Citation: Bawari v. CUMIS General Insurance Company, 2026 ONLAT 24-007082/AABS

Licence Appeal Tribunal File Number: 24-007082/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:

Hassib Bawari

Applicant

and

CUMIS General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Gary Harvey

APPEARANCES:

For the Applicant:

Gjergji Laloshi, Paralegal

For the Respondent:

Simran Walia, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Hassib Bawari, the applicant, was involved in an automobile accident on November 18, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, CUMIS 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 $3,990.58 for occupational therapy treatment proposed by FunctionAbility Rehabilitation Services in a treatment plan/ OCF-18 (“plan”) dated January 14, 2022?

ii. Is the applicant entitled to $1,998.79 for speech language pathologist treatment proposed by FunctionAbility Rehabilitation Services in a plan dated January 4, 2022? This issue was withdrawn by the applicant in their submissions.

iii. Is the applicant entitled to $1,260.70 for chiropractic treatment proposed by Kassam Sameer, DC in a plan dated April 11, 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?

3The Case Conference Report And Order along with the applicant’s Tribunal application lists issue #1 as occupational therapy treatment in the amount of $1,989.79 where as the submissions and the OCF-18 submitted by the parties clearly indicates that the amount should be $3,990.58 which is the amount noted for issue #2 on the application. Conversely issue #3 is listed as physiotherapy treatment whereas the submissions and the OCF-18 submitted by the parties indicates that it is for chiropractic services and the plan is proposed by a Doctor of Chiropractic and not an Occupational Therapist. As a result, I have made the appropriate corrections when ruling on the issues in dispute.

RESULT

4I find that:

i. The applicant is entitled to $3,990.58 for occupational therapy treatment.

ii. The applicant is not entitled to $1,260.70 for chiropractic treatment.

iii. The applicant is entitled interest in accordance with s. 51 of the Schedule for the occupational therapy treatment.

iv. The respondent is not liable to pay an award under s. 10 of Reg. 664.

ANALYSIS

The applicant is entitled to $3,990.58 for occupational therapy treatment

5I find that on a balance of probabilities the proposed treatment plan is reasonable and necessary, and the applicant is entitled to $3,990.58 for occupational therapy treatment.

6To receive payments for an OCF-18 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 the treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

7The applicant submits that on November 18, 2021, the date of the accident the applicant was transported to Cortelucci Vaughan Hospital via ambulance with complaints of neck pain and left-hand pain. Dr. Ahmed diagnosed the applicant with a concussion, whiplash and soft tissue injuries. He was discharged and told to rest taking over the counter medication as needed. On November 26, 2021, the applicant returned to the same hospital’s emergency room with complaints of headaches, light headedness, nausea, blurry vision and dizziness. Dr. Rick Mann, Family Physician - Emergency Medicine diagnosed the applicant with a mild traumatic brain injury and neck strain, was prescribed medication and a referred to a concussion specialist.

8On December 1, 2021, the applicant attended iScope Concussion and Pain Clinic for this referral and was examined by Linda Johnson, Nurse Practitioner (NP) for an initial assessment and physical examination. Ms. Johnson diagnosed the applicant with a mild traumatic brain injury, post-traumatic vestibulopathy, post-traumatic vision syndrome along with a sleep and mood disturbance. Johnson recommended a multidisciplinary treatment plan which included occupational therapy.

9On December 21, 2021, Allison Poole, Occupational Therapist (OT) conducted an In-Home Functional Assessment. Her assessment included the Rivermead Post-Concussion Questionnaire (RPQ) where several post-concussive symptoms were documented. Between January 17, 2022, and May 9, 2022, the applicant underwent treatment sessions and in a Concussion Rehabilitation Progress Note dated April 28, 2022, by Farhan Khan, Physiotherapist, it is documented that the applicant’s condition persists with headaches, dizziness, gait imbalance, light/sound sensitivity and persistent neck pain while reporting a 15% improvement in the applicant’s symptoms.

10On January 13, 2022, Dr. Silvia Tanenbaum, Psychologist completed a Psychological Assessment on the applicant. Dr. Tanenbaum recommended 20 sessions of psychotherapy, and the applicant argues that such profound psychological sequelae inherently creates functional deficits that occupational therapy is specifically designed to address.

11The applicant submits that the applicant’s prior concussion issues are well documented, and this prior history is well-established in medical literature as a risk factor for prolonged recovery and more severe symptoms following subsequent head injuries. The applicant submits that the mischaracterization of the applicant failing to mention the accident to Family Physician, Dr. Miriam Bibi is misleading and ignores the context of the specialized treatment the applicant was receiving at iScope Concussion Clinic. The applicant’s return to work timeline is noted by FunctionAbility records from January 4, 2022, indicating he returned to modified duties and due to the applicant being a commissioned-based real estate agent returning to work could mean anything from answering emails at home, to phone calls, or preparing marketing materials. The six-month period likely refers to his fuller return to work duties while the one month refers to his initial attempts at modified work. With respect to the Botox injections and unused to psychological sessions this demonstrates a fundamental misunderstanding of patient autonomy and treatment progression. The applicant’s decision to decline Botox injections while receiving other forms of recommended treatments reflects reasonable patient choice and not non-compliance.

12The respondent submits that the applicant after being transported to hospital on the day of the accident, he was diagnosed with soft-tissue injuries and concussion symptoms. On November 26, 2021, the applicant re-attended the emergency department due to light headedness and dizziness and that his discharge diagnosis was concussion and neck strain. After this visit the applicant did not re-attend this hospital due to accident-related injuries.

13Three months post-accident on February 15, 2022, and March 1, 2022, the applicant consulted with his Family Physician, Dr. Bibi with respect to non-accident related issues. The respondent argues that he did not mention the subject accident to his family doctor. The respondent also argues that Dr. Bibi’s clinic advised that there are no medical records for the period of June 14, 2023 to February 12, 2024, indicating that the applicant has not been consistently treated by his family doctor as a result for the accident.

14Between December 2021, to May 2022, the applicant underwent a significant amount of physical therapy aimed at resolving his concussive symptoms attending 2-3 times per month and has not attended for treatment beyond this time period. On March 2, 2022, Botox injections were recommended to resolve his concussion symptoms and to date no evidence has been provided to indicate that he followed the advice for this treatment.

15On October 27, 2022, the applicant had a telephone call with Dr. Jason Ali, General Physician where the applicant reported being treated by a concussion specialist prior to the accident and he declined Botox injection therapy a second time. Alternative treatment recommendations were made like scalp massages and a heating pad for the neck along with over-the-counter medications.

16The respondent also argues that the applicant has attended treatment at four other clinics and the applicant’s symptoms persist. The respondent further argues that the applicant underwent 39 chiropractic sessions from November 29, 2021, to July 28, 2023, with almost every session noting no change. After his 14th session on March 7, 2022, the applicant reported no change in his overall symptoms however by his 38th and 39th sessions the applicant reported increased pain and headaches with no aggravating factors noted.

17The applicant returned to work with modified duties on January 4, 2022, despite some fogginess and concentration issues. The respondent also submits that the applicant underwent 3 of 20 approved sessions for psychological treatment where he had complaints of stress and anxiety with mindfulness exercises being recommended to manage stress. No OT sessions were recommended. The applicant underwent 6 sessions of physical treatment from January 2023 to February 2024 and there are no recommendations for OT or chiropractic treatment.

18The respondent submits that despite some lingering concussive symptoms the applicant proves to be completely functional as he returned to work, travelled to Mexico post-accident, and was cleared by insurer examiner (IE) assessors, Dr. Watson and Dr. Jung. They further submit that there are also no recommendations for OT services in the medical records produced by the applicant and that he failed to undergo Botox injection therapy that was recommended. The respondent requests that the Tribunal place little weight on the Section 25 report of Dr. Tenenbaum that the applicant relies on as it is not based on review of the medical documentation and Dr. Tenenbaun does not recommend OT services.

19I find that the 8 Occupational Therapy treatment sessions proposed by FunctionAblity Rehabilitation Services in the treatment plan are reasonable and necessary on a balance of probabilities.

20As submitted by both parties the applicant has a pre-accident history of concussions, with the last one noted in 2018, some three years pre-accident. As submitted by the applicant it is well documented that prior concussions are a risk factor for prolonged recovery and more severe symptoms following subsequent head injuries that will likely extend the recovery period of future concussions. As noted above on December 21, 2021, Allison Poole, conducted an In-Home Functional Assessment where her Assessment included the Rivermead Post-Concussion Questionnaire (RPQ) where several post-concussive symptoms were documented along with the Cognitive Communication Checklist for Acquired Brain Injury (CCCABI) and two other tests. Ms. Poole recommended 8 Occupational Therapy treatment sessions to help address basic daily routines and re-activate the applicant at his own pace, while consulting with his family doctor and treating team as needed. The primary goals for recovery were identified along with a consultation approach throughout the treatment plan, which I find is reasonable and necessary taking into consideration all the ongoing concussion related symptoms that are noted in both parties’ submissions and the medical reports that they refer to.

21Although other forms of treatment have been conducted since the accident in 2021 that have moderately assisted the applicant’s improvement, Occupational Therapy was not identified as one of the forms of treatment during that time period. The fact that the applicant has been able to return to work on modified duties and able to travel have little bearing on his requirements for the requested treatment. The medical evidence does not suggest that he could not function only that he needed this treatment for his accident-related impairments.

22Dr. Watson conducted a section 44 Neuropsychology Evaluation on the applicant on August 15, 2022, where he reports that he defers to an OT assessor but from a neurological point the treatment plan is not reasonable and necessary. On April 13, 2022, a section 44 IE OT Assessment was conducted by Tony Jung, OT. Mr. Jung concluded that the plan is not reasonably supported and indicated taking into consideration the applicants demonstrated abilities, the length of time that has elapsed and the findings of the neuropsychological co-assessor. He further noted that more than sufficient time has elapsed for recovery of the applicant’s injuries from a musculoskeletal standpoint, as well as symptoms which may have resulted from a concussion. However, I find that this opinion is inconsistent with the evidence of the applicant’s ongoing symptoms. I have not been presented with any evidence to indicate or support that there are set timelines for recovery of any of the injuries sustained as submitted by the respondent, and submissions alone are not evidence. As a result, I have placed less weight on Mr. Jung’s report and more weight on the report of Allison Poole, OT who recommends the OT treatment sessions.

23I find on a balance of probabilities that the applicant has met their burden to establish that the treatment plan for occupational therapy treatment in the amount of $3,990.58 is reasonable and necessary.

The applicant is not entitled to $1,260.70 for chiropractic treatment

24I find that the applicant is not entitled to $1,260.70 for chiropractic treatment because it is not reasonable and necessary.

25The applicant submits that the OCF-18 for chiropractic treatment submitted by Dr. Kassam Sameer, DC is reasonable and necessary to support ongoing treatment of the applicant’s physical injuries sustained from the subject accident. The clinical notes and records from LinkPT Woodbridge (previously known as Physiotherapy One) and documents a consistent course of chiropractic care from November 29, 2021, to well into 2023 for neck pain associated with concussion symptoms along with thoracic spine stiffness and ache and lumbar spine stiffness and ache.

26A reassessment of the applicant by Dr. Sameer on February 8, 2023, shortly before the denied OCF-18 in April 2023, it is reported that the applicant continues to have constant cervical pain, constant headaches, constant thoracic stiffness and lumbar pain with the latter noted as improving. The applicant submits that this continuous record of treatment and reported symptoms strongly supports the necessity of chiropractic care proposed and is further corroborated by the findings of the Chronic Pain Assessment completed on August 17, 2022, by Dr. Subhra Mohapatra.

27The applicant submits that the OCF-18 outlines clear therapeutic goals for chiropractic treatment and functional goals to return to normal living and pre-accident work activities. The applicant argues that the respondent’s characterization that chiropractic treatment was ineffective because the notes state “same as prior” demonstrates a misunderstanding of chronic pain management. The Chronic Pain Assessment confirmed the diagnosis of Chronic Pain Syndrome with neck and lower back pain, validating the ongoing need for pain management modalities including chiropractic care.

28The respondent submits that the applicant has underwent a plethora of treatment at five different clinics and none of the medical records support a finding that any of the treatment goals were met. Physical Therapy One clinic shows that despite 39 sessions immediately post-accident that the applicant reported no improvement in his physical health.

29The respondent submits that the applicant relies on a section 25 Chronic Pain Report authored by Dr. Aeysha Ali, GP on behalf of Dr. Subhra Mohapatra, Chronic Pain Specialist and contained within the report he reports “He has tried different physical modalities such as physiotherapy, massage therapy, chiropractor, and heat/cold with no results”. Their report also does not outline what, if any medical documentation was reviewed in arriving to their conclusion. It is also unclear what Dr. Mohapatra’s involvement was in arriving to these conclusions as the report is signed by Dr. Ali.

30The respondent submits that the applicant has not met his onus of proving that chiropractic treatment is reasonable and necessary, despite the number of treatment sessions his pain has increased and reported that it yielded no results.

31I find on a balance of probabilities that the applicant has not met their burden to establish that the treatment plan for chiropractic treatment in the amount of $1,960.72 is reasonable and necessary.

32The applicant relies on a Chronic Pain Assessment conducted by Precision Pain Centre and that was conducted Dr. Mohapatra along with Dr. Ayesha Ali who signed off on the report on behalf of Dr. Mohapatra. The report does not indicate if any prior medical records were reviewed however does indicate that both doctors spoke to the applicant about their findings and recommendation of trigger point injections/nerve blocks/joint injections or pharmacotherapy with the use of a compounded cream mixture with the goal to reduce his pain by 30-40%. The applicant declined the recommendations, and it is noted that he wants to “optimize his pain by physiotherapy, massage therapy and coping”. This report that is relied on by the applicant does not recommend the continuation of chiropractic treatment. The clinical notes and records from the chiropractic treatment provider up until July 28, 2023, does not indicate any improvement in the applicant since treatment began.

33Section 16 of the Schedule states that “rehabilitation benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person in undertaking activities and measures described in subsection (3) that are reasonable and necessary for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market”. It is evident that the chiropractic treatments to date have not been effective in reducing or eliminating the effects of the applicant’s injuries.

34I find on a balance of probabilities that the applicant is not entitled to $1,260.70 for chiropractic treatment.

Interest

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that the applicant is entitled to interest on the overdue benefits for the occupational therapy treatment that was in dispute.

Award

36I find that the respondent is not liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant.

37The applicant seeks an award under section 10 of Regulation 664. Under section 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” [ See, 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.

38The applicant submits that the OCF-18 for occupational therapy treatment was submitted in January 2022, and supported by contemporaneous recommendations from the applicant’s treating concussion specialist at iScope, a detailed In-Home Occupational Therapy Assessment and further bolstered by Dr. Tenenbaum’s formal psychological diagnosis. The insurer’s denial for OT was based predominantly on IE reports conducted months later which contained internal nuances regarding the validity of cognitive findings and contradicted treating evidence which the applicant submits was unreasonable.

39The applicant submits that the OCF-18 for chiropractic treatment of April 11, 2023, clearly outlined the ongoing physical and concussion related impairments. The plan for continued care from Dr. Kassam Sameer, Chiropractor, was to treat the applicants chronic pain diagnosis in August 2022. The insurer’s denial relied on irrelevant neurocognitive findings to dispute treatment for these clearly articulated physical conditions and later dismissed updated medical records without proper consideration of the OCF-18’s context is unreasonable. The respondent’s denial forced the applicant to endure prolonged periods without access to recommended and necessary treatment or to potentially incur out of pocket expenses there by hindering the applicant’s recovery and causing undue hardship.

40The respondent submits that entitlement to an award is assessed according to a stringent test. It is only given where the delay or withholding of benefits by the insurer is unreasonable, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” 17-008584 v. Certas Direct Insurance Canada, 2018 CanLII 83532 (ON LAT) at para 49. The onus is on the applicant to prove that he meets the test.

41The respondent submits that the applicant has not discharged her onus. First, as per the CCRO the applicant’s special award particulars were due on January 16, 2024, 30 days after production of the log notes which were served on December 16, 2024. The respondent requests that the Tribunal strike the applicants request for an award for failing to adhere to the timelines required by the CCRO. The respondent also submits that the applicant’s submissions fail to provide evidence that the respondent acted “in bad faith and unreasonably withheld benefits.” The applicant fails in her submissions to point to any defects in the respondent’s handling of the claim and offers blanket statements. The respondent weighed medical evidence and responded to each OCF-18 in a timely manner, citing adequate reasons for its denials.

42i agree with the respondent. The applicant has not met their burden of proof that the insurer unreasonably withheld or delayed the payment of benefits. I find that the denial of the OCF-18’s in question were adjusted accordingly and denials were issued timely based on the medical records that were submitted for their consideration at the time. Medical professionals submitted their professional findings which at time contradicted one another however there have not been any submissions that would prove that the respondent delayed or withheld benefits with such behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. I also find that the applicant did not comply with the CCRO in providing the respondent with the particulars of the award claim within 30 days of receiving the log notes. The applicant did not provide any reply submissions to the contrary or with respect to the timing of their service on the respondent. I accept the respondents’ submissions with respect to the timing of the award claim particulars.

43I find that the applicant has not met their burden of proof for an award.

44The Tribunal Orders:

i. The applicant is entitled to $3,990.58 for occupational therapy treatment, plus interest in accordance with s. 51 of the Schedule.

ii. The applicant is not entitled to chiropractic treatment.

iii. The respondent is not liable to pay an award under s. 10 of Reg. 664.