Ta'Kaiyah Chung v. Belair Insurance Company Inc., 2026 CanLII 39691

Citation: Chung v. Belair Insurance Company Inc., 2026 ONLAT 24-011672/AABS

Licence Appeal Tribunal File Number: 24-011672/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:

Ta'Kaiyah Chung

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR: Laura Goulet

APPEARANCES:

For the Applicant: Monika Krumins, Paralegal

For the Respondent: Nirvana Misir, Counsel

HEARD: By way of written submissions

OVERVIEW

1Ta'Kaiyah Chung, the applicant, was involved in an automobile accident on August 26, 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, Belair Insurance Company Inc., 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. 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 September 23, 2022, to August 26, 2024?

iii. Is the applicant entitled to medical services proposed by Body Dynamics as follows:

i. $122.81 ($1,298.59 less $1,185.78 approved) for chiropractic services in a treatment plan/OCF-18 (“plan”) submitted on November 11, 2022;

ii. $3,936.21 for chiropractic services in a plan submitted on February 2, 2023;

iii. $3,710.59 for chiropractic services in a plan submitted on April 21, 2023, and denied on May 8, 2023;

iv. $4,763.15 for psychological services in a plan submitted on June 14, 2023;

v. $2,413.00 for a chronic pain assessment in a plan submitted on June 14, 2023;

vi. $2,219.74 for a psychological assessment in a plan submitted on April 20, 2023;

vii. $2,234.00 for a neurological assessment in a plan submitted on May 12, 2023; and

viii. $2,486.00 for an in-home assessment (Form 1) in a plan submitted on April 6, 2023?

iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant has demonstrated that removal from the MIG is warranted.

4The applicant is not entitled to an NEB of $185.00 per week from September 23, 2022, to August 26, 2024.

5The applicant is entitled to the plans for a chronic pain assessment and a psychological assessment.

6The applicant is not entitled to the remaining balance of $122.81 for chiropractic services in the plan submitted on November 11, 2022.

7The applicant is not entitled to the remaining plans in dispute.

8The respondent is not liable to pay an award.

9The applicant is entitled to interest pursuant to s. 51 of the Schedule.

ANALYSIS

Applicability of the MIG

10Section 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.”

11An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of 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.

12The applicant submits that she suffers from chronic pain with functional impairment, psychological injuries, and that she has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if she is kept within the MIG.

The applicant is removed from the MIG based on a psychological condition

13The applicant has met her onus to prove on a balance of probabilities that she suffered from a psychological condition as a result of the accident.

14The applicant relies on the following medical evidence in support of her position.

15Clinical notes and records (“CNRs”) from the applicant’s family physician, Dr. Sarah Albadry, dated March 14, 2023, noted that the applicant still experienced some PTSD like symptoms after the accident. She reported waking up at night with nightmares and was worried every time she got into a car. Further, on December 8, 2023, the applicant reported that she still had flashbacks, avoided driving when she could, and that she was nervous when other people were driving. Dr. Albadry referred the applicant for psychotherapy.

16On May 30, 2023, Mandeep Kaur Singh, C. Psych. Assoc., conducted a s. 25 psychological assessment. The applicant reported anxiety, depression, irritability, difficulty sleeping, vivid accident-related dreams, and vehicular anxiety. After conducting a review of medical documents, a clinical interview and five psychometric tests, Ms. Singh diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood, persistent, specific phobia, situational type (travelling in a motor vehicle), somatic symptom disorder with predominant pain, persistent, moderate.

17The respondent relies on the decision of 16-000438 v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) at para. 38, where the Tribunal held that to prove on a balance of probabilities that her injuries are not predominantly minor, the applicant must show that her psychological complaints are not merely psychological or psychosocial symptoms, but that she has a psychological impairment because of the accident. I am not bound by other decisions of the Tribunal, and I disagree, in part, with this reasoning. Although I agree that psychological or psychosocial symptoms are not sufficient to remove an insured from the MIG, I find that proof of a psychological impairment is not required. Rather, proof of an accident-related psychological condition is sufficient to remove an insured from the MIG because a psychological condition, that is beyond mere sequalae, is not captured in the definition of a minor injury.

18The respondent criticizes Ms. Singh’s psychological assessment as follows:

i. The duration of the assessment conducted is unknown, although the report noted that it was done by video platform.

ii. Ms. Singh failed to discuss or summarize her qualifications within the report.

iii. Ms. Singh failed to conduct any standalone validity testing or discuss the prospect of symptom magnification and she made no mention of whether the tests she performed have any validity measures to ensure reliability and detect malingering.

19I do not share the respondent’s concerns about Ms. Singh’s report for the following reasons. Although there is no indication with respect to the duration of the assessment, I find that the nine-page report was comprehensive. Further, the respondent has not directed me to evidence suggesting that the assessment is less reliable because it was conducted by video. I also note that the report indicated that Ms. Singh is a psychological associate with a Masters’ degree, and a member of the College of Psychologists of Ontario. In addition, I note that with respect to two of the psychometric tests, Ms. Singh indicated that the results were consistent with the applicant’s self-reporting. Ms. Singh based her diagnoses on a combination of the applicant’s test results and her clinical presentation during the interview.

20The respondent also points out that the applicant has not reported any psychological sequelae to Dr. Albadry since December of 2023 and the applicant has not adduced evidence showing that she attended for counselling, despite a referral from Dr. Albadry.

21I find that the applicant’s lack of attendance at counselling is not evidence that she did not suffer from an accident-related psychological condition.

22Further, I find that the applicant’s reporting of symptoms to Ms. Singh, as well as Ms. Singh’s diagnoses of adjustment disorder with mixed anxiety and depressed mood, persistent, and specific phobia, situational type (travelling in a motor vehicle) are consistent with the applicant’s reporting of symptoms to her family physician, Dr. Albadry. I find that the applicant’s reporting of psychological symptoms in March, May and December of 2023 demonstrate that the accident had a lasting psychological impact.

23For these reasons, I find that the applicant has met her onus to demonstrate on a balance of probabilities that she suffered from a psychological condition as a result of the accident.

24For the reasons set out above, I find that the applicant has demonstrated that removal from the MIG is warranted.

25The applicant also raises the argument that she suffered from chronic pain and a pre-existing condition that would remove her from the MIG. Due to my conclusion about her accident-related psychological condition, it is not necessary to address these arguments.

The applicant is not entitled to an NEB

26The applicant has not met her onus to prove on a balance of probabilities that she is entitled to an NEB of $185.00 per week from September 23, 2022, to August 26, 2024.

27Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

28Section 44(1) states that an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation, for the purpose of assisting an insurer to determine if the insured is or continues to be entitled to a benefit, but not more often than is reasonably necessary.

29Pursuant to s. 55(1) of the Schedule, an insured shall not apply to the Tribunal if the insured has not complied with a s. 44 request.

30The applicant relies on Ms. Singh’s May 30, 2023 assessment, where she opined that the applicant suffered a complete inability to carry out a normal life as a result of the accident, including a significant impact on her daily social and recreational functioning resulting from psychological and physical injuries. The applicant submits that she has been continuously prevented from engaging in substantially all her pre-accident activities, including educational pursuits, social life, and recreational activities.

31The respondent raises s. 44 of the Schedule as a defence. It argues that the applicant did not attend s. 44 examinations and therefore should be barred under s. 55(1). To engage these provisions, the respondent must demonstrate that a proper insurer examination (“IE”) notice was sent, and the IE must be “reasonably necessary” in accordance with s. 44(1). I find that a determination of whether an IE is “reasonably necessary” involves a consideration of (a) there being a reasonable connection between the examination requested and the applicant’s injuries; (b) the purpose and timing of the request; (c) the purpose of the IE being to adjust the claim versus to bolster a case for litigation; (d) the nature and number of previous IEs and whether there are any new conditions that need to be evaluated; (e) if there are numerous evaluations, not all of them may be necessary; and (f) whether there is an acceptable reason for noncompliance.

32The respondent refers to the following documentary evidence, submitting that the applicant failed to attend assessments in relation to the NEB:

i. Two Assessment Plans dated December 14, 2022, indicating that IEs for NEBs dated December 12 and 16, 2022 had to be rescheduled because the applicant had exams. The documents indicate that no prior assessments had been completed.

ii. A letter dated December 14, 2022, with Notices of Examination (“NOEs”) attached, advising the applicant that the IEs were rescheduled to January 17, 2023 (general practitioner) and January 22, 2023 (occupational therapist). The letter further advised that the IEs would be in person and the applicant’s attendance was required. In addition, the letter indicated that failure to comply with a request for an IE may mean that the applicant could not dispute the benefit, pursuant to s. 55 of the Schedule.

iii. A letter dated February 8, 2023, advising the applicant that it received notification from the assessors that she did not attend the rescheduled IEs. The letter further indicated that rescheduling the IEs would be contingent on the applicant providing written confirmation that she would attend the new appointments along with a reasonable explanation within ten business days as to why she failed to attend the previously scheduled IEs.

33The respondent submits that it did not receive a response from the applicant, and therefore she is barred from having this issue adjudicated in this proceeding.

34Although I find that the respondent has demonstrated that proper NOEs were sent to the applicant, it does not direct me to evidence that the IEs were “reasonably necessary” pursuant to s. 44(1) of the Schedule. I note that the respondent’s February 8, 2023 letter refers to a letter dated November 21, 2022 explaining the medical and other reasons why the applicant was not entitled to an NEB and requesting an IE; however, the respondent does not direct me to the November 21, 2022 letter and it is not in evidence. Further, the respondent does not make submissions with respect to its medical and other reasons for the requested IEs. In these circumstances, I find that s. 55(1) of the Schedule is not engaged.

35I will next address the applicant’s substantive submissions with respect to her entitlement to an NEB.

36I am not persuaded on a balance of probabilities by Ms. Singh’s opinion that the applicant suffered a complete inability to carry out a normal life because of the accident for the following reasons. The applicant reported to Ms. Singh as follows:

i. The applicant reported that she was unemployed at the time of the accident. She had previously been employed as a part time hairstyle assistant until 2021 (the year prior to the accident) when she quit her job to attend a two-year college program.

ii. She reported that she was able to complete her college program in April 2023, after the accident.

iii. The applicant reported that, due to her injuries, she was seeking non-physically strenuous part time administrative work which did not require prolonged standing. Although the applicant described her work as a hairstyle assistant as physically demanding, I find that it is more likely than not that she did not intend to return to this work in any event because she had completed her college degree in the “Fashion Business Industry program.” Nevertheless, she was looking for work after the accident, and therefore I find that she believed she was able to work.

iv. The applicant reported being independent with her personal care activities, albeit at a slower pace.

v. Although the applicant reported that she “continues to rely” on her mother (whom she resides with) and her brother to do heavy and rigorous chores and required assistance from her mother to complete most household chores including preparing meals and general cleaning, the applicant reported completing light chores such as dishwashing and cleaning. Further, the applicant did not report to what extent she undertook any of these chores before the accident.

vi. The applicant described that her ability and interest in participating in recreational and social activities was “limited” since the accident. She reported “a loss of pleasure in previously enjoyed activities including attending a fitness center most of the week.” Although she reported a “loss of pleasure” and that she attended the fitness center most of the week (presumably prior to the accident), the applicant did not report to what extent she participated in this activity after the accident.

vii. The applicant reported that she often met with friends and cousins and attended social gatherings prior to the accident and after the accident she avoided socializing and preferred to stay indoors due to her mood changes and pain levels.

viii. The applicant reported having severe levels of vehicular anxiety after the accident, avoiding traveling during times of traffic, inclement weather and along highways, and that she continued to drive out of necessity, tending to keep her trips restricted to local, short-distance driving. The applicant did not report how this compared to her pre-accident driving activities.

37Based on the evidence I find that, after the accident, the applicant was able to complete a college degree, was looking for work, was independent with her personal care activities, was able to complete light housekeeping duties, and continued to drive. In these circumstances, I find that her impairments did not continuously prevent her from engaging in substantially all the activities in which she ordinarily engaged before the accident.

38For these reasons, I find that the applicant has not met her onus to demonstrate on a balance of probabilities that she is entitled to an NEB of $185.00 per week from September 23, 2022, to August 26, 2024.

39To receive payment for a treatment and assessment plan under ss. 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.

40Section 38(8) of the Schedule provides that the insurer must reply to a plan within 10 business days after receipt of the treatment plan, must identify the goods and services it does not agree to pay for, and must give the medical and all other reasons for the denial.

41Pursuant to section 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the MIG applies, if the plan was incurred during the period of non-compliance.

The remaining balance and plans for chiropractic services are not reasonable and necessary

42The applicant has not met her onus to prove on a balance of probabilities that the remaining balance and plans for chiropractic services are reasonable and necessary.

43The following plans for chiropractic treatment are in dispute:

i. $122.81 ($1,298.59 less $1,185.78 approved): submitted on November 11, 2022;

ii. $3,936.21: submitted on February 2, 2023; and

iii. $3,710.59: submitted on April 21, 2023.

44All three plans were prepared by Dr. Solmaz Zanjani, chiropractor. The goals of all three plans are pain reduction, increased range of motion, increase in strength, to return to activities of normal living, to return to pre-accident work activities, and to return to modified work activities.

45The plan submitted on November 11, 2022 proposes an assessment, six sessions each of chiropractic and massage therapy, TENS unit accessories, and documentation and support activity for claim form.

46The plan submitted on February 2, 2023 proposes sixteen sessions of physical rehabilitation, eight sessions each of massage, laser, and shockwave therapy, cost to prepare the OCF-18 and reassessment, and TENS unit accessories.

47The plan submitted on April 21, 2023 proposes fourteen sessions of chiropractic therapy, eight sessions each of therapy (multiple body sites), therapeutic intervention NEC (musculoskeletal system NEC), and massage therapy, TENS unit accessories, and documentation and support activity for claim form.

48The applicant refers to the outstanding account summary from Body Dynamics, submitting that she continued to attend for physical and psychological therapy even though the plans were denied, because she required the treatment. She incurred a balance of $8,102.91.

49The applicant does not provide evidence explaining the entries on the account summary, which lists invoices between September 16, 2022, and July 21, 2023. I have reviewed it. Aside from the amounts listed that were “approved” presumably by the respondent, I note that there are two invoices for $30.00 each (September 16 and October 7, 2022) with no description of the type of service or item, an invoice for “Physical Rehab 2 dated April 21, 2023” in the amount of $3,899.82, an invoice for biofreeze gels dated May 8, 2023 in the amount of $67.78, an invoice dated May 15, 2023 in the amount of $989.38 with no description, an invoice dated May 15, 2023 indicating “psychological” and “psych under legal protection” in the amount of $2,219.74, invoices for what appears to be the preparation of forms: “in-home/Form 1” dated May 15, 2023 ($226.00), “tp” dated June 27, 2023 ($200.00), “chronic pain” dated June 27, 2023 ($153.00), “neurological” dated June 27, 2023 ($200.00), as well as “CNR Medchart” dated July 11, 2023 ($210.00). I find that, based on the notations on the account summary, part of the balance of $8,102.91 could be attributed to physical and/or psychological therapy, however not the entire amount.

50The applicant refers to the following medical evidence that is contemporaneous with the plans for chiropractic services:

i. Dr. Albadry’s CNRs dated September 29, 2022 indicate that the applicant reported some residual back, neck and shoulder pain from the accident, that she was doing physiotherapy and the pain was improving.

ii. On May 9, 2023, the applicant reported to Dr. Albadry that she was still having some aches and pains following the accident and wanted to continue physiotherapy. Dr. Albadry noted: “reasonable.”

iii. Dr. R. Moolla, physician, prepared a s. 44 paper review report dated August 9, 2023, and diagnosed the applicant with accident-related cervical and thoracolumbar strain.

51The respondent submits that the applicant does not make specific submissions on whether these disputed plans are reasonable and necessary, nor does she direct the Tribunal to any supporting medical evidence. The respondent relies on decisions of the Tribunal which find that a plan that is not supported by objective evidence, such as a medical opinion or report, does not satisfy the applicant’s persuasive burden: see Blas v. Aviva Insurance Canada, 2021 CanLII 127471 (ON LAT) at para. 25, and 17-002689 v. Aviva Insurance Canada, 2018 CanLII 2311 (ON LAT), at para. 15. Although I am not bound by other decisions of the Tribunal, I agree with this proposition.

52The respondent also points out that, in a report dated July 10, 2023, based on an in-person assessment on June 23, 2023, Dr. Moolla noted that the applicant displayed excellent range of motion of her cervical and thoracolumbar spine with no evidence of cervical or lumbar radiculopathy or myelopathy. Dr. Moolla also indicated that the applicant had normal and symmetrical strength, sensation, and reflexes of her upper and lower limbs bilaterally. I note that, although he diagnosed the applicant with cervical and thoracolumbar strain, Dr. Moolla opined that the examination did not reveal any evidence of musculoskeletal impairment as a result of accident-related injuries.

53In reply, the applicant makes a general submission that each plan in dispute was prescribed by qualified treating professionals and is aimed at addressing functional deficits, pain management, and psychological health. The applicant further submits that ss. 15 and 16 of the Schedule do not require that treatment guarantees a full recovery. In addition, the applicant argues that the respondent’s assertion that objective evidence is lacking ignores the clinical assessments documenting ongoing pain and reduced range of motion and the applicant’s consistent participation in therapy, demonstrating both need and benefit.

54I also note that on March 4, 2025, the applicant attended for an appointment with Dr. Albadry, who indicated that the applicant was “Presenting for follow up of MVA-related symptoms from 2023/03.” The applicant reported having had persistent accident-related neck and back pain. I place little weight on this reporting of accident-related pain that was made two years retroactively.

55I have considered that the applicant may have incurred some treatment plans; however, I find that this is only one factor in a consideration of whether a plan is reasonable and necessary. Although the applicant directs me to pain complaints that were made to Dr. Albadry and an accident-related diagnosis of cervical and thoracolumbar strain, she does not direct me to evidence in support of the disputed plans which identifies how the goals in the plans would be met to a reasonable degree and how the overall costs of achieving these goals are reasonable.

56For these reasons, I find that the applicant has not met her onus to demonstrate on a balance of probabilities that the remaining balance of $122.81 from the plan submitted on November 11, 2022, or the plans submitted on February 2, 2023 and April 21, 2023, for chiropractic services, are reasonable and necessary.

57Accordingly, I find that the applicant is not entitled to the remaining balance of the plan submitted on November 11, 2022, or the plan submitted on February 2, 2023.

58I will now turn to the applicant’s s. 38(8) argument with respect to the plan submitted on April 21, 2023.

The applicant is not entitled to the plan for chiropractic services in the amount of $3,710.59

59The applicant is not entitled to the disputed plan because she did not meet her onus of proving on a balance of probabilities that the respondent was non-compliant with s. 38(8) of the Schedule.

60The applicant’s s. 38(8) submissions are limited to the position that the plan for chiropractic services in the amount of $3,710.59 was not denied within ten business days after receipt by the respondent, contrary to s. 38(8).

61The applicant does not direct me to a denial letter in support of her submissions.

62I note that the plan for chiropractic services dated April 21, 2023 in the amount of $3,710.59 that the applicant refers to has an HCAI submission date of April 21, 2023 on the first page in the top left corner. Further, in Part 13 of the plan, there is a signature of an adjuster dated May 4, 2023, indicating that the plan was not approved. There are nine business days between April 21 and May 4, 2023. In the absence of a letter indicating that the denial was sent after May 4, 2023, I find that the plan was denied within ten business days after receipt by the respondent.

63For these reasons, I find that the applicant has not met her onus of demonstrating on a balance of probabilities that the respondent did not comply with s. 38(8) of the Schedule. Since I have already found that the plan is not reasonable and necessary, the applicant is not entitled to the plan for chiropractic services in the amount of $3,710.59.

The applicant is not entitled to the plan for psychological services

Reasonable and necessary

64The applicant has not met her onus to prove on a balance of probabilities that the plan for psychological services is reasonable and necessary.

65The plan was proposed by Ms. Singh. The plan proposes sixteen 1.5-hour sessions of psychotherapy, a psychological reassessment, a psychological progress report/discharge report, psychological documentation, and preparation of the plan. With respect to the goals of the plan, Ms. Singh indicates that reference should be made to her psychological assessment report.

66The applicant does not make submissions with respect to whether the disputed plan is reasonable and necessary.

67The respondent submits that Ms. Singh’s report does not comment on the disputed plan. The respondent also points out that the applicant has not reported psychological symptoms to Dr. Albadry since December of 2023.

68In reply, the applicant makes a general submission that each plan in dispute was prescribed by qualified treating professionals and is aimed at addressing functional deficits, pain management, and psychological health.

69As indicated above, it is the applicant’s onus under ss. 15 and 16 of the Schedule to prove on a balance of probabilities that a benefit is reasonable and necessary because of the accident. The applicant does not direct me to evidence in support of the disputed plan which identifies how the goals in the plan would be met to a reasonable degree and how the overall costs of achieving these goals are reasonable. Accordingly, I find that the applicant has not met her onus to demonstrate on a balance of probabilities that the plan for psychological services is reasonable and necessary.

Section 38(8) argument

70I find that the applicant has not met her onus of proving on a balance of probabilities that the respondent was non-compliant with s. 38(8) of the Schedule.

71The applicant’s s. 38(8) argument with respect to the plan for psychological services is limited to the position that the plan was not denied within ten business days after receipt by the respondent.

72The applicant does not direct me to a denial letter in support of her submissions.

73I note that the plan for psychological services that the applicant refers to has an HCAI submission date of June 14, 2023 on the first page in the top left corner. Further, in Part 13 of the plan, there is a signature of an adjuster dated June 27, 2023, indicating that the plan was not approved. There are nine business days between June 14 and June 27, 2023. In the absence of a letter indicating that the denial was sent after June 27, 2023, I find that the plan was denied within ten business days after receipt by the respondent. Accordingly, I find that the applicant has not met her onus of proving on a balance of probabilities that the respondent was non-compliant with s. 38(8) of the Schedule.

74For the above reasons, I find that the applicant is not entitled to the plan for psychological services.

Assessments

75In addition to the “reasonable and necessary” test under ss. 15 and 16 of the Schedule, in the context of assessments, the applicant 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. The purpose of an assessment is to determine whether a condition exists.

The applicant is entitled to the plan for a chronic pain assessment

76The applicant is entitled to the plan in the amount of $2,413.00 for a chronic pain assessment because the respondent’s denial letter was non-compliant with s. 38(8) of the Schedule.

77The plan was proposed by Dr. Igor Wilderman, physician. The plan proposes a chronic pain assessment, review of material, report preparation, and completion of the plan. The goal of the plan is to determine the severity of chronic pain symptoms.

78The applicant submits that the plan for a chronic pain assessment was not denied within ten business days after receipt by the respondent. The applicant refers to the respondent’s denial letter dated June 29, 2023, which indicates that the respondent received the plan on June 14, 2023.

79The respondent denies that its denial letter is non-compliant with s. 38(8).

80I find that there are eleven business days between June 14, 2023, and June 29, 2023, and therefore the respondent did not provide a denial compliant with s. 38(8).

81Pursuant to s. 38(11), if an insurer fails to comply with its obligations under s. 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8), if the plan was incurred during the period of non-compliance.

82For these reasons, I find that the applicant is entitled to the plan for a chronic pain assessment, if incurred, pursuant to Aviva General Insurance Company v. Catic, 2022 ONSC 6000.

83Since the applicant is entitled to the disputed plan pursuant to s. 38(8), I do not need to consider whether the plan is reasonable and necessary.

The applicant is entitled to the plan for a psychological assessment

84The applicant has met her onus to prove on a balance of probabilities that the plan for a psychological assessment is reasonable and necessary.

85The plan was proposed by Ms. Singh. The goals of the plan are to perform a psychological assessment to establish a diagnosis, guide the course of therapy, and to determine if treatment is required. The plan proposes a psychological assessment, client interview, psychological testing, data analysis, feedback, report documentation, and completion of the plan.

86Although the applicant does not make submissions regarding whether the disputed plan is reasonable and necessary, based on the evidence she directed me to, above, with respect to her accident-related psychological condition, I find that the above referenced goals of the plan would be met to a reasonable degree and the overall costs of achieving them are reasonable.

87The respondent submits that Ms. Singh’s report “fails to comment on” the disputed plan. I note that Ms. Singh prepared the plan on April 20, 2023, prior to conducting the assessment on May 30, 2023.

88The respondent also points out that the applicant has not reported psychological symptoms to Dr. Albadry since December of 2023. I note, however, that the applicant reported accident-related psychological symptoms to Dr. Albadry on March 14, 2023, which I find is contemporaneous with the disputed plan for a psychological assessment submitted on April 20, 2023.

89Further, since I have already found that the applicant has met her burden to prove that she suffered from a psychological condition because of the accident, I also find that there are grounds on which to believe that a psychological condition exists that would warrant further investigation by way of an assessment.

90For these reasons, I find that the applicant has met her onus to demonstrate on a balance of probabilities that the plan for a psychological assessment is reasonable and necessary.

The applicant is not entitled to the plan for a neurological assessment

Reasonable and necessary

91The applicant has not met her onus to prove on a balance of probabilities that the plan for a neurological assessment is reasonable and necessary.

92The plan was proposed by Dr. Vince Basile, physician. The plan proposes the completion of the OCF-18, a neurological assessment, neurological report preparation, and a review of external file material. The goals of the plan are pain reduction and to return to activities of normal living.

93The applicant does not make submissions with respect to whether the plan is reasonable and necessary.

94In her general submissions, the applicant refers to Ms. Singh’s psychological assessment on May 30, 2023, where the applicant reported the following accident-related symptoms: headaches, issues with concentration, being easily distracted, indecisive, unproductive, engaging in procrastination, and often suffering from a disorganized thought process including tangential thought and derailment. Ms. Singh recommended a consultation with a neurologist.

95In her general submissions, the applicant argues that Dr. Albadry’s CNRs noted pre-existing migraines, and that the applicant had migraine pain related to the accident, which had been greatly aggravated post-accident. I reviewed the pre-accident CNRs from the applicant’s appointments with Dr. Albadry from September 22, 2021, to the date of the accident. On November 30, 2021, the applicant reported to Dr. Albadry that she was getting migraines and Dr. Albadry noted that it coincided with a change in medication.

96Upon a review of the post-accident CNRs, I note that on December 8, 2023, the applicant reported suffering from migraines more frequently (once or twice a week) with photosensitivity. At that same appointment, she reported PTSD symptoms, flashbacks, avoiding driving where possible and being nervous when other people are driving. Based on the context of Dr. Albadry’s notes during this appointment, I find that the applicant was reporting the aggravation of her migraines as an accident-related injury.

97Although the applicant has referred to evidence demonstrating that there are grounds to believe that a neurological condition may exist, I find that the applicant has not directed me to evidence identifying how the goals of the disputed plan would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

98For these reasons, I find that the applicant has not met her onus to demonstrate on a balance of probabilities that the plan for a neurological assessment is reasonable and necessary.

Section 38(8) argument

99I find that the applicant has not met her onus of proving on a balance of probabilities that the respondent’s denial letter was non-compliant with s. 38(8) of the Schedule.

100The applicant makes a s. 38(8) argument with respect to the plan for a neurological assessment which is limited to the position that the plan was not denied within ten business days after receipt by the respondent.

101The applicant refers to the respondent’s denial letter dated May 29, 2023, which indicates that the respondent received the plan on May 12, 2023. I find that there are ten business days between May 12, 2023, and May 29, 2023 (excluding the Victoria Day holiday on May 22, 2023).

102For these reasons, I find that the respondent’s denial letter complies with s. 38(8) of the Schedule.

103For the above reasons, I find that the applicant is not entitled to the plan for a neurological assessment.

The applicant is not entitled to the plan for an in-home assessment

104The applicant has not met her onus to prove on a balance of probabilities that the plan for an in-home assessment (Form 1) is reasonable and necessary.

105The plan was proposed by Dori Isakow-Weiss, occupational therapist. The plan proposes an attendant care benefit determination, attendant care needs Form 1, and completion of the OCF-18. The goals of the plan are pain reduction, increased range of motion, increase in strength, to assess the applicant’s functional status and attendant care needs, to return to activities of normal living, and to assess the applicant’s need for assistive devices and other needs.

106The applicant does not make submissions with respect to the reasonableness and necessity of the disputed plan.

107The respondent refers to the s. 44 report dated July 10, 2023 of Dr. Moolla, and the s. 44 assessment report dated May 13, 2023 of Andy Beecroft, occupational therapist. Both Dr. Moolla and Mr. Beecroft concluded that the disputed plan is not reasonable and necessary. In coming to his conclusion, Mr. Beecroft found that the applicant presented with functional strength, active range of motion, and mobility. Dr. Moolla found that the applicant had normal and full range of motion of her cervical and thoracolumbar spine and normal strength of her upper and lower limbs.

108I note that, based on the psychological assessment that was conducted on May 30, 2023, Ms. Singh recommended that the applicant undergo an in-home assessment to determine her mobility and range of physical capabilities, which Ms. Singh opines should become part of the applicant’s comprehensive rehabilitation program. I place little weight on this recommendation because Ms. Singh did not conduct a physical assessment of the applicant. She is a psychological associate, and not a physician or an occupational therapist, who I find would be better suited to provide an opinion with respect to the need for an in-home assessment.

109I am persuaded by the conclusions reached by Dr. Moolla, a physician, and Mr. Beecroft, an occupational therapist, whose opinions were both based in part on physical assessments of the applicant.

110For these reasons, I find that the applicant has not met her onus to prove on a balance of probabilities that the plan for an in-home assessment (Form 1) is reasonable and necessary.

Interest

111Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

Award

112The 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.

113The applicant does not make initial submissions requesting an award.

114The respondent points out that the applicant failed to provide particulars of the award claim as ordered in the Case Conference Report and Order dated January 30, 2025, and that she failed to make submissions on the issue of an award. In the circumstances, the respondent infers that the issue of an award is no longer in dispute.

115In reply, the applicant makes submissions for an award. I decline to consider the applicant’s reply submissions in this regard for the following reasons. I find that it would result in procedural unfairness to the respondent if I were to consider the applicant’s award submissions which were only made in reply and without having provided particulars in advance to the respondent. I find that the respondent would be prejudiced as it reasonably inferred that this was no longer an issue in dispute and it did not make submissions with respect to the applicant’s entitlement to an award.

116Further, it is well settled that the purpose of reply is for the party bearing the onus in the dispute to respond to any issues that were raised in the other party's submissions which could not have been reasonably raised in initial submissions. Reply is not an opportunity for the party to raise issues that should have been raised in initial submissions. The applicant’s entitlement to an award is an issue in dispute and should have been addressed in her initial submissions.

117For these reasons, I find that the respondent is not liable to pay an award.

ORDER

118For the above reasons, I find:

i. The applicant has demonstrated that removal from the MIG is warranted.

ii. The applicant is not entitled to an NEB of $185.00 per week from September 23, 2022, to August 26, 2024.

iii. The applicant is entitled to the plans for a chronic pain assessment and a psychological assessment.

iv. The applicant is not entitled to the remaining balance of $122.81 for chiropractic services in the plan submitted on November 11, 2022.

v. The applicant is not entitled to the remaining plans in dispute.

vi. The applicant is entitled to interest pursuant to s. 51 of the Schedule.

vii. The respondent is not liable to pay an award.