Citation: Nguyen v. Wawanesa Mutual Insurance Company, 2026 ONLAT 24-012749/AABS

Licence Appeal Tribunal File Number: 24-012749/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:

Kathy Nguyen

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Sarah Guergis

APPEARANCES:

For the Applicant:

David Carranza, Paralegal

For the Respondent:

Ankita Abraham, Counsel

HEARD: In Writing

OVERVIEW

1Kathy Nguyen, the Applicant, was involved in an automobile accident on August 29, 2023, 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, Wawanesa Mutual 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 $2,017.62 for Botox injections, proposed by Dr. Nhan Thien Tong Professional Health Care Corp. in a treatment plan/OCF-18 (“plan”) dated February 20, 2024?

ii. Is the Applicant entitled to $4,476.62 for chiropractic services, proposed by True Life Rehab Centre Inc. in a plan dated April 16, 2024?

iii. Is the Applicant entitled to $989.06 for massage therapy services, proposed by Yorkstar Rehabilitation Centre Inc. in a plan dated June 18, 2024?

iv. Is the Applicant entitled to $3,192.26 for psychological services, proposed by Yorkstar Rehabilitation Centre Inc. in a plan dated June 27, 2024?

v. Is the Applicant entitled to $2,945.90 for a physiatry assessment, proposed by Complete Rehab Centre in a treatment plan dated March 21, 2024?

vi. Is the Applicant entitled to $200.00 for completion of a disability certificate/OCF-3 by Dr. Nhan Thien Tong dated April 29, 2024?

vii. Is the Applicant entitled to $10,022.57 for chronic pain treatment services, proposed by Complete Rehab Centre in a plan dated February 4, 2025?

viii. Is the Respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the Applicant?

ix. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the Applicant is entitled to plans 1-6.

4I find that the plan for the chronic pain program is not payable.

5I find that interest is owing on the payable plans.

6I find that no award is owing.

ANALYSIS

Is the Applicant entitled to $2,017.62 for Botox injections, proposed by Dr. Nhan Thien Tong Professional Health Care Corp. in a plan dated February 20, 2024?

7I find that this plan is payable.

8To 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.

9The Applicant submits that she is entitled to this plan because the proposed goals of the treatment were met to a reasonable degree, allowing her to return to work, albeit with difficulties, and perform some of her activities of daily living. Further, that the frequency of treatment was adjusted based on her needs, as recommended by her treating practitioner.

10The Applicant relies on a disability certificate dated September 5, 2023, from Dr. Nhan Thien Tong, physician. Dr. Tong states that as a result of the motor vehicle accident, the Applicant sustained the following injuries: chest trauma-fracture, right knee trauma, neck pain, upper extremity pain, back pain, headache, anxiety and nightmares. Dr. Tong recommended physical rehabilitation and psychological treatment, and to continue with the medication Vimovo for pain and Ativan for anxiety and insomnia.

11The Applicant submits that Dr. Tong identifies the plan goals as pain reduction, increased in strength, increased range of motion and return to activities of normal living, noting that progress would be evaluated through validated outcome measures such as visual analogue scale ratings of pain, Pain Disability Index, and disability scales.

12The Applicant further relies on Al-Baik vs. Security National Insurance Company, 2025 ONLAT 23-010294/AABS, where it was held that a plan proposing Botox injections was reasonable and necessary because of the goals of pain reduction and increased range of motion, aimed at returning the Applicant to activities of normal living, aligned with identified impairments resulting from the motor vehicle collision.

13The Respondent submits that this plan is not reasonable or necessary because the subject OCF-18 did not identify or provide any details pertaining to the treatment proposed, including the amount units of Botox or frequency of the Botox injection.

14The Respondent further submits that the Applicant’s visits and the injections provided by the service provider are covered by OHIP.

15The Respondent relies on s. 47(2) of the Schedule, which states that an insurer is not required to pay for an expense for which payment is reasonable available to the insured under an insurance plan or law which includes OHIP. The OHIP records confirms that these services are funded by OHIP, and accordingly it is submitted that this OCF-18 is not payable under the Schedule.

16In the Applicant’s reply submissions, they state that “contrary to the Respondent’s assertion, in the Treatment Plan dated February 20, 2024, Dr. Tong outlines the injuries sustained by the Applicant, the concurrent treatment the Applicant was receiving, makes reference to the plan goals, and proposed 12 Botox Injections in the total amount of $1,871.62.”

17The Applicant further states that “the Respondent’s statement about OHIP is incorrect, as OHIP only covers the cost of trigger point injections, which were administered to Ms. Nguyen under OHIP. However, Botox Injections are not covered under OHIP.”

18I considered both parties submissions. I find that the treatment plan is reasonable and necessary because the goals of the treatment align with identified impairments that are a result of the subject accident, and the costs of the treatment are reasonable against the goals identified. The Applicant established that this treatment provided pain management which allowed her to return to work and perform some of her activities of daily living.

19I acknowledge the Respondent’s submission regarding alternate benefits under s.47(2) of the Schedule. However, I find that this was appropriately and proportionally addressed by the Applicant in their reply submissions. They clarified that this specific treatment was not covered by alternative coverage. I do not find that the Respondent pointed me to evidence which would establish that this treatment was covered by alternative coverage. The Respondent refers to OHIP coverage in their submissions, however, I was not specifically or clearly pointed to the page in the Respondent’s evidence which would establish that the Applicant was receiving alternative coverage for the Botox treatment in dispute.

20Therefore, on a balance of probabilities, I find that this plan is payable.

Is the Applicant entitled to $4,476.62 for chiropractic services, proposed by True Life Rehab Centre Inc. in a plan dated April 16, 2024?

21I find that this plan is payable.

22The Applicant submits that this plan is reasonable and necessary because the Tribunal has consistently considered that pain relief in itself constitutes a legitimate medical and rehabilitative goal.

23The Applicant relies on a progress report by Ms. Nirav Patel, physiotherapist, completed April 16, 2024. Ms. Patel mentioned that the Applicant was experiencing severe pain in the neck and lower back after the motor vehicle accident, and that she was having difficulties looking down and laying in a prone position due to chest injuries and pain around her ribs. She further stated that the Applicant was making progress with therapy and would require ongoing electrical stimulation, laser, mobilizations, soft tissue therapy, and massage therapy to complement her active program for six weeks, focused on decreasing pain, increasing range of motion, and increasing strength to encourage a return to pre-accident functional status.

24Ms. Patel referred to the plan goals of pain reduction, increase in strength, increase range of motion, and return to activities of normal living. As barriers to recovery Ms. Patel outlined the Applicant’s multiple injuries, psychological factor, chest trauma, and anxiety and fear during movements.

25The Applicant further relies on the decision B.D.W. v. Aviva General Insurance Company, 2019 CanLII 110116 (ON LAT), where it was held that the Applicant was entitled to a treatment plan for physiotherapy, chiropractic and massage therapy, as the treatment plan identified the barriers to the Applicant’s recovery, and the goals of the treatment plan aligned with those barriers. She added that the Applicant participated in treatment in an attempt to relieve her pain, and the evidence supported the fact that the Applicant was and would continue to benefit from treatment.

26The Respondent submits that the Applicant has not pointed to any credible objective medical evidence to indicate that she experienced ongoing physical injuries which required treatment beyond what had been approved.

27The Respondent relies on statements from the Applicant in records from Dr. R. Soric, physiatrist, who completed a physiatry report, and Dr. Tatiana Dumitrascu, psychologist, who completed a psychological report. It submits that they both opined that the Applicant has returned to her pre-accident functional status by returning to her pre-accident employment, self-care tasks, and light housekeeping chores.

28The Respondent further relies on Schindelheim v TD General Insurance Company, 2023 CanLII 84399 (ON LAT), where it was held that evidence of an author of an OCF-18 is not sufficient on its own to prove that an OCF-18 is reasonable and necessary and there must be contemporaneous evidence in support of an OCF-18.

29I considered both parties submissions. I find that the treatment plan is reasonable and necessary because the goals of the treatment align with identified impairments that are a result of the subject accident, the costs of the treatment are reasonable against the goals identified and the Respondent has not submitted sufficient evidence to challenge the Applicant's evidence. The Applicant established that this treatment provided pain management which allowed her to return to work and perform some of her activities of daily living.

30Therefore, on a balance of probabilities, I find that this plan is payable.

Is the Applicant entitled to $989.06 for massage therapy services, proposed by Yorkstar Rehabilitation Centre Inc. in a plan dated June 18, 2024?

31I find that this plan is payable.

32The Applicant submits that she is entitled to this treatment as it assisted her in maintaining her level of employment and her ability to function to a certain level in respect to activities of daily living.

33The Applicant relies on a physiatry assessment by Dr. S. W. Joseph Wong, chronic pain specialist, dated May 17, 2024. Dr. Wong diagnosed the Applicant with myofascial injury of the cervical spine paraspinal muscles; post-traumatic headache; myofascial injury of the thoracic spine muscles; myofascial injury of the lumbar spine paraspinal muscles and gluteal muscles; right knee medial collateral ligament strain and patellofemoral syndrome; medial gastrocnemius muscle tendinitis of the right knee; sternum fracture (he believed the fracture has healed, but the Applicant has costochondritis involving the right lower ribcage); insomnia; psychological problems; and chronic pain.

34Dr. Wong recommended the Applicant continue physiotherapy and transition into a more active exercise program which would include trigger point injections, Botox injections, joining a gym with a personal trainer, and a pool exercise program.

35The goals of this plan include pain reduction, increase in strength, increase range of motion, and returning to activities of normal living.

36The Applicant further relies on 17-001614 v Wawanesa Mutual Insurance Company, 2018 CanLII 140342 (ON LAT), which holds that that pain relief, even on a temporary basis, is sufficient to qualify passive treatment as reasonable and necessary if it maintains or increases functionality. Further, that functionality can be interpreted in various ways, and referred to increasing or maintaining range of motion, activities of daily living, tasks attendance, and/or the ability to sleep.

37The Respondent submits that:

i. Dr. Soric concluded that the Applicant’s injuries had healed and that she received maximum benefits from facility-based physical therapy treatments;

ii. The Applicant has not pointed to any medical records from her family doctor which suggest that the treatment and assessment are warranted;

iii. The Applicant has returned to her pre-accident personal care activities (which were noted by both Dr. Soric and Dr. Dumitrascu); and

iv. Dr. Dumitrascu found that the Applicant did not meet the DSM-5 criteria for a psychological disorder and does not require any psychological interventions.

38I considered both parties submissions. I find that the treatment plan is reasonable and necessary because the goals of the treatment align with identified impairments that are a result of the subject accident, and the costs of the treatment are reasonable against the goals identified. The Applicant established that this treatment provided pain management which allowed her to return to work and perform some of her activities of daily living.

39Therefore, on a balance of probabilities, I find that this plan is payable.

Is the Applicant entitled to $3,192.26 for psychological services, proposed by Yorkstar Rehabilitation Centre Inc. in a plan dated June 27, 2024?

40I find that this plan is payable.

41The Applicant submits that she is entitled to this plan as it assisted her in addressing the goal of symptom management, and returning, in some capacity, to pre-accident levels of psychological functioning.

42The Applicant relies on a psychological assessment from October 25, 2023, from Dr. Knolly Hill. Dr. Hill diagnosed the Applicant with adjustment disorder, with mixed anxiety and depressed mood, major depressive disorder, specific phobia: in vehicle driver/passenger, and somatic symptom disorder.

43Dr. Hill recommended 15 sessions of therapy to focus on treating the Applicant’s clinical anxiety and depressive hopelessness, cognitive behavioral therapy aimed at her fear of driving and to prevent post-traumatic stress disorder, pain management and sleep restoration including relaxation.

44Dr. Hill outlined the plan goals of pain reduction, and return to activities of normal living, and indicates that the progress of the proposed goals will be evaluated through achievement of behavioral goals, subjective rating of pain and mood, and scores of psychometric measures.

45The Applicant further relies on clinical notes and records from her family doctor, Dr. Nguyen, from March 21, 2024, May 2, 2024, June 13, 2024, and June 26, 2024, where she reported experiencing anxiety, car anxiety, poor sleep and nightmares.

46The Respondent submits that there is insufficient evidence to suggest that the Applicant requires ongoing psychological counselling. Further, that the medical records suggest that the Applicant has returned to her pre-accident life from a psychological perspective.

47The Respondent relies on the report from Dr. Dumitrascu where it submits the Applicant did not meet the DSM-5 criteria for a psychological disorder and that no further psychological interventions were warranted.

48I considered both parties submissions. I find that the treatment plan is reasonable and necessary because the goals of the treatment align with identified impairments that are a result of the subject accident, the costs of the treatment are reasonable against the goals identified and the Respondent has not submitted sufficient evidence to challenge the Applicant's evidence. The Applicant established that this treatment has assisted her in addressing the goal of symptom management, and returning, in some capacity, to pre-accident levels of psychological functioning.

49Therefore, on a balance of probabilities, I find that this plan is payable.

Is the Applicant entitled to $2,945.90 for a physiatry assessment, proposed by Complete Rehab Centre in a treatment plan dated March 21, 2024?

50I find that this plan is payable.

51The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

52The Applicant submits that she is entitled to this plan because it was conducted to determine the severity of her injuries resulting from the motor vehicle collision. It also identified the barriers to her recovery and determined the appropriate course of treatment. Further, that she has been experiencing biopsychosocial challenges, pain in her arms and shoulders, issues with focus and concentration, frustration, stress, anxiety and poor sleep, and this assessment would evaluate her current physical status and provide a diagnosis and recommendations to accelerate symptom resolution.

53The Applicant relies on a plan dated March 21, 2024, by Dr. Rahim K. Jessa, chiropractor. This plan proposes a physiatry assessment and indicates the plan’s goals of documenting current function in order to help improving biopsychosocial capabilities, return to activities of normal living, and to help objectify subjective complaints/dysfunction in order to conceptualize current condition.

54The Applicant further relies on Manoharan vs. Allstate Canada, 2021 ONLAT 19-010782/AABS, where it was held that the assessment’s goal to examine the Applicant after 1.5 years post-accident to determine next steps in recovery was reasonable and necessary, as it would allow the Applicant to investigate whether there was any diagnosis not yet contemplated, and any treatment regimen not yet recommended that previous assessments had yet to uncover.

55The Respondent submits that the Applicant is not entitled to the cost of a physiatry assessment because the plan did not provide a breakdown of treatment to be provided. Further, that the Applicant cannot satisfy her onus to demonstrate that the OCF-18 is reasonable or that the overall proposed costs are reasonable.

56In the Applicant’s reply submissions they write, “the physiatry assessment was conducted and completed by a single assessor, Dr. Wong, and the plan clearly outlines the proposed cost of the assessment in the amount of $2,000.00. It was conducted in accordance with s. 25 of the Schedule, and as such, the proposed amount should be considered reasonable.”

57I considered both parties submissions. I find that the treatment plan is reasonable and necessary. I agree with the Applicant that it is reasonable to pursue an assessment to determine whether a condition exists. Further, I find that the Applicant has established the grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment. The Applicant has identified several biopsychosocial challenges. I agree with the Applicant that this assessment would allow her to investigate whether there was any diagnosis not yet contemplated, and any treatment regimen not yet recommended that previous assessments had yet to uncover.

58Therefore, on a balance of probabilities, I find that this plan is payable.

Is the Applicant entitled to $200.00 for completion of a Disability Certificate/OCF-3 by Dr. Nhan Thien Tong dated April 29, 2024?

59I find that the disability certificate is payable.

60The Applicant submits that she is entitled to the Disability Certificate (OCF-3) by Tong, dated March 21, 2024, as it provided the Respondent with an update on her condition and injuries, including a new diagnosis of chronic pain, which is a material change, and recommended additional treatment.

61The Applicant further submits that on May 9, 2024, the Respondent advised they were not paying for the Disability Certificate as they did not request it; however, they provided the updated Disability Certificate to their assessors for review.

62The Respondent submits that the cost of preparing the Disability Certificate is not payable pursuant to s. 25(1), as the Insurer did not request the Disability Certificate, and it was not required under sections 21, 36, or 37 of the Schedule. Further, the Respondent submits that the Disability Certificate did not provide any new medical information, which the Tribunal has viewed unfavourably.

63I considered both parties submissions. I find that the disability certificate is reasonable and necessary because it includes a new diagnosis of chronic pain, which is a material change, and recommended additional treatment.

64Therefore, on a balance of probabilities, I find that this is payable.

Is the Applicant entitled to $10,022.57 for chronic pain treatment services, proposed by Complete Rehab Centre in a plan dated February 4, 2025?

65I find that this plan is not payable.

66The Applicant submits that she is entitled to this plan as it follows a multi-faceted approach toward chronic pain. Further, that although the Applicant has made some improvements, her injuries have not been resolved within the expected time frame.

67The Applicant relies on the plan dated February 4, 2025, where Dr. Jessa, chiropractor, stated that as a result of the motor vehicle collision, the Applicant sustained the following injuries: chest pain, sprain and strain of ribs and sternum, sprain and strain of medial collateral ligament of the knee, whiplash associated disorder (WAD 3) with complaint of neck pain with neurological signs, sprain and strain of lumbar spine and pelvis, headaches, chronic pain, insomnia, stress, and severe depressive episode without psychotic symptoms.

68The Applicant relies on an updated disability certificate from March 21, 2024. Dr. Tong stated that as a result of the accident, the Applicant sustained the following injuries: chronic pain in the neck, back and chest, headache, and anxiety.

69Dr. Tong indicated that Ms. Nguyen’s disability would exceed 12 weeks, as her neck and chest pain limited her movements, and she also experienced headache and recent anxiety. Dr. Tong recommended a Chronic Pain Program and Psychotherapy Treatment and prescribed Vimovo and the antidepressant Cymbalta.

70The Applicant also relies on a physiatry assessment from May 17, 2024, by Dr. Wong, MD, where she continued to complain of headaches, constant pain in the cervical spine, thoracic spine and constant pain in the lumbar spine, constant pain in the right knee, constant pain in the chest, as well as insomnia, stress and depression

71The Respondent submits that:

i. Dr. Soric concluded that the Applicant’s injuries had healed and that she received maximum benefits from facility-based physical therapy treatments;

ii. The Applicant has not pointed to any medical records from her family doctor which suggest that the treatment and assessment are warranted;

iii. The Applicant has returned to her pre-accident personal care activities (which were noted by both Dr. Soric and Dr. Dumitrascu); and

iv. Dr. Dumitrascu found that the Applicant did not meet the DSM-5 criteria for a psychological disorder and does not require any psychological interventions.

72I considered both parties submissions. I agree with the Applicant that pain management is a reasonable goal of treatment. I also acknowledge the Applicant has included their goals of treatment and assessors’ recommendations for this plan. However, the Applicant does not address why the costs of the treatment are reasonable against the goals identified.

73Therefore, on a balance of probabilities, I find this plan is not payable.

Interest

74I find that interest is owing on the payable plans in dispute.

Award

75Under s. 10 of Reg. 664, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the Applicant to prove, on a balance of probabilities, that the Respondent’s conduct meets these criteria.

76I find that the Applicant did not point me to evidence which would establish the Respondent’s unreasonable denial or withholding of benefits.

77Therefore, no award is owing.

ORDER

78I find that plans 1-6 are payable.

79I find that the plan for the chronic pain program is not payable.

80I find that interest is owing on the payable plans.

81I find that no award is owing.