Citation: Sivathasan v. TD General Insurance Company, 2026 ONLAT 24-010916/AABS

Licence Appeal Tribunal File Number: 24-010916/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:

Sivamathy Sivathasan

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Timothy Porter

APPEARANCES:

For the Applicant:

Jono Schneider, Counsel

For the Respondent:

Sean Cheskes, Counsel

HEARD: In Writing

OVERVIEW

1Sivamathy Sivathasan, the applicant, was involved in an automobile accident on November 11, 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, 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 $2,486.00 for a Neurological (neurosurgery) Assessment, proposed by Allied Medical Assessments in a treatment plan/OCF-18 (“plan”) dated May 7, 2024?

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

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?

RESULT

3The applicant is not entitled to the disputed neurological (neurosurgery) assessment.

4No interest is due.

5The applicant is not entitled to award.

PROCEDURAL ISSUES

6The respondent submits that they have been prejudiced by the applicant’s submission which included several pages of facts with commentary, titled “Statement of Facts” which would exceed the page limit imposed in the case conference report and order (“CCRO”) of December 3, 2024. The respondent seeks to have facts and commentary pages excluded.

7The applicant submits that there is no prejudice, that the pages of facts and commentary are facts and evidence and not submissions pointing to paragraph 15 of the CCRO, which outlines page limits are exclusive of evidence and authorities.

8The applicant’s submissions were due to be submitted and exchanged July 15, 2025. The respondent received the applicant’s written submission on December 24, 2024, more than 6 months before they were due. In my mind the respondent had ample time to consider the full submissions and argument of the applicant.

9For the reasons above, I disagree with the respondent that they were prejudiced by the applicant’s submissions. I allow the applicant’s full submission into the hearing.

ANALYSIS

Neurosurgeon consultation is not reasonable and necessary

10The applicant is not entitled to the disputed neurosurgery assessment.

11To 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.

12The Tribunal considers that the purpose of an assessment is to determine whether a condition exists. The insured bears 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.

13The applicant submits she requires an assessment by a neurosurgeon and that the OCF-18 proposing this by Dr. Jha is necessary. The applicant submits that the onus lies with the respondent to demonstrate that the neurosurgery services are available through OHIP. The applicant relies on the clinical notes and records of Dr. Amani, physical medicine specialist, the applicant’s CPP-D application, and the assessment plan submitted by Dr. Jha.

14The respondent submits that the onus, to demonstrate, on a balance of probabilities, that the medical expense is reasonable and necessary, remains with the applicant. The respondent relies on their original denials of May 27 and July 9, 2024, the s.44 report of Dr. Ginnette Moores, the previous OHIP funded consultation with Dr. Ginsberg and the OCF-3 dated November 23, 2022.

15The disputed OCF-18 was submitted by Dr. Neilank Kumar Jha, physician, on May 27, 2024, and proposes a neurosurgery assessment along with preparation and documentation support activities for a total of $2,486.00. The goals of the plan are pain reduction, neurosurgery assessment, and to return to activities of normal living.

16Following the subject accident the applicant had noted difficulty with walking, pain in her right knee and shoulder and numbness in her right hand.

17The applicant has had a consult with a neurosurgeon. The applicant has been seen for an OHIP consultation with Dr. Howard Ginsberg, neurosurgeon on June 26, 2023. Dr.’s Ginsberg opines that the applicant’s gait is not normal and suggest referrals to a neuromuscular neurologist and an orthopaedic surgeon. Dr.’s Ginsberg also recommended physiotherapy and rehabilitation with conservative management; with plans for spinal surgery if there is no improvement. Dr. Ginsberg on January 15, 2024, following the consult with the recommended neuromuscular neurologist, opines that the applicant is not a candidate for surgery, however, if there is no improvement from treatment the applicant was encouraged to return for a follow-up assessment. In my mind, the applicant has had an assessment with a neurosurgeon, received a medical recommendation and has an offer for a follow-up.

18The applicant has been assessed by multiple neurologists. On April 20, 2023, the applicant was assessed by Dr. Layla Safinia, neurologist. The applicant underwent a multidisciplinary s.44 insurer’s examination with Dr. Davar Nikneshan, neurologist on May 10, 2023. The applicant was examined by Dr. Justine Itorralba, neurologist on January 4, 2024, for an OHIP consultation. Dr. Itorralba opines “I do wonder about a functional gait disorder, given the inconsistent character/ nature of her symptoms. There are no signs of a peripheral cause for her symptoms”. The applicant also underwent a neuromuscular neurologist consultation with Dr. Kasardjian on January 4, 2024, through OHIP, as referred by Dr. Ginsberg. In my mind the potential neurologic source of the applicant’s symptoms have been investigated by multiple neurologists.

19The applicant has also been assessed by multiple orthopaedic surgeons. I point to the assessment by OHIP orthopaedic surgeon Dr. Dhotar, contained within the CPP-D application. Dr. Dhotar opines that the applicant “needs to do active hands-on physiotherapy and gait retraining. She has been wasting her time over the last nearly 1 ½ years. She requires no surgical intervention for this problem.” In my mind Dr. Dhotar has provided a clear diagnosis and course of treatment; it is unknown if the applicant has followed this course of treatment.

20I have not been pointed to any evidence that Dr.’s Ginsberg is not qualified, not available to provide the care he has offered, or that there is any reason the applicant is not comfortable with the care provided or recommendations made by the doctor. The applicant has seen multiple specialists through OHIP, I find that the services the applicant is seeking are reasonably available through the OHIP insurance plan. I find that the applicant has timely access to the OHIP funded services.

21A proposal for an assessment is not a diagnosis. The applicant pointed to the OCF-18 submitted by Dr. Jha. Assessments by their very nature are speculative, suggesting that symptoms be explored to ascertain whether a particular diagnosis or course of treatment is appropriate. In this situation, the OCF-18 is silent on what diagnosis or course of treatment is being explored. In my mind, there is insufficient information in the assessment plan to determine how the applicant is to be assessed, what previous diagnosis may not be correct or be subjected to a second opinion. It is not clear to me that the physician is aware of any functional limitation based on the OCF-18. Dr. Jha is not aware of any barriers to recovery, has no recommendations to overcome barriers, is not aware of any concurrent treatment and declined to include any attachments which may provide more information to explain the reasonableness or necessity of the assessment. In my mind, the OCF-18 by Dr. Jha is insufficient to demonstrate, on a balance of probabilities, that the assessment is reasonable.

22The applicant has not met her onus to demonstrate, on a balance of probabilities, that the assessment plan is reasonable or necessary.

Award

23The 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.

24As there are no benefits unreasonably withheld or delayed, the applicant is not entitled to an award.

Interest

25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing Interest does not apply.

ORDER

26The applicant is not entitled to the disputed neurological (neurosurgery) assessment.

27No interest is due.

28The applicant is not entitled to award.