Citation: Pierre v. Coachman Insurance Company, 2026 ONLAT 23-015017/AABS

Licence Appeal Tribunal File Number: 23-015017/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:

Magalie Pierre

Applicant

and

Coachman Insurance Company

Respondent

DECISION

ADJUDICATOR:

Estella Muyinda

APPEARANCES:

For the Applicant:

Steven Wilder, Counsel

For the Respondent:

Michael J.L. White, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Magalie Pierre, the applicant, was involved in an automobile accident on November 27, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The applicant was denied benefits by the respondent, Coachman Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to $1,735.37 for chiropractic services proposed by Tandem Health and Diagnostics in a treatment plan/OCF-18 (“plan”) dated December 22, 2021?

ii. Is the applicant entitled to $1,300.70 for chiropractic services proposed by Tandem Health and Diagnostics in a treatment plan dated April 1, 2022?

iii. Is the applicant entitled to $2,091.01 for chiropractic services proposed by Tandem health and Diagnostics in a treatment plan dated April 19, 2022?

iv. Is the applicant entitled to $1,423.84 for Travel expenses, proposed in an OCF-6 dated August 16, 2023?

v. Is the applicant entitled to $1,950.00 for psychological services, proposed by Ondrovcik, Svec Rehabilitation Clinics in a treatment plan dated April 5, 2023?

vi. Is the applicant entitled to $1,251.95 for psychological services, proposed by Ondrovcik, Svec Rehabilitation Clinics in a treatment plan dated March 27, 2023?

vii. Is the applicant entitled to $5,985.57 for psychological services, proposed by Ondrovcik, Svec Rehabilitation Clinics in a treatment plan dated July 10, 2023?

viii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

4I note that the dates of the issues in the Case Conference Report and Order do not correspond to the dates submitted on the treatment plans. However, I accept the dates as specified in the treatment plans because they are in proximity to dates in the Case Conference Report and Order. I have adjusted the dates in the following issues in dispute accordingly.

RESULT

5The applicant is entitled to $1,735.37 for chiropractic services in a treatment plan dated December 15, 2021.

6The applicant is entitled to $1,300.70 for chiropractic services in a treatment plan dated March 1, 2022.

7The applicant is entitled to $2,091.01. chiropractic services in a treatment plan dated April 13, 2022.

8The applicant is not entitled to $1,423.84 for Travel expenses, proposed in an OCF-6 dated July 28, 2022.

9The applicant is entitled to $1,950.00 for psychological services, proposed in a treatment plan dated March 1, 2021.

10The applicant is entitled to $1,251.95 for psychological services, proposed in a treatment plan dated March 1, 2023.

11The applicant is not entitled to $5,985.57 for psychological services, in a treatment plan dated July 10, 2023.

12The respondent is not liable to pay an award under s. 10 of Reg. 664.

13The applicant is entitled to interest on any overdue payment of benefits.

PROCEDURAL ISSUES

14The respondent submitted a motion dated January 30, 2025, seeking an order to strike the applicant’s reply submission dated January 24, 2025, in its entirety.

15The respondent contends that the applicant’s reply was improper because it introduced new evidence that ought to have been raised in the primary submissions. Additionally, the respondent asserts that its response to the applicant’s submissions was reasonably foreseeable and could have been reasonably anticipated by the applicant.

16The respondent asserts that the applicant could have reasonably anticipated the respondent’s position about the characterisation of the accident, its reference to medical records, the causation of the accident and the necessity of the ongoing treatment and the challenge to the applicant’s claim of chronic pain, sustaining a neurological impairment and a head injury.

17The respondent relies on AJ v. Aviv General Insurance, 2020 CanLII 72500 (ON LAT) that determined that reply is not an opportunity for the party to raise issues that should have been raised in initial submissions or to reformulate their argument.

18The applicant submits that she has not submitted new evidence or arguments in her reply-submissions. Additionally, the applicant submits that the documents she refers to in the reply submissions were included in the primary applicant submission she submitted. Further, the applicant asserts that the submissions she made in the reply were a rebuttal to the respondent’s responding submissions.

19The applicant submits that she provided three new decisions as authorities that were in reply to the respondent’s submissions. The applicant also submits that the outstanding invoices she submitted with the reply-submissions were not new evidence that was prejudicial to the respondent because the amount was known.

20I find that the cases that the applicant included in the reply-submission were not new evidence. Authorities are not evidence, and the cases were provided in reply to the respondent’s submissions. I deny the respondent’s request to strike the reply submissions on this basis.

21I find that the outstanding invoices, referred to in the applicant’s reply-submission were new evidence that was improperly submitted on reply. This is because in my view the applicant could have reasonably anticipated the respondent to make responsive arguments about these documents.

22As a result, I have partially denied the respondent’s motion. Accordingly, I deny the respondents request to strike the applicant’s reply in its entirety. Additionally, the outstanding invoices are excluded from the evidence.

ANALYSIS

Chiropractic Treatment Plans

23I find that the applicant is entitled to the treatment plans for $1,735.37 dated December 15, 2021; for $1,300.70 dated March 1, 2022; and for $2,091.01 dated April 13, 2022, proposed by Tandem Health and Diagnostics for chiropractic services.

24To receive payment from an insurer for a medical benefit sought under sections 15 and 16 of the Schedule, an applicant must establish on a balance of probabilities that she has suffered an impairment from the accident and that the medical benefit is a reasonable and necessary expense as a result of the accident.

25To assess if it is reasonable and necessary, 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.

26The applicant submits that because of the accident she sustained injuries of muscle and tendon neck, sprain and strain of cervical spine, sprain and strain of lumbar spine, low back pain, radiculopathy, headache, dizziness and giddiness, nausea, anxiety disorders, and sleep disorders. Further, the applicant states that because of the accident she has pain and reduced range of motion in her neck, shoulders, and throughout her spinal column, as well as headaches. Therefore, because of the injury, the chiropractic treatment plans are reasonable and necessary.

27The applicant submits that in the treatment plan for chiropractic services for $1,735.37 dated December 15, 2021, Ryan Hawkins, chiropractor, proposed 26 sessions of chiropractic treatment to be completed in 8 weeks. In the treatment plan for chiropractic services for $1,300.70 dated March 1, 2022, Diane Valerio, chiropractor, proposed 19 chiropractic sessions within a 6-week period. In a subsequent treatment plan for chiropractic services, for $2,091.01 dated April 13, 2022, proposed by Diane Valerio, chiropractor, the treatment plan was for 32 sessions in a period of 10 weeks.

28The applicant submits that the goals of these chiropractic treatment plan dated December 15, 2021, March 1, 2022, and April 13, 2022, are pain reduction, increase in strength, increased range of motion, and return to activities of normal living. The goals will be evaluated through the applicant’s subjective report and a re-assessment of the applicant’s range of motion, physical and orthopedic examination.

29The applicant submits that Dr. McLean, family physician, referred her to Dr. Mark Goldstein, a chronic pain specialist. In his report dated June 4, 2024, Dr. Goldstein opined that the applicant suffered from accident-related injuries that included chronic pain, probable spinal muscular deconditioning, persistent headaches, chronic cervical, thoracic and lumber musculoligamentous pain and chronic myofascial pain.

30The applicant submits that Dr. Goldstein recommended medication and a multidisciplinary biopsychosocial rehabilitation approach to manage the chronic pain. In his report, Dr. Goldstein opined that it would take a coordinated effort of the applicant’s multiple primary health care practitioners, that included a primary care physician, medical specialists, pain specialists, physical rehabilitation practitioners, and occupational and vocational practitioners to achieve the primary goal of reducing the pain and restoring function.

31The respondent submits that the treatment plans are not reasonable and necessary as the applicant has not met her onus of proving that the accident was the cause of her impairments. Additionally, the respondent states that the applicant has not provided evidence that establishes that the treatment plans are reasonable and necessary.

32The respondent relies on the assessment report dated April 13, 2022, of the insurer’s examiner (IE) Dr. Pankaj Bansal, general practitioner. The applicant was diagnosed by Dr. Bansal as having uncomplicated self-resolving soft tissue type injuries. The respondent submits that Dr. Bansal reviewed the updated clinical notes and records submitted by the applicant and found no valid indication of musculoskeletal injury related to the accident.

33Upon review of the document evidence received, I find that the applicant was entitled to the treatment plans for the chiropractic services at the time they were submitted. I find the treatment plans to be reasonable and necessary because I am persuaded by the contemporaneous corroborating medical evidence from the applicant’s treating physicians, Dr. McLean and Dr. Goldstein, that support the necessity for the treatment plans. As a result, I place less weight on Dr. Bansal’s evidence as I am not convinced by his assessment that the applicant sustained uncomplicated self-resolving soft tissue type injuries. When weighing the evidence I noted that Dr. McLean prescribed naproxen along with baclofen for chronic pain. Additionally, to address the headaches, neck and lower back pain he referred the applicant to a concussion clinic.

34Accordingly, the applicant has provided sufficient evidence that show that the chiropractic treatment plans are reasonable and necessary. I find that the applicant is entitled to the chiropractic treatment plans.

$1,423.84 for Travel expenses, proposed in an OCF-6 dated August 16, 2023.

35I find that the applicant is not entitled to this treatment plan.

36The applicant submits that the treatment plan for $1,423.84 for travel expenses, proposed in an OCF-6 dated August 16, 2023, is reasonable and necessary.

37The applicant submits that she was unable to drive after the accident and incurred expenses for taxis to go for medical care. The applicant relies on section 38 (2) (b) and (d) in support of the claim for the expense.

38The respondent submits that the applicant is not eligible for the travel expense because she has not provided any evidence to show that the transportation expense was incurred. I disagree with the respondent because the applicant provided the evidence in the form of an invoice showing the travel expense amount. However, what the applicant did not do is to submit details to show when and where the applicant went for medical appointments so as to meet the requirements of section 38(2)(b).

39Further, the respondent asserts that the applicant has not provided evidence confirming that she incurred transportation expenses in the amount of $1,423.84 at $0.40/km after the 50 km deductible in accordance with the Financial Services Regulatory Authority’s transportation guidelines. I agree with the respondent submission as there is no evidence showing that the applicant met the requirements of the Financial Services Regulatory Authority’s transportation guidelines.

40Further, s. 38(2) of the Schedule provides that an insurer is not liable to pay for a medical benefit if it was incurred before the insured submitted a treatment plan unless one of the exceptions are met: (a) the insurer gives the insured a notice under s. 39(1) stating that the insurer will pay the expenses without a treatment plan; (b) the expense is for an ambulance or other services provided on an emergency basis within five days of the accident; or (c) the expense is reasonable and necessary as a result of the impairment for drugs prescribed by a regulated health practitioner or goods referred to in s. 15(1)(d) to (f) and s. 16(3)(h) to (j) of the Schedule that cost less than $250 per item.

41Under section 38 (2)(b), the claim must be for an ambulance or other goods or services provided on an emergency basis not more than five business days after the accident to which the application relates. In this instance, the applicant submitted that the travel expenses were for taxis to go for medical care after the accident because she was unable to drive. I find that the applicant’s travel expense for a taxi is contrary to the requirements of section 38 (2)(b) because, unlike an ambulance, a vehicle equipped for taking sick or injured people to and from hospital, especially in emergencies, a taxi is a vehicle that transports passengers between locations in return for a fare.

42Further, the chiropractic services obtained by the applicant do not constitute goods and services provided on an emergency basis within five days of the accident. The applicant submitted several treatment periods for the chiropractic services of 6, weeks, 8 weeks and 10 weeks, that are clearly beyond the required five business days after the accident. Thus, I find that exceptions (b) and (d) do not apply, as there is no emergency basis to the medical care. Additionally, chiropractic treatment is not listed under either of s. 15(1)(d) to (f) or s. 16(3)(h) to (j) of the Schedule, and the service does not cost less than $250.

43Accordingly, I find that the treatment plan is not reasonable and necessary because the travel expenses are not captured under section 38 (2)(b) nor (d). Further, I find that the applicant has not provided evidence that establish how the travel expense assisted her in meeting the goals of the treatment plan.

Psychological Treatment Plans

44I find that the applicant is entitled to the psychological treatment plan for $1,251.95 dated March 27, 2023, and to $1,950.00 dated April 5, 2023, proposed by Ondrovcik, Svec Rehabilitation Clinics for psychological services.

45The applicant is seeking entitlement to a treatment plan for $1,950.00 dated April 5, 2023, for psychological services and a treatment plan for $1,251.95 dated March 27, 2023, for psychological services.

46The applicant submits that the treatment plans for psychological services are reasonable and necessary. The goals of the psychological treatment plans are to assess the neurocognitive function using computerized neuropsychological tests, evaluation and management of neurodegenerative, neuropsychiatric, and neurodevelopmental disorders, monitoring progression, identify and manage the areas that need additional or full neuropsychological evaluations of brain disease or injury.

47The respondent submits that the applicant is not entitled to the treatment plans because she does not satisfy her onus as it relates to the causation of the neurological issues that include headaches. The respondent relies on the ambulance report to contend that the applicant does not have a psychological impairment as the applicant stated that she did not hit her head during the accident.

48The applicant submits that the injuries outlined in the treatment plan include severe neurocognitive symptoms, anxiety, emotional distress, and chronic pain. The goals of the treatment plan are to further specification and analysis of presenting symptoms. And the functional goal is to determine appropriate treatment to address the symptoms.

49The applicant submits that she hit her head on the seat at the time of the accident. The applicant points to the Windsor Regional Hospital, emergency department clinical notes and records dated November 27, 2021, where it was noted that she reported hitting her head on the seat. This evidence is corroborated by the diagnosis of Dr. Mason William Leschyna, emergency room physician’s clinical notes and records dated December 11, 2021. Additionally, the applicant submits that the clinical notes and records by Dr. McLean dated December 16, 2021, reflect that the applicant was diagnosed as suffering from a concussion and hypertension.

50The applicant was referred to the Acquired Brain Injury Program by Dr. McLean. There, she was assessed by Dr. Anne McLachlan, neuropsychologist as having pain, headache, cognitive issue, and depression symptoms. In the clinical notes and report dated March 7, 2022, Dr. McLachlan opines that the applicant’s condition is consistent with persistent post-concussion syndrome/posttraumatic headache and persistent whiplash associated disorder. The applicant had 6 sessions of psychotherapy to reduce her symptoms of depression, increase her activity level, and manage persisting symptoms after a concussion resulting from the accident.

51In the cognitive impairment evaluation report dated June 13, 2023, Dr. Oren Amitay and Ms. Malini Ondrovcik, registered psychotherapist diagnosed the applicant according to the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) with mild neurocognitive disorder due to traumatic brain injury, adjustment disorder with mixed anxiety and depressed mood, and somatic symptom disorder with predominant pain, persistent.

52The applicant submits that Dr. Amitay recommended 20 treatment sessions of EEG neurofeedback and 12 sessions of heart rate variability training (HRV), as well as a prescriptive exercise program to help boost brain health.

53The respondent relies on the report by s.44 insurer examiner (IE), Dr. Christopher Abeare, neuropsychologist, dated August 9, 2023, to say that the treatment plan is not reasonable and necessary. In the report, Dr. Abeare opined that the somatic symptom disorder with predominant pain, severe delusional and psychotic disorders as well as posttraumatic stress disorder should be ruled out. Only malingering of neurocognitive dysfunction could not be ruled out.

54The applicant asserts that the treatment plans are reasonable and necessary because her symptoms are consistent with a traumatic brain injury that requires further assessment and treatment. I agree with the applicant because I find that there is contemporaneous corroborated evidence from the applicant’s treating physicians, Dr. Mclauglan and Dr. Amitay, that the applicant suffered a concussion as a result of the accident. As such, based upon the treating physicians corroborating evidence which I find support the treatment plans, I place less weight on Dr. Abeare’s evidence.

55As a result, I find that the applicant has shown that the goals of the treatment plan and how the applicant will achieve the identified goals is reasonable and necessary.

$5,985.57 for psychological services, proposed by Ondrovcik, Svec Rehabilitation Clinics in a treatment plan dated July 10, 2023.

56I find that the applicant is not entitled to this treatment plan.

57The applicant did not submit the treatment plan dated July 10, 2023. The applicant did not identify or make any submissions or point to the reasonableness and necessity of the goals of the plan, or how such goals would be met to a reasonable degree.

58The respondent submits that the applicant has not provided the treatment plan in dispute. The respondent asserts that without the treatment plan, the Tribunal will not be able to assess the cost of the service and the reasonableness and necessity of goals of the plan. Therefore, the applicant is not entitled to the treatment plan.

59I agree with the respondent. As there is no treatment plan submitted and no submissions made in support of the treatment plan, I find that the applicant has not demonstrated on a balance of probabilities that the psychological treatment plan is reasonable and necessary as a result of the accident.

Award

60The applicant seeks an award under Regulation 664. The Tribunal may grant an award of up to 50 per cent of the total benefits payable where the delay or withholding of benefits by the insurer is unreasonable, meaning “behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”

61The applicant asserts that the respondent refused to reconsider its denials for treatment or approve the issues in dispute or obtain any further medical opinions on the medical records she updated. However, the applicant has not pointed to any evidence or provided sufficient reasons that explain the basis for a special award or state that the respondent disregarded the medical evidence she submitted so as to deny the treatment plans.

62The Respondent submits that it did not unreasonably withhold or delay payment to the applicant, in accordance with section 10 of Ontario Regulation 664. The respondents asserts that it diligently reviewed all evidence, conducted insurer examinations, and clearly articulated reasons for its denial throughout the process, demonstrating reasonable and good faith actions.

63Based upon the totality of the evidence presented, I find that the applicant is not entitled to an award because she has not demonstrated that benefits have been unreasonably withheld or delayed. Accordingly, I do not find that an award is payable.

Interest

64I find that interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

ORDER

I find that:

65The applicant is entitled to $1,735.37 for chiropractic services.

66The applicant is entitled to $1,300.70 for chiropractic services.

67The applicant is entitled to $2,091.01 for chiropractic services.

68The applicant is not entitled to $1,423.84 for Travel expenses.

69The applicant is entitled to $1,950.00 for psychological services.

70The applicant is entitled to $1,251.95 for psychological services.

71The applicant is not entitled to $5,985.57 for psychological services.

72The respondent is not liable to pay an award under s. 10 of Reg. 664 because it did not unreasonably withhold or delay payments to the applicant.

73The applicant is entitled to interest on any overdue payment of benefits.