Licence Appeal Tribunal File Number: 24-012487/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:
Sylvie M Chayer-Charron
Applicant
and
Definity Insurance Company
Respondent
DECISION
VICE-CHAIR:
Robert Maich
APPEARANCES:
For the Applicant:
Matthew J Gervan, Counsel
For the Respondent:
Ainsley Shannon, Counsel
HEARD: In Writing
OVERVIEW
1Sylvie Chayer-Charron, the applicant, was involved in an automobile accident on April 1, 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 the respondent, Definity 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 per week from April 29, 2022, to March 29, 2024?
ii. Is the applicant entitled to $2,600.00 for chiropractic services, proposed by Rockland Family Chiropractic & Wellness Centre in a treatment plan/OCF-18 (“plan”) submitted September 26, 2024, and denied November 5, 2024?
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 overdue benefits ?
RESULT
3The applicant is not entitled to a non-earner benefit of $185.00 per week from April 29, 2022, to March 29, 2024.
4The applicant is entitled to $2,600.00 for chiropractic services, proposed by Rockland Family Chiropractic & Wellness Centre in a treatment plan submitted September 26, 2024, and denied November 5, 2024.
5The respondent is liable to pay an award in the amount of $1,300.00 under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant.
6The applicant is entitled to interest on the payment of overdue benefits.
PROCEDURAL ISSUES
7The respondent in its submissions raised a productions issue that the applicant failed to provide her family physician’s records beyond June 2023 and the clinical notes and records of her treating chiropractor, in violation of the Case Conference Report and Order (“CCRO”) dated January 21, 2025. I note that the respondent did not seek any relief from the Tribunal in respect to the evidence before it and the alleged failure to comply with the CCRO.
8The applicant by way of reply denied any breach of the CCRO and submitted that it provided the productions required by the CCRO by way of emails dated February 25, 2025 and March 11, 2025 with attachments and SecureDocs links. The applicant submitted that the respondent failed to acknowledge receipt of the emails and did not download the documents provided from the SecureDocs links.
9The applicant in reply proceeded to raise a new issue of the respondent’s failure to provide the clinical notes and records of its s.44 assessors in violation of the CCRO.
10Further the applicant raised by way of reply the issue of late filed documents, specifically that the respondent’s written submissions were due August 22, 2025 but were not served on the applicant until August 23, 2022 or one day late. The applicant submitted that the Tribunal should not accept the respondent’s written submissions or in the alternative place little weight on it under the provisions of Licence Appeal Tribunal Rules, 2023 (“Rules”), Rule 9.3
11I find it would be procedurally unfair to permit the applicant to raise new issues in reply unless extraordinary circumstances or evidence arise that could not have been within knowledge of the applicant when its submissions were filed; should such extraordinary circumstances be found to have arisen, procedural fairness would require the Tribunal to provide the respondent the opportunity to be heard by way of sur-reply.
12I find the issue of failure to comply with CCRO production orders on the part of the respondent was squarely within the knowledge of the applicant well in advance of its written submissions’ deadline. I also find the applicant would have known if it was prejudiced by a CCRO production breach on the part of the respondent well in advance of its written submissions deadline and it was properly within the applicant’s purview to bring a motion to address the issue.
13I find that procedural fairness requires the Tribunal not to consider this issue at this stage of proceedings but for an extraordinary circumstance. I further find the applicant has not identified an extraordinary circumstance that would procedurally justify the Tribunal to pause this proceeding and canvas a sur-reply from the respondent.
14The applicant has not provided the Tribunal with any reason why the issue of the respondent’s failure to comply with CCRO productions was not raised by way of notice of motion.
15The Tribunal declines to make an order as requested by the applicant in respect to failure to comply with the respondent’s CCRO production obligations.
16I turn now to consider the applicant’s submissions in respect to the issue of late filed written submissions on the part of the respondent and the application of Rule 9.3.
17I have reviewed respondent’s certificate of service and filing record with the Tribunal; I find that the respondent filed a certificate of service dated August 22, 2025 with the Tribunal certifying that the respondent served its written submissions and document brief upon the applicant on August 22, 2022. I note that the certificate of service was filed with the Tribunal at 1:07am on August 23, 2025 approximately one hour past midnight and six hours past the filing cutoff time for August 22, 2025.
18I have reviewed the applicant’s reply submissions and at Tab 6, the respondents cover letter to the applicant dated August 22, 2025 with attached written submissions and document brief of the respondent, together with fax confirmation indicating the documents were sent by the respondent to the applicant at 1:05am on August 23, 2025.
19I find the respondent served its written submissions and document brief upon the applicant at 1:05 am and filed same with the Tribunal together with its certificate of service at 1:07am on August 23, 2025 or approximately 6 hours past the filing deadline with the Tribunal for August 22, 2025.
20I find the applicant has established that the respondent’s written submissions and document brief was filed past the deadline for filing established in the CCRO by approximately 6 hours. I take notice that Rule 6.2 provides any filing with the Tribunal past 5:00pm on a business is deemed to be filed on the following business day. I note that the calendar date of August 22, 2025 falls on a Friday, consequently, the next business day was Monday August 25, 2025 or three days later. I further take notice that the respondent’s materials were uploaded into the Tribunal record at 8:15am on August 25, 2025. I find the Tribunal Rules require the respondent’s written submissions and document brief to be deemed late-filed.
21The applicant submitted it was prejudiced by the respondent’s late filed documents and it unfairly limited its preparation time for its written reply submissions. The applicant submitted that the Tribunal should not accept the late filed material of the respondent pursuant to Rule 9.3
22The Tribunal must determine if Rule 9.3 applies and how it should be applied to the fact situation herein. If the Tribunal applies Rule 9.3 and the relevant factors to consider in its determination, the Tribunal is required to hear submissions of both parties before it can take jurisdiction to make a determination; submissions from both parties is required by both Rule 9.3 and the rules of procedural fairness.
23Accordingly, I find that the Tribunal is required to canvass the respondent for submissions before it can consider the Rule 9.3 factors and make a determination. I take notice that this required process will further delay the determination of this proceeding and may cause prejudice to both parties.
24Given the potential for prejudice to both, or either party from the delay of proceedings that the application of Rule 9.3 would entail, I find it is necessary for the Tribunal to consider the application of Rule 3.2 to determine if Rule 9.3 is applicable to the fact circumstances herein.
25Rule 3.2 provides the Tribunal with the power to control its process and waive or vary any of its Rules to give directions in proceedings or to prevent an abuse of process.
26The applicant submitted it was prejudiced by the respondent’s late-filed materials; given the application of Rule 9.3 would delay this proceeding and potentially cause prejudice to both or either party, and given that Rule 9.3 is designed to address procedural fairness and prevent prejudice to any party, I find it is necessary to consider Rule 3.2 to ensure prejudice to both or either party is not compounded by application of Rule 9.3. I find by necessary inference that the Tribunal must first determine if any actual prejudice was suffered by the applicant in order to ensure either party is not prejudiced by a delay of proceedings and to prevent any potential abuse of process.
27I have previously found that the respondent’s materials were late-filed and that under the operation of the Rules it was deemed to be filed on Monday August 25, 2025. I also previously found that the respondent’s materials were faxed to the applicant at 1:05am on Sunday August 23, 2025 or approximately 6 hours past the deadline of Friday August 22, 2022 at 5:00pm. In short, I find the applicant had the respondent’s material in its possession approximately 6 hours after it was due to be served upon the applicant.
28The applicant submitted that it was prejudiced by the late filing of respondent’s materials by reducing the time it had available to prepare and reply to the respondent’s written submissions. I find in order to determine if the six hours of reply time lost to the applicant constituted prejudice, it is first necessary to examine the timelines provided in the CCRO for delivery of its reply. For example, if the applicant was only provided a day or two to reply, 6 hours of lost preparation may very well constitute a significant prejudice, especially in light of what the complexity, extent and length permitted for reply.
29I have reviewed the CCRO and I find that the applicant was granted 7 days to reply to the respondent’s submissions, and that the applicant was limited to 5 pages in reply.
30I note that the applicant did not make any submissions as to how the compressed time for reply affected his ability to make complete or fulsome submissions. I further note the applicant served and filed its submissions in reply 3 days after the respondent served and filed its written submissions, or 4 days prior to the deadline prescribed in the CCRO for submissions in reply.
31I take notice that the respondents submissions arrived in the applicant’s office very early in the morning on Saturday August 22, 2005, however the applicant made no submissions how he was prejudiced by this delay.
32Further, I take note that the applicants reply submissions are 5 pages in length with 2 pages of content addressing procedural issues, and 3 pages addressing substantive issues. I previously noted that the submissions in reply were filed 3 days after service of the respondent’s submissions, or 4 days early. I find given the short substantive submissions in reply comprising of 3 pages, and the filing of the submissions in reply 4 days early to the CCRO deadline, and absent any submissions how the 6 hours lost prejudiced the applicant, I am compelled to find that the applicant has not demonstrated prejudice to his case.
33Accordingly, given I have found no evidence of prejudice to the applicant, it is not necessary to canvas the respondent for sur-reply submissions and risk prejudice to any party from the delay that would be incurred from this process. I find Rule 3.2 provides the Tribunal the authority to determine a Rule 9.3 analysis with submissions from both parties is not necessary in these circumstances as the applicant has not demonstrated any prejudice, and the delay necessary to take submissions is prejudicial to both parties.
34I find the respondent’s written submissions and document brief are accepted by the Tribunal as filed without diminished weight due to its late-filed status.
ANALYSIS
NEB
35The applicant is not entitled to a non-earner benefit of $185.00 per week from April 29, 2022, to March 29, 2024.
36Pursuant to section 12 of the Schedule, the applicant must suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident in order to qualify for NEB. The test for NEBs involves a consideration of the applicant’s activities and life circumstances pre-accident and compares them to their activities and life circumstances post-accident. Sustaining serious injuries or minor life changes does not automatically entitle the applicant to NEB. Rather, according to the test in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, (“Heath”), she must demonstrate that her life circumstances have changed and that the change must be significant enough to continuously prevent her from substantially engaging in all the activities that she engaged in before the accident.
37The applicant submitted an OCF-3 Disability Certificate dated April 15, 2022 prepared by her primary care physician Dr. Forgues, confirming that she suffers a complete inability to carry out daily life activities. Prior to the accident the applicant submitted she was fully independent and acted as primary caregiver to her mother who was suffering from Alzheimer’s disease; she also enjoyed spending active time with her grandchildren including walks, park visits, swimming, playing on the floor, and reading to her grandchildren.
38The applicant submitted the insurer physiatry assessment completed by Dr. Sreenivasan, physiatrist, dated April 27, 2024 detailed the applicant was independent in performing cooking, cleaning, laundry, and gardening tasks prior to the accident. Since the accident, she reported that she only eats frozen or prepared meals; she is unable to wash floors, vacuum, or do dishes; she is able to do her own laundry in small loads; she hired a cleaning person and her friend completed outdoor tasks. Her role with her mother was reduced to short visits at her nursing home. Dr. Sreenivasan opined the applicant is not engaging in most household tasks, recreational or social activities; she reported increased anxiety driving and an inability to play with her young granddaughters. Dr. Sreenivasan concluded: “there is a significant psychological component to this. It is my opinion, that the contributing factor to Ms. Chayer- Charron’s impairment(s), is one of a psychological nature.”
39The applicant also submitted the insurer occupational therapy assessment by Mr. Iyengar, occupational therapist (“OT”), dated June 19, 2024 detailing that the applicant has been unable to resume socializing with friends and family due to her poor physical strength, pain and fatigue; she has not achieved stamina to resume her leisure activities since the accident due to headache and fatigue and low motivation. She reported prior to the accident she went to the gym three times a week and was able to drive and socialize with friends; she has not resumed any of her leisure activities and her driving is limited to the bare minimum.
40The applicant further submitted the insurer psychological assessment completed by Dr. Moncion, psychologist, dated May 14, and June 6, 2024 detailed the applicant was diagnosed with major depressive disorder (“MDD”), post traumatic stress disorder (“PTSD”), and somatic symptom disorder (“SSD”) with predominant pain; she has significant restrictions related to her mood impacting household tasks, driving and recreational/social activities and her impairment is related to her level of depression, anxiety, and pain as a direct result of the accident. She is not engaging in most household tasks, recreational or social activities, and she reported increased anxiety driving and an inability to play with her young granddaughters.
41The applicant’s affidavit sworn March 6, 2025 detailed that prior to the accident, she was the primary caregiver for her elderly mother, spending multiple days per week caring for her; since the accident, her ability to care for her mother has been significantly reduced and she only visits occasionally and can no longer provide hands-on assistance. Although she still sees her mother, the interaction is limited and does not reflect the level of involvement she previously maintained and does not equate to engagement in that activity. Similarly, she was a devoted grandmother, regularly playing with her granddaughters, but now, is unable to play or walk with them, and she describes a painful emotional toll in seeing how they perceive her as “disabled”; the applicant submitted the occasional visits do not represent meaningful participation. Her affidavit also detailed other essential pre-accident activities included maintaining her property, performing renovations, gardening, boating, swimming, cooking, and hosting family dinners; since the accident she has stopped boating entirely, no longer does her own cleaning and relies on store-bought meals or assistance from family; instead of hosting events, her social life has been reduced to near isolation due to pain, fatigue, and psychological trauma.
42Further, the applicant submitted the accident has caused a significant and ongoing disruption to the core activities of her daily life. The few tasks she does attempt, such as light cooking or essential outings for medical appointments, are performed only occasionally, and with considerable pain, effort, and a loss of independence; she argues that she is continuously prevented from engaging in substantially all of her pre-accident activities, meeting the test under Heath. I note the applicant did not provide an analysis of her fact situation to the Heath test.
43The respondent submitted the applicant has a significant medical history including chronic back pain, anxiety, obesity, shortness of breath, and chronic cough. The applicant stopped working following a motor vehicle accident in 2013 for which her injuries were determined to be catastrophic; her pre-accident conditions continued to disrupt her function in the year leading up to the accident. The respondent noted the following pre-accident conditions: March 2021 the applicant reported at a weight management consultation that she does not cook; May 2021 she reported to her physician she was very tired, she wakes up at 10am and then goes back to sleep, and had pain in her right hip and leg as well as difficulty walking due to significant shortness of breath; February 2022 physician noted her generalized anxiety disorder persisted; February to March 2022, reported to massage therapist reported pain in low back at 7 out of 10; and March 2022 she reported to her physician frequent choking, being “stressed out”, shortness of breath suspected related to weight gain and de-conditioning; she also reported to her psychiatrist she continued to struggle with mood and anxiety.
44The respondent also submitted that post accident the applicant sought medical attention from her physician five days later on April 6, 2022 complaining of whiplash and spine pain but did not mention the accident in subsequent visits of April 19 or 23, 2022 or July 25, 2022. The respondent also directed the Tribunal to additional notes of the applicant’s primary care physician: October 12, 2022 reported caring for mother; respondent further submitted primary care physician notes were not provided past June 2023 as required by the CCRO, and submitted there is no evidence of accident related complaints in over two years leading up to the submissions herein. Further, the respondent also submitted the applicant reported to her physiotherapist that she strained her shoulder lifting a heavy grocery bag.
45The respondent submitted that the applicant underwent a psychological consult on February 28, 2023 by Dr. Sandre, psychologist, for a surgical procedure wherein she denied any ongoing difficulty with depressed mood, rather, she reported experiences with sadness and periods of grief caring for her ailing mother, causing Dr. Sandre to conclude that aside from mild and transient periods of low mood, the applicant displayed no evidence of a major depressive disorder, anxiety, social phobia or PTSD. When questioned about her medical history the applicant denied any trauma other than the 2013 accident. Further, she described her mood as good and being a happy person, better than five years ago, and indicated time with her friends, family and grandchildren is uplifting to her; she also reported she had not swam since the pandemic but was planning on re-activating her membership at a YMCA. Further, the respondent submitted that the applicant cancelled a neurological assessment because she was: “taking care of my cottage presently surrounded by water.”
46The respondent also submitted in respect to the previously described physiatry report by Dr. Sreenivasan, the applicant reported independence with her personal care and that she had returned to driving; she refused to allow most of the range of motion (“ROM”) testing due to pain, however, other assessors found full ROM. Further, Dr. Sreenivasan found the applicant did not suffer a complete inability to carry on a normal life. In an addendum report dated October 31, 2024, Dr. Sreenivasan found that further chiropractic treatment was not reasonable and necessary as the applicant had already received almost two and half years of therapy and had only seen 50% improvement; Dr. Sreenivasan opined more of the same therapy would not help the applicant.
47The respondent further submitted that in the aforementioned OT assessment by Mr. Iyengar, the applicant reported she had the partial ability to complete food preparation, hand wash dishes, grocery shop, carry small loads of laundry, load and unload the dishwasher, wipe counters, make beds and carry small bags of garbage. In respect to testing, ROM was normal except in her right shoulder which was due to self-limitation. Ms. Iyengar found that the applicant had the physical ability to be independent in daily living and that she did not suffer an inability to carry on a normal life.
48The respondent submitted in the aforementioned psychological assessment of Dr. Moncion, the applicant reported an ability to cook simple meals, drive, and engage in almost all personal care; Dr. Moncion found she did not meet the test for NEBs.
49In respect to Heath the respondent submitted that the court held it is incumbent on an applicant to establish that those changes amounted to her being continuously prevented from engaging in substantially all of her pre-accident activities. The phrase “continuously prevents” means that an applicant must prove “disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted; moreover, a reduction in the frequency in some of an applicant’s pre-accident activities with pain, does not mean the applicant is continuously prevented from engaging in substantially all his pre-accident activities.”
50The respondent submitted that the applicant has returned to most, if not all, the activities of her pre-accident life as her pre-accident function was already inhibited by ongoing health conditions. Pre-accident she complained of shortness of breath impeding her ability to walk, fatigue causing her to stay in bed, and that she did not cook regularly; some level of pain and anxiety were part of her normal life. Her post-accident medical records are dominated by complaints of choking, shortness of breath, and chronic cough; her decrease in function was a result of these conditions and not the accident.
51The respondent also submitted that according to her contemporaneous report to her physician and psychological consultation, she continued caring for her mother after the accident. Further she continued to spend time with her grandchildren and lives independently with her partner at her cottage.
52The respondent submitted that the applicant exaggerated her pre-accident level of function and overstated her post accident limitations to assessors. For example, she told all assessors that prior to the accident she had been fully independent with activities of daily living. However, contemporaneous records indicate complaints before the accident that she had difficulty simply walking due to severe shortness of breath and that she did not cook, she rated her back pain at a 7/10, she had been on pain and psychotropic medication for over six years, and that she had been deemed to have sustained a catastrophic injury.
53The respondent submitted other examples of the applicant’s inconsistencies include a report to Dr. Moncion that she was swimming 3 times a week which is inconsistent with her report in the psychological consult with Dr. Sandre when she noted that she had not swam since 2020 due to COVID. She also reported to Dr. Moncion that it was difficult to be happy, though in the psychological consult with Dr. Sandre she indicated that her mental health was better than it had been pre-accident. She also reported to Dr. Moncion that she cannot play with her grandchildren anymore, although in her consult with Dr. Sandre she indicated that spending time with her grandchildren was “uplifting to her” and she did not report an inability to engage with them. In addition, she reported to Dr. Moncion that she was not being treated for psychological symptoms at the time of the accident despite attending a psychiatric consult only three days before the accident wherein it was noted: “she still has struggles with mood and anxiety”. I note the report of Dr. Moncion was over a year after the consult with Dr. Sandre.
54In respect to the applicant’s affidavit, the respondent submitted it cannot be reconciled with contemporaneous records and should be assigned little weight. In her affidavit, she indicated that she is no longer able to care for her mother, however, she reported to her family doctor on October 12, 2022 that she was taking care of her mother with Alzheimer’s; similarly, she reported Dr. Sandre on June 6, 2023, that she cares for her ailing mother; the respondent submitted her caregiving role continued for well over a year after the accident. Further she reported to Dr. Moncion on May 14, 2024, that she no longer cared for her mother because she had been placed in a home and not because of the applicant’s limitations.
55The respondent submitted other inconsistencies include the statement in her affidavit that she goes swimming several times a week but can no longer do so because of the accident, however, she reported to Dr. Sandre that she had not swam since pool closures during COVID in 2020, two years before this accident. Also contrary to her affidavit evidence that she is unable to swim, she indicated to Dr. Sandre that she intended to get a YMCA membership and return to swimming. I note the applicant reported to Dr. Moncion in May 2024 that she was swimming 3 times a week. The respondent also submitted that the affidavit included new information about the applicant’s pre-accident life despite having been asked about her pre-accident activities at three assessments; for example, she never previously reported boating, nor hosting and cooking.
56I find the applicant self reporting to assessors was inconsistent on a number of occasions. I note the applicant’s self reporting to Dr. Sreenivasan detailed at paragraph [38] in respect to her pre-accident activities of cooking, cleaning, laundry, and gardening tasks varied from her reporting to Mr. Iyengar at paragraph [39], as she added to her pre-accident activities attending the gym 3 times a week, and further in her affidavit detailed at paragraph [41] she also added boating as a pre-accident activity that did not appear in previous self-reporting. Overall, I find the applicant did report being fully independent in her pre-accident activities to assessors, although it is unclear if this was an accurate picture of her condition.
57I further agree with the respondent that there are inconsistencies in the applicant’s self-reported pre-accident condition, specifically the applicant had a significant medical history including chronic back pain, anxiety, obesity, shortness of breath, and chronic cough that was not disclosed to all assessors; in addition the applicant stopped working following a motor vehicle accident in 2013 for which her injuries were determined to be catastrophic; I find this was not disclosed to all assessors. I find the respondent’s submission accurately detailed inconsistent self-reported pre-accident activities by the applicant; specifically, she reported to her physiotherapist she did not cook, to her physician sleep disturbances with pain in her right hip and leg as well as difficulty walking due to significant shortness of breath, and to her massage therapist back pain rated 7 out of 10, as detailed at paragraph [43].
58The respondent submitted that the inconsistencies of the applicant’s self reporting is cause to reduce the weight of her evidence. I disagree, inconsistencies may arise from an applicant having better days than other days that may not only skew perception of pre-accident activities, but also to a lesser degree post-accident activities. I find to evaluate the nature of inconsistencies, the breadth of the inconsistencies must also be considered, and whether the inconsistencies are of sufficient breadth that a clear picture cannot be formed as to the applicant’s condition pre-accident and/or post-accident.
59I find the inconsistencies in the applicant’s self-reported pre-accident activities precludes a clear picture of her pre-accident activities. I find that given the inability of the applicant to establish a clear evidentiary picture of her pre-accident condition and activities, it is not possible to apply the necessary comparison to contrast pre-accident with post-accident activities as prescribed in the Heath test. In summary, I find that it is not possible to determine from the evidence before the Tribunal whether the applicant’s injuries have continuously prevented her from substantially engaging in all the activities that she engaged in before the accident.
60I find it is the applicant’s onus to establish entitlement to NEBs and I find she has not met that burden.
61The applicant is not entitled to a non-earner benefit of $185.00 per week from April 29, 2022, to March 29, 2024.
Is the applicant entitled to $2,600.00 for chiropractic services, proposed by Rockland Family Chiropractic & Wellness Centre?
62The applicant is entitled to $2,600.00 for chiropractic services, proposed by Rockland Family Chiropractic & Wellness Centre.
63To receive payment for a treatment and assessment 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 the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
64The applicant stated the proposed treatment plan submitted September 26, 2024 outlined the goals of chiropractic therapy as follows: pain reduction, increased range of motion, and partial return to activities of normal living. The explanation of benefits letter from the respondent dated November 5, 2024 detailed a denial on the basis that the applicant having received approximately two and a half years of treatment has only experienced a 50% improvement. Further, the insurer’s assessor, Dr Sreenivasan, opined that further course of similar therapy will not provide any additional benefit beyond that already achieved.
65The applicant submitted in the case of MHE v Aviva Insurance Canada, cited by this Tribunal as 17-002624 v Aviva Insurance Canada, 2018 CanLII 13183 (ON LAT) the applicant also sought funding for chiropractic treatment that was deemed by the insurer to be not reasonable and necessary due to limited improvement in the applicant’s function and symptoms. However, the Tribunal found that the treatment provided some functional and symptomatic benefits, and that is sufficient to satisfy the “reasonable and necessary” standard under the Schedule.
66The applicant submitted that a 50% improvement in ROM is sufficient to meet the test as found in MHE v Aviva Insurance Canada. I do not agree with the applicant’s interpretation of this test; rather it must be determined if the improvement is marginally ongoing or has plateaued some time ago, and/or whether symptom relief is ongoing. I have reviewed the report of Mr. Iyengar, OT, dated July 12, 2024 detailing that rest and chiropractic therapy was noted to relieve pain, although without sustained improvement since the accident.
67The respondent submitted there is no evidence that any physician recommended chiropractic therapy for her accident related injuries in or around the time the treatment plan was submitted. Further the respondent submitted some level of physical treatment was the applicant’s norm prior to the accident, and there is no evidence that the chiropractic treatment proposed in 2024, two years after the accident, was related to the present accident and not to her chronic condition.
68I find the submissions of the applicant to be persuasive, the insurer’s assessor Mr. Iyengar, found chiropractic therapy relieved the applicant’s pain and linked the condition to the accident. I find pain relief in itself is sufficient to establish a treatment plan is reasonable and necessary.
69The applicant is entitled to $2,600.00 for chiropractic services, proposed by Rockland Family Chiropractic & Wellness Centre.
Interest
70Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find the applicant is entitled to interest on overdue payment of benefits.
Award
71The 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.
72The applicant submitted that the respondent unreasonably delayed payment of benefits because the insurer’s assessors confirmed her physical condition and the denial of benefits prolonged her hardship. The respondent made no submissions in respect to an award.
73I find that the applicant is entitled to an award in the amount of $1,300.00 because the respondent unreasonably withheld approval of the chiropractic treatment plan. Pursuant to section 10 of Reg. 664, an award of up to 50% of the amounts withheld may be payable by the respondent if it is determined that it unreasonably withheld or delayed payment of a benefit. Awards are determined on an individual basis and generally depend on a finding that the respondent’s withholding or delay was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.
74I note the respondent commissioned the assessment that provided the evidentiary basis the chiropractic treatment plan was reasonable and necessary. I find this assessment was completed by the insurer’s assessor and was within the knowledge and control of the insurer at all relevant times. I find that the insurer is deemed to know the contents of its s.44 reports and must adjust accordingly on an ongoing basis. Mr. Iyengar’s OT report in July 2024 found there was pain relief from chiropractic treatment. I find that the insurer neglected its duty to continually adjust its file on a good faith basis. Accordingly, I find that the insurer held within its knowledge its own s.44 report that provided evidence that the chiropractic treatment plan was reasonable and necessary and that the insurer was derelict in its duty to continuously adjust the file; for these reasons I find that the respondent’s withholding or delay was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.
75I find an award of 50% is appropriate in these circumstances, as the insurer had full knowledge and control of information on the determination of the benefit. I assess the respondent’s liability for an award to be $1,300.00 payable to the applicant.
ORDER
76The Tribunal’s final Orders:
i. The applicant is not entitled to a non-earner benefit of $185.00 per week from April 29, 2022, to March 29, 2024.
ii. The applicant is entitled to $2,600.00 for chiropractic services, proposed by Rockland Family Chiropractic & Wellness Centre.
iii. The respondent is liable to pay an award in the amount of $1,300.00 under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant.
iv. The applicant is entitled to interest on the payment of overdue benefits.
Released: April 8, 2026
__________________________
Robert Maich
Vice-Chair