Licence Appeal Tribunal File Number: 24-011101/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:
Churesh Purasa
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
John Mazzilli
APPEARANCES:
For the Applicant:
Serena Rhyman, Paralegal
For the Respondent:
Noura Bagh, Counsel
HEARD:
By way of written submission
OVERVIEW
1Churesh Purasa, (“the applicant”), was involved in an automobile accident on January 18, 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 TD General Insurance Company (“the respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2PRELIMINARY ISSUES: The preliminary issues to be decided are:
- Is the applicant barred from proceeding to a hearing on issues no. 2(vi) and 2 (vii) because the applicant failed to dispute their denial within the 2-year limitation period?
3SUBSTANTIVE ISSUES: The issues to be decided in the hearing are:
Is the applicant entitled to $2,164.00 for an Attendant Care Assessment, proposed by Midland Wellness Centre in a treatment plan/OCF-18 (“plan”) submitted on October 25, 2022, and denied on November 3, 2022?
Is the applicant entitled to treatment proposed by Midland Wellness Centre, as follows:
i. $2,443.80 for physiotherapy treatment, in a plan submitted on October 19, 2022, and denied on November 4, 2022; and
ii. $2,296.00 for physiotherapy treatment, in a plan submitted on December 1, 2022, and denied on December 15, 2022.
iii. $2,119.10 for physiotherapy treatment, in a plan submitted on March 23, 2023, and denied on April 18, 2023.
iv. $2,058.60 for physiotherapy treatment, in a plan submitted on September 20, 2023, and denied on September 28, 2023; and
v. $2,164.00 for chronic pain treatment, in a plan submitted on September 20, 2023, and denied on September 28, 2023.
vi. $3,122.30 for physiotherapy treatment, in a plan submitted on April 30, 2022, and denied on June 8, 2022; and
vii. $2,797.60 for physiotherapy treatment, in a plan submitted on July 28, 2022, and denied on August 5, 2022?
Is the applicant entitled to $587.56 for assistive devices, proposed by Scarborough Pain Clinic in a plan submitted on September 19, 2023, and denied on September 27, 2023?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4Issues 2 vi. and 2 vii. above are entitled to be appealed as a result of invoking s.7 of the LAT Act.
5The applicant is entitled to physiotherapy treatment in the amount of $3,122.30, $2,797.20, $2,058.00, $2,119.00, $2,296.00 and $2,443.80.
6The applicant is entitled to $587.56 for assistive devices.
7The applicant is entitled to a chronic pain assessment in the amount of $2,164.00.
8The applicant is not entitled to an attendant care assessment.
9Interest is owing on the outstanding benefits payable in accordance with s.51.
PROCEDURAL ISSUES
The applicant’s late filed submissions
10I find that the applicant can rely on his late filed submissions and document brief at the hearing.
11The respondent submits that the applicant failed to abide by the deadline set out for the due date of the hearing submissions and the document brief in accordance with the Case Conference Report and Order dated December 16, 2024. As such, the respondent submits that the applicant has failed to advance any evidence and that I ought to dismiss the application. In the alternative the respondent submits that I ought to draw a negative inference against the applicant for his disregard for the Tribunal’s Order.
12The applicant argues that the delay in filing his submissions was not significant and therefore did not cause substantial prejudice to the respondent, such that a disproportional consequence be granted in the form of a dismissal or a negative inference.
13Indeed, the applicant did file his submissions and document brief on July 23rd, 2025, which is one day past the due date for submissions as set out in the notice of hearing. The respondent did not argue that it was prejudiced by the late submissions, therefore I find that there is no prejudice to the respondent as it had the ability to prepare an appropriate response before its allotted deadline for submissions. In addition, I do not find that submissions filed one day late amounts to drawing an adverse inference because the respondent was able to prepare an appropriate response to the applicant’s submissions.
14I find that the applicant can rely on his late filed submissions and document brief at the hearing.
ANALYSIS
Preliminary Issues: Section 7 & 56
15I find that the justice of the case warrants extending the limitation period for issues 2 vi. and 2 vii. above. Accordingly, I choose to invoke section 7 of the LAT Act and extend the applicant’s deadline to dispute the respondent’s denial. Therefore, issues 2.vi and 2 vii will be considered in my decision.
16Pursuant to section 56 of the Schedule, the applicant has two years from the date of the denial to apply to the Tribunal to dispute the respondent’s decision. The limitation clock begins once the applicant receives proper notice of the denial. The notice must clearly and unequivocally deny the benefit, provide the medical and any other reasons for the decision, and must include information on the applicant’s right to dispute the decision.
17It is well established that, to determine whether a denial is proper, it must be in accordance with the principles outlined in Smith v Cooperators General Insurance Company, 2002 SCC 30. The Court of Appeal in Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111 confirmed that the limitation period is triggered once proper notice of denial is provided regardless of the correctness of the insurer’s reasons for denial.
18If the respondent’s denial satisfies these requirements and the applicant fails dispute the respondent’s denial within two years, then the onus is on the applicant to establish reasonable grounds for an extension under Section 7 of the Licence Appeal Tribunal Act, 1999 (“LAT Act”). Section 7 allows the Tribunal to extend a limitation period for filing an appeal. In considering whether to exercise its discretion to extend the limitation period, the Tribunal must consider the following four factors set out in Manuel v. Registrar, 2012 ONSC 1492 (”Manuel”),to determine if the justice of the case requires the extension.
19To determine if the justice of the case requires the extension the factors to consider when determining whether to extend the limitation period are explained in Manuel. The factors are length of delay, a bona fide intention to appeal within the appeal period, the prejudice to the other side, and the merits of the appeal.
20It is important to note that in this case the applicant does not dispute that the respondent’s denial notices did not contain clear and unequivocal information in denying the benefits, nor is it disputed that the respondent provided adequate medical and any other reasons for its decisions, and the notices did include information on the applicant’s right to dispute the decision.
21The applicant has the onus to establish that the justice of the case requires the granting of the extension, he does not need to satisfy all four factors as set out below. After considering all four factors together, I conclude that the justice of the case warrants extending the limitation period for the disputed treatment plans.
Bona fide intention to appeal and the length of the delay
22The applicant submits that while its original application of May 16, 2023, did included the disputed plans dated April 30, 2022, and July 28, 2022, the application was withdrawn because the applicant underwent surgery on his right ancle due to accident-related injury. He argues that the application was withdrawn at that time so he could continue to monitor his condition considering this operation and to further attempt to request medical and rehabilitation benefits required to recover from his surgery.
23The applicant further submits the respondent was aware of the applicant’s intention to dispute the denials, and that the delay is not significant given his circumstance.
24The respondent argues that the delay in this case is significant as the denials were made in June and August of 2022 which was three years prior to the hearing and that there is no valid reason for the lengthy delay. It argues that the applicant submitted a previous application which included the same issues in dispute, apart from one new issue in dispute and that the applicant withdrew his application prior to the case conference.
25After review and consideration of the evidence I find the first two factors are in support of the applicant. The current application was filed on September 5, 2024, Issue 2.vi was denied by the respondent on June 8, 2022, approximately 3 months past the limitation period, and Issue 2.vi was denied by the respondent on August 5th, 2022, one month past the two-year limitation period. Given the applicant’s surgical procedure, and the minimal delay caused by his accident-related surgical procedure, I find the factors are in support of the applicant’s position.
Merits of the appeal
26The applicant submits that the respondent was aware of his intention to appeal its denial of the plans, and that it was aware of the applicant’s surgical procedure and the need for him to monitor his condition considering the surgical procedure.
27The respondent argues that it’s denial letters clearly indicate that the applicant was not entitled to the OCF-18’s in dispute as it provided a thorough explanation on why the applicant was not entitled to the disputed plans. It argues that the applicant had already retained counsel to represent him at the time of the denials and as such ought to have disputed its denial at that time.
28This factor does not require me to make a determinative ruling on the merits. Instead, it is to assess if there is a reasonable chance of success. As addressed above there is no dispute over the explanation provided by the respondent in its denial but rather its determination. The disputed plans related to physiotherapy treatment for the applicant’s shoulder, back and right ancle. The respondent denied these plans based on its “Insurers examination” (IE), disregarding the applicant’s family physician’s recommendations for such treatment which supports the position that the applicant has a reasonable chance of success.
Prejudice to the respondent
29The applicant did not provide submissions with respect to the prejudice to the respondent, other than his delay of filing was not significant given his surgical procedure.
30The respondent argues that the applicant has not given a valid reason for the lengthy delay and that they it will be prejudiced should I extend the limitation period.
31I am not persuaded by the respondent’s position that extending the limitation period would be prejudicial. The respondent relies on its insurer’s examination and the medical findings therein to support its position, which have not altered since the plan was submitted and denied.
32As noted above the four factors do not require satisfying: Rather an analysis and balancing of all the factors discussed above is required. After consideration, I find that the applicant has satisfied me that he had a bona fide intent to appeal, a reasonable explanation for his minimal delay and some merit in appealing the disputed plans. I further find there is minimal, if any prejudice to the respondent and that the justice of the case warrants an extension of the limitation period.
ANALYSIS
The treatment plans
33To 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.
Issues 2 -Physiotherapy treatment
34I find on a balance of probabilities that the applicant is entitled to physiotherapy treatment in the amount of $3,122.30, $2,797.20, $2,058.00, $2,119.00, $2,296.00 and $2,443.80 because it is reasonable and necessary.
35The applicant submits that the disputed plans are reasonable and necessary for the multiple physical injuries to his back, arms, ankle and shoulders as a result of the accident, which resulted in pain and decreased range of motion that continue to impact him presently. The applicant submits that physiotherapy treatment was recommended by numerous health care professionals only to be denied by the respondent. The applicant relies on the CNRs of his family physician, Dr. Jayarajah, the CNRs of Midland Wellness Centre, and the OCF-18’s completed by Dr. McCutcheon, chiropractor, the CNRs of Dr. Chen, physician (Scarborough Pain Clinic) an ultrasound dated October 4, 2022, and an MRI dated April 2, 2023, conducted at Ontario Diagnostic Centre.
36The respondent argues that the applicant has not obtained any expert opinion addressing the issues in dispute which conclude that the treatment is reasonable and necessary. It argues that its denials are based on the opinions of expert reports which included an in-person assessment of the applicant as well as a thorough review of all documentary evidence on the file all of which conclude that ongoing treatment is not reasonable, necessary or beneficial. The respondent relies on the assessment completed by Dr. Nesterenko, general practitioner on April 27, 2022, and her reports dated August 9, 2022, May 11, 2023, August 22nd and 23rd, 2022, January 30, 2023. The respondent further relies on the reports of Dr. Urovitz, orthopaedic surgeon, dated October 10, 2023, and October 16, 2023.
37It is important to note that the respondent’s assessor Dr. Nesterenko in her denials based on her paper review reports, refer to her assessment report of the applicant dated April 27, 2022, however this report was not produced to the Tribunal. Dr. Nesterenko’s paper review reports, which the respondent relied upon in its denial opined that “In the absence of any ongoing objective musculoskeletal impairment attributable to the initially sustained physical injuries in the subject motor vehicle accident, there would be no clinical indication for the provision of any further formal facility based physical rehabilitation, either active or passive in nature”. I disagree for the following reasons:
38The applicant has maintained a physical job as a lot attendant at a car dealership for over twenty-three years. His job involves frequent heavy lifting and walking. The goals for all the physiotherapy plans in dispute are pain reduction, increase in strength and increase in range of motion to the applicant’s multiple body site injuries. Contrary to the respondent’s argument that the applicant lacks expert medical evidence that support the plans, the post accident CNRs of Dr. Jayarajah and Dr. Chen consistently reference the need for continued physiotherapy treatment following the MVA, which support’s a finding that the plans submitted by Dr. McCutheon’s are reasonable and necessary.
39For example, the CNRs of Dr. Chen from February 18, 2022, to May 6, 2023, which consist of eleven appointments, consistently show that Dr. Chen’s plans for the applicant’s recovery include rehabilitation. Dr. Chen’s CNRs also show improvement with the applicant’s elbow strain, however Dr. Chen continuously notes that the applicant’s right ancle was an area of concern. This is confirmed by an ultrasound dated October 4, 2022, which shows an intrasubstance tear of the peroneus longus and mild tibialis posterior tendinopathy and an MRI of the applicant’s right leg dated April 2, 2023 determined a high grade partial anterior talofibular ligament tear, a focal split tear of the peroneus brevis tendon with moderate tendinosis and mild tenosynovitis that led surgical repair on April 8, 2024.
40In his report dated October 10, 2023 which I note is approximately 20 months post accident and following the respondent’s denials based on the opinion of Dr. Nesterenko, Dr. Urovitz was retained to provide a medical opinion for all of the disputed physiotherapy treatment plans and his opinion in his report and subsequent paper review report is a follows: “Taking into account the nature of the accident, the timeframe under consideration, the amount of treatment received to date, coupled with the results of the physical assessment of September 26, 2023 which only demonstrated some mild restrictions with respect to right ankle movement which were thought to be related to subjective pain, the proposed goods and services listed in this OCF-18 are not deemed to be medically necessary and reasonable at this time.
41I do not accept Dr. Urovitz opinion that the plans are not reasonable and necessary based on the time frame under consideration, and the amount of treatment received to date because I was not pointed to the level of therapy received by the applicant but rather I was pointed to treatment that was denied by the respondent approximately four months post accident and beyond, which I find does not support Dr. Urovitz’s opinion. For the reasons above I prefer the objective corroborating medical evidence provided by Dr. Chen and Dr. Jayarajah, because they recognized the progression of the applicant’s accident-related injuries that caused pain and restrictions due to the high grade partial anterior talofibular ligament tear, which render the plans to be reasonable and necessary.
42I find on a balance of probabilities that the applicant is entitled to physiotherapy treatment in the amount of $3,122.30, $2,797.20, $2,058.00, $2,119.00, $2,296.00 and $2,443.80 because it is reasonable and necessary.
Issue 2 v.-$2,164.00 for chronic pain assessment
43I find on a balance of probabilities that the applicant is entitled to $2,164.00 for a chronic pain assessment because it is reasonable and necessary.
44The applicant submits that the assessment is reasonable and necessary based on the totality of the applicant’s accident-related injuries. The OCF-18 was completed by Dr. McCutcheon which informs that the assessment is necessary because the patient’s pain and dysfunction has persisted longer than the temporal course of natural healing. The assessment will consist of clinical diagnostic interview, pain disability testing, review of external file maters, consultation, documentation and a feedback interview.
45The respondent argues that the plan is not reasonable and necessary and relies on the opinion of Dr. Urovitz based on his assessment of the applicant on September 26, 2023. Dr. Urovitz opined that the plan is not reasonable and necessary because the applicant failed to demonstrate major residual objective signs of accident-related orthopedic impairment.
46I disagree with Dr. Urovit’s conclusion because the documented contemporaneous corroborating medical evidence shows that the applicant’s accident-related injuries to his left shoulder and right ancle have persisted well beyond six months post accident with minimal treatment which in my view shows that the assessment is reasonable and necessary.
47In addition, in her psychological report dated November 17, 2022, Dr. Langis, psychologist opines that the applicant presents as chronically psychologically, physically, and socially affected by the accident. Dr. Langis concludes that “The troubling scores on the PCS and IEQ are associated with poor recovery in terms of pain (PCS) and psychological and functional recovery (IEQ). The former indicates inability to cope with and mange pain effectively, a pain focus, and hypersensitivity to and fear of pain. I note that the assessment was completed approximately eleven months post accident, which further validates the existence of pain symptomology more than six months post accident, which is further supportive of a finding that the assessment is reasonableness and necessary.
48I find on a balance of probabilities that the applicant is entitled to a chronic pain assessment in the amount of $2,164.00 because it is reasonable and necessary.
Issue 1-$2,164.00 for an Attendant Care Assessment
49The applicant did not provide any submissions or evidence to support the disputed plan as being reasonable and necessary, therefore the applicant has failed on his onus to prove entitlement to the disputed plan.
50I find that the applicant is not entitled to $2,164.00 for an attendant care assessment because it is not reasonable and necessary.
Issue 3-$587.56 for assistive devices
51The assistive devises in dispute are an elbow brace, ancle brace, TENS unit and a cane. The OCF-18 was completed by Dr. Chen on September 19, 2023, with the goals of the plan listed as pain reduction, increase in strength, increase range of motion, with the functional goals of return to activities of normal living, return to modified work activities and return to pre-accident work activities.
52The respondent denied the assistive devices in a letter dated September 27, 2023, based on limited clinical notes and records on file to support the devices. It further notifies the applicant of a s.44 assessment to be conducted by Dr. Urovitz, however the reports of Dr. Urovitz do not refer to the disputed plan or provide a medical opinion on the reasonableness or necessity of the assistive devices. For this reason, I accept the OCF-18 to be reasonable and necessary based on the CNRs of Dr. Chen which consistently reference the need for the assistive devises outlined above, therefore the applicant has established entitlement to the disputed assistive devices.
53I find on a balance of probabilities that the applicant is entitled to $587.56 for assistive devices because they are reasonable and necessary.
Interest
54Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest is owing in accordance with s.51 for the outstanding benefits payable.
ORDER
55It is ordered that:
i. Issues 2 vi and 2 vii above are entitled to be appealed as a result of invoking s.7 of the LAT Act.
ii. The applicant is entitled to physiotherapy treatment in the amount of $3,122.30, $2,797.20, $2,058.00, $2,119.00, $2,296.00 and $2,443.80.
iii. The applicant is entitled to $587.56 for assistive devices.
iv. The applicant is entitled to a chronic pain assessment in the amount of $2,164.00.
v. The applicant is not entitled to an attendant care assessment.
vi. Interest is owing in accordance with s. 51 on the outstanding benefits ordered payable.
Released: April 1, 2026
John Mazzilli
Adjudicator