Citation: Grant v. TD General Insurance Company, 2026 ONLAT 24-009368/AABS

Licence Appeal Tribunal File Number: 24-009368/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:

Harry Grant

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Laura Goulet

APPEARANCES:

For the Applicant:

Steven Glowinsky, Counsel

For the Respondent:

Sina Nastarani, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Harry Grant, the applicant, was involved in an automobile accident on July 28, 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, TD General 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 attendant care benefits (“ACBs”) in the amount of $1,027.47 per month from January 17, 2024, to date and ongoing?

ii. Is the applicant entitled to $11,912.20 for physical modalities services proposed by Downsview Healthcare Inc. in a treatment plan/OCF-18 (“plan”) dated June 10, 2024?

iii. Is the applicant entitled to $5,650.00 ($17,967.00 less $12,317.00 approved) for a catastrophic determination (“CAT”) assessment proposed by Deena Rogozinsky Therapy in a plan dated July 26, 2024?

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

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

RESULT

3The applicant is not entitled to ACBs.

4The applicant is not entitled to the plan for physical modalities services.

5The applicant is not entitled to the interview and file review components of the plan for a CAT assessment.

6The applicant is entitled to the WPI component of the plan for a CAT assessment.

7The respondent is not liable to pay an award.

8The applicant is entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

ANALYSIS

The applicant is not entitled to ACBs

9The applicant has not met his onus to prove on a balance of probabilities that he is entitled to ACBs for the period in dispute because he has not incurred any expenses related to ACBs during this period.

10Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (ACBs) provided by an aide or attendant. Section 3(7)(e) provides that an expense is incurred if the insured person received the goods and services to which the expense relates and is liable for that expense.

11Additionally, s. 3(7)(e) distinguishes between two types of service provider: professional service providers who provide the services in the course of their regular occupation or profession; and non-professional service providers, such as family members, who sustain an economic loss as a result of providing the services.

12Section 3(8) of the Schedule permits the Tribunal to deem an expense to have been incurred if it finds that the insurer unreasonably withheld or delayed the payment of the benefit in respect of the expense.

13The applicant relies on the s. 25 assessment and Form 1 dated November 23, 2023, prepared by Elizaveta Lianos, a registered nurse.

14As pointed out by the respondent, the applicant provides no evidence of incurred attendant care. The respondent relies on the decision of 16-002947 v. Wawanesa Mutual Insurance Company, 2017 CanLII 93461 (ON LAT) (“Wawanesa”) for the proposition that the Tribunal is not required to decide on the reasonableness or necessity of ACBs where an applicant cannot prove the care was incurred for the period in question. Although I am not bound by other decisions of the Tribunal, I agree with this proposition.

15In reply, the applicant submits that the only issue in dispute is the quantum of entitlement, and not whether the benefits were incurred or payable, because his claim for ACBs remains active. The applicant takes the position that either he will not be deemed to have sustained a catastrophic impairment, in which case he is eligible to incur and receive ACBs until July 27, 2026, or he will be deemed to have sustained a catastrophic impairment, and he is eligible to receive ACBs for life, which distinguishes this case from Wawanesa. The applicant further submits that it would be inappropriate for the Tribunal to decline to address the very issue in dispute, namely, the quantum of his entitlement, and in doing so, risk rendering a determination that fails to resolve a central and ongoing matter between the parties.

16The applicant also submits that he received assistance from his girlfriend, Elizabeth Lyder, as he reported to Elizaveta Lianos during the November 23, 2023 assessment. The applicant argues that, while he was not in a financial position to incur such expenses, there is ample evidence establishing that he nonetheless required, and in fact received, assistance in performing his activities of daily living following the accident. The applicant indicates that the “anticipated substantiation that Ms. Lyder sustained and will continue to sustain an economic loss in providing said care” is why the Tribunal must render a decision on the quantification of the benefit. The applicant takes the position that to refrain from doing so would simply bring the parties back before the Tribunal, which deeply offends the spirit of the Tribunal to resolve disputes expeditiously.

17The applicant refers to the “anticipated substantiation” that his girlfriend sustained an economic loss in providing ACBs, but he does not direct me to actual evidence in this regard, as required by the Schedule.

18Section 19 of the Schedule is clear. It deals with the respondent’s obligation to pay for all reasonable and necessary ACBs that are “incurred.” Given that the requirement for ACBs to be incurred is a central part of s. 19, I decline to make a separate finding with respect to the quantum of ACBs.

19Although the applicant makes submissions for an award on the basis that the respondent unreasonably withheld or delayed the payment of all benefits in this hearing, he does not make submissions that the Tribunal should deem the ACBs incurred under s. 3(8) of the Schedule. Nevertheless, I have considered the applicant’s arguments for an award in the context of ACBs for the purpose of s. 3(8), because both an award and the deemed incurred provision deal with whether the insurer “unreasonably withheld or delayed” the payment of benefits.

20The applicant submits that the respondent and its assessors failed to recognize that he remains vulnerable and functionally impaired more than four years post-accident, and that it denied ACBs despite consistent reports of pain, loss of function, and psychological distress. Further, the respondent denied ACBs despite a comprehensive s. 25 assessment, that identified clear objective and subjective impairments, including reduced range of motion, pain-limited mobility, and severe psychological distress, so comprehensive that the applicant was crying throughout the assessment. The applicant submits that, instead of meaningfully engaging with this evidence, the respondent relied exclusively on an in-home insurer’s examination assessment, which failed to assess the applicant’s psychological limitations and offered boilerplate denial unsupported by the weight of clinical evidence, including the applicant’s primary care physician of approximately fifteen years and the respondent’s own experts, who recognized pain-provoked limitations and functional deficits.

21The applicant further submits that the respondent’s denials reflect a troubling refusal to adjust its position, despite compelling and evolving evidence from impartial OHIP-funded physicians and its own assessors, amounting to conduct that is excessive, unyielding, and immoderate.

22The respondent submits that its position on the reasonableness and necessity of the proposed benefits was informed by independent medical assessors, who reviewed all the medical documents available at the time and conducted in person assessments to render their opinions. The respondent further submits that it relied on its assessors’ opinions, and in no way acted in an unyielding or immoderate fashion.

23I find that the respondent was able to explain why the ACBs were not approved, relying on an assessment where the assessor reviewed all the applicant’s medical documentation. Even if I were to find that the respondent made an incorrect decision, I find that this is not enough to establish unreasonable conduct. For these reasons, I find that the applicant has not established that the respondent unreasonably withheld or delayed the payment of ACBs. Accordingly, I find that the applicant is not entitled to ACBs pursuant to s. 3(8).

24Since I have found that there is no evidence before me that the applicant incurred any expenses for ACBs, and that s. 3(8) does not apply, I find that the applicant has not met his onus of demonstrating on a balance of probabilities that he is entitled to ACBs.

The applicant is not entitled to the plan for physical modalities services

25The applicant has not met his onus to prove on a balance of probabilities that the plan for physical modalities services is reasonable and necessary.

26To receive payment for a treatment and assessment plan under s. 15 and s. 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.

27The plan in the amount of $11,912.20 was prepared by Dr. Grigory Karmy, chronic pain physician certified by the Canadian Academy of Pain Management. The plan proposes an assessment, twenty sessions each of chiropractic treatment (manipulation, exercise, and stimulation: muscles of the back), ten sessions of chiropractic treatment (mobilization), twelve sessions each of chiropractic treatment (therapeutic intervention NEC, arm, and soft tissue of head and neck), twenty sessions of massage therapy, and twenty sessions of acupuncture. The goals of the plan are pain reduction, increased range of motion, increase in strength, to improve participation in all activities of daily living, and to return to activities of normal living.

28The applicant relies on the October 7, 2024 assessment completed by Dr. Karmy, where Dr. Karmy diagnosed the applicant with chronic pain syndrome. Dr. Karmy opined that a comprehensive multidisciplinary rehabilitation therapy, including an active exercise program, adjunctive passive modalities, and management of his psychological problems, would be beneficial in alleviating the applicant’s pain and optimizing his day-to-day functioning to improve his quality of life. Dr. Karmy goes on to state that optimal pain control would allow the applicant to reintegrate into everyday life, which is the primary goal of rehabilitation. The applicant submits that the “comprehensive multidisciplinary rehabilitation” recommended by Dr. Karmy is the therapy referenced in the disputed plan. Dr. Karmy specifically recommended that the applicant would benefit from physiotherapy sessions, acupuncture, massage therapy, chiropractic adjustments and spinal decompression.

29The applicant also submits that his family physician, Dr. Simon Brown, diagnosed him with chronic pain. I have reviewed Dr. Brown’s clinical notes and records (“CNRs”), and I note that on May 7, 2024, Dr. Brown indicated “Complaint: chr pain lt shoulder.” I find that this documents the applicant’s reporting and is not a diagnosis.

30The applicant also refers to a hospital visit on April 18, 2024, where he recently complained of accident-related back and neck pain.

31The applicant submits that, given his diagnosis of chronic pain syndrome, it is appropriate that he participate in a multidisciplinary program specifically tailored to address his ongoing ailments and that it is reasonable and necessary that he engage in a rehabilitative program to jump start his recovery. The applicant further submits that the respondent, in its log notes, has deemed the severity of the applicant’s injuries to be “major.” I do not place any weight on the indication in the log notes that the injury is “major” because this is a comment made by an adjuster rather than a medical opinion by a treatment provider.

32The applicant takes the position that the medical evidence overwhelmingly supports the position that the applicant reasonably requires the treatment to aid in his rehabilitation and to work towards maximal medical recovery after fracturing his neck.

33The respondent refers to a letter dated August 14, 2024, from the respondent to the applicant, confirming a conversation with the applicant’s counsel who advised that the applicant had worked full time at various construction companies between May 30, 2022, and May 5, 2023. I also note that the applicant reported to Dr. Karmy during the October 7, 2024 assessment that he was still working in construction. The respondent submits that the applicant has failed to produce any evidence of formal work accommodations from any of these employers.

34In reply, the applicant submits that he continues to receive assistance at work, which has been documented in Dr. Brown’s CNRs. The applicant takes the position that injury victims, whether functional or not, should not have determinations of treatment needs based on employability, but rather whether they are reasonable and necessary. The applicant further submits that many functional and employed persons require treatment and assessments for maintenance, preservation of a baseline, and to work towards ongoing recovery.

35I note that there is a notation in Dr. Brown’s CNRs dated May 7, 2024, that the applicant reported that he lifts a lot of material up to 40 lbs. and gets help when doing heavy lifting. The applicant has not directed me to evidence of any formal work accommodations. I find that that the applicant has demonstrated that, despite post-accident injuries, he has been able to return to work full time as a construction worker. I also find that this is relevant to one of the goals of the disputed plan, i.e., to return to activities of normal living. Although he reports to Dr. Karmy feeling pain and fatigue after work, I find that the applicant’s ability to work full time in a very physically demanding job such as construction demonstrates that he has already returned to an important activity of normal living.

36To consider whether the disputed plan is reasonable and necessary, I must turn to whether the applicant has demonstrated on a balance of probabilities that the goals would be met to a reasonable degree. I note that Dr. Karmy indicates in the report that a comprehensive multidisciplinary rehabilitation therapy would be beneficial in alleviating the applicant’s pain and optimizing his day-to-day functioning. Dr. Karmy also indicates that he feels that some gradual improvement in the applicant’s functioning may be achieved if his post-accident problems were appropriately addressed using the modern approach to chronic pain management. Dr. Karmy does not discuss to what extent the proposed modalities would be “beneficial.” Further, I find that Dr. Karmy’s indication that “some gradual improvement” in the applicant’s functioning “may” be achieved is unspecific and vague.

37I also note that Dr. Karmy indicates in the report that the applicant has already received “active and passive rehabilitation treatments, including exercise program, physiotherapy, chiropractic adjustments, and massage therapy.” Dr. Karmy points out that the applicant has suffered impairments that have continued without significant improvement for a long time. The plan proposes physiotherapy sessions, acupuncture, massage therapy, chiropractic adjustments and spinal decompression. The applicant does not direct me to the specific types of therapies the applicant has already received “without significant improvement for a long time” and why the new proposed treatments are different and might achieve a different result.

38Further, the applicant does not make submissions or direct me to evidence that the overall costs of achieving the goals of the disputed plan are reasonable.

39For these reasons, I find that the applicant has not met his onus to demonstrate on a balance of probabilities that the plan for physical modalities services is reasonable and necessary.

The applicant is not entitled to the interview and file review components of the plan for a CAT assessment

40The applicant has not met his onus to prove on a balance of probabilities that the interview and file review components of the disputed plan are reasonable and necessary.

41Section 25(1)5 of the Schedule sets out that the insurer shall pay reasonable fees charged to prepare any assessment that is necessary for a determination of whether an insured person is CAT. The applicant bears the onus of demonstrating, on a balance of probabilities, that the assessment is reasonable and necessary.

42The plan was proposed by Deena Rogozinsky, occupational therapist. The plan proposes completion of the OCF-18 for CAT assessment ($200.00), CAT OT ADL assessment ($2,000.00), CAT Situational Assessment by occupational therapist ($2,000.00), interviews with the individuals who have knowledge of the applicant pre and post accident as well as treatment providers ($1,000.00), CAT assessment by psychologist/psychiatrist for Criteria 8 ($2,000.00), CAT assessment: WPI psychological ratings needed for Criteria 7 ($2,000.00), CAT assessment by an orthopedic surgeon ($2,000.00), documentation, completion of Executive Summary Report and Ratings completed by medical practitioner ($2,000.00), Catastrophic file review and imaging review ($2,000.00), applicant transportation to and from assessments ($500.00), and completion of OCF-19 if indicated ($200.00).

43The respondent partially approved the plan, denying: the interviews with the individuals who have knowledge of the applicant pre and post accident as well as treatment providers (“interview component”); WPI psychological ratings needed for Criteria 7 (“WPI component”); and Catastrophic file review and imaging review (“file review component”).

44The applicant submits that the interview and file review components of the disputed plan enable assessors to contextualize the applicant’s presentation, consider the progression of impairments, and cross-reference historical medical evidence with the applicant’s daily life. The applicant further argues that a denial that severs these foundational components undermines the integrity of the assessment process and reflects an arbitrary and piecemeal approach to adjudication.

45The applicant refers to the decision of 16-004501 v. The Sovereign General Insurance Company, 2018 CanLII 13158 (ON LAT) (“16-004501”), where the Tribunal held that a file review is a necessary and expected component of a comprehensive assessment. In 16-004501, the Tribunal found that a file review was not payable because it duplicated the work already completed by another assessor; however, the applicant argues, in his matter there is no duplication because the proposed file review is to be completed by a general physician distinct from any previously noted assessors. Further, the applicant submits, the file review is intended to summarize the multidisciplinary findings and to contextualize the applicant’s impairments for the purposes of determining CAT. The applicant takes the position that this work is neither duplicative nor unnecessary because without an appreciation for and analysis of his medical file, any opinions and conclusions lack merit, objectivity, and context.

46I am not bound by other decisions of the Tribunal; however, I agree with the reasoning in 16-004501. I find that the applicant has misinterpreted the Tribunal’s findings. At paras. 18 and 20, the Tribunal states:

All parties agree that a file review is a necessary part of an assessment. Because the file review is so necessary, it should be treated as part of the assessment’s expense. It is duplicitous, and therefore unreasonable, to bill for a file review in addition to a $2,000 assessment. The applicant’s assessor, Dr. Becker, should have examined the applicant’s file within the $2,000 payment limit he received for the orthopaedic assessment.

Through the plain words of s. 25(5) the Ontario Legislature demands that medical practitioners conduct an assessment and file review within a $2,000 cap. Section 25(5) specifically states that “an insurer shall not pay more than $2,000 in respect of fees and expenses for conducting any one assessment”. Since a file review is a necessary component of an assessment, it is a fee or expense captured within s 25(5)’s $2,000 payment cap.

47Clearly the Tribunal in 16-004501 found that to conduct a separate file review in addition to an assessment would be duplicitous and contrary to s. 25(5) of the Schedule. I agree with this proposition.

48The applicant also refers to the Tribunal decision of A.L. v. Unica Insurance Inc., 2020 CanLII 57382 (ON LAT) (“A.L.”), where the Tribunal did not order funding for a clinical file review because there was an insufficient explanation as to why it was not duplicative. The applicant submits that the Tribunal in A.L. expressly permitted payment for all file review components that were connected to the assessor’s functional analysis and medical conclusions. The applicant takes the position that this decision reinforces the principle that file review, and related preparatory steps ought to be funded when integrated into a properly structured CAT assessment, as they were in his case. I find that the Tribunal in A.L. only allowed a maximum of $2,000.00 for each assessment, including file review.

49The respondent does not specifically make submissions about the file review component of the plan but generally cites the $2,000.00 cap for assessments set out in s. 25(5) of the Schedule as a basis for its denial.

50In reply, the applicant argues that he assumes that the respondent agrees that the file review component of the CAT assessment ought to be funded given the absence of submissions to the contrary.

51The file review portion of the plan was denied by the respondent. It is the applicant’s onus to prove on a balance of probabilities that it is reasonable and necessary. The onus is not on the respondent to disprove it.

52I find that the applicant makes general submissions with respect to why he feels that a separate file review to be completed by a general physician is necessary; however, submissions are not evidence. The applicant does not direct me to evidence with respect to why the assessors in each proposed area cannot conduct their own file review as part of their individual assessment.

53The applicant also makes general submissions but does not direct me to evidence to support the reasonableness and necessity of the interview component of the disputed plan.

54For these reasons, I find that the applicant has not met his onus to demonstrate on a balance of probabilities that the interview and file review components of the disputed plan are reasonable and necessary.

The applicant is entitled to the WPI component of the plan for a CAT assessment

55The applicant has met his onus to prove on a balance of probabilities that the WPI component of the disputed plan is reasonable and necessary.

56In support of his submission that the WPI component of the plan is reasonable and necessary, the applicant relies on the decision of Sinnarajah v. TD General Insurance Company, 2025 CanLII 15945 (ON LAT) (“Sinnarajah”), where the Tribunal explicitly acknowledged the legitimacy of conducting separate psychological assessments for Criteria 7 and 8 analyses, affirming that these assessments involve distinct evaluations using different editions of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“Guides”). In Sinnarajah, the Tribunal accepted the use of the Guides 6th edition for Criterion 7 and the use of the Guides 4th edition for Criterion 8. The Tribunal further concluded that such assessments are not a duplication of services, but rather necessary for a fulsome CAT determination and that each assessment speaks to “different clinical evaluations.”

57The respondent refers to the $2,000.00 cap for assessments set out in s. 25(5) of the Schedule and confirmed in the Tribunal decision of 17-003496 v. TD Insurance, 2018 CanLII 13167 (ON LAT) (“17-003496”). I agree with the reasoning in the decisions of 17-003496 and Sinnarajah. I find that 17-003496 is distinguishable, however, because the issues in dispute did not involve separate assessments for Criteria 7 and 8.

58In accordance with the reasoning in Sinnarajah, I find that a separate assessment for Criterion 7, which would be evaluated using the Guides 6th edition and an assessment for Criterion 8, which would be evaluated using the Guides 4th edition, would not be duplicitous and that each assessment speaks to different clinical evaluations.

59For the above reasons, I find that the applicant has met his onus to prove on a balance of probabilities that the WPI component of the disputed plan is reasonable and necessary.

Interest

60Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

Award

61The applicant seeks 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. To attract an award, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

62I have considered the applicant’s submissions for an award, as summarized in paragraphs 20 and 21, above. I find that the applicant’s submissions focus on the respondent’s denial of ACBs and treatment plans, as well as its reliance on its own assessors, despite compelling medical evidence submitted by the applicant.

63It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. I have decided that the applicant is entitled the WPI component of the plan for a CAT assessment. In denying this part of the plan, the respondent relied on the $2,000.00 cap for assessments set out in s. 25(5) of the Schedule and its interpretation of Tribunal caselaw. Although the respondent made an incorrect decision, I find that, in relation to this denial, the applicant does not direct me to any conduct on the part of the respondent that is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

64For these reasons, I find on a balance of probabilities that the applicant is not entitled to an award under Reg. 664.

ORDER

65For these reasons, I find:

i. The applicant is not entitled to ACBs.

ii. The applicant is not entitled to the plan for physical modalities services.

iii. The applicant is not entitled to the interview and file review components of the plan for a CAT assessment.

iv. The applicant is entitled to the WPI component of the plan for a CAT assessment.

v. The respondent is not liable to pay an award.

vi. The applicant is entitled to interest on any overdue benefits pursuant to s. 51 of the Schedule.