RECONSIDERATION DECISION
Before:
E. Louise Logan, Vice-Chair
Licence Appeal Tribunal File Number:
23-011620/AABS
Case Name:
Abiola Anibuali v. Aviva General Insurance
Written Submissions by:
For the Applicant:
Aparjita Singh, Counsel
For the Respondent:
Geoffrey Keating, Counsel
OVERVIEW
1On January 5, 2026, the applicant requested reconsideration of the Tribunal’s decision dated December 5, 2025 (“decision”).
2In the decision, the Tribunal determined that the applicant is not entitled to the disputed treatment plans, interest or an award.
3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or
c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
4The applicant requests reconsideration of the decision pursuant to Rule 18.2(b). The applicant is seeking entitlement to the treatment plans in dispute, an award and interest.
5The respondent submits that the reconsideration request should be denied.
RESULT
6The applicant has established grounds for reconsideration with respect to the treatment plans for physiotherapy services, dated August 10, 2022 and October 13, 2023.
7The applicant has not established grounds for reconsideration with respect to the balance of the treatment plan for psychological services, dated January 5, 2023.
8The decision with respect to the treatment plans for physiotherapy services, related interest and an award is cancelled. I am ordering a rehearing of entitlement to physiotherapy, related interest and an award by a new adjudicator. The rehearing will be based on the written submissions and evidence filed by the parties for the initial hearing.
ANALYSIS
9The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
10The issues in dispute at the initial hearing included two treatment plans for physiotherapy services, and the remaining balance for a partially approved treatment plan for psychological services. The applicant also sought interest and an award.
11The applicant has established grounds for reconsideration with respect to the treatment plans for physiotherapy services.
12The applicant makes several arguments with respect to these treatment plans. In sum, the applicant submits that the Tribunal erred in fact and law in its treatment of the evidence and the relevant legal test for entitlement under the Schedule. Her arguments focus on the Tribunal’s consideration of maximum medical recovery (“MMR”) as a ground for denial, as well as the Tribunal’s reasoning that the lack of a diagnosis of chronic pain syndrome and her return to work as a Personal Support Worker (“PSW”) were grounds to deny the treatment plans.
13The applicant further submits that her treating physicians have repeatedly recommended physiotherapy, and the Tribunal overlooked the ongoing clinical need for physiotherapy documented in the Urgent Care Clinic records. Finally, she submits that the Tribunal mischaracterized the applicant’s burden under the Schedule by requiring a family physician to specifically endorse each device listed in a treatment plan.
14Upon review of the decision, I find that the Tribunal did err with respect to the physiotherapy treatment plans and that the errors are such that they would likely have changed the outcome of the decision.
15First, I note that I have reviewed the submissions for the initial hearing. In her submissions, the applicant noted that she has been recommended physiotherapy at Urgent Care Clinic on: December 20, 2021; June 9, 2022; December 28, 2022; August 2, 2023; August 22, 2023; November 2, 2023; November 10, 2023; December 5, 2023; and February 12, 2024. The clinical notes and records (“CNRs”) in evidence at the initial hearing indicate that the physicians at Urgent Care Clinic recommended physiotherapy for the applicant’s accident-related, ongoing lumbar back pain.
16While I agree that the applicant provided evidence of the need for physiotherapy, I find that the evidence was considered by the Tribunal in its reasons. At paragraph 10 of the decision, the Tribunal acknowledges the CNRs of Urgent Care Clinic (which it refers to as “Urgent Clinic”) and at paragraph 15, the Tribunal states that:
Of all the Urgent Clinic Medical Professionals, I refer to the CNRs of Dr. I. Maxwell, who has documented the decreased range of motion of the back, albeit noted as being “tender paraspinally in the low back”. Dr. Maxwell has also noted that the applicant had complained of back pain “on and off”, and that it had been “bothering her a little bit lately”. As of November 2, 2023, Dr. Maxwell opined that the applicant needed to be on some anti-inflammatories and continue the physiotherapy.
17I interpret these references to the evidence of Urgent Care Clinic to mean that the Tribunal reviewed the CNRs of Urgent Care Clinic and found the notes of Dr. Maxwell to be of importance to its reasons. The decision then goes on, at para 17, to state that the applicant has not provided evidence of the efficacy and improved functionality:
To the point, aside from the referrals for physiotherapy and prescriptions for anti-inflammatory medicine at the Urgent Clinic, the applicant did not direct me to any entries in the CNRS of the Urgent Clinic, as to whether the physiotherapy treatments are effective, in a way that they improve her level of functionality.
18Thus, I find the Panel considered the Urgent Care Clinic CNRs in the decision.
19I now turn to the applicant’s reconsideration arguments with respect to chronic pain. The applicant argued that she required the recommended physiotherapy treatment for lumbar back pain. In considering this argument, at paragraphs 19 to 22 of the decision, the Tribunal reviewed the evidence of the applicant’s complaints of pain as follows:
19In further consideration of the CNRs of the Urgent Clinic, where the word “chronic” likely conveys the meaning of ongoing pain, the use of the terms “chronic pain”, in my view, does not clearly document a diagnosis of chronic pain disorder or chronic pain syndrome.
20I note that these diagnoses of chronic lumbar back pain are few and far between, having been documented more than 18 months and 2 years after the accident, respectively. At least one of these two diagnoses is qualified, as the Doctor states that: ( it ) “sounds like chronic pain”, in the context of the medical plan. [sic] In this respect, the assessment of Dr. J. Ku as of December 5, 2025, is that of Lower back pain, or LBP.
21In alignment with the fact that the applicant was not referred to a chronic pain specialist or a chronic pain clinic, and that the applicant has complained of pain “on and off”,” the CNRs of the Urgent Clinic also state that the applicant’s injuries are soft-tissue injuries documented as myofascial sprain. For instance, the applicant had been diagnosed with muscular strain on June 9, 2022, more than six months after the accident, and, on August 2, 2023, she was prescribed acupuncture for post-accident myofascial strain.
22Accordingly, despite the applicant’s ongoing pain complaints, I find that the medical professionals at the Urgent Clinic have not expressed an unequivocal opinion, or a diagnosis of chronic pain syndrome related to the applicant’s injuries resulting from the accident. Further, I also find that the applicant did not direct me to an opinion from the Urgent Clinic professionals regarding the applicant’s prognosis for rehabilitation in alignment with her need for continued physiotherapy, let alone the effectiveness of the devices proposed in the treatment plan.
20I find that it is not clear, from the decision, how the lack of a chronic pain disorder or syndrome diagnosis, imaging, or specialist referral is relevant to whether the physiotherapy treatment plans are reasonable and necessary. I agree with the applicant that, by seemingly requiring a diagnosis of chronic pain disorder or syndrome in this context, and without linking the need for such a diagnosis to the legal test for the treatment plans in dispute, the Tribunal placed a burden on the applicant that is not consistent with the requirements of the Schedule.
21Further, in my view, the Tribunal erred in its consideration of MMR in the context of the treatment plan in dispute. Whether the applicant has reached MMR may be a relevant consideration as part of the larger assessment of whether a treatment plan is reasonable and necessary in accordance with the Schedule. However, this consideration is not, in and of itself, a basis for denying treatment. A review of the reasons indicates that the Tribunal found the determination that the applicant is at MMR to be a persuasive argument in support of finding that the treatment plans are not reasonable and necessary. MMR is cited in the concluding reasons at paragraph 24, as well as in the analysis at paragraphs 13 and 14, as follows:
13Further, the respondent argues that the applicant has received over $15,000.00 in physiotherapy, massage, and chiropractic treatment to date, and; that she has received maximum medical recovery with respect to her accident-related soft-tissues injuries, as opined by Dr. Alikhan in an IE report dated December 7, 2023.
14I agree with the respondent, that the applicant has received maximum medical recovery, [sic] given that she has sustained soft-tissues injuries, and given also, the duration and the frequency of the physiotherapy treatments that she has received. To this end, I am not persuaded that the treatments plans in dispute are reasonable and necessary, for the following reasons: [sic]
22The reasons do not address why the Tribunal found Dr. Alikhan’s report that the applicant reached MMR to be persuasive evidence in relation to the treatment plans not being reasonable and necessary, particularly in light of the evidence of ongoing “chronic” accident-related pain complaints for which she was recommended physiotherapy.
23Similarly, the decision does not indicate why the applicant’s return to work as a PSW, with restrictions on lifting, is evidence that supports the denial of the physiotherapy treatment plans. At paragraph 23, it states the following, without further reasoning:
Finally, the applicant has returned to work as a Personal Support Worker, albeit with some adaptations, given that she does not do any lifting.
24I have considered the respondent’s arguments, including the submissions that the decision identified the correct legal standard, reviewed the medical evidence, and concluded that evidence was not led by the applicant to establish that physiotherapy would be effective and improve the applicant’s level of functionality. The respondent also argues that the Tribunal’s analysis did not turn on whether the applicant suffered from chronic pain or whether she returned to work. It submits that, while the Tribunal concluded that the applicant had reached MMR, this was not the reason for denying entitlement.
25Further, I have considered the respondent’s arguments that the Urgent Care Clinic records do not speak to whether physiotherapy was effective or improved the applicant’s functionality, nor do they address the recommended devices. Therefore, according to the respondent, there is no error in the decision. Even if there was an error (which the respondent denies), the Tribunal would not likely have reached a different result had the error not been made, and that the applicant appears to be shifting the onus of proof by criticizing the decision’s focus.
26I find, however, that the Tribunal did err in the decision, as set out above. The Tribunal determined that the applicant did not have a diagnosis of chronic pain disorder or syndrome, without linking the need for such a diagnosis to the legal test for the treatment plans in dispute. The reasons given by the Tribunal do not explain how the applicant’s return to work on modified duties support a finding that she is not entitled to physiotherapy. The Tribunal also erred in its consideration of MMR. I find that these considerations were an important part of the Tribunal’s reasons. Therefore, I find that the second branch of the test in Rule 18.2(b) has been met. In my view, taken together, these errors are such that the Tribunal would likely have reached a different result.
27I find that the applicant has established grounds for reconsideration with respect to the treatment plans for physiotherapy pursuant to Rule 18.2(b). As the applicant has established grounds for reconsideration for the reasons set out above, I do not need to consider the other reconsideration arguments related to these plans.
Balance of the treatment plan for psychological services
28I find that the applicant has not established grounds for reconsideration with respect to the balance of the treatment plan for psychological services.
29The unapproved amount of the OCF-18 relates to the difference between the claimed and approved physiotherapist rates.
30The applicant submits that the Tribunal erred by concluding that Kane v. Aviva Insurance Company, 2021 CanLII 55137 (ON LAT) (“Kane”) is persuasive, because the OCF-18 at issue does not recommend CBT psychotherapy. She submits that Dr. Brunshaw expressly recommended CBT-based psychotherapy in her assessment, and the OCF-18 confirms that the proposed services were based on her recommendations. She also submits that the Tribunal erred in equating her registered psychotherapist (qualifying), Ms. Klopina, with the unregulated service provider in Kane, and that treating Ms. Klopina as analogous to the provider in Kane is factually and legally incorrect.
31I find, however, that the applicant did not address the applicable rate in her submissions for the initial hearing. Additionally, while she filed reply submissions, these submissions did not address why the rate is reasonable and necessary, nor do they address the respondent’s arguments with respect to Kane. Reconsideration is not an opportunity to make new arguments that were not made at first instance. Further, even if the Tribunal did err, this would not likely have changed the result, because the applicant did not make any submissions and, therefore, did not meet her onus.
32The applicant has not established grounds for reconsideration with respect to the balance of this treatment plan.
Interest and Award
33In the decision, the Tribunal’s determination that the applicant is not entitled to interest or an award is directly related to its finding that she is not entitled to any benefits. I have now found that there are grounds for reconsideration with respect to the physiotherapy treatment plans. Therefore, it follows that the related issues of entitlement to interest and an award should also be reheard.
Rule 18.4 – Outcome of Reconsideration
34Having found that the applicant has established grounds for reconsideration with respect to the two physiotherapy treatment plans, I will now turn to the outcome of reconsideration pursuant to Rule 18.4.
35In this case, I find that the question of entitlement to the disputed physiotherapy treatment plans, related interest and an award shall be heard by a new adjudicator. The rehearing shall take place based on the written submissions and evidence filed by the parties for the initial hearing. The parties have had an opportunity to make submissions on these issues, and there is no indication in the reconsideration submissions that further submissions are required.
CONCLUSION & ORDER
36The applicant has established grounds for reconsideration with respect to the treatment plans for physiotherapy services, dated August 10, 2022 and October 13, 2023.
37The applicant has not established grounds for reconsideration with respect to the balance of the treatment plan for psychological services, dated January 5, 2023.
38The decision with respect to the treatment plans for physiotherapy services, related interest and an award is cancelled. I am ordering a rehearing of entitlement to the physiotherapy plans in dispute, related interest and an award by a new adjudicator. The rehearing will be based on the written submissions and evidence filed by the parties for the initial hearing.
39I am not seized.
E. Louise Logan,
Vice-Chair
Released: March 30, 2026