Licence Appeal Tribunal File Number: 24-012381/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:
Harijan Pathmanathan
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Olga Poznyakova, Paralegal
For the Respondent:
Justin Chan, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Harijan Pathmanathan, the applicant, was involved in an automobile accident on June 12, 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, Aviva 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 a non-earner benefit of $185.00 pre week from July 10, 2023 to date and on-going?
ii. Is the applicant entitled to $2,098.64 for chiropractic, massage, osteopathic and acupuncture services, proposed by Prime Health Care Inc., in a treatment plan dated December 18, 2023?
iii. Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by Prime Health Care Inc. in a treatment plan dated December 24, 2023?
iv. Is the applicant entitled to $2,200.00 for a functional abilities evaluation (“FAE”), proposed by ALCAT Assessments in a treatment plan dated May 31, 2024?
v. Is the applicant entitled to $897.72 ($3,192.26 less $2,294.54 approved) for psychological services, proposed by Prime Health Care Inc. in treatment plan dated April 9, 2024?
vi. Is the applicant entitled to $1,196.96 ($4,711.59 less $3,514.63 approved) for psychological services, proposed by ALCAT Assessments Inc. in a treatment plan dated August 20, 2024?
vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
3I find upon review of the Case Conference Report and Order (“CCRO”), dated January 7, 2025, that there are several inconsistencies in the dates and treatment listed for the treatment plans in dispute. I have therefore amended the issues in dispute listed above which are consistent with the parties’ submissions and the treatment plans provided.
RESULT
4I find that the applicant is not entitled to a non-earner benefit of $185.00 per week from July 10, 2023 to date and ongoing.
5I find that the applicant is not entitled to the treatment plan for chiropractic, massage, osteopathic and acupuncture services, dated December 18, 2023.
6I find that the applicant is not entitled to the treatment plan for a chronic pain assessment dated December 24, 2023.
7I find that the applicant is entitled to the treatment plan for a FAE, dated May 31, 2024, plus interest.
8I find that the applicant is not entitled to the balance of the treatment plans for psychological services, dated April 9, 2024 and August 20, 2024.
9I find that the respondent is not required to pay an award.
PROCEDURAL ISSUES
Documentary Disclosure
10The respondent requests that the Tribunal draw an adverse inference against the applicant for failing to comply with the documentary disclosure ordered by the Tribunal in the CCRO dated January 7, 2025. At paragraph 10(f), the applicant was ordered to provide the respondent with a copy of the applicant’s DHL employment file from one year pre-accident to the date of the case conference.
11The respondent submits that the applicant has failed to comply with the Tribunal’s order to produce the employment file. It submits that an adverse inference should therefore be drawn against the applicant for failing to provide the employment file as ordered by the Tribunal to support his position that he turned down a promotion or that he required any modified duties.
12The applicant has not provided any submissions to address his failure to comply with the CCRO.
13I grant the respondent’s request that I draw an adverse inference against the applicant for failing to provide the relevant records as ordered by the Tribunal. The Tribunal has the discretion to draw an adverse inference where, in the absence of a reasonable explanation, a party fails to produce evidence that is within its control, and such evidence is material to the dispute. In the present case, the applicant did not comply with the Tribunal’s order as he failed to provide the requested records, and the applicant has not provided an explanation as to why he failed to comply with the Tribunal’s order.
ANALYSIS
Entitlement to a Non-Earner Benefit (“NEB”)
14I find that the applicant is not entitled to a NEB. He has not established, on a balance of probabilities, that he suffers a complete inability to carry on a normal life as a result of the accident.
15Section 12(1) of the Schedule provides that an insurer shall pay a NEB to an insured person who sustains an impairment as a result of an 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.”
16The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Insurance Company, 2009 ONCA 391 (“Heath”), which generally focuses on a comparison of the applicant’s pre- and post- accident activities.
17For the applicant to prove that he sustained injuries that continuously prevent him from engaging in substantially all of his pre-accident activities, he must present a thorough analysis and comparison of activities that he could do before and after the accident. The applicant must first identify the activities in which he used to engage, along with their frequency and importance.
18The applicant submits that he meets the test for entitlement to NEBs, as he has sustained a complete inability to carry on a normal life as a direct result of the accident. He claims that his persistent physical and psychological symptoms and credible self-reports demonstrate that he is eligible for a NEB. He submits that the Tribunal has accepted in previous decisions that individuals may qualify for NEBs even if they are able to complete certain tasks or occasional activities, provided their ability to do so is significantly limited by pain or results in ongoing discomfort. He submits that his entitlement to a NEB is supported by a range of persuasive medical evidence, including his OCF-3, dated June 13, 2023 prepared by Dr. Chad Hefford, chiropractor; his Application for Accident Benefits (“OCF-1”), dated June 26, 2023; the Psychological report of Dr. Jacqueline Brunshaw, dated April 8, 2024; the Psychological report of Dr. Valda Lopo, psychologist, dated August 2, 2024; and the Functional Abilities Evaluation (“FAE”) report of Dr. John Balkansky, chiropractor, dated August 15, 2024.
19The respondent submits that the applicant has failed to meet the test outlined in Heath and has not provided any evidence that the accident resulted in him suffering a complete inability to carry on a normal life. It further submits that the applicant has failed to provide any evidence that he was continuously prevented from engaging in substantially all activities in which he normally engaged pre-accident as per s. 3(7) of the Schedule. The respondent notes that the applicant was only seen by his family doctor, Dr. Vera Cheung, for two accident-related medical visits on June 13, 2023, with complaints of neck stiffness and on August 1, 2023, with complaints of left knee pain. In addition, the respondent submits that the applicant returned to his pre-accident full time employment as an Account Manager at DHL Express Canada two days after the accident. The respondent submits that based on the applicant’s own self-reports in the s. 44 assessments, he has resumed or can partially engage in all his pre-accident activities which include housekeeping, self-care, recreational activities, driving and returning to his pre-accident employment. It argues that a reduced ability to complete pre-accident tasks is insufficient to meet the test for NEBs, contrary to the applicant’s submissions and relies upon several Tribunal decisions. The respondent relies upon the General Practitioner Insurer’s Examination (“IE”) report of Dr. Mohamed Lamine, dated October 31, 2023; the Occupational Therapy In-Home Assessment report of Anghela Sivananthan, dated March 19, 2024 and the Psychological Assessment reports of Dr. Mehdi Lotfalizadeh, dated December 18, 2023 and April 25, 2024.
20The respondent relies upon the Court of Appeal decision in Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508, where the court held that an applicant may be entitled to NEBs even if they were employed at the time of the accident and returned to work afterwards. However, the court noted that it is unlikely a person who is capable of performing their pre-accident employment would meet the disability threshold required for NEBs.
21I find that the applicant has not proven on a balance of probabilities that he suffers from a complete inability to carry on a normal life for the following reasons.
22I find that the applicant has not made submissions on the particulars of his pre-accident activities as required by Heath. While he states that he is unable to perform his pre-accident activities, without details regarding the activities he valued, or evidence of the frequency and time commitments of his pre-accident activities, I cannot compare his pre- and post-accident ability to engage in activities he ordinarily engaged in or valued and therefore I find that the applicant has not met his onus.
23I find that a reduced ability to complete pre-accident tasks is insufficient to meet the test for NEBs. The test for entitlement to NEBs is stricter and requires the applicant to demonstrate a complete inability to continuously engage in substantially all of his pre-accident activities. While the applicant submits that the Tribunal has accepted in previous decision that individuals may qualify for NEBs even if they are able to complete certain tasks or occasional activities, no specific case law has been referred to for my review.
24I find that upon review of the OCF-3, dated June 13, 2023, that it notes the applicant does not suffer a substantial inability to perform the essential tasks of his employment as an account executive. While it does indicate that the applicant reports he is continuously prevented from engaging in substantially all of his pre-accident activities of daily living, the OCF-3 does not particularize the activities the applicant was unable to do.
25Upon review of the CNRs of the applicant’s family physician, Dr. Cheung, I agree with the respondent that the applicant was only seen post-accident for two accident-related visits, on June 13, 2023, with complaints of neck stiffness and on August 1, 2023, with complaints of left knee pain. While the applicant in reply submits that the respondent’s argument about the lack of records is misplaced because he has submitted s. 25 reports which thoroughly outline the applicant’s impairments, I agree with the respondent that the applicant has not provided any further records from his treating practitioners other than his s. 25 experts to support his ongoing impairment. The applicant has not referred to any other CNRs of the family physician in his submissions or pointed me to any CNRs from Prime Health Care, where he attended for treatment, to support the limitations he claimed to suffer in his activities of daily living. I give more weight to the evidence of treating practitioners that would document the applicant’s ongoing complaints.
26I find that with respect to the applicant’s physical limitations, he has only directed the Tribunal to the FAE report of Dr. Balkansky, dated August 15, 2024. The applicant submits that the report reveals several deficiencies that prevent the applicant from meeting the physical demands of everyday activities including cleaning, vacuuming, and yard work which would be exceedingly difficult and would significantly exacerbate his upper and lower back injuries. The applicant argues that Dr. Balkansky opined that the applicant is currently substantially unable to perform his activities of daily living and the essential tasks of his employment without activity modification. The respondent submits that Dr. Balkansky’s conclusions are inconsistent with the applicant’s level of functioning and his own testing results.
27I give little weight to the report of Dr. Balkansky. I find that Dr. Balkansky concluded that the applicant demonstrated sufficient physical abilities to perform his self-care independently, but all homemaking tasks would be functionally affected and would require assistance for their completion. He also notes that the applicant’s work activities would exceed his functional capacity. I agree with the respondent that Dr. Balkansky’s conclusions are inconsistent with the test results. In the active range of motion (“ROM”) test, the applicant demonstrated functional ROM in all areas assessed. In the manual muscle testing, only the applicant’s hand and left knee scored below the maximum score of 5 with the lowest score recorded as 3+, which corresponds to “Fair+” on the strength chart. I find that while Dr. Balkansky has opined that the applicant cannot perform his homemaking tasks post-accident, there is no indication as to what the applicant’s homemaking responsibilities were prior to the accident to make a comparison of his pre- and post-accident abilities as set out in Heath. In addition, while Dr. Balkansky opines that the applicant’s functional injuries affect his employment, no evidence has been provided by the applicant that his work duties were affected or modified as a result of the accident as he has not provided a copy of his Employment File which was ordered by the Tribunal.
28I give more weight to the IE reports of Dr. Lamine. In his report, dated October 31, 2023, he opined that the applicant sustained soft tissue injuries based on his examination of the applicant’s upper limb, thoracic/lumbar spine, lower extremity and cervical spine which revealed full ROM and 5 out of 5 strengths in all regions testing. The applicant reported that he returned to work after taking two days off after the accident. He reported slight to moderate restriction with his activities of daily living and home maintenance activities and indicated that he avoids lawn care, gardening and shoveling due to pain. In Dr. Lamine’s Paper Review, dated March 19, 2024, he reiterated his previous opinion that there was no objective accident-related musculoskeletal or neurological impairment and concluded that the applicant had partially resumed his recreational activities, home maintenance activities and activities of daily living and does not suffer a complete inability to carry on a normal life.
29I also give weight to the report of Ms. Sivananthan, dated March 19, 2024, which concluded that overall the applicant reported that he has resumed his personal care, and is engaging in components of his pre-accident housekeeping. He also reported that he has resumed his pre-accident work on a full-time basis and continues to engage with family and friends, although on a reduced basis. I find that Ms. Sivanathan did a thorough assessment of the applicant’s functional limitations and specifically dealt with each individual activity of daily living in terms of personal care, housekeeping and home maintenance. The applicant reported independence with all of his personal care tasks. In terms of housekeeping, he indicated which activities were performed by his parents pre-accident and he did not indicate any limitations with the tasks he performed pre-accident including meal preparation, dusting, washing dishes, vacuuming, cleaning his bathroom, changing his linens, grocery shopping, garbage removal. While he noted that he had some left knee pain, he was able to engage in lawn maintenance and snow removal. I therefore accept Ms. Sivananthan’s opinion that the applicant does not suffer a complete inability to carry on a normal life.
30From a psychological perspective, the applicant further submits that he suffers a complete inability to carry on a normal life. He relies upon the Psychological report of Dr. Brunshaw dated April 8, 2024, that reports since the accident he has sleep disturbances, low energy and a loss of interest in socializing, exercising and dating. I find upon review of the report of Dr. Brunshaw, that overall she concluded that the applicant suffers features of an adjustment disorder with mixed anxiety and depressed mood and specific, phobia, situational type, moderate to severe. She concluded that the applicant is experiencing difficulty carrying on a normal life as a result of his injuries including grocery shopping and struggling to participate in pre-accident hobbies and activities. The respondent argues that Dr. Brunshaw’s opinion does not confirm entitlement to a NEB because difficulties carrying on a normal life is not the correct legal test for NEBs. I agree with the applicant that the test for NEBs is a complete inability. While Dr. Brunshaw has indicated that the applicant is suffering difficulties, I agree that this is not sufficient to support entitlement to a NEB, and the applicant must provide evidence of a complete inability to continuously engage in substantially all of his pre-accident activities.
31The applicant further relies upon the Psychological report of Dr. Lopo, dated August 2, 2024, where Dr. Lopo notes that while the applicant reports feeling “much better” and has slowly resumed some physical activities, he continues to experience significant psychological distress. She notes that due to his anxiety with driving he has withdrawn from social events and decreased time spent with friends and family and declined a job promotion that required driving. While Dr. Lopo has diagnosed the applicant with Specific phobia (driving), I find that her report does not provide an opinion as to whether the applicant’s driving phobia has caused him to suffer a complete inability to carry on a normal life. I agree with the respondent that contrary to the applicant’s submissions, the applicant’s own self-report to Dr. Lotfalizadeh in her assessment dated December 18, 2023, is that he remained in touch with his friends and visits them often. In terms of hobbies and activities, he has not noticed any significant change from prior to the accident. I therefore do not accept the applicant’s submission that his driving phobia has caused him to suffer a complete inability to carry on a normal life.
32For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that he is entitled to NEBs.
Entitlement to Medical and Rehabilitation Benefits
33To receive payment for a treatment 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 that the goals of treatment are reasonable, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
Entitlement to the Treatment Plan for Physical Treatment
34I find that that the applicant is not entitled to the treatment plan for chiropractic, massage, osteopathic and acupuncture services.
35The applicant claims entitlement to $2,098.64 for chiropractic, massage, osteopathic and acupuncture services, proposed by Prime Health Care Inc., in the treatment plan dated December 18, 2023 and submitted on December 19, 2023. The treatment plan recommends the following:
Assessment, examination, total body: $200.00
4 sessions of massage therapy: $180.00
8 sessions of exercise: $902.48
8 sessions of manipulation: $320.00
4 sessions of osteopathy therapy: $232.76
8 sessions of acupuncture: $240.00
36The goals of the treatment plan are pain reduction, increase in strength, increase range of motion, restore full spine flexibility, and return to activities of normal living.
37The applicant submits that the treatment plan is reasonable and necessary based on the Psychological report of Dr. Brunshaw, dated April 8, 2024, which noted that the applicant continues to experience many difficulties which are impairing his overall functioning. He relies upon the FAE report of Dr. Balkansky, dated August 15, 2024, which identified physical impairments and noted various deficiencies in the applicant’s functional abilities. He further relies upon the Supplementary Report of Mishrun Attari, psychotherapist, dated May 8, 2025 which supports that the applicant continues to suffer from physical impairments that affect his daily living.
38The respondent submits that the applicant has failed to provide any contemporaneous or corroborating objective evidence that the applicant has a physical impairment that requires further treatment. It argues that based on the Decoded OHIP Summary, the applicant did not have any medical visits from August 1, 2023 until March 2, 2025, when he attended the Emergency Department and had a diagnostic image conducted of his chest. The respondent relies upon the IE report of Dr. Lamine, dated October 31, 2023, which opined that the treatment recommended is neither reasonable or necessary as the applicant does not have any objective accident-related musculoskeletal or neurological impairment.
39I agree with the respondent that the applicant has not provided any CNRs contemporaneous to the treatment plan in dispute to support that he required the proposed treatment. I find upon review of the Decoded OHIP summary, that the applicant did not seek any medical treatment between August 1, 2023 and March 2, 2025. I further find that his last visit to his family doctor was on August 1, 2023, where his only complaint was knee pain. No follow up with his family doctor was made following this visit. I also do not have a copy of the applicant’s CNRs from Prime Health Centre which would show the dates he attended for treatment, the progress made at these appointments and the complaints made by the applicant at these sessions.
40While I find that Dr. Balkansky in his report dated August 15, 2024, makes a recommendation for further structured physical rehabilitation efforts, I find that he has not commented on the specific recommendations made in the treatment plan in dispute. Meanwhile, the report of Dr. Lamine, was prepared to assess the treatment plan dated August 24, 2023, submitted prior to the treatment plan in dispute. I find that Dr. Lamine reviewed the Treatment Confirmation Form (“OCF-23”), dated June 13, 2023, the Minor Injury Treatment Discharge Report (“OCF-24”), dated August 25, 2023, and the treatment plan dated August 24, 2023, although a copy of these forms have not been provided for my review. Dr. Lamine notes that the applicant began receiving physical therapy the day following the accident and reported 10/10 improvement with his condition after the physical therapy. On examination, Dr. Lamine found that active ranges of motion were full in his cervical spine, upper limb, thoracic spine, lumbar spine and lower extremity, with no tenderness on palpation. I therefore accept Dr. Lamine’s opinion that there was no objective accident-related musculoskeletal or potential neurological impairment on assessment and further physical treatment is not reasonable and necessary. I further find that the respondent’s reliance on this report to deny the subsequent treatment plan dated December 18, 2023 is reasonable. There are no further records provided to the Tribunal between the date of the IE report and the submitted treatment plan.
41For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that the treatment plan dated December 18, 2023, is reasonable and necessary.
Compliance with s. 38(8) of the Schedule
42As an alternative argument, the applicant submits that the treatment plan in dispute is payable pursuant to s. 38(11) of the Schedule, as the respondent did not comply with the notice requirements of s. 38(8) of the Schedule.
43Section 38(8) of the Schedule sets out that within 10 business days after receipt of the treatment plan, insurers are required to provide an insured with a notice identifying the goods and services described in the treatment plan that it agrees to pay for and the medical and all other reasons why it considers the goods and services not to be reasonable and necessary. A consequence of the insurer’s failure to comply with s. 38(8) is that the benefits are payable as set out in s. 38(11).
44The applicant submits that the respondent’s denial letter dated January 3, 2024, did not comply with s. 38(8) as it was boilerplate, it does not address the applicant’s specific medical condition or the information provided in the treatment plan, it fails to include the medical or other reasons forming the basis of the decision and it does not identify any information the respondent requires from the applicant. The applicant further submits that the respondent relies upon an IE report that was not conducted in response to, nor in relation to, the disputed treatment plan. It relies upon the decision in Spano v. Aviva Insurance Canada, 2023 CanLII 58509 (ON LAT), where the Tribunal held that a denial based on an unrelated IE does not provide an accessible or understandable reason for denying benefits.
45The respondent submits that its January 3, 2024 Explanation of Benefits (“EOB”) provided adequate medical reasons and was not boilerplate. The denial was based on Dr. Lamine’s IE assessment reports dated October 31, 2023 and November 22, 2023, where he found no objective accident related musculoskeletal or potential neurological impairment and concluded that the previous submitted treatment plan dated October 2, 2023 was not reasonable and necessary. The respondent submits that the goals, health care providers and proposed treatment are completely identical for both treatment plans. The respondent argues that the EOB identifies the services it refuses to pay for and there is no requirement for the notice to refer to the specific goals and limitations listed in the treatment plan. The respondent further argues that it is not required to have every treatment plan assessed under s. 44 to support sufficient medical reasons for its denial and relies on several Tribunal decisions. In addition, contrary to the applicant’s submissions, the EOB did identify additional information the respondent required from the applicant as it made requests for productions pursuant to s. 33 including the CNRs from the applicant’s family physician and any progress reports or initial assessment reports from the treating clinics.
46I find upon review of the January 3, 2024 EOB, that it is a valid denial letter. The letter advises of the date of the treatment plan for chiropractic, massage, osteopathic and acupuncture services and states that the denial of the subject treatment plan is based on the IE reports of Dr. Lamine dated October 31, 2023 and November 22, 2023. I find that the respondent provided clear and medical reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision. I do not agree with the applicant that the respondent must send every treatment plan for its own assessment where the treatment recommended, goals and treatment providers are identical to a previously assessed treatment plan and are contemporaneous in submission dates. I further find that the respondent requested the CNRs of the applicant’s family physician and treatment clinics and providers pursuant to s. 33 to review the applicant’s continuing entitlement to medical benefits.
47For the reasons outlined above, I find that that the applicant’s claim that the treatment plan dated December 18, 2023 is payable as a result of the respondent’s non-compliance with s. 38(8) of the Schedule is denied.
Entitlement to the Treatment Plan for a Chronic Pain Assessment
48I find that the applicant is not entitled to the treatment plan for a chronic pain assessment.
49The applicant claims entitlement to $2,486.00 for a Chronic Pain Assessment, proposed by Prime Health Care Inc., in a treatment plan dated December 24, 2023 and submitted on December 28, 2023. The goals of the treatment plan are to evaluate the extent of the applicant’s chronic pain injuries and psychological complaints and to provide a prognosis and recommendations for recovery.
50The applicant submits that he is entitled to this assessment because there is a real possibility that the applicant is suffering from chronic pain, as he continues to exhibit impairments that are well documented in both the physical and psychological assessments by medical practitioners which are causing functional limitations in his life. He relies upon the Psychological report of Dr. Brunshaw, dated April 8, 2024 which diagnosed him with various psychological impairments and the FAE report of Dr. Balkansky, dated August 15, 2024 which recommended a chronic pain assessment.
51The respondent submits that the treatment plan for a chronic pain assessment is not reasonable and necessary. It submits that contrary to the applicant’s submissions, there is no diagnosis of chronic pain or chronic pain syndrome noted anywhere in the medical records. The respondent submits that based on the AMA Guidelines, 6th edition, Guides to the Evaluation of Permanent Impairment, (“AMA Guides”) the applicant does not meet at least three of the six criteria to be diagnosed with chronic pain syndrome. He does not have a dependence on prescription drugs, his pharmacy records do not show any accident-related medication past August 1, 2023, he does not have excessive dependence on health care providers and family members, he has returned full time to his pre-accident employment and his pre-accident recreational activities.
52In 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.
53I find that there is a lack of contemporaneous evidence to support the chronic pain assessment at the time the treatment plan it was submitted. I find that the applicant had seen his family doctor on two occasions with limited complaints. There were no further treating records provided to support any ongoing pain complaints or functional limitations. The IE report of Dr. Lamine had concluded that there was no objective physical impairment. While the applicant relies upon the Psychological report of Dr. Brunshaw in support of his position that he suffers chronic pain, this report dated April 8, 2024, was submitted months after the treatment plan in dispute was submitted. In addition, upon review of Dr. Brunshaw’s report, while he concluded that the applicant suffered a psychological impairment, there is no diagnosis or indication that he suffered from chronic pain. With respect to Dr. Balkansky’s FAE report, I give little weight to his recommendation for a chronic pain assessment, due to my conclusion at paragraph 27 above, that his findings are inconsistent with the test results reported.
54For the reasons outlined above, I do not find that the applicant has proven on a balance of probabilities that he is entitled to the treatment plan dated December 24, 2023, for a chronic pain assessment.
Compliance with s. 38(8) of the Schedule
55As an alternative argument, the applicant submits that the treatment plan in dispute is payable pursuant to s. 38(11) of the Schedule, as the respondent did not comply with the notice requirements of s. 38(8) of the Schedule.
56The applicant submits that the respondent’s denial letter dated January 3, 2024, did not comply with s. 38(8) as it was boilerplate, it does not address the applicant’s specific medical condition or the information provided in the treatment plan, it fails to include the medical or other reasons forming the basis of the decision and it does not identify any information the respondent requires from the applicant. The applicant further submits that the respondent relies upon an IE report that was not conducted in response to, nor in relation to, the disputed treatment plan. It submits that the IE focused on general entitlement to physical treatment and was completed prior to the submission of the disputed treatment plan. It further submits that the respondent failed to acknowledge that the chronic pain assessment addresses both physical and psychological impairments.
57The respondent submits that its January 3, 2024 Explanation of Benefits (“EOB”) provided adequate medical reasons and was not boilerplate. The denial was based on Dr. Lamine’s IE assessment reports dated October 31, 2023 and November 22, 2023, for a previously submitted treatment plan, where he found no objective accident related musculoskeletal or potential neurological impairment. The respondent relies upon the decision in Ho v. Aviva Insurance Company, 2024 CanLII 115431 (ON LAT), where the Tribunal held, “I find that the respondent’s denial letters contain a “medical and any other reasons” for the denials, namely the lack of an accident-related impairment from a musculoskeletal perspective…”. The respondent submits that the EOB further requests additional records via s. 33 of the Schedule to assist in the adjustment of the applicant’s claim.
58I find upon review of the January 3, 2024 EOB, that it is a valid denial letter. The letter advises of the date of the treatment plan for a chronic pain assessment and states that the denial of the subject treatment plan is based on the IE reports of Dr. Lamine dated October 31, 2023 and November 22, 2023. I find that the respondent provided clear and medical reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision. Specifically, the respondent advised that there was no objective accident related musculoskeletal or potential neurological impairment based on Dr. Lamine’s IE report. While I acknowledge that the respondent did not address the applicant’s psychological impairments in its letter, the applicant was provided with an accessible and understandable reason for denying the assessment, namely that he did not suffer an objective musculoskeletal impairment. I further find that the respondent requested the CNRs of the applicant’s family physician and treatment clinics and providers pursuant to s. 33 to review the applicant’s continuing entitlement to medical benefits.
59For the reasons outlined above, I find that that the applicant’s claim that the treatment plan dated December 24, 2023 is payable as a result of the respondent’s non-compliance with s. 38(8) of the Schedule is denied.
Entitlement to the Treatment Plan for a Functional Abilities Evaluation
60I find that the applicant is entitled to the treatment plan for a Functional Abilities Evaluation (“FAE”), dated June 3, 2024.
61The applicant claims entitlement to $2,200.00 for an FAE assessment, proposed by ALCAT Assessments, in a treatment plan dated June 3, 2024. The goal of the treatment plan is to determine the functional status of the applicant to determine his limitations and possible return to daily life.
62The applicant submits that the proposed assessment was reasonable and necessary to investigate the reasonable possibility of his functional impairment and the extent of his impairment. He relies upon the Psychological reports of Dr. Brunshaw and Dr. Lopo where they concluded that he continues to experience many difficulties which are impairing his overall functioning. The applicant further submits that despite the denial of the FAE assessment, Dr. Balkansky conducted the assessment and issued his report dated August 15, 2024, which justifies the reasonableness and necessity of the proposed assessment.
63The respondent submits that the proposed assessment is not reasonable and necessary based on the s. 44 Occupational Therapy In-Home Assessment report conducted by Ms. Sivanathan, dated March 19, 2024. During the physical ability assessment, the applicant demonstrated the ability to independently stand, sit, kneel, crouch, walk, climb stairs, stoop and lift 7.5 lbs. In the active ROM test, the applicant exhibited the functional ROM in the cervical spine, lumbar spine, shoulders, elbows, wrists, hips, knees, and ankles, with pain reported only in the left knee. The level of functionality was corroborated in the CNRs of the applicant’s family physician, his return to full-time employment, and the applicant’s self-reported symptoms of pre-accident ADL.
64As set out above in my decision, 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.
65While the IE report of Ms. Sivanathan clearly indicates that that the applicant physically does not suffer any functional impairment as a result of the accident which would justify the FAE assessment, the psychological reports of Dr. Brunshaw and Dr. Lopo, find that the applicant’s psychological impairment has deteriorated to a level of impairment that prevents him from performing his activities of daily living and essential job-related tasks. I therefore find that based on these reports, that there was persuasive evidence at the time of submission of the treatment plan in dispute, that there is some accident-related condition, namely his psychological impairments, that warrants investigation by way of an FAE.
66For the reasons outlined above, I find that the applicant has proven on a balance of probabilities that the treatment plan for an FAE is reasonable and necessary.
Entitlement to the balance of the Treatment Plans for Psychological Services
67I find that the applicant has not proven entitlement to the balance of the treatment plans for psychological services.
68Under s. 25(3) of the Schedule, an insurer is not liable to pay for expenses for professional services that exceed the Professional Services Guideline, Superintendent’s Guideline No. 03/14 (the “Guideline”).
69The applicant claims entitlement to $897.72 ($3,192.26 less $2,294.54 approved) for psychological services, proposed by Prime Health Care Inc., in a treatment plan dated April 9, 2024. The treatment plan recommends the following:
Line 1 - 12 – 1.0 hour psychotherapy sessions: $1,795.32
Line 2 - Psychotherapy progress report: $149.61
Line 3 - Completion of OCF-18: $200.00
Line 4 - Testing and Scoring: $149.61
Line 5 - 12 – 0.5 hour of treatment planning: $897.72
70By letter dated May 23, 2024, the respondent advised that it was partially approving the treatment plan dated April 9, 2024 in the amount of $2,294.54. It denied Line 5, Preparation Service for $897.72.
71The applicant also claims entitlement to $1,196.96 ($4,711.59 less $3,514.63 approved) for psychological services, proposed by ALCAT Assessments Inc., in a treatment plan dated August 20, 2024. The treatment plan recommends the following:
Line 1 – 16 – 1.5 hour psychotherapy sessions: $2,752.80
Line 2 – 16 –.5 hour service and preparation: $1,196.96
Line 3 – Documentation support activity: $448.83
Line 4 – Education Material: $100.00
Line 5 – Treatment Plan: $200.00
72By letter dated August 27, 2024, the respondent advised that it was partially approving the treatment plan in the amount of $3,514.62. It denied Line 2, Planning, Service for $1,196.96.
73In both of the respondent’s denial letters, the reason for the denial was,
Expenses related to professional services, as referred to in the SABS and the Professional Services Guideline include all administration costs, overhead, and related costs, fees, expenses, charges and surcharges. Insurers are not liable for any administration or other costs, overhead, fees, expenses, charges or surcharges that have the result of increasing the effective hourly rates, or the maximum fees payable for completing forms, beyond what is permitted under the Professional Services Guideline.
74The applicant submits that the partial approval notices are non-compliant with s. 38(8) of the Schedule because they are unclear, and therefore the entire cost of the treatment plans should be deemed payable. He submits that the notices fail to provide specific reasons and do not adequately address the medical necessity of the service. The applicant argues that the notices discuss the denial of preparation services based on expenses related to professional services, however the preparation services are directly tied to the treatment process and should not be categorized as “administration” or “overhead”. He further argues that preparation service fees are for planning each session and not the treatment sessions provided to the applicant.
75The respondent submits that its EOBs dated May 23, 2024 and August 27, 2024, provided sufficient reasons. The respondent submits that the reasons for denying the portions of the treatment plans were not medical in nature, and therefore it was not necessary to construct medical reasons for the denials. It relies upon the Tribunal decision in Philip v. Aviva Insurance Company, 2023 CanLII 17703 (ON LAT) at paragraph 20, where it was held:
The applicant submits that the respondent failed to provide a medical and other reason for its denial. However, I note that a medical reason was not required, as the psychotherapy sessions were approved, and only the rate and specific fees were in dispute.
76The respondent submits that as per s. 15(2)(b) of the Schedule, the maximum payable rates for treatment providers are determined by the Professional Service Guideline (the “Guideline”). The respondent submits that “preparation, service” is not payable according to the Guideline. The Guideline sets out that insurers are not liable for any administration costs, overhead, and related costs, fees, expenses, charges and surcharges that have the result of increasing the hourly rates or maximum fees payable for completing forms. The respondent argues that neither of the treatment plans provide a breakdown or explanation of the “planning, service” or why the fee is required in additional to the recommended treatment and therefore the remaining balance of the treatment plans are neither reasonable nor necessary.
77I agree with the respondent that the applicant has not provided a breakdown or an explanation for the additional planning services or why the fee is required in addition to the recommended treatment. I find that these fees are of an administrative nature and are not ordinarily found reasonable and necessary. I find that the Guideline specifically excludes expenses, related to professional services such as administrative costs, overhead, and related costs. I therefore find that that the applicant has not proven on a balance of probabilities that the balances of the treatment plans are reasonable and necessary.
78With respect to the applicant’s submissions that the respondent’s denial notices were non-compliant with s. 38(8) of the Schedule, I find that the EOB was a valid denial. I agree with the respondent that a medical reason is not required for the denial of the planning services, as the psychotherapy sessions were approved, and only the specific fees were denied. I agree that the reasons for denying the planning services were not medical in nature and therefore it was not necessary to construct medical reasons for the denials. I further find that the denial of the planning services was clear and the reasons provided were sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision.
79For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that the balance of the treatment plans dated April 9, 2024 and August 20, 2024 are reasonable and necessary.
Interest
80Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant has not provided any submissions with respect to his entitlement to interest. However, as interest is an issue in dispute and as I have found that the applicant is entitled to the treatment plan for a FAE, dated May 31, 2024, interest is payable pursuant to s. 51 of the Schedule.
Award
81The 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.
82I find that the applicant has not made any submissions with respect to his entitlement to an award in his submissions. However, I do find that he provided particulars of his claim for an award on April 23, 2025. The applicant claims he is entitled to an award under s. 10 because the respondent mishandled his claim. He submits that it was unreasonable for the respondent to rely solely on its s. 44 IE assessor reports and that the respondent failed to provide the IE assessors with his s. 25 reports. He further argues that the respondent failed to seek updated medical opinions from its assessors or review the s. 25 reports, thereby neglecting their duty to conduct a thorough and informed investigation. The applicant submits that there is a lack of adjuster’s log notes, and the log notes provided fail to discuss the findings in the s. 25 reports which raises a red flag, suggesting a pattern of mishandling of the applicant’s claim and a breach of good faith.
83The respondent submits that no award is justified as the applicant has not provided evidence to support a finding that the respondent unreasonably withheld or delayed payment of benefits. It claims that all times it adjusted the applicant’s claim in good faith in reliance on the medical documents that were produced to them by the applicant.
84I find that the applicant has not proven entitlement to an award. An insurer is not held to a standard of perfection, but rather, it should be held to a standard of reasonableness. The purpose of an award is to make an insurer accountable for misconduct and to deter it and others from future similar actions.
85I find that the case law has established that an award should be granted only where there is unreasonable behaviour by an insurer in withholding or delaying payments, which can be seen as excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
86I find that the respondent adjusted the applicant’s claim continuously in good faith, and there is no evidence that it unreasonably withheld or delayed payment of benefits. I find that the respondent was entitled to rely on the opinions of its assessors in the IE reports in denying the applicant’s entitlement to the benefits in dispute. I further find that s. 44 of the Schedule states that an insurer may require an insured person to be examined by a health professional. The language of the Schedule is permissive (i.e. “may”) and it does not require the respondent to provide an addendum report. Therefore, there is no requirement in the Schedule for the respondent upon receipt of a s. 25 report to obtain an Addendum report for its assessor to comment or review a s. 25 report. I find that the applicant has not provided the Tribunal with any case law that supports the requirement for Addendum reports or that s. 25 reports be sent to previous assessors.
87I further find that the applicant has not provided any evidence that his s. 25 reports were ignored or not considered by the respondent. While I agree that there are no summaries of the findings of the s. 25 reports within the adjuster reports, this does not imply that they were not reviewed. I find that it is clear from the adjuster’s log notes that psychotherapy treatment was approved by the respondent which would have been based on the Psychological report of Dr. Brunshaw who recommended the treatment.
88I find that the respondent continually adjusted the applicant’s claim, made ongoing requests for documentation and completed further assessments to assess the applicant’s ongoing status and entitlement to benefits. I therefore do not find that the applicant has proven that the respondent’s behaviour is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
89For the reasons outlined above, I do not find that the applicant has proven on a balance of probabilities that he is entitled to an award.
ORDER
90For the reasons outline above, I find:
i. The applicant is not entitled to a non-earner benefit of $185.00 per week from July 10, 2023 to date and ongoing;
ii. The applicant is not entitled to the treatment plan for chiropractic, massage, osteopathic and acupuncture services, dated December 18, 2023;
iii. The applicant is not entitled to the treatment plan for a chronic pain assessment dated December 24, 2023;
iv. The applicant is entitled to the treatment plan for a FAE, dated May 31, 2024, plus interest;
v. The applicant is not entitled to the balance of the treatment plans for psychological services, dated April 9, 2024 and August 20, 2024;
vi. The respondent is not required to pay an award.
Released: March 11, 2026
Melanie Malach
Adjudicator