Citation: Dawood v. Co-operators General Insurance Company, 2026 ONLAT 24-010167/AABS

Licence Appeal Tribunal File Number: 24-010167/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:

May Dawood

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Amar Mohammed

APPEARANCES:

For the Applicant: Rania Hafez, Paralegal

For the Respondent: Bianca Hosseini, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1May Dawood, the applicant, was involved in an automobile accident on June 27, 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, Co-operators 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 a non-earner benefit of $185.00 per week from August 16, 2022 to June 27, 2024?

ii. Is the applicant entitled to the assessments/treatment plans proposed by Prime Healthcare Inc., as follows:

a. $1,841.60 ($4,548.26 less $2,706.66 approved) for physiotherapy services, in a treatment plan submitted August 14, 2023 and denied August 18, 2023;

b. $2,098.64 for physiotherapy services, in a treatment plan submitted July 10, 2023 and denied July 17, 2023;

c. $854.72 ($1,645.72 less $791.00 approved) for chiropractic services, in a treatment plan submitted April 20, 2023 and denied April 24, 2023;

d. $3,641.10 for psychotherapy services, in a treatment plan submitted January 25, 2023 and denied January 26, 2023;

e. $1,563.72 for physiotherapy services, in a treatment plan submitted January 24, 2023 and denied January 24, 2023;

f. $1,836.16 for physiotherapy services, in a treatment plan submitted January 16, 2023 and denied January 23, 2023;

g. $866.38 ($1,114.94 less $248.56 approved) for other assistive devices, in a treatment plan submitted January 16, 2023 and denied January 23, 2023;

h. $11.30 ($3,342.39 less $3,331.09 approved) for chiropractic services, in a treatment plan submitted September 1, 2022 and denied September 30, 2022;

i. $2,660.00 for a chronic pain assessment, in a treatment plan dated February 21, 2023;

j. $1,623.98 for physiotherapy services, in a treatment plan submitted January 8, 2024 and denied January 18, 2024; and

k. $11.29 ($2,986.21 less $2,974.92 approved) for physiotherapy services, in a treatment plan submitted October 15, 2022 and denied October 18, 2022?

iii. Is the applicant entitled to attendant care benefits in the amount of $905.69 per month from January 12, 2023 to ongoing?

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 a non-earner benefit of $185.00 per week from August 16, 2022 to June 27, 2024.

4The respondent concedes that the applicant is entitled to the plan proposing $3,641.10 for psychotherapy services, approved as of April 12, 2023.

5The applicant is not entitled to the rest of the assessments/treatment plans disputed in this application.

6The applicant is not entitled to attendant care benefits in the amount of $905.69 per month from January 12, 2023 and ongoing.

7The respondent is not liable to pay an award under s. 10 of Reg. 664.

8The applicant is entitled to interest if there are overdue benefits, in accordance with s. 51 of the Schedule.

ANALYSIS

i. Is the applicant entitled to a non-earner benefit of $185.00 per week from August 16, 2022 to June 27, 2024?

9I find that the applicant has not established entitlement to a non-earner benefit (“NEB”).

10Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

11The applicant generally submits that as a result of the accident, she suffers from ongoing physical and psychological impairments that substantially interfere with her ability to carry on a normal life. The respondent argues that the applicant recognized the statutory test under s. 12 of the Schedule in her submissions, however, she did not lead evidence through her submissions to engage with the test. I agree with the respondent, the Tribunal has established that in order to apply the guiding principles from Heath, the applicant is required to show a comparison of what her life was like prior to the accident, and how it has changed as a result of the accident.

12The applicant generally refers to physical and psychological diagnoses, and requests that I accept she suffers from chronic pain warranting removal from the MIG and entitlement to enhanced accident benefits. However, as the respondent argues, I do not have information sufficient to establish a comparison of the applicant’s pre- and post-accident life in order to establish that she suffers a complete inability to carry on her normal pre-accident life. Further, it is apparent from the respondent’s submissions and evidence that the applicant has been removed from the MIG since September 2022.

13The respondent also cites section 44 assessors that opine the applicant does not meet the test for entitlement to NEBs. Further, the respondent argues that her medical records do not indicate that she meets the NEB test since the applicant was significantly impaired prior to the accident. Since the applicant has not met her onus to establish entitlement to NEBs, it is not warranted that I address the respondent’s s. 44 reports beyond noting that the applicant has not led sufficient evidence to meet her onus or to refute the findings of s. 44 assessors opining that she does not suffer from a complete inability to carry on a normal life.

14For the reasons above, on a balance of probabilities, I find that the applicant has not established entitlement to a non-earner benefit.

ii. Is the applicant entitled to the assessments/treatment plans proposed by Prime Healthcare Inc.?

15I find that the applicant has not established that the disputed portions of the plans in dispute are reasonable and necessary. However, I find that the respondent concedes that the applicant is entitled to the plan proposing $3,641.10 for psychotherapy services, approved as of April 12, 2023.

16To 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.

17The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds to suggest that some condition exists that warrants investigation by way of an assessment.

18The applicant largely makes general arguments for entitlement whereas the respondent more specifically addresses the individual plans.

$1,836.16 for physiotherapy services, in a treatment plan submitted January 16, 2023 and denied January 23, 2023

$2,098.64 for physiotherapy services, in a treatment plan submitted July 10, 2023 and denied July 17, 2023

$1,623.98 for physiotherapy services, in a treatment plan submitted January 8, 2024 and denied January 18, 2024

19The applicant argues these plans for physiotherapy services are reasonable and necessary to reduce the applicant’s pain and increase her strength and range of motion in order to enable a return to her activities of daily living.

20The respondent argues that these three treatment plans are mislabeled and propose chiropractic treatment rather than physiotherapy treatment. The respondent argues that the plans are not reasonable and necessary because the applicant is relying on the plans themselves as evidence and that the Tribunal has held that the need for treatment should be supported by medical evidence. Further, that no treating physician has recommended chiropractic treatment.

21A review of the plans indicates that all three plans propose treatment by four different types of providers which includes massage, acupuncture, osteopathic treatment, and treatment by a chiropractor. The applicant refers to clinical notes and records (“CNRs”) of Dr. Neil Verma from Releva Chronic Pain Centre dated May 22, 2024 and June 19, 2024. The applicant argues that Dr. Verma recommended a multidisciplinary approach including physiotherapy, massage, and exercise therapy. A review of the May 22, 2024 CNR confirms Dr. Verma noted the applicant felt better with medication, heat, and massage. The latter dated June 19, 2024 is a progress note and does not address whether this proposed treatment is reasonable or necessary. I find that Dr. Verma’s May 22, 2024 note recommending massage amongst other treatment and noting that it only provides a temporary benefit is not on its own sufficient to meet the threshold of being both reasonable and necessary treatment. An isolated reference to the applicant feeling better with massage is not sufficient to support that the treatment plans are reasonable and necessary.

22For the reasons above, the applicant did not support through submissions and by leading evidence that the services proposed are both reasonable and necessary.

$1,841.60 ($4,548.26 less $2,706.66 approved) for physiotherapy services, in a treatment plan submitted August 14, 2023 and denied August 18, 2023

23The respondent indicates that this plan is mislabeled and proposes psychotherapy rather than physiotherapy. A review of the plan confirms that the dispute is regarding services of a psychotherapist and interpretation services.

24The applicant generally argues that continued psychological treatment is reasonable and necessary. The respondent concedes that the treatment is warranted and argues it approved the plan accordingly. The respondent submits that the applicant has not addressed the denial or its reasons which challenged the rates of the psychotherapist and the interpreter. The denial notice dated August 13, 2023 confirms that the reason for the partial denial was that the services were approved at lower rates than originally proposed.

25Since the applicant has not addressed this dispute in her submissions, and the onus rests with the applicant to establish that the denied portion is reasonable and necessary, I find that she has not established entitlement to the disputed portion of this plan.

$3,641.10 for psychotherapy services, in a treatment plan submitted January 25, 2023 and denied January 26, 2023

26The applicant disputes entitlement to a plan submitted January 25, 2023 for $3,641.10. The applicant argues that this plan is for a psychological assessment and subsequent treatment, all of which is reasonable and necessary. The respondent submits that this plan is not disputed because while it initially denied the plan on January 26, 2023, it fully approved it on April 12, 2023 after receiving the s. 44 report of Dr. Jwely. I note that this is the applicant’s application and therefore it is the applicant’s obligation to update the Tribunal on issues no longer in dispute, as provided in the Case Conference Report and Order. Since the issue is disputed at this hearing, I accept the respondent’s position and find that the applicant is fully entitled to this plan as of April 12, 2023.

$866.38 ($1,114.94 less $248.56 approved) for other assistive devices, in a treatment plan submitted January 16, 2023 and denied January 23, 2023

27The applicant did not provide an explanation or support for the assistive devices in dispute in her submissions. Without any submissions on this treatment plan and without being directed to evidence in support of the assistive devices, I find that the applicant has not met her onus to establish they are reasonable and necessary.

$1,563.72 for physiotherapy services, in a treatment plan submitted January 24, 2023 and denied January 24, 2023

28As previously noted, the applicant argues this plan for physiotherapy services is reasonable and necessary to reduce the applicant’s pain and increase her strength and range of motion in order to enable a return to her activities of daily living.

29The respondent submits, and a review of the plan and denial notice confirm, that the plan was proposing shockwave therapy by a chiropractor. The applicant did not address either shockwave therapy or chiropractic services in her submissions. Accordingly, I find that the applicant has not established this plan is reasonable and necessary.

$854.72 ($1,645.72 less $791.00 approved) for chiropractic services, in a treatment plan submitted April 20, 2023 and denied April 24, 2023

30The respondent indicates, and a review of the plan and denial notice confirm, that the plan did not propose chiropractic services. Rather, it proposed interpretation services. The partial denial is a dispute relating to the rate charged. Since the applicant did not address interpretation services or the disputed denial, she has not met her onus to establish the remainder of this plan is reasonable and necessary.

$11.30 ($3,342.39 less $3,331.09 approved) for chiropractic services, in a treatment plan submitted September 1, 2022 and denied September 30, 2022

31The applicant did not identify what the denied portion of this plan relates to or make any specific submissions to consider. The respondent submits that this is for personal protective equipment (“PPE”) in the context of the COVID-19 pandemic rather than related to the accident. The respondent argues the Tribunal has held insurers are not liable for these overhead expenses under the Superintendent’s Guideline No. 03/14. Without any submissions from the applicant on the PPE, I find that the applicant has not met her onus to establish that the disputed portion is reasonable and necessary.

$11.29 ($2,986.21 less $2,974.92 approved) for physiotherapy services, in a treatment plan submitted October 15, 2022 and denied October 18, 2022

32For the same reasons as reviewed above for PPE, the applicant has not established that the disputed portion of this plan is reasonable and necessary.

$2,660.00 for a chronic pain assessment, in a treatment plan dated February 21, 2023

33The applicant argues that the evidence supports a referral to a chronic pain specialist or rehabilitation program as a result of the accident. The respondent refers to the family doctor already having referred the applicant to a rheumatologist and to Dr. Verma, a chronic pain physician. The applicant’s references to Dr. Verma’s CNRs are addressed previously. In light of the applicant already being assessed and treated in the care of Dr. Verma, a chronic pain physician, at a chronic pain centre, I agree with the respondent that the proposed chronic pain assessment is not reasonable or necessary.

34The applicant did not address why a chronic pain assessment under s. 25(5)(a) of the Schedule would be warranted in light of already being under the care of Dr. Verma. Dr. Verma’s CNRs indicate that the applicant’s pain began in 2022 post-accident and ranges in severity between 7-9 out of 10 with a constant frequency, affecting her functional ability including household tasks and social activities. Cervical and lumbar degenerative disc disease is noted. The respondent argues that the applicant was functionally disabled prior to the accident and neither her pain nor any functional disability is related to the accident. The applicant’s submissions do not directly deal with this line of argument, as noted previously, the applicant did not address her normal life and abilities prior to the accident in order to compare them. However, I note that Dr. Verma seems to have provided a specific post-accident diagnosis of myofascial pain syndrome.

35In any case, since the applicant has been assessed and is under the care of a chronic pain physician, she has not established that an additional chronic pain assessment under s. 25(5)(a) is reasonable and necessary.

36For the reasons above, on a balance of probabilities, I find that the applicant has not established that the disputed treatment plans and denied portions of the plans in dispute are reasonable and necessary. However, I find that the respondent concedes that the applicant is entitled to the plan proposing $3,641.10 for psychotherapy services, approved as of April 12, 2023.

iii. Is the applicant entitled to attendant care benefits (ACBs) in the amount of $905.69 per month from January 12, 2023 and ongoing?

37I find that the applicant has not established entitlement to ACBs.

38Section 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 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).

39As the respondent argues, the applicant has not addressed entitlement to ACBs in her submissions. The applicant’s submissions list the issue and refer me to the respondent’s notice dated January 13, 2023 addressing the Form-1. However, the applicant did not refer me to the Form-1 and did not address it in her submissions. Accordingly, the applicant has not made an argument establishing entitlement to ACBs.

40For the reasons above, on a balance of probabilities, I find that the applicant has not established entitlement to ACBs.

Interest

41The applicant is entitled to interest which applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

Award

42The 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. Since there are no benefits payable that are withheld or delayed, the respondent is not liable to pay an award.

ORDER

43For the reasons above, I make the following orders:

i. The applicant is not entitled to a non-earner benefit of $185.00 per week from August 16, 2022 to June 27, 2024.

ii. The respondent concedes that the applicant is entitled to the plan proposing $3,641.10 for psychotherapy services, approved as of April 12, 2023.

iii. The applicant is not entitled to the rest of the assessments/treatment plans disputed in this application.

iv. The applicant is not entitled to attendant care benefits in the amount of $905.69 per month from January 12, 2023 and ongoing.

v. The respondent is not liable to pay an award under s. 10 of Reg. 664.

vi. The applicant is entitled to interest if there are overdue benefits.