Licence Appeal Tribunal File Number: 24-003119/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:
Sylvia Quirk
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Steve Gilchrist
APPEARANCES:
For the Applicant:
Gjergji Laloshi, Paralegal
For the Respondent:
Argita Shehaj, Counsel
HEARD: In Writing
OVERVIEW
1Sylvia Quirk, the applicant, was involved in an automobile accident on August 10, 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 $399.00 for physiotherapy services, proposed by Wellness Centre by Bonnie Davis in an OCF-18/treatment plan (“plan”) submitted April 1, 2024?
ii. Is the applicant entitled to $2,857.77 for a chronic pain assessment, proposed by Medex Assessments Inc. in a plan submitted August 30, 2023?
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 any overdue payment of benefits?
RESULT
3The applicant is not entitled to the treatment plans in dispute. The respondent is not liable to pay an award or interest.
ANALYSIS
Is the applicant entitled to the treatment plan for physiotherapy services?
4The applicant is not entitled to the treatment plan for $399.00 for physiotherapy services.
5To 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.
6The treatment plan in dispute proposed four physiotherapy treatments that arose from a request by the applicant for a “vertigo AX assessment”. The goals of the treatments were to assess the vertigo the applicant claimed to have developed as a consequence to the accident and “ongoing vertigo treatment”.
7On August 10, 2021, the day after the accident, the applicant visited a walk-in clinic, which referred her for an x-ray. The applicant then attended a physiotherapy clinic, Treatments Wellness Centre, a physiotherapy/chiropractic clinic, Integral Health on August 16, 2021, and her family doctor, on August 17, 2021. The applicant has provided the CNRs for these facilities.
8In those CNRs, there are limited references to the applicant reporting vertigo as a consequence of the accident. There are additional references in the reports of Chronic Pain specialist Dr. Chen; and the respondent’s s. 44 assessors, Dr. Nesterenko, GP, and Dr. Mandel, psychologist. The applicant noted similar claims in the s. 25 reports of Dr. Atkins, neuropsychologist, Dr. Abdelmotaal, psychiatrist, and Dr. Tanenbaum, psychologist, who examined the applicant.
9Prior to the submission of the treatment plan in dispute, the applicant experienced a left ankle sprain sustained in mid-January 2024, which she attributed to ongoing vertigo and dizziness, causing frequent falls, since the accident. At her visit to the physiotherapist, on March 28, 2024, the applicant requested a vertigo assessment due to persistent dizziness. The disputed OCF-18, dated April 1, 2024, directly corresponds to this request for a vertigo assessment.
10The respondent takes the position that the treatment plan was not reasonable or necessary for a several reasons. The first was the fact that the applicant has an unspent treatment balance of $9,350.28 from treatment plans the respondent has already approved, including funding for both assessments and treatment. The respondent submits that this serves as objective evidence that the applicant is not in need of further accident-related rehabilitation. While the respondent provided some details related to the approved treatment plans, there was insufficient detail for me to determine whether any of those approvals would encompass a vertigo assessment. Accordingly, I am unable to give any weight to this submission by the respondent.
11The respondent has submitted that the applicant had been treated for a variety of physical and psychological issues, prior to the accident, including suffering from a concussion in a fall, only one week prior to the accident. Dr. Sanaa Beshay, the applicant’s family doctor, confirmed a diagnosis of concussion as a result of the fall but only noted a “possible” concussion as the diagnosis, after the accident.
12The respondent also provided evidence that the applicant indicated, during her assessment by Dr. Nesterenko, that she had a medical history that included vertigo which was managed with medication prior to the accident.
13Contrary to the self-reporting of persistent vertigo by the applicant which was referenced in the various s. 44 and s. 25 reports, there are only intermittent references to vertigo in the CNRs of the treating physicians and physiotherapist of the applicant. There are no mentions in the CNRs of Bristol Family Medical Clinic and none in the CNRs of the Applewood Medical Clinic. Her family doctor, Dr. Sanaa Beshay, makes reference to “dizziness, on and off” in the visit immediately after the accident then only one more time, on November 8, 2021. There do not appear to be any references to vertigo in 2022.
14The CNRs of Dr. Jason Ali on January 10, 2023 notes that the applicant experienced an episode of vertigo, in December, but it “resolves with taking gravol”. At that same visit, Dr. Ali prescribed SERC (histidine) a medication to deal with vertigo, specifically.
15During the s. 25 assessment by Dr. Abdelmotaal, on February 5, 2023, the applicant reported she “feels some improvement” since she began taking SERC. One month later, on March 5, 2023, the applicant reported to Dr. Ali that “She tried SERC for vertigo and it helped a lot”.
16The original prescription of SERC was only for a 30-day supply, with one refill. The applicant requested a refill of the prescription on June 7, 2023. There are no further references to SERC, after that date. The prescription summary provided by the applicant shows that those were the only two prescriptions of SERC ever filled.
17On March 28, 2024, the same day that the OCF-18 in dispute was written by Bonnie Davis, physiotherapist, Ms. Davis also explained the “Epley maneuver” to the applicant as the best way to treat vertigo. Despite that advice, the CNRs for Ms. Davis note the applicant report practicing the maneuver until just prior to a May 28, 2024 visit, during which the applicant reported “feeling better since doing the Epley”.
18I find that that the evidence before me suggests that the prescription of SERC and the Epley maneuver training both appear to provide relief for the applicant’s reported symptoms of vertigo. As there does not appear to be any use of SERC by the applicant, after 2023, it would suggest the applicant either no longer experiences vertigo or, if so, it is at a level which does not warrant treatment.
19On the balance of probabilities, I find that the applicant has not demonstrated that the treatment plan for physiotherapy is reasonable or necessary.
Is the applicant entitled to the treatment plan for a chronic pain assessment?
20The applicant is not entitled to the treatment plan for a chronic pain assessment.
21The purpose of an assessment is to determine whether a condition exists.
22An applicant is entitled to funding for a medical assessment under the Schedule if they establish, on a balance of probabilities, that the proposed assessment is
reasonable and necessary, and conducted for a permitted statutory purpose, namely, to assist in the treatment or rehabilitation of accident-related impairments or determine entitlement to a benefit under the Schedule. 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.
23The Applicant submits that the Chronic Pain Assessment proposed by Dr. Yen-Fu Chen, physiatrist, of Medex Assessments Inc. on August 30, 2023, is reasonable and necessary.
24After the denial of the treatment plan by the respondent, the applicant did submit to a chronic pain assessment performed by Dr. Chen on October 31, 2023. The applicant is relying on the results of that assessment.
25Dr. Chen noted that the applicant suffered from ongoing, constant, and often severe pain complaints across multiple body areas, along with associated symptoms like dizziness, imbalance, tinnitus, anxiety, depression, poor sleep, fatigue, and cognitive issues and he opined that the Applicant meets all six criteria for a diagnosis of Chronic Pain Syndrome under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition.
26The applicant submits that the evidence of Dr. Chen, as a specialist in chronic pain assessment, should be given more weight than the evidence of the assessments by the respondent’s GP and psychologist.
27The applicant has supplied no corroborating evidence of chronic pain in the CNRs of family doctor or walk-in clinics the applicant visited between the date of the accident and the date of the OCF-18.
28Immediately after the accident, the applicant reported left knee, left shoulder and back pain to Dr. Sanaa Beshay, her family doctor, which were a consequence of the accident. In the five subsequent visits to Dr. Beshay, the applicant discusses psychological ailments, including sleeping problems, but noted “no headaches”.
29Similarly, beginning with her first visit to Dr. Jason Ali on November 2, 2022, and for the five subsequent visits, the applicant only refers to psychological issues.
30The same is true for the applicant’s three visits to the Bristol Family Medical Clinic in 2022 and 2023.
31There are no references to physical pain in the Neurological Assessment of Dr. James Atkins, on April 18, 2023.
32In short, the diagnoses of Dr. Chen are not supported by the CNRs of the medical professionals she was attending on a regular basis in the three years after the accident.
33The respondent submits that, even were I to consider the Chronic Pain Assessment by Dr. Chen, it lacks corroboration on many of his conclusions regarding the applicant’s condition. The respondent submits that the applicant suffers no ongoing functional disability attributable to the accident and nothing that could be considered a serious impairment. The respondent notes that the applicant has returned to work, is completely independent in her activities of daily living and, on those few instances where the applicant has mentioned any pains, the CNRs consistently note that the applicant only takes Advil for relief.
34While they would not have been evidence available to the respondent, at the time of the submission of the OCF-18, I note that subsequent visits and diagnostic tests have produced diagnoses that the applicant is suffering from osteoarthritis, which is not accident-related. Bristol Family Medical Clinic offered that diagnosis for a right wrist pain, on June 12, 2024, and the Dixie X-Ray Clinic offered that interpretation of an x-ray of the applicant’s lower back, on November 22, 2024.
35As with the first treatment plan in dispute, the applicant made no submissions as to why almost 50% of the funding, for treatment plans which were approved, have not be utilized, so long after their approval. The fact that the applicant has discontinued chiropractic and other treatments, which were already approved by the respondent and which the applicant, herself, had described as providing pain relief, undermines any claim that she is suffering from chronic pain.
36In the CNR of Dr. Jason Ali, on November 2, 2022, he notes about the applicant: “She completed PT (physiotherapy) program last year. This helped her joint pains partially.” In that same visit, the applicant is noted as estimating that her physical pain had improved 65% to 70% since the accident.
37The evidence shows that the applicant was attending the same physiotherapist, Bonnie Davis, since 2019, for treatments which involved the same areas the applicant now claims are suffering from accident-related injuries, namely the neck, shoulders and upper back.
38There is insufficient evidence to establish that the current symptoms exclusively arise from the subject accident or that previous injuries have interfered with the applicant’s ability to completely recover from the accident nor has the applicant demonstrated a functional impairment arising from accident-related chronic pain.
39Therefore, on the balance of probabilities, I find that the applicant has not met her onus of demonstrating that the treatment plan for a chronic pain assessment is reasonable and necessary.
Award
40I find the respondent is not responsible for paying an award.
41Under 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.” (See Plowright and Wellington Insurance Company (1993 OIC File No.: A-003985 (FSCO)) and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT). The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.
42It is well settled that an award should not be ordered simply because an insurer made an incorrect decision.
43The 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.
44The applicant submits that the insurer acted unreasonably by denying her access to benefits and treatment. The applicant states that they provided medical documentation with regards to her whole impairment and need for the treatment plans in dispute.
45The applicant notes that she sought medical treatment the day after the accident and attended medical clinics to address her accident-related impairments. The applicant pursued treatment plans to remedy those impairments and argues that she should have received the treatment plans under dispute.
46I agree that the applicant provided the insurer with evidence to justify her need for treatment, however I also agree that the insurer was acting reasonably based on the medical evidence that it was provided from its assessors as evidenced by the fact that the respondent had been removed from the MIG. Most particularly, because there was evidence that the applicant may have been diagnosed with psychological issues prior to the accident, it was reasonable for the respondent to obtain additional information and reports.
47I find the applicant has not shown that the respondent’s conduct was unreasonable and, accordingly, I find that there is no basis for ordering an award under s. 10 of Reg. 664.
Interest
48Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, the applicant is not entitled to interest.
ORDER
49The Tribunal orders:
i. The applicant is not entitled to the treatment plans in dispute.
ii. The applicant is not entitled to an award.
iii. The applicant is not entitled to interest as there are no payments overdue for the benefits claimed.
Released: April 10, 2026
Steve Gilchrist
Adjudicator