Licence Appeal Tribunal File Number: 24-011861/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:
Farida Kagoya
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATOR:
Gary Harvey
APPEARANCES:
For the Applicant:
Julia Logoutova, Paralegal
For the Respondent:
Kritika Behl, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Farida Kagoya, the applicant, was involved in an automobile accident on April 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, Certas Direct 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 $1,270.27 for physiotherapy treatment, proposed by 2430307 Ontario Inc., in a treatment plan/OCF-18 (“plan”) dared August 17, 2022?
ii. Is the applicant entitled to the assessments proposed by 2430307 Ontario Inc., as follows:
a. $1,050.88 for an Attendant Care Assessment, in a treatment plan dated August 17, 2022;
b. $2,300.00 for a Mental Health/Psychological Assessment, in a treatment plan dated August 17, 2022; and
c. $2,300.00 for an Orthopaedic Surgery Assessment, in a treatment plan dated October 25, 2022?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant is not entitled to $1,270.27 for physiotherapy treatment, proposed by 2430307 Ontario Inc., in a plan dated August 17, 2022?
ii. The applicant is not entitled to $1,050.88 For an Attendant Care Assessment proposed by 2430308 Ontario., in a treatment plan dated August 17, 2022;
iii. The applicant is entitled to $2,300.00 for a Mental Health/Psychological Assessment proposed by 2430308 Ontario., in a treatment plan dated August 17, 2022;
iv. The applicant is not entitled to $2,300.00 for an Orthopaedic Surgery Assessment proposed by 2430308 Ontario., in a treatment plan dated October 25, 2022; and
v. The applicant is not entitled to interest on overdue payment of benefits.
PROCEDURAL ISSUES
4The respondent submits that in the Case Conference Report and Order (“CCRO”) the applicant was ordered to produce:
i. Particulars of any collateral benefits available and policies, and complete copies of collateral benefits files for extended health coverage, and/or STD or LTD coverages, if such exists ands to provide written confirmation if none exist;
ii. Particulars of involvement in any other prior or subsequent accident, if any exist and resulted in an Accident Benefit file from three years pre-accident to the date of the case conference, and to provide written notice if none exist.
5The respondent submits that failure of the applicant to provide the respondent with copies of these documents or to adduce evidence of any attempt being made to obtain and provide them should result in an adverse inference being drawn.
6The applicant did not submit a reply submission to the Tribunal to address the lack of productions raised by the respondent, whether she provided the documentation to the respondent or to address the issue of whether she has collateral benefits. Without any submissions from the applicant on this point. I accept the submission of the respondent that these documents have not been disclosed as agreed to in the CCRO. As per s. 47(2) of the Schedule the respondent is not required for that portion of an expense for which payment is reasonably available to the insured person under any insurance plan or law or under any other plan or law.
ANALYSIS
Medical and Rehabilitation Benefits
7To receive payment for a treatment 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 that the goals of treatment are reasonable, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
8The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
The applicant is not entitled to $1,270.27 for physiotherapy treatment
9I find that the applicant has not established on a balance of probabilities that the treatment plan for physiotherapy dated August 17, 2022, is reasonable and necessary.
10The applicant submits that they are suffering from accident-related pain and requested treatment to reduce pain, increase range of motion and to return to activities of normal living as submitted by Wynford Health.
11On December 8, 2023, the applicant received notice from the respondent’s adjuster was unable to approve the treatment plan stating, “I am unable to approve this treatment and assessment plan as your progress notes show that they are progressing “slightly”. This treatment plan is not reasonable or necessary as this is the same treatment that you have been getting that has not been helping you. I am arranging a medical examination to determine the need for ongoing treatment as there is no medical examination to determine the need for ongoing treatment as there is no supporting medical evidence that you have ongoing symptoms.”
12On December 12, 2023, the respondent issued the Notice of Examination (“NOE”) and on February 9, 2023, they issued a Notice of Denial (“NOD”) advising the applicant that Dr. Shariff Dessouki, Physiatrist, deemed that the applicant did not have musculoskeletal impairments. The applicant submits that the report was not provided to the applicant at the time and that neither the noted NOE nor NOD provided on those dates referenced any section of the Schedule that it was relying on.
13The applicant further submits that the respondent only provided of a copy of Dr. Dessouki’s section 44 Independent Physiatry Assessment report dated January 23, 2024, within the copy of the Accident Benefits file it served on the applicant after the case conference that took place on January 21, 2025, approximately one year after the respondent received the report. The applicant submits that while Dr. Dessouki acknowledged that he reviewed the Neurology Assessment of Dr. Viacheslav Prigozhikh dated July 19, 2023, he did not have an opportunity to review and comment on the Exercise Program report dated July 14, 2023, and the Aqua Therapy Program report dated August 1, 2023. He concluded that the applicant was not provided with any active treatments.
[14]
14The respondent submits that the applicant was involved in a motor vehicle collision on April 28, 2022, and that the applicant did not seek medical attention until June 20, 2022, nearly two months after the accident. The applicant attended Toronto Western Hospital with complaints of body pain, headaches and abdominal discomfort. It argues that she underwent a CT scan of her brain which revealed no acute findings and an abdominal ultrasound revealed normal appendix in the right lower quadrant. Further it asserts that she was discharged with instructions to follow up with her family physician and to manage her symptoms with Tylenol or Advil. On January 13, 2023, the applicant was removed from the Minor Injury Guideline (“MIG”) for pre-existing psychological issues. In the medical records from Family Physician, Dr. Najwa Esabri there is no evidence of her attending for any accident-related injuries.
15The respondent submits that on December 12, 2023, it provided both the NOE and the accompanying Details of Medical Examination form that included further details outlining the reasons for referring the treatment plan to an Insurer Examination (“IE”). On February 9, 2023, the respondent advised the applicant of Dr. Dessouki’s findings and mailed the report and correspondence to both the applicant and her representative. The respondent further submits that the submission of the applicant that Dr. Dessouki had no opportunity to review and comment on the Exercise Program report dated July 14, 2023, and Aqua Therapy program dated August 1, 2023, and concluded that the applicant was not provided with any active treatments is blatantly incorrect. It argues that Dr. Dessouki reviewed the documents included in the Appendix of his report which included these two reports and that the applicant stated that “she has not had any treatment from a physiotherapist or chiropractor and has had no active treatment to date.”
16The respondent submits that it is not required to fund excessive treatment which has not shown to be effective in enabling the applicant to independently manage her symptoms or make her less dependant on treatment over time. The respondent relies on Tribunal case law M.I.A. v. Aviva, 2020 CanLii 94805 (ON LAT) where the adjudicator concluded that the treatment in dispute was not reasonable and necessary, stating that “prolonged treatment or treatment of an indefinite duration must be assessed by a decision maker to determine if it promotes dependency or interferes with other aspects of rehabilitation.”
17The respondent submits that Dr. Viacheslav Prigozhikh, Neurologist, noted in his section 25 Neurological Assessment that the applicant reported that her “pain has slightly improved since the accident.”. The respondent submits that this is evidence that the treatment in dispute is ineffective and therefore not reasonable or necessary.
[18]
18I find that the applicant has not proven on a balance of probabilities that the treatment plan for physiotherapy services is reasonable and necessary. The applicant did not seek medical attention for any accident-related injuries for some two months after the accident when she attended Toronto Western Hospital with complaints of body pain, headaches and abdominal discomfort. Imaging was found to be normal, and the applicant was told to follow up with her family physician and to manage her symptoms with Tylenol or Advil. Outside of this report the applicant has not submitted or directed me to any other medical reports to support the need for the physiotherapy treatment.
19I have not been presented with any evidence that indicates the applicant followed up with her Family Physician, Dr. Esabri for any accident-related injuries. Dr. Esabri’s clinical notes and records all relate to non-accident-related visits. It is well settled that an OCF-18 on its own without supporting medical evidence does not establish that the requested treatment plan is reasonable and necessary.
20I am persuaded by the s. 44 Physiatry Assessment conducted by Dr. Dessouki, where he concludes that from a physical perspective the applicant has no objective accident-related musculoskeletal impairments. Prior to the assessment being conducted the medical records and assessments contained in Appendix A of his report were reviewed, as indicated on page 3 of his assessment report. The applicant submitted that Dr. Dessouki did not review the records however I do not accept that as being the case. With respect to the s. 44 being mailed to both the applicant and their representative, the respondent did submit a copy of the Benefit Determination letter dated February 9, 2024, which it submits was mailed to both parties.
21The applicant bears the onus to prove that the proposed physiotherapy treatment is reasonable and necessary. The applicant has not directed me to medical evidence to meet this onus. Accordingly, the applicant is not entitled to the OCF-18 for physiotherapy services.
The applicant is not entitled to $1,050.88 for an Attendant Care Assessment, in a treatment plan dated August 17, 2022
22I find that the applicant has not established on a balance of probabilities that the treatment plan for an Attendant Care Assessment dated August 17, 2022, is reasonable and necessary.
23The applicant submits that the respondent denied the Attendant Care Assessment on August 23, 2022, because the applicants’ injuries fall within the MIG. The denial also states that Section 14 of the Schedule says that Attendant Care Benefits are not available when you have a minor injury.
[24]
24The applicant submits that contrary to s. 38(8) of the Schedule that the respondent did not provide any explanation on how the applicants injuries compared to the definition of minor and did not refer the applicant to the “notes and records” the respondent reviewed to come to this conclusion. On January 13, 2023, the respondent maintained the denial explaining to the applicant that there are no entries from her family doctor placing any functional limitations on her day-to-day activities. The applicant’s representative submits that taken together this initial denial letter on August 17, 2022, and the two letters dated January 13, 2023, one maintaining the denial and the other changing the applicant’s injury category and removing her from the MIG on the same date are quite difficult to understand for her unsophisticated claimant. She further submits that the adjuster’s log notes do not shed any light on this decision.
25The respondent submits that the Treatment and Assessment Plan (OCF-18) was submitted on August 19, 2022, and the respondent issued a response on August 23, 2022. The log notes indicate that the applicant’s clinical notes and records from her family physician were received on January 11, 2023, after multiple requests were made and prior to that date the respondent had no medical records on file. Then after reviewing the CNRs the respondent issued a response on January 13, 2023, removing the applicant from the MIG.
26The respondent relies on Tribunal decision, Alajame v. Co-Operators General Insurance Company, 2024 CanLII 40997 (ON LAT) where the adjudicator, found that “if the respondent had not been provided any medical evidence by the applicant, it would be unable to specify a reason for the denial.”. Similarly in Krzweski v. CUMIS General Insurance Company, 2023 CanLII 17715 (ON LAT) the Tribunal found that “the respondent did not violate s. 38(8) or 38(11) of the Schedule since the applicant was required by virtue of s. 33(1) of the Schedule to provide the CNRs of Dr. Brooyman’s as requested”. The respondent submits that, pursuant to s. 33(1) of the Schedule, the applicant failed to provide CNRs upon the respondent’s request thereby hindering the respondent’s ability to provide a medical reason for the denial.
27The applicant did not submit reply submissions to address the issue of s. 33 non-compliance. The respondent has provided evidence that it made several requests for medical records and did not receive them until January 11, 2023. Accordingly, I agree with the respondent that the August 23, 2022, denial letter referencing MIG, was compliant with s. 38(8) of the Schedule as the respondent had not been provided with any medical documentation from the applicant at that point. The respondent’s reference to the MIG was sufficient given the lack of medical records available to them at the time.
[28]
28I further do not find that there were conflicting findings by the respondent January 11, 2023, as it issued a Denial of Benefit letter to the applicant for the Attendant Care Assessment based its determination that there are no entries from her family doctor placing any functional limitations on her day to day activities and tasks, and maintaining that the assessment is not reasonable and necessary. Whereas I find that the applicant was removed from the MIG the same day due to a pre-existing psychological condition. The rationale for each decision is clear and understandable.
29The applicant’s submissions have not directed me to any documents that indicate that the applicant has a functional impairment or an impairment in their daily activities of life that would warrant the Attendant Care Assessment. The applicant’s submissions with respect to this issue in dispute were limited to how the respondent adjusted the claimed benefit and whether the denials were compliant with s. 38(8). However, the applicant did not provide specific submissions on the reasonableness and necessity of the proposed assessment in order to meet their burden.
30The applicant has not met their onus to demonstrate that on a balance of probabilities that the requested assessment is reasonable and necessary.
The applicant is entitled to $2,300.00 for a Psychological Assessment in a treatment plan dated August 17, 2022
31I find that the applicant has demonstrated on a balance of probabilities that they are entitled to a Psychological Assessment as set out in the treatment plan dated August 17, 2022.
32The applicant submits that the OCF-18 dated August 17, 2022, explains that the applicant experienced accident-related nightmares, flashbacks, anxiety attacks/ episodes. The applicant submits that the denial letter dated January 13, 2022, the applicant’s injuries were compared to the criteria in the MIG stating “there is also no mention or previous mentions of psychological impairments being exacerbated by the MVA”. The applicant submits that no reason was provided by the respondent as per s. 38(8) of the Schedule. The applicant further submits that CNRs from Dr. Al Razi, General Physician, document the issues with depression and anxiety in 2015 which repeat in April 2021, September 2021 and November 2023. They further submit that in the log notes it is clear that the additional records from Dr. Razi were reviewed.
33The applicant further submits that both Dr. Dessouki and Dr. Viachesla Prigozhikh, Neurologist, note in their s. 44 reports that she has increased irritability and Dr. Prigozhikh also noted that the applicant believed that she would need pharmacological therapy for her mood disturbance. The applicant submits that taken together the CNRs provide a picture of a young woman whose pre-accident psychological condition was “flared up” by the accident.
34The respondent submits that on February 3, 2020, Dr. Esrabi noted that the applicant saw a psychiatrist in 2015, for depression and anxiety issues and repeat complaints in April 2021, September 2021, and November 2023. The respondent submits that there is no evidence of any other symptoms being reported for over a year following the accident until November 1, 2023, where a flare up is reported with respect to her psychological well being. At that time her physician noted that her “mood is normal, sleeping well, eating well …” etc., and a referral to a psychotherapist was provided.
35The respondent submits that the onus is on the applicant to establish that she has a psychological impairment rather than psychological symptoms. In A.V. v. Certas, 2020 CanLII 19562 (ON LAT) the Tribunal found that the applicant failed to prove on a balance of probabilities that she suffered from a psychological impairment considering factors such as lack of reporting psychological issues to the family doctor, lack of medication prescribed, or treatment for any psychological complaints.
36I find that the applicant has demonstrated their onus to prove that she has a medical condition that warrants further assessment. The respondent acknowledges it reviewed the CNRs from Al Razi Medical Clinic that were completed by Dr. Esabri. As the respondent acknowledged there is reporting of psychological issues dating back to 2015, although there is a gap in the reporting after the subject accident until November 1, 2023. The applicant has been removed from the MIG by the respondent based on her pre-existing psychological issues.
37I find that the applicant has met their onus on a balance of probabilities to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of a psychological assessment. The respondent removed the applicant from the MIG on January 13, 2023, based on the applicants pre-existing psychological issues. That coupled with the clinical notes and records of Dr. Esabri from November 1, 2023, where the applicant reports an anxiety flare up for several weeks and was referred to a psychotherapist for treatment, both support that a psychological assessment is reasonable and necessary.
The applicant is not entitled to $2,300.00 for an Orthopaedic Surgery Assessment in a treatment plan dated October 25, 2022
38The applicant submits that the respondent did not provide any response to the submitted plan within the prescribed timelines and there is nothing in the AB file that suggests any letter was in fact sent to the applicant in October-November 2022. The applicant further submits that the respondent advised the applicant that no fractures were identified, and that the family doctor may arrange for an appointment with an orthopaedic surgeon through OHIP. The respondent failed to refer the applicant to any section of the Schedule it based its decision on.
39The respondent submits that the applicant’s statement indicating that no response was provided within the time frames is incorrect. The respondent argues that the OCF-18 was submitted on November 30, 2022, and in accordance with the timelines in s.38(8), it issued a response on December 9, 2022, within the prescribed 10 business days. The respondent argues that the applicant has not provided any compelling medical evidence to support her position that she suffers from physical accident-related injuries and that her own family doctor’s records do not support that she has accident-related injuries.
40The respondent further submits that the applicant last attended for chiropractic care in November 2023, which is a gap of 21 months. It is the respondent’s position that her injuries had resolved, and further treatment nor an assessment was not required.
41I find that the applicant has not met their onus to demonstrate on a balance of probabilities that her physical impairments warrant further investigation by way of an Orthopaedic Surgery Assessment.
42With respect to the denial of the assessment as submitted by the respondent, I find it did respond with a denial letter dated December 9, 2022, however the reasons for the denial at that time were that the applicant’s injuries fall within the MIG and it paid or approved the maximum amount already. The respondent stated in submissions that the applicant was removed from the MIG on January 13, 2022, based on the applicant’s pre-existing psychological issues. The applicant in their submissions did not direct me to any corroborating medical evidence to support their position that an orthopaedic assessment was warranted. The applicant does not direct me to any CNR from Dr. Esrabi that makes reference to accident-related physical impairments. The applicant solely relies on the OCF-18 submitted by Dr. Paul Bruni, Chiropractor. Without additional medical evidence to corroborate the need for the assessment the OCF-18 on its own is not compelling to determine that the assessment is reasonable and necessary.
43The applicant has not met their onus to demonstrate that on a balance of probabilities that the requested assessment is reasonable and necessary.
Interest
44Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, the applicant is not entitled to interest.
ORDER
45For the reasons outlined above, I find that:
i. The applicant is not entitled to $1,270.27 for physiotherapy treatment, proposed by 2430307 Ontario Inc., in a plan dated August 17, 2022?
ii. The applicant is not entitled to $1,050.88 for an Attendant Care Assessment proposed by 2430308 Ontario., in a treatment plan dated August 17, 2022;
iii. The applicant is entitled to $2,300.00 for a Mental Health/Psychological Assessment proposed by 2430308 Ontario., in a treatment plan dated August 17, 2022;
iv. The applicant is not entitled to $2,300.00 for an Orthopaedic Surgery Assessment proposed by 2430308 Ontario., in a treatment plan dated October 25, 2022; and
v. The applicant is not entitled to interest on overdue payment of benefits.
Released: May 25, 2026
Gary Harvey
Adjudicator