Citation: Ryan v. Definity Insurance Company, 2026 ONLAT 24-002419/AABS

Licence Appeal Tribunal File Number: 24-002419/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:

Linda Ryan

Applicant

and

Definity Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rasha El Sissi

APPEARANCES:

For the Applicant:

Jeton Memeti, Paralegal

For the Respondent:

Tiziana Serpa, Counsel

HEARD:

By way of written submission

OVERVIEW

1Linda Ryan, the applicant, was involved in an automobile accident on March 28, 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.

2In the accident, the applicant accidentally accelerated into a brick wall while learning to drive. The airbags deployed. She was taken from the scene to Brampton Civic Hospital (William Osler Health System) by paramedics. She complained of headaches, and neck, chest and stomach pain. She received a CT scan of her chest and abdomen at William Osler after the accident, which showed a lytic lesion in her T7 vertebra (later determined to be pre-existing and unchanged). She was discharged from the Emergency Department with prescription pain medication. Her injuries listed in the OCF-3 Disability Certificate (“Disability Certificate”) are WAD 2 with neck pain and musculoskeletal signs, sprains and strains of the cervical, thoracic and lumbar spine, shoulder joint and fingers, as well as nervousness, dizziness and giddiness, other sleep disorders, other chest pain, and pain localized to lower abdomen (dated April 4, 2022).

ISSUES

3The issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from April 25, 2022 to March 28, 2024?

iii. Is the applicant entitled to $2,460.00 for the cost of a psychological assessment, proposed by Complete Rehab Centre in a treatment plan/OCF-18 (“plan”) submitted July 21, 2022?

iv. Is the applicant entitled to $2,728.84 for physiotherapy services, proposed by Chinguacousy Physiotherapy in a plan submitted July 20, 2022?

v. Is the applicant entitled to $3,187.86 for psychological services, proposed by Complete Rehab Centre in a plan submitted December 7, 2022?

vi. Is the applicant entitled to $2,460.00 for the cost of an ortho-chronic pain assessment, proposed by Mississauga Rehab and Sports Injury Clinic in a plan submitted February 15, 2023? (Note: the amount in dispute is the amount invoiced by Mississauga Rehab and Sports Injury Clinic in an invoice dated March 2, 2023.)

vii. Is the applicant entitled to $15,322.73 for physiotherapy services, proposed by Mississauga Rehab and Sports Injury Clinic in a plan submitted April 21, 2023?

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

4The applicant’s accident-related injuries are outside of the MIG as she sustained a psychological impairment.

5The applicant is not entitled to NEB for the period after June 6, 2022, the date of the last NEB payment.

6The applicant is entitled to payment for the psychological assessment in the amount of $2,460.00, plus interest, by operation of section 38(11).

7The applicant is entitled to the plan for physiotherapy services in the amount of $2,728.84, plus interest.

8The applicant is entitled to the plan for psychological services in the amount of $3,187.86, plus interest, once incurred and properly invoiced, by operation of section 38(11).

9The applicant is entitled to payment for the ortho-chronic pain assessment in the amount of $2,460.00, plus interest, by operation of section 38(11).

10The applicant is partially entitled to the plan for physiotherapy services in the amount of $8,808.72, plus interest.

11The respondent is not liable to pay an award.

ANALYSIS

The Applicant is Removed from the MIG due to a Psychological Condition

12For the reasons below, I find that the applicant has proven on a balance of probabilities that she sustained a psychological impairment as a result of the accident, and she is accordingly removed from the MIG.

13Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

14The applicant may be removed from the MIG if she can establish her accident-related injuries fall outside of the MIG or, under section 18(2), that she has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if she is kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

15The applicant submits that she should be removed from the MIG because of her pre-existing condition, psychological impairment and chronic pain syndrome. The respondent disagrees on all bases. With respect to a psychological impairment, the respondent argues that the applicant has not met her onus of demonstrating her accident-related psychological symptoms are more than the sequelae of her soft tissue injuries. Since I find the applicant is removed from the MIG due to an accident-related psychological impairment as explained below, I have not considered a pre-existing condition or chronic pain syndrome.

16The applicant points to the assessment report of Dr. Jacqueline Brunshaw, psychologist, to substantiate that she suffered psychological injuries as a result of the accident (report dated October 24, 2022). Dr. Brunshaw diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood; and features of specific phobia, situational type (vehicular: driver, pedestrian) mild to moderate level of severity. The applicant complained to Dr. Brunshaw of physical pain, disrupted sleep, reduced energy and appetite, and psychological and cognitive issues, and of functional impairments in housekeeping chores as a result of the accident. The report states that psychometric testing indicated mild symptoms of depression, severe levels of anxiety and somatization. The report stated that the applicant’s presentation was of a person in distress. Dr. Brunshaw opined that the applicant should be treated for her psychological injuries outside of the MIG.

17The respondent relies primarily on submissions about the clinical notes and records (“CNR”) of Dr. Jay Langer, the applicant’s family doctor, to challenge that the applicant should be removed from the MIG for a psychological impairment. The respondent points to the fact that the applicant discussed nervousness (driving) and depression with Dr. Langer only in the month after the accident. The respondent notes that Dr. Langer did not make a psychological referral, recommend psychology treatment or prescribe medication in response to the applicant’s complaints, from which the respondent submits that Dr. Langer was of the opinion that these were not warranted. I find there is nothing in Dr. Langer’s CNR that explicitly says psychological care is not warranted.

18After careful review of Dr. Langer’s CNR, I find that the applicant complained to Dr. Langer about, and that he treated her for, psychological injuries after the accident. The injuries were nervousness (she had not been in a car since the accident) and depression. He prescribed Cymbalta and subsequently increased the dose of Cymbalta.

19The respondent argues that the applicant’s complaints to Dr. Brunshaw are not aligned with her complaints to Dr. Langer when discussing the accident. However, I find that the applicant’s complaints of pain, nervousness (driving) and depression, discussed with Dr. Langer, were also discussed with Dr. Brunshaw according to the report. Dr. Brunshaw’s report includes more detail and other symptoms, which is not unexpected for a psychological assessment compared to a family doctor’s CNR. I see no inconsistency in the applicant’s reporting in this regard.

20In addition, the respondent disputes that the applicant suffered a psychological impairment in the accident pointing to various portions of the section 44 assessment of Dr. Marc Mandel, psychologist (dated February 16, 2024). I will deal with these one by one.

21For context, Dr. Mandel’s report was prepared for the purpose of assessing the applicant’s entitlement to NEB. It was conducted almost two years post-accident. Dr. Mandel concluded “that there is a lack of consistent objective information present that would support poor prognosis, DSM 5-TR diagnosis and/or suggest that [the applicant] suffers clinically significant symptoms that would indicate a substantial psychological impairment or disability as a direct result of the subject motor vehicle accident at this time” (i.e., January 26, 2024, the date of the evaluation) [emphasis added]. Dr. Mandel stated that the applicant “is coping with residual adjustment difficulties in a functional manner” [emphasis added]. Therefore, he opined that she is not entitled to NEB. Two other section 44 assessments (physician’s assessment and in-home occupational assessment) were conducted at the same time and the assessors also concluded that the applicant is not entitled to NEB.

22The respondent submits that there are differences in the applicant’s description of her subjective post-accident symptoms in Dr. Mandel’s and Dr. Brunshaw’s reports. The respondent submits that the applicant did not report any vehicular anxiety or significant psychological, emotional or cognitive issues to Dr. Mandel, and associated her low mood and crying to the death of her mother in July 2022. The applicant submits that the difference between the reports is that Dr. Mandel did not make a DSM diagnosis, but Dr. Brunshaw did, and that both psychologists concluded she had a psychological impairment, though for Dr. Mandel this was not “substantial”.

23The applicant cites J.S. v. Aviva General Insurance, 2019 CanLII 63355 (ON LAT) for the proposition that there is no absolute requirement in law that a person have a DSM diagnosis to be removed from the MIG for psychological reasons. Though I am not bound by other Tribunal decisions, I agree this is a long-standing approach of the Tribunal.

24Overall, I place limited weight on Dr. Mandel’s report in the context of whether the applicant should be removed from the MIG. The report did not consider the MIG, and thus, the definition of “minor injury” in the Schedule. Dr. Mandel was considering NEB which requires an accident-related impairment with a certain impact on the applicant’s life, namely “that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The MIG analysis requires an accident-related impairment that is not predominantly a minor injury. Also, Dr. Mandel’s assessment was nearly two years after the accident and over a year after Dr. Brunshaw’s assessment. Thus, his report is not particularly helpful for assessing whether the applicant’s evidence of a psychological impairment, grounded in a diagnosis 15 months earlier, satisfies her onus to be removed from the MIG. I prefer to base that assessment on evidence more contemporaneous with the accident and the diagnosis on which the applicant relies. This also applies to the two other section 44 reports prepared at the same time and for the same purpose.

25The respondent notes that Dr. Brunshaw did not review the applicant’s medical records, but Dr. Mandel did. The applicant submits, pointing to Dr. Brunshaw’s report, that she took the applicant’s medical history in the interview, including that the applicant had a prior diagnosis of depression by Dr. Langer, as well as headaches, sleep apnea and chest pain. Therefore, I do not find that the lack of a review of the applicant’s medical records diminishes the weight that I give to Dr. Brunshaw’s assessment.

26The respondent submits that there is doubt whether the assessment described in Dr. Brunshaw’s report was actually conducted. Dr. Mandel recorded in his report that the applicant said she had not undergone any psychological assessment as a result of the accident. In reply, the applicant submitted that is an inconsistency in reporting but that there is consistent clinical documentation over time that supports her reported symptoms. I can find no satisfactory explanation in the evidence or submissions for this statement in Dr. Mandel’s report. However, I am not persuaded that it means the assessment was not conducted given the lack of any other evidence or submissions supporting that submission. There is no statement in Dr. Mandel’s report that he drew this conclusion. There is evidence that the assessment service was performed in the form of an invoice for the plan that proposed Dr. Brunshaw’s psychological assessment dated a month after the assessment report is dated.

27The respondent submits that the assessment report of Dr. Brunshaw was written by Helen Ilios, psychology associate to Dr. Brunshaw. I find that the report states that Ms. Ilios is a registered psychotherapist working under Dr. Brunshaw’s supervision and is cosigned by both. I also find the report is detailed and well organized. Therefore, I do not find that the amount of weight I place on the report is diminished by the involvement of Ms. Ilios.

28To be removed from the MIG, an insured’s accident-related impairment must not be predominantly a minor injury. Though psychological injuries are not in the definition of a minor injury, they must also be more than clinically associated sequelae of the insured’s physical injuries. The respondent did not make submissions or present evidence that the psychological impairments and symptoms assessed by Dr. Brunshaw and Dr. Langer are the clinically associated sequelae of her physical injuries, besides the section 44 reports for NEB which I have found to have limited weight in the MIG analysis.

29For the reasons above, I find that the applicant has proven, on a balance of probabilities, that she sustained a psychological impairment as a result of the accident, and accordingly she is removed from the MIG.

Pre-existing Condition and Chronic Pain with Functional Impairment

30As I have found that the applicant is removed from the MIG due to an accident-related psychological impairment, it is not necessary for me to consider whether she is removed from the MIG due to a pre-existing condition or chronic pain syndrome.

Respondent complied with section 36(4)(b) of the Schedule on June 6, 2022

31I find the applicant is not entitled to further NEB beyond the NEB already paid by the respondent to June 6, 2022 due to its delay in responding to the applicant’s specified benefits claim. This is because I find that the letter of the respondent dated June 6, 2022 denying NEB complied with section 36(4)(b).

32The applicant submits the respondent’s June 6, 2022 denial did not comply with the Schedule because it failed to explain the medical reasons. The applicant submits that the section 44 assessments by Dr. Mandel and Dr. Tu dated February 16, 2024 provided the medical reasons on which the respondent based its decline, and those reasons were communicated to the applicant on February 20, 2024. The applicant submits she is entitled to further NEB because the respondent’s denial was not in compliance with the Schedule.

33The respondent submits that it paid $1,110.00 in NEB, with interest, to the applicant on March 12, 2025 due to its delay in responding to the applicant’s specified benefits claim from the date of receipt of her completed accident benefits forms in April 2022 and the respondent’s response on June 6, 2022. The respondent maintains that that no further NEB is owed.

34Sections 36(4) and 36(6) of the Schedule set out strict notice requirements for insurers responding to an application for a specified benefit and specific consequences if they fail to comply. Section 36(4)(b) requires an insurer to inform an insured person within ten business days after it receives the application and completed disability certificate, whether it will pay the specified benefit or not, and if not, the medical and other reasons why it does not believe the applicant is entitled to the specified benefit. If the insurer fails to comply with section 36(4) within the applicable time limit, the insurer shall pay the specified benefit for the period starting on the day the insurer received the application and completed disability certificate and ending, if the insurer subsequently gives a notice described in section 36(4)(b), on the day the insurer gives the notice (“shall pay” period).

35I find that the respondent did not issue its denial in compliance with the applicable time limit and therefore that the mandatory consequence under section 36(6) was triggered. I find that the “shall pay” period ended on June 6, 2022 because the letter of that date was a notice as described in section 36(4)(b) that contained the medical and other reasons why the respondent believed the applicant was not entitled to NEB.

36The respondent’s letter dated June 6, 2022 provided the following reasons why the applicant was not entitled to NEB: “the Treatment Confirmation form (OCF-23) submitted by Chinguacosy Physiotherapy and Foot Clinic reports predominantly minor injuries and indicates that you qualify for treatment under the MIG”; “no pre-existing injuries or conditions have been reported”; and “the diagnostic imaging results provided from William Osler do not indicate any abnormalities as a direct result of the motor vehicle accident”.

37I find that the respondent provided medical reasons in the June 6, 2022 letter in that it cited the definition of minor injury and the diagnostic imaging results that did not show impairments (“abnormalities”) related to the accident. Together with the “other reasons” in the letter discussing the legal requirements for specified benefits and why the applicant does not satisfy them, it provided the applicant with sufficient information to allow her to decide whether to dispute or accept the respondent’s decision.

38It is the insured’s onus to establish that they have an impairment and have met the other criteria for entitlement to NEB. There is no requirement for the insurer to obtain section 44 assessments as suggested by the applicant.

39As the respondent paid the applicant NEB for the entire “shall pay” period, with interest, no further NEB is owed as a result of non-compliance with section 36(4) of the Schedule.

The Applicant is not Entitled to a NEB Beyond the NEB Already Paid

40I find that the applicant is not entitled to NEB for the period from June 7, 2022 to March 28, 2024 because she has not proven that she suffered a complete inability to carry on a normal life, as defined in the Schedule, as a result of the accident.

41Section 12(1) of the Schedule 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) of the Schedule 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 (“Heath”), which generally focuses on a comparison of the applicant’s pre- and post-accident activities.

42The applicant submits that, at time of accident she was a full-time caregiver and homemaker who enjoyed walks and taking care of her family. She submits that since the accident these activities have been substantially affected. The applicant relies on the Disability Certificate completed by her treating physiotherapist Grace Macwan on April 4, 2022, which recorded multiple injuries and checked off that the applicant has a functional limitation which prevents her from engaging in activities of daily living. The applicant also points to the handwritten notes she made at the bottom of the respondent’s Activities of Normal Life document (“ANL Document”) completed by her on June 8, 2022: “can not go for walks anymore, because short of breath, tired quick, sharp pain in head, dizzy, forget, sharp pain in stomach, stressed”. Finally, the applicant also points to the section 25 assessment reports of Dr. Brunswick and Dr. D.J. Ogilvie-Harris, orthopaedic surgeon, in which the assessors concluded that she was entitled to NEB.

43The respondent maintains that the applicant has never discharged her onus to prove entitlement to NEB. The respondent relies on the applicant’s responses in the ANL Document. The respondent also points to the section 44 assessment reports of Dr. Mandel, Dr. Sabrina Ming-Wai Tu, physician, and Mr. Harish Sharma, occupational therapist, in which the assessors concluded that she was not entitled to NEB under section 12(1) of the Schedule.

44Following the guidance in Heath, by which I am bound, I considered the evidence and submissions about the applicant's activities and life circumstances in a reasonable period of time before the accident. The applicant was not employed and did not drive. She was living in an apartment with her three children and was the parent primarily responsible for them. She went for long walks, taking the kids to and from school, and this was important to her. She was independent in personal care and functions such as walking, climbing stairs, standing, sitting and taking public transportation. According to the ANL Document, which is her own statement, she had limitations before the accident in spheres of shopping, meals, cleaning, laundry, home maintenance activities, as well as cognitive abilities, controlling emotion and behaviour and communication (could do them partially or with help). She provided comments in the ANL Document on her limitations that indicated they were because of pain, lack of endurance, forgetfulness, stress and confusion. She had a boyfriend, a large family with whom she socialized, had people over, went to church and read the Bible. She was trying to learn how to drive.

45I then considered the evidence and submissions about accident-related injuries or impairments that the applicant contends prevent her from engaging in her former activities. I place considerable weight on the assessments of Dr. Langer for what are the applicant’s accident-related injuries because he was her family doctor for 30 years or more and well acquainted with her pre- and post-accident condition. I discussed Dr. Langer’s CNR in the month after the accident above. The impairments I find for this purpose are musculoskeletal pain and pain syndrome, as well as symptoms of nervousness (fear of driving), depression, dizziness and lightheadedness.

46Continuing to follow Heath, I considered the evidence and submissions about the applicant's post-accident life as a result of these injuries or impairments. The applicant stopped learning to drive, needed more help with meal preparation, laundry and groceries, was more irritable and nervous. She found long walks more difficult. She did not go to church or have people over. She was only partially able to walk, climb stairs, stand, sit and needed help to take public transportation.

47The picture that emerges is of an individual who had some limitations before the accident in categories other than personal care and basic functional ability, which were characteristic of her normal life. In the majority of such cases, the extent of her ability to complete the task did not change after the accident, even when she indicated that she had limiting symptoms such as “get sharp pain”, “feet hurt”, “get tired”, “get chest pain” and “forget”. I take into consideration the guidance in Heath that "the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time, or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities". The applicant’s own statements in the ANL Document do not indicate that she stopped activities of normal life due to her limiting symptoms, which allows me to infer that she still performed them to an extent. To meet her onus for NEB entitlement, these impairments would have to continually prevent her from engaging in substantially all of the activities in which she ordinarily engaged before the accident. On a balance of probabilities, I am not persuaded that her impairments continuously prevented the applicant from engaging, to the extent she was previously able, with the many other tasks of normal living.

48Therefore, I find, on a balance of probabilities, that the applicant has not met her onus to prove that she is eligible for NEB from June 7, 2022 to March 28, 2024 pursuant to section 12(1) of the Schedule

49To receive payment for a treatment and assessment plan under sections 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.

50The applicant sought an order that all of the plans in dispute are reasonable and necessary. The applicant also made submissions that the plans are payable pursuant to section 38(11) of the Schedule, because the respondent did not comply with section 38(8) with respect to the plans.

51In general, the respondent submits that the applicant did not report accident-related complaints to Dr. Langer warranting the treatments proposed. The respondent points to the lack of recommendations or referrals by Dr. Langer and the applicant’s other specialist physicians for the proposed treatment. The respondent submits in some cases that the proposed treatment is excessive. The respondent submits that it complied with section 38(8).

The respondent is not compliant with section 38(8) of the Schedule with respect to the plan for a psychological assessment in the amount of $2,460.00.

52I find that the respondent’s denial of the plan did not meet the requirements of section 38(8) of the Schedule and therefore, that the applicant has established that the plan is payable by operation of 38(11) of the Schedule.

53Section 38(8) of the Schedule requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments and examinations it agrees to pay for, and which it does not, as well as the medical and other reasons why it considered any of the goods and services not to be reasonable and necessary.

54If an insurer fails to comply with its obligations under section 38(8), the following consequences set out in section 38(11) of the Schedule are triggered as a mandatory consequence:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies.

2. The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in section 38(8).

55The applicant submits that the respondent did not comply with section 38(8) because it did not explain its medical reasons for denying the plan. The applicant submits the assessment proposed in the plan was obtained at the applicant’s cost on October 24, 2022 and provided an invoice for $2,460.00 dated November 28, 2022.

56The respondent submits that the plan was submitted on July 21, 2022 and denied on July 29, 2022. It is the respondent’s position that the plan was denied because, at the time, accident benefits were suspended due to the applicant’s non-compliance with section 33. (The section 33 request was for Dr. Langer’s CNR and OHIP records from March 2021 and the ANL Document.)

57The respondent pointed to the OCF-18 form that has checked “do not approve” and signed by the respondent’s adjuster Maria Hechavarria on July 29, 2022. This checkmark on the OCF-18 is not sufficient to meet the requirements of section 38(8) because there is no explanation of the medical and other reasons why the applicant considers the services not to be reasonable and necessary. The applicant’s non-compliance with section 33 does not alter the respondent’s obligations under section 38(8).

58I find that the plan is payable under section 38(11) starting on the 11th business day after July 21, 2022, the date the respondent received it. I find that psychological assessment proposed by the plan was incurred by the applicant after it became payable and has been invoiced, and therefore, that the applicant is entitled to the full amount in dispute for this plan.

59As the plan was incurred and invoiced after it became payable by operation of section 38(11), it is not necessary for me to consider if it is reasonable and necessary.

The respondent is compliant with section 38(8) of the Schedule with respect to the plan for physiotherapy in the amount of $2,728.84. The plan is reasonable and necessary.

60I find that the respondent’s denial of the plan on July 29, 2022 met the requirements of section 38(8) of the Schedule and therefore, that the applicant has not established that the plan is payable by operation of section 38(11).

61The applicant submits the respondent’s denial of this plan on July 29, 2022 did not comply with the Schedule because it failed to explain the medical reasons why the respondent did not consider the services to be reasonable and necessary. The applicant did not submit any evidence that the physiotherapy services were incurred by the applicant at her own cost.

62The respondent submits that the plan was submitted on July 20, 2022 and denied on July 29, 2022. The July 29, 2022 letter acknowledges receipt of the plan and explains the following reasons why the respondent does not consider it to be reasonable and necessary: the diagnostic imaging results provided from William Osler … does not indicate any abnormalities as a direct result of the motor vehicle accident; we have compared the information we have on file regarding your injury to the definition of “minor injury” and your injuries fit within the definition; no pre-existing medical condition has been reported; and your claim is limited to the MIG limit. The respondent positively stated that it did not request an insurer’s examination.

63The July 29, 2022 letter states the respondent’s medical and other reasons for the denial (citing the MIG, the hospital records and lack of substantiation that the injuries are not minor). The letter is also timely. The letter states that it attached the OCF-18. In the applicant’s evidence, this is the OCF-18 for a different plan, the psychological assessment plan, for reasons not explained by the respondent. However, I find that the statement on page 1 of the July 29, 2022 letter that, “we have received the attached Treatment and Assessment Plan (OCF-18), prepared by Grace Macwan of Chinguacosy Physiotherapy and Foot Clinic dated July 19, 2022, in the amount of $2,728.24” makes it clear the wrong OCF-18 has been attached [emphasis added]. I find that the respondent’s denial was for the correct treatment plan and that from the denial notice, the applicant would understand which treatment plan the respondent was denying. Therefore, I do not find attaching the wrong treatment plan means the denial is not compliant with section 38(8).

64The respondent maintained the denial in a letter dated February 23, 2024 that cites the conclusions of Dr. Tu’s section 44 physician’s assessment.

65In sum, I find that the applicant has not established that she is entitled to the plan by operation of section 38(11) because the respondent complied with section 38(8) in its denial letter of July 29, 2022.

66However, with respect to, I find that the applicant has met her onus to show that the plan is reasonable and necessary under section 15 of the Schedule.

67The applicant submitted that this plan is for a continuing physiotherapy program by the applicant’s treating physiotherapist, Ms. Macwan. The goals of this plan are pain reduction, increasing range of motion and strength, and return to activities of normal life. Ms. Macwan indicated that the barriers to recovery are difficulty with activities of daily living, possible concussion and multiple injuries.

68I find that the applicant has shown that there is medical support for physiotherapy services to treat injuries she received in the accident. Dr. Langer’s CNR for encounters shortly after the accident indicate he supported physiotherapy for the applicant’s injuries. In the encounter on May 6, 2024 when the applicant complained of continuing back pain since the accident, Dr. Langer planned potentially resuming physiotherapy. There are no CNR for Dr. Langer after that date in evidence.

69The applicant also submitted the ortho-chronic pain assessment of Dr. Ogilvie-Harris, orthopaedic surgeon, dated March 7, 2023 involving an examination, interview, administration of pain questionnaires and medical records review. The doctor’s opinion was that the applicant sustained soft-tissue injuries directly as a result of the accident and went on to develop the features of a chronic pain syndrome. He recommended a comprehensive rehabilitation program, including physical rehabilitation and modalities such as acupuncture, massage therapy and chiropractic because they can reduce pain and improve function.

70The applicant also submitted the CNR of of Ms. Macwan, from shortly after the accident onwards. Ms. Macwan recorded the applicant’s pain complaints, limited range of motion, and complaints of disturbed sleep and nervousness. The CNR indicate that the applicant felt progressively better after treatment from 10% initially to 35% improvement by November 2022.

71I find that the treatment proposed by the plan is supported by the applicant’s treatment providers, and its goals will be met to a reasonable degree because physiotherapy is helping the applicant recover from her accident-related injuries, albeit slowly. I place weight on the views of Dr. Langer and Dr. Ogilvie-Harris that the applicant would benefit from physical therapy as well as the CNR of Ms. Macwan that record positive changes in the applicant’s subjective symptoms after physical therapy treatment.

72I find, on a balance of probabilities, that the plan is reasonable and necessary.

The respondent is not compliant with section 38(8) of the Schedule with respect to the plan for psychological services in the amount of $3,187.86.

73I find that the respondent’s denial of the plan dated December 7, 2022 did not meet the requirements of section 38(8) of the Schedule and therefore, that the applicant has established that the plan is payable by operation of section 38(11) of the Schedule, once incurred and properly invoiced.

74The respondent submits that it denied the plan on the same day it was received. It is the respondent’s position that the plan was denied because, at the time, accident benefits were suspended due to the applicant’s non-compliance with section 33. The applicant submits that this is not a valid reason for a denial of the plan under the Schedule.

75I have carefully reviewed the respondent’s letter dated December 7, 2022. It acknowledges receipt of the plan proposing psychotherapy outside of the MIG. It states that the applicant’s accident benefits have been suspended effective August 15, 2022 because of failure to comply with the section 33 request. It states that, therefore, the insurer is “unable to approve the subject/treatment”.

76The letter on its face does not comply with section 38(8) because it does not address whether the respondent considers the psychological services or their proposed cost to be reasonable and necessary. It only speaks to the lack of family doctor’s CNR, OHIP records and the ANL Document requested under section 33. At this time, the psychological assessment report of Dr. Brunshaw had been produced, which recommended the proposed treatment. The psychological assessment report is mentioned several times in the plan, but Dr. Brunshaw and the report are not mentioned in the letter. Though the letter states that psychotherapy is outside of the MIG, it does not explain what minor injuries are or the significance in the context of psychological treatment. Thus, I find that the letter failed to meet the requirement of section 38(8) to provide medical reasons. I do not find that the reference to missing records is sufficient to comply with section 38(8) because the section requires “medical and any other reasons” in the denial [emphasis added].

77I find that the plan is payable by operation of section 38(11) anytime after the 11^th business day after December 7, 2022 (the date the respondent submits the plan was received), once incurred and properly invoiced.

78As the plan is payable, once incurred and properly invoiced, by operation of section 38(11), it is not necessary for me to consider if it is reasonable and necessary.

The respondent is not compliant with section 38(8) of the Schedule with respect to the plan for an ortho-chronic pain assessment in the amount of $2,460.00.

79I find that the respondent’s initial denial of the plan by letter dated February 16, 2023 did not meet the requirements of section 38(8) of the Schedule and that the plan is payable by operation of section 38(11).

80The letter dated February 16, 2023 acknowledged receipt of “OCF-18-2023-07” submitted by Dr. Ogilvie-Harris proposing “4 weeks of orthopaedic intervention.” The OCF-18 was not attached to the letter. The reason for the denial states: “Mississauga Rehab and Sports Injury Clinic has not provided any compelling medical rationale (i.e., clinical notes and records from your family physician, or any other healthcare provider tasked with your care) to warrant removal of your claim from the minor injury guideline”. The remainder of the letter discusses the section 33 request and the applicant’s non-compliance.

81The plan was for an ortho / chronic pain assessment and transportation. I find it concerning that the letter did not reference an assessment or chronic pain. Though the letter states that the respondent believes the applicant is subject to the MIG, it does not explain what minor injuries are or their significance for the respondent’s decision on the reasonableness and necessity of the proposed services. Together, these deficiencies would make it difficult for the applicant to make an informed decision whether to dispute the respondent’s decision or not. For these reasons, I find that the letter of February 16, 2023 did not satisfy section 38(8).

82The letter dated February 23, 2024 maintained the denial citing the conclusions of Dr. Tu’s section 44 physician’s assessment. As the services were incurred and invoiced before February 23, 2024, it is not necessary for me to determine if the respondent complied with section 38(8) with this letter to end the “shall pay” period.

83I find that the “shall pay” period commences from the 11th business day after receipt of the plan on February 15, 2023. The applicant submits that the services proposed by the plan were incurred by the applicant for $2,460.00 and invoiced on March 2, 2023. Therefore, I find that the treatment plan is payable in the amount of $2,460.00 by operation of section 38(11).

84As the plan was incurred and invoiced after it became payable by operation of section 38(11), it is not necessary for me to consider if it is reasonable and necessary.

The respondent is compliant with section 38(8) of the Schedule with respect to the plan for physiotherapy services in the amount of $15,322.73. The plan is reasonable and necessary, subject to adjustment for the total cost.

85I find that the respondent’s denial of the plan dated April 21, 2023 met the requirements of section 38(8) of the Schedule and therefore, that the applicant has not established that the plan is payable by operation of section 38(11).

86The applicant submits the respondent’s denial of this plan on April 21, 2023 did not comply with the Schedule because it failed to explain the medical reasons why the respondent did not consider the services to be reasonable and necessary. The applicant did not submit any evidence that the services were incurred by the applicant at her own cost.

87The respondent submits that the plan was submitted on April 21, 2023 and denied the same day. The respondent’s denial letter refers to the plan, and the reasons why the respondent does not consider it reasonable and necessary. The reasons are that the applicant’s injuries fall within the MIG and gives the definition of “minor injury” with explanation. The letter also makes a section 33 request for information from Mississauga Rehab and Sports Injury Clinic to support the plan. The letter states that the list of the applicant’s injuries appears to have changed since the accident, comparing a plan from April 4, 2022 to the this plan. The letter states that the changes are significant and considered novel and unsupported.

88The respondent maintained the denial in a letter dated February 23, 2024 that cites the conclusions of Dr. Tu’s section 44 physician’s assessment.

89The April 21, 2023 letter references the plan, describing it as a 12-week physiotherapy plan, states the respondent’s medical and other reasons why it considers that the plan is not reasonable and necessary (citing the MIG, the definition of a minor injury, and lack of substantiation from Mississauga Rehab and Sports Injury Clinic of new injuries of headaches and insomnia). The letter is also timely. I find this letter sufficient to allow the applicant to decide whether to dispute the denial or not. As the respondent met the requirements of section 38(8), the mandatory consequences of section 38(11) are not triggered.

90With respect to section 15 of the Schedule, I find that the applicant has met her onus to show that the plan is reasonable and necessary, in part.

91The plan was proposed by Mississauga Rehab and Sports Injury Clinic to treat the injuries and impairments identified by Dr. Ogilvie-Harris in the ortho / chronic pain assessment report dated March 7, 2023. The plan states that it comprises “an intense chronic pain program to help improve, decrease and resolved the issues that this patient is experiencing”. The proposed goods and services are:

i. 32, 90-minute chronic pain treatments that include: exercise / stretching progressions focused on improving mobility, strength and endurance; education (hurt vs harm, coping strategies, exercises, etc.); and physical therapy modalities focused on modifying pain, laser, light, acupuncture and manual therapies.

ii. 8 patient education procedure units.

iii. 14, 90-minute individual psychotherapy treatments.

iv. 14, 90-minute social worker counselling sessions.

v. 2 progress reports by the social worker.

vi. Electrodes and an ice / heat pack.

vii. 1, 60-minute massage therapy session.

viii. 32 units of transportation.

ix. Documentation (completion of the OCF-18).

The duration of the plan is 12 weeks at a total cost of $15,322.73.

92The goals of the plan are pain reduction, increased strength, range of motion and endurance, and to return to the activities of normal living. The plan states that progress will be evaluated by assessments, functional testing and psychological testing undertaken at specific intervals, questionnaires (“psych, Rolland-Morris, Neck Disability”) and the applicant’s subjective responses. The plan states that the applicant has prior and concurrent conditions that could affect her response to treatment, including continued pain and disfunction reported 13 months after the accident, multiple complaints, reported severity of complaints, and the trauma of the accident, as well as history of thyroid disease and blood clots.

93The applicant put forth the ortho / chronic pain assessment of Dr. Ogilvie-Harris in support of the plan and made submissions on the weaknesses of Dr. Tu’s section 44 physician’s assessment.

94The respondent submits that the applicant did not report accident-related complaints to Dr. Langer warranting the treatment proposed. The respondent points to the lack of recommendation or referrals by Dr. Langer and the applicant’s other specialist doctors of the type recommended by Dr. Ogilvie-Harris (e.g., psychiatry and neurology). The respondent states that the costs of therapists or psychologists in the plan were not in keeping with the Professional Services Guideline.

95Both Dr. Ogilvie-Harris and Dr. Tu opine that the applicant suffered soft tissue injuries in the accident. They both record her complaints of continual pain since the accident. They both find pain-focused and -limited behaviour on examination. The difference between Dr. Ogilvie-Harris’s diagnosis and Dr. Tu’s is that Dr. Ogilvie-Harris believes that the applicant has gone on to develop a chronic pain syndrome that explains her clinical presentation. The doctor believes that the biological component of her chronic pain is central sensitization and that there is a psychosocial aspect described in Dr. Brunshaw’s report. On the other hand, Dr. Tu states that her clinical presentation is to some degree attributable to non-organic, pain focused-behaviour and that her prognosis is good. Dr. Ogilvie-Harris opines that she required multi-modal treatment and would benefit from additional medical assessments and potential treatment.

96I prefer Dr. Ogilvie-Harris’s opinion on the applicant’s impairments because the former is an orthopedic surgeon with expertise in chronic pain. I find support for Dr. Ogilvie-Harris’s diagnosis of chronic pain syndrome in Dr. Langer’s assessment shortly after the accident that the applicant was experiencing disproportionate pain and her prognosis for recovery was poor. In addition, Dr. Langer’s encounter note on May 6, 2024 indicates he assessed her with chronic lower back pain. In the encounter, he notes that she feels she has had chronic back pain since the accident two years before. On examination, he reported that she was tender on her spine and flank, grunting, groaning and grimacing with movement though her range was ultimately normal. This presentation is similar to her presentation to both Dr. Ogilvie-Harris and Dr. Tu, which the former attributed to central sensitization and the latter to non-organic factors. After this visit, Dr. Langer planned to discuss possible return to physiotherapy for back pain, as well as to address sleep disturbances and increased headache frequency in future consultations.

97Therefore, I find, on a balance of probabilities, that the plan is reasonable and necessary, subject to adjustment for the total cost for the reasons discussed below.

98I do not find support for the proposed 14, 90-minute social worker counselling sessions and progress report by a social worker in the evidence before me. There is a lack of evidence and submissions addressing social work services in the applicant’s evidence. According to the ANL Document, and the self-reports summarized in the various assessments, the applicant is close to her family and, after the death of her mother, lives with her two sisters in a house. Therefore, I do not find that the applicant is entitled to the cost of the proposed social worker services in the amount of $3,940.00.

99The plan proposes 14, 90-minute sessions of individual psychotherapy at a cost of $224.42 per session to be provided by a psychotherapist. I find that this is excessive and should be reduced to 12, 90-minute sessions at a cost of $149.63 per session for the following reasons. Dr. Brunshaw recommended 12 weekly or bi-weekly counselling sessions involving modalities to be decided by the treating therapist. The Professional Services Guideline does not specify a maximum hourly rate for counselling provided by a psychotherapist. The Guideline states that services provided by health care professionals/providers, unregulated providers and other occupations not listed in the Guideline are not covered by the Guideline. The amounts payable by an insurer related to services not covered by the Guideline are to be determined by the parties involved. In this case, the applicant seeks entitlement to costs for individual therapy at the same maximum hourly rate under the Guideline for a psychologist or psychological associate, which is the highest specified hourly rate among all the various health care professionals or providers covered in the Guideline. The respondent submits this is excessive. There is a lack of evidence on the applicant’s part justifying this level of maximum hourly rate for a psychotherapist. I find that the maximum hourly rate should be $99.75, which is the hourly rate for the physiotherapist providing chronic pain treatment. I find that the remuneration for their skills and expertise should be comparable under the plan given its purpose and goals. Therefore, I find that the applicant is entitled to the cost of the proposed psychotherapy services in the reduced amount of $1,795.56.

100Lastly, the plan states that patient education is part of the 90-minute chronic pain treatments; I find that it would not be reasonable to charge for patient education separately from the professional fees for the chronic pain treatments, as the plan proposes. Therefore, I do not find that the applicant is entitled to the cost of patient education in the amount of $400.00.

101Accordingly, I find that the applicant is entitled to $8,808.72, plus applicable taxes, for the remaining goods and services proposed in the plan.

Interest

102Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies on the amounts owing with respect to the five treatment plans.

Award

103I do not find that an award is justified in this case.

104The 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.

105The 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, for e.g., 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT); and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration]. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

106The applicant submits that the respondent knowingly withheld payment of treatment and benefits despite the need for these treatments and benefits because it was “playing hardball” to protect its own interests. The applicant points to the mistakes in the respondent’s denial letters and the delay in responding to the applicant’s claims.

107The respondent submits that its denials were reasonably based on the evidence at hand, and points to the lack of support from Dr. Langer and the reliance on the section 25 assessors “who stand to gain financially”. The respondent submits that the applicant has not met her onus to justify an award.

108The respondent’s denial letters starting a few months after the accident make it clear that the respondent required the CNR of Dr. Langer and the applicant’s OHIP records to adjudicate her accident benefit claims, which I find was reasonable. The applicant’s evidence shows that Dr. Langer’s CNR were requested on March 23, 2023, almost a year after the accident. The respondent submits that the OHIP records have never been provided.

109The applicant’s submissions under section 36(4)(b) and section 38(8) of the Schedule focus on the delay in obtaining section 44 examinations. The evidence shows that these were initially scheduled for December 2023 and eventually held in January 2024. Further, there is no obligation on the insurer’s part to obtain section 44 examinations. The onus is on the insured and does not shift once claims have been made.

110On a balance of probabilities, I find the applicant has not met her onus to prove that the delay in payment of benefits was due to the respondent’s unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate”. Therefore, no award is justified.

ORDER

111For the above reasons, I find that:

i. The applicant is removed from the MIG.

ii. The applicant is not entitled to NEB.

iii. The applicant is entitled to payment for the psychological assessment in the amount of $2,460.00, plus interest, by operation of section 38(11).

iv. The applicant is entitled to the plan for physiotherapy services in the amount of $2,728.84, plus interest.

v. The applicant is entitled to the plan for psychological services in the amount of $3,187.86, plus interest, once incurred and properly invoiced, by operation of section 38(11).

vi. The applicant is entitled to payment for the ortho-chronic pain assessment in the amount of $2,460.00, plus interest, by operation of section 38(11).

vii. The applicant is partially entitled to the plan for physiotherapy services in the amount of $8,808.72, plus interest.

viii. The applicant is not entitled to an award.