treatment plan for Botox injections, dated October 13, 2022, is reasonable and necessary.
Compliance with s. 38(8) of the Schedule
26The applicant argues that the respondent’s denial of the treatment plan dated October 13, 2022, is non-compliant with s. 38(8) of the Schedule.
27Section 38(8) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 business days after receiving it by identifying the goods and services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide the medical and any other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.
28If an insurer fails to comply with s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer who fails to provide the insured with adequate notice of the reasons for its denials is prohibited by s. 38(11) from taking the position that the insured person has an impairment to which the MIG applies. Second, s. 38(11)(2) provides that if an insurer fails to provide proper notice of the reasons for its denial it must pay for all incurred goods, services, assessments and examinations described in the treatment and assessment plan that related to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives notice as described in s. 38(8).
29The applicant submits that the respondent’s denial failed to provide adequate medical reasons and all other reasons as part of its denials. She argues that the denials were boilerplate, deficient, and failed to reference any specific medical documentation in its possession that outlined the injuries sustained by the applicant. She further argues that the denials did not meet the standard established by the Tribunal, which requires that the notice be sufficient for an unsophisticated person to make an informed decision as to whether to accept the respondent’s decision or dispute it – thereby serving the consumer protection purpose of the Schedule.
30The respondent submits that its denial letters were not boilerplate and identified the specific treatment in dispute and cited relevant medical and other considerations relied upon for the denial. Its notices were clear and unequivocal and enough to allow the applicant to know what was at issue, fulfilling the requirements of s. 38(8). It argues that reference to the fact that the respondent had not received compelling information to indicate entitlement to the particular treatment or assessment being sought is sufficient.
31I find that the respondent’s denial letters dated October 28, 2022 and January 19, 2024, were valid denials. In determining whether an insurer’s denial is complaint with s. 38(8) of the Schedule, the analysis is not whether the denial is correct, but whether the notice meets the standard outlined in s. 38(8). Although the applicant submits that the denials were boilerplate and failed to reference any specific medical documentation in its possession that outlined her injuries, I disagree.
32I find that the denial dated October 28, 2022, identified the treatment plan in dispute and noted that the recommendation was for Botox injections to her neck and back. The respondent notes that based on the medical information provided, there are no CNRs to support the injuries listed in Part 6 of the subject treatment plan or that the applicant would require Botox injections for her neck and back. The denial specifically references the fact that the respondent has not received compelling medical evidence to support that her injuries are not MIG and requests information that it does not have but requires, namely, the CNRS of the applicant’s family physician and specialists, from August 1, 2019 to present.
33I also find that the subsequent denial letter dated January 19, 2024, was valid. The respondent provided specific reasons why each of the treatment plans that were reassessed following her removal from the MIG were payable or denied. With respect to the treatment plan in dispute, I find that the denial identified the treatment plan in dispute and specifies that it is not payable because it did not have sufficient evidence that any other path of treatment was explored as Botox is considered a second line of treatment.
34I find that while the applicant may disagree with the respondent’s stated reasons or its assessment of the medical documentation, it does not render the notices invalid. I find that the language of the denials was clear and straightforward and was sufficient to permit the applicant to make an informed decision as to whether to accept or refuse the denial. I find that these were clear and unequivocal denials.
35Having concluded that the respondent complied with its obligations outlined in s. 38(8), I find that the applicant has not met her burden of proving that the treatment plan for Botox injections dated October 13, 2022 is payable.
Entitlement to the Treatment Plan for an Occupational Therapy In-Home Assessment and Assessment of Attendant Care Needs
36I find that the applicant has proven on a balance of probabilities that she is entitled to the treatment plan recommending an In-Home Assessment and Assessment of Attendant Care Needs (“Form 1”).
37The applicant claims entitlement to $1,896.25 for an In-Home Assessment and Form 1, proposed by Ms. Sharma, of Excel Medical Diagnostics, in a treatment plan dated September 19, 2022.
38The goals of the treatment are to assess the applicant’s functional status and attendant care needs and to assess her need for assistive devices and other needs. Under Part 8, the treatment plan indicates that the applicant has not returned to work since her accident due to her physical limitations and she continues to experience pain in her neck and lower back which has affected her tolerance and ability to complete her basic and instrumental activities of daily living.
39In determining whether an assessment is reasonable and necessary, it must also be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if the condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary.
40The applicant submits that the treatment plan is reasonable and necessary to assess her functional impairments and to recommend accommodations to aid her recovery and safe return to activities of daily living and work. She relies upon the OT In-Home Assessment, prepared by Hannah Pope, Occupational Therapist, dated December 19, 2022, and the Form 1 dated December 7, 2022, which determined that she required $1,835.53 per month in attendant care benefits. The report notes the applicant’s complaints of pain in her neck and right shoulder worsened by reaching, and lower back pain aggravated by sitting, bending and lifting.
41The respondent submits that the treatment plan is not reasonable and necessary. It submits that by correspondence dated November 22, 2022, it denied the subject treatment plan because the applicant’s injuries were within the MIG and there was no compelling medical evidence to suggest that she is not independent with her personal care. The respondent submits that after the subsequent receipt of a Form 1, it arranged for a s. 44 IE assessment which the applicant failed to attend. Her representative advised that the applicant was not advancing a claim for attendant care benefits.
42In reply, the applicant submits that the respondent in its correspondence dated January 19, 2024, advised of the treatment plans they approved following her removal from the MIG, but failed to address the subject treatment plan in dispute. As the respondent no longer maintained its position that the applicant’s injuries fell within the MIG limits, but did not address this treatment plan, it is now obligated to pay same.
43I find that the applicant is entitled to the proposed assessment as there are sufficient objective grounds confirming that at the time of submission of the subject treatment plan, the applicant was suffering from impairments in her ability to carry out her activities of daily living.
44I find at the time of submission of this treatment plan, that the applicant had not returned to work and struggled with daily activities. I find upon review of the CNRs of Dr. Tong, that the applicant has proven that an OT In-Home Assessment and Form 1 was reasonable and necessary. The Disability Certificate prepared by Dr. Tong, dated August 16, 2022, indicates that she suffers a substantial inability to perform the essential tasks of her pre-accident and employment and a complete inability to carry on a normal life. She is diagnosed with moderate to severe neck and back pain with limited movements, headaches and anxiety. The updated Disability Certificate prepared by Dr. Tong, dated November 12, 2022, confirms that the applicant could return to modified duties but continued to suffer a complete inability to carry on a normal life. I find that the CNR of Dr. Tong, dated December 10, 2022, notes that she is to stay on modified light duties for three months with restrictions of no lifting over two pounds, alternating sitting and standing positions, limited stair climbing and avoiding of overhead reaching. These noted limitations support that she continued to suffer ongoing impairments and an assessment to address her functional difficulties was warranted.
45I further find that the CNRs of Dr. Nguyen, while difficult to decipher, note that she was seen on September 8, 2022, September 29, 2022, October 15, 2022, November 11, 2022, with ongoing physical complaints.
46I do not give weight to the respondent’s submission that the applicant subsequently decided not to pursue a claim for attendant care benefits as a reason for not finding the assessment to be reasonable and necessary because the issue before is not whether she is entitled to an attendant care benefit, but whether the assessment proposed at the time of submission is reasonable and necessary.
47I find in the respondent’s letter dated January 19, 2024, that it indicates that the subject treatment plan is withdrawn. However, it is clear that the applicant attended for the assessment and there is no evidence before me that she communicated to the respondent that she was withdrawing this treatment plan. I do not agree that the treatment plan would be withdrawn just because she subsequently decided not to pursue a claim for attendant care benefits. The respondent has not directed me to any case law to support this position.
48Given the evidence, I am satisfied at the time the subject treatment plan was submitted, there was sufficient objective grounds to warrant an assessment of the extent of the applicant’s impairments through an In-Home Assessment and a Form 1.
49For the reasons outlined above, I find that the applicant has proven on a balance of probabilities that the treatment plan for an In-Home Assessment and Form 1 is reasonable and necessary.
Entitlement to the Treatment Plan for a Physiatry Assessment
50I find that the applicant has proven on a balance of probabilities that she is entitled to the treatment plan recommending a Physiatry Assessment.
51The applicant claims entitlement to $2,968.50 for a Physiatry Assessment proposed by Dr. Rahim K. Jessa, in a treatment plan, dated July 12, 2023.
52The goals of the treatment plan are listed as, “to document current function in order to help improve biopsychosocial capabilities and to help objectify subjective complaints/dysfunction in order to conceptualize current condition”.
53The applicant submits that the treatment plan is reasonable and necessary to evaluate the severity of her injuries, identify the barriers to recovery and to determine the appropriate course of treatment. She relies upon the treatment plan itself. She submits that Dr. Jessa noted she was experiencing pain in the neck and lower back, which affected her ability to complete activities of daily living. Dr. Jessa also indicated that since a considerable amount of time has passed since the accident, the applicant has developed disabilities with respect to sitting, walking, bending, reaching, lifting and carrying. Despite the denial by the respondent, Dr. Wong prepared a Physiatry Assessment report dated December 8, 2023, which notes her complaints of headaches, constant pain in the cervical spine and thoracic spine, constant pain in the lumbar spine, as well as insomnia and stress. Dr. Wong confirmed the diagnosis of chronic pain which was also made by Dr. Tong.
54The respondent submits that the treatment plan is not reasonable and necessary. By correspondence dated July 28, 2023, it denied the treatment plan for a physiatry assessment based on the applicant’s injuries being MIG. It further denied the assessment because the applicant is required to first seek the assessment through OHIP. Following the applicant’s removal from the MIG, the respondent advised through correspondence dated January 19, 2024, that the assessment was not reasonable and necessary because she is currently seeing Dr. Tong, who is able to complete this assessment through OHIP.
55In reply, the applicant submits that contrary to the respondent’s submissions, it is worth noting that Dr. Tong is not the applicant’s treating physiatrist, but rather her treating pain specialist.
56I find that the treatment plan for a Physiatry Assessment was reasonable and necessary, and payable, as it was incurred.
57I find that the applicant has demonstrated that the goal of the assessment to have a specialist examine her 16 months post-accident where she continued to report ongoing physical pain and to determine the next steps in her recovery, was a reasonable and necessary one. I accept that this would allow the applicant to investigate whether there was any diagnosis not yet contemplated, and any treatment regimes not yet recommended that previous assessment had yet to uncover.
58Pursuant to s. 47(2) of the Schedule, the onus is on the respondent to advance submissions and evidence that establishes that an insurer plan or any other plan was reasonably available to fund the disputed treatment plan. I do not find that the respondent has provided sufficient evidence that a Physiatry assessment could have been funded by OHIP through Dr. Tong. I accept the applicant’s reply submission that Dr. Tong is not the applicant’s treating physiatrist, but rather her treating pain specialist. I find that the respondent has not provided sufficient evidence to refute this. In addition, I find that while the applicant has been under the care of Dr. Tung since the accident, it was reasonable for the applicant to investigate through a s. 25 assessment, whether there was any diagnosis not yet contemplated and any treatment regimes not yet recommended that previous assessments, had yet to uncover.
59I further find that while the respondent raises the credibility of the report of Dr. Wong because of the applicant’s subsequent injury on September 19, 2023, this injury is not relevant to whether the treatment plan in dispute is reasonable and necessary at the time of submission on July 12, 2023. The issue before me is not whether the findings of Dr. Wong can be relied upon in determining the reasonableness of the assessment.
60For the reasons outlined above, I find that the applicant has proven on a balance of probabilities that the treatment plan for a Physiatry Assessment is reasonable and necessary.
Interest
61Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the treatment plans dated September 19, 2022 and July 12, 2023 are payable, interest is payable in accordance with s. 51 of the Schedule.
Award
62The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
63The applicant submits that she is entitled to an award due to the respondent’s unreasonable position in maintaining denials after confirming that she no longer fell under the limits of the MIG. The applicant argues that the respondent failed to reassess and adjust its file based on the updated medical evidence, thereby impeding her recovery by denying the necessary treatment that she could not afford to pay on her own.
64The respondent submits that no conduct took place that would justify an award. It argues that its positions had a valid evidentiary basis, based on the applicant’s recovery and return to work and on the records, or lack thereof. The respondent states that when it received additional medical records, it removed the applicant from the MIG and re-visited the treatment plans that had been denied, as set out in its letter dated January 19, 2024. The respondent submits that the treatment plans in dispute were denied based on the information on file.
65I find that while the respondent denied the treatment plans in dispute, the applicant has not directed me to any evidence that the respondent disregarded evidence which resulted in the respondent unreasonably withholding or delaying payment of the disputed treatment plans. I find that while I have found that the applicant is entitled to two of the three treatment plans in dispute, I find that the respondent assessed the medical documentation in its possession and reassessed the denied treatment plans following her removal from the MIG in its letter dated January 19, 2024. While the applicant disagrees with the assessment by the respondent, I do not find that the respondent unreasonably withheld or delayed the payment of any benefits.
66For the reasons outlined above, I find that no award is payable.
ORDER
67For the reasons outlined above, I find:
i. The applicant is not entitled to the treatment plan for Botox injections dated October 13, 2022;
ii. The applicant is entitled to the treatment plan for an Occupational Therapy In-Home Assessment and Form 1, dated September 19, 2022, plus interest;
iii. The applicant is entitled to the treatment plan for a Physiatry Assessment, dated July 12, 2023, plus interest; and
iv. The respondent is not required to pay an award under s. 10 of Reg. 664.
Released: March 2, 2026
Melanie Malach
Adjudicator