Citation: Gupta v. Security National Insurance Company, 2026 ONLAT 24-012631/AABS

Licence Appeal Tribunal File Number: 24-012631/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:

Jyoti Gupta

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Neha Kohli, Paralegal

For the Respondent:

Mandeep Tamber, Counsel

Afsoun Brutto, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Jyoti Gupta, the applicant, was involved in an automobile accident on August 21, 2021, 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, Security National 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 $1,002.81 for orthotics, proposed by Seksek Chiropractic Professional Corporation in a treatment plan dated October 14, 2022?

ii. Is the applicant entitled to the assessments proposed by Complete Rehab Centre, as follows:

a. $3,025.00 for a Functional Abilities Evaluation assessment, in a treatment plan dated September 19, 2023; and

b. $3,081.50 for a vocational assessment, in a treatment plan dated September 19, 2023?

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

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

3I find upon review of the Case Conference Report and Order (“CCRO”), that the dates listed for issues ii(i) and (ii) are incorrect. 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 the treatment plans in dispute, an award or interest.

ANALYSIS

Entitlement to Medical and Rehabilitation Benefits

5To 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 custom orthotics and shoes

6I find that the applicant is not entitled to the treatment plan for custom orthotics and shoes.

7The applicant claims entitlement to $1,002.81 for orthotics, proposed by Seksek Chiropractic Professional Corporation in a treatment plan dated October 14, 2022. The treatment plan recommends the following:

“Assessment (examination), total body: $112.81 “Education, promoting health and preventing disease”: $40.00 Documentation, support activity for claim form: $200.00 Custom orthotics and shoes: $650.00

8The goals of the treatment plan are listed as pain reduction, foot support, return to activities of normal living and return to pre-accident work activities.

9The applicant submits that the treatment plan in dispute recommends chiropractic services to address her ongoing physical impairments. She submits that she continues to report difficulties with prolonged activities such as bending, walking, carrying and standing and her daily activities have become difficult to complete without any pain. She argues that the treatment plan in dispute was submitted to achieve the functional goal of returning to her activities of normal living by using evaluation such as range of motion, pain scale and muscle palpation – all of which are essential for supporting her functional recovery and return to pre-accident quality of life. She relies upon the Clinical Note and Record (“CNRs”) of her family physician, Dr. Lucy Pezzutto, dated November 17, 2022 which states she is unable to return to work due to her injuries.

10The respondent submits that by letter dated October 25, 2022, it denied the subject treatment plan on the grounds that a s. 44 Insurer’s Examination (“IE”) was necessary to determine whether the proposed goods and devices were medically reasonable and required in relation to the injuries sustained by the applicant in the motor vehicle accident. By letter dated February 7, 2023, the respondent wrote to the applicant denying the subject treatment plan based on the IE report of Dr. David Berbrayer, physiatrist, dated January 26, 2023, which found it not reasonable or necessary. The respondent argues that the applicant has not provided any medical evidence to dispute these findings.

11I find that the applicant has not provided sufficient evidence to support that the treatment plan for custom orthotics and shoes is reasonable and necessary.

12I find that other than the applicant’s reliance on the treatment plan itself, no further evidence has been provided to support that the applicant required custom orthotics and shoes. I find that the Tribunal has consistently held that reliance on a treatment plan itself is not evidence that it is reasonable and necessary.

13I further find that the applicant in her submissions has not specifically dealt with the recommendation of the custom orthotics and shoes and has made general submissions that the treatment plan submitted is to achieve the functional goal of returning to her activities of normal living. I find that she has not provided any submissions as to how the provision of custom orthotics and shoes will meet this goal. While the applicant refers to the CNR of her family physician, dated November 17, 2022, I find that there is no mention of the provision of orthotics and it simply states that she is unable to return to work. I further find that the applicant has not pointed the Tribunal to any other records that support her need for custom orthotics and shoes.

14I therefore give greater weight to the IE report of Dr. Berbrayer which specifically assessed the recommendation for custom orthotics and shoes. I find Dr. Berbrayer’s opinion persuasive where he concluded that from a musculoskeletal perspective, given the findings on his assessment and the nature of the accident-related injuries sustained, that the treatment plan for custom orthotics and shoes is not reasonable and necessary. Dr. Berbrayer reviewed multiple CNRs and assessments in his report and conducted a physical assessment of the applicant.

15For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that the treatment plan for custom orthotics and shoes is reasonable and necessary as a result of the injuries sustained in the accident.

Entitlement to the treatment plan for a Functional Abilities Evaluation

16I find that the applicant is not entitled to the treatment plan for a Functional Abilities Evaluation (“FAE”) Assessment.

17The applicant claims entitlement to $3,025.00 for a FAE, in a treatment plan submitted on September 19, 2023. The treatment plan recommends the following:

Test, musculoskeletal system, NEC: $2,000.00 Documentation support activity for claim form: $200.00 Claimant transportation to treatment: $500.00

18The goals of the treatment plan are pain reduction, increase in strength, return to activities of normal living and return to pre-accident work activities.

19The applicant submits that the FAE is reasonable and necessary in order to determine if she can return to work. She submits that she has been unable to successfully return to work due to her injuries as per the FAE report dated November 10, 2023, which provides multiple recommendations for assistance and further treatment. The applicant relies upon the Psychological assessment report of Dr. Sedigheh Naisi, dated November 24, 2021 which diagnosed her with an Adjustment Disorder with Mixed Anxiety and Depressed Mood, which hinder her ability to return to work psychologically. She subsequently began psychological treatment with Kruthi Doshi where she expressed her inability to work as a result of her injuries. On March 5, 2022, she saw Dr. Prakesh Gangdev, psychiatrist, where she expressed that she was worried about returning to work as she is afraid of driving. On May 31, 2022, Dr. Gangdev confirmed that she had been off work since May 9, 2022 and there was no return to work date.

20The respondent submits that by letter dated October 16, 2023, the respondent denied the treatment plan for an FAE based on the file documents, CNRs, and the s. 44 report that was completed in 2022 which supports that she does not meet the test of substantial inability to perform the essential tasks of her employment. The respondent submits that the applicant has not met the test of a substantial inability to perform the essential tasks of her employment, as demonstrated by her return to work for ten months following the accident, until she stopped working. The respondent submits that the applicant’s delayed work cessation demonstrates that intervening, non-accident-related factors were the true cause of her departure from employment as there are no accident-related stressors that explain her decision to stop working in May 2022. The respondent argues that the applicant reported bullying and discrimination in her workplace and also faced substantial personal stress, including the loss of her mother and the resulting sole responsibility of caring for her father. The respondent submits that taken together, these factors provide a far more plausible explanation for the applicant’s eventual work cessation than the accident itself. The respondent relies upon the IE FAE report of Dr. Andrew Holland, dated June 27, 2022, which concluded that based on functional testing, the applicant demonstrated the necessary functional tolerances to complete her pre-accident employment. It also relies upon the File Review completed by Dr. Yuri Marchuk, dated June 27, 2022, that concluded there was no complex injury that would interfere with her ability to perform the essential tasks of her employment. In Dr. Marchuk’s subsequent assessment on May 30, 2025, he recorded that the applicant has returned to work as of March 10, 2025.

21I find upon review of the treatment plan in dispute that it states that a FAE is a series of objective functional tests to determine the nature of physical impairment, physical disability and their effect in functional activities. The FAE was recommended to address the applicant’s physical status and functional ability. Based on the submissions of the applicant, she has not directed the Tribunal to any evidence that supports she physically required this assessment at the time of submission of the treatment plan. I find that her submissions focus on her psychological impairment and the psychological treatment she received. In my view, it is not the Tribunal’s role to sort through the applicant’s medical evidence, or to search for support for the applicant’s position in the evidence provided: see Dooman v. TD Insurance Co. 2025 ONSC 184 at para. 50.

22In addition, I find that the applicant has not pointed the Tribunal to any evidence that is contemporaneous to the treatment plan in dispute. While the psychological records that she directed the Tribunal to are dated November 2021 and May 2022, no records or updates on her condition are pointed to at the time of the submission of the treatment plan. When determining whether an assessment is reasonable and necessary, the onus on the applicant to prove that there was some condition that warranted the assessment at the time the recommendation was made. I find that the applicant has not met her onus.

23I find the IE FAE report of Dr. Holland persuasive where he concluded that the applicant demonstrated the necessary functional tolerances to complete her pre-accident employment based on his assessment and testing performed. In addition, I find that the Physiatry File Review report, by Dr. Marchuk persuasive where he found that on examination there was mildly decreased range of motion of the spine and no sign of complex injury that would interfere with her ability to perform the essential tasks of her employment. I find that the applicant has not pointed the Tribunal to any physical records after these assessments and prior to the submission of the treatment plan that would counter the opinions reached as to her functional tolerances.

24For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that the treatment plan for a FAE assessment is reasonable and necessary as a result of the injuries sustained in the accident.

Entitlement to the treatment plan for a vocational assessment

25I find that the applicant is not entitled to the treatment plan for a vocational assessment.

26The applicant claims entitlement to $3,081.50 for a vocational assessment, proposed by Complete Rehab Centre, in a treatment plan dated September 19, 2023. The treatment plan recommends:

Documentation, support activity for claim form: $200.00 Vocational assessment: $2,000.00 Claimant transportation to treatment: $500.00

27The goals of the treatment plan are pain reduction, to identify vocational goals and required supports and to return to activities of normal living.

28The applicant submits that the vocational assessment is reasonable and necessary in order to determine suitable career options and assist in returning to work. She claims that without this assessment it is difficult for her to see what career options may be available for her. She further submits that she was prescribed several medications in order to assist with her physical and psychological impairments as a direct result of the accident which hinder her ability to recover.

29The respondent submits that by letter dated October 16, 2023, the respondent denied the treatment plan for a vocational assessment based on the file documents, CNRs, and the s. 44 report that was completed in 2022 which supports that she does not meet the test of substantial inability to perform the essential tasks of her employment. It relies upon the s. 44 reports of Dr. Holland and Dr. Marchuk, dated June 27, 2022, which conclude that the applicant does not meet the test for a substantial inability to perform the essential tasks of her employment. In addition, it submits that the delayed work cessation was attributable to intervening non-accident-related factors including workplace bullying, discrimination and the personal stressors following the death of the applicant’s mother. Taken together, the respondent submits these circumstances provide a more plausible explanation for an interruption in employment than the accident itself. In addition, it relies upon the IE report of Dr. Marchuk, dated May 30, 2025, where the applicant reported that she has returned to work as of March 10, 2025, and she further confirmed that job assistance was not necessary.

30I find upon review of the submissions of the applicant, that she has not provided persuasive evidence that at the time the treatment plan for a vocational evaluation was submitted she suffered a condition that warranted an assessment. The applicant has not directed or pointed me to any evidence which document her ongoing physical impairments, and she pointed the Tribunal to the CNRs from her psychiatrist from May 2022, over a year and a half prior to the submission of this treatment plan. I find that the applicant has not pointed to any contemporaneous medical records to support the reasonableness and necessity of the proposed assessment.

31For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that the treatment plan for a vocational assessment is reasonable and necessary as a result of the injuries sustained in the accident.

Entitlement to the treatment plan for chiropractic services

32The applicant has made submissions as to her entitlement to the treatment plan dated April 11, 2024 for chiropractic services.

33The respondent submits that the applicant withdrew this issue during the Case Conference as evidenced at paragraph 5 of the CCRO.

34As I find that this treatment plan is not listed as an issue in dispute in the CCRO, the issue is not before me.

Interest

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that there are no overdue benefits payable, no interest is payable.

Award

36The 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.

37I find that the applicant did not make any submissions with respect to her entitlement to an award.

38For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that she is entitled to an award.

ORDER

39For the reasons outline above, I find that the applicant is not entitled to the treatment plans in dispute, an award or interest. The application is dismissed.