Licence Appeal Tribunal File Number: 24-015387/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:
Maw Tho
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Amar Mohammed
APPEARANCES:
For the Applicant:
Steven Wilder, Counsel
For the Respondent:
Alexei Batten, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Maw Tho, the applicant, was involved in an automobile accident on July 31, 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, Allstate Insurance Company of Canada, 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 an income replacement benefit in the amount of $400.00 per week from January 1, 2023 to date and ongoing?
ii. Is the applicant entitled to $549.22 ($8,190.11 less $7,640.89 approved) for psychological treatment, proposed by ORS Clinics in a treatment plan/OCF-18 (“plan”) submitted May 15, 2023?
iii. Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by Dr. Goldstein in a plan submitted September 4, 2024?
iv. Is the applicant entitled to $74.80 ($897.66 less $822.86 approved) for psychological treatment, submitted on a standard invoice (OCF-21) denied February 10, 2025?
v. Is the applicant entitled to $299.20 ($1,196.88 less $897.68 approved) for psychological treatment, submitted on a standard invoice (OCF-21) denied February 10, 2025?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
viii. Is the applicant entitled to costs under Rule 19 of the Licence Appeal Tribunal Rules, 2023 (“Rules”)?
3The respondent’s submissions state that issues 3, 4, and 8, as listed in the Case Conference Report and Order, have been resolved. Although it is incumbent on the applicant to update the Tribunal in writing, as contemplated by paragraph 21 of the Case Conference Report and Order, the applicant’s initial and reply submissions neither address the issues listed below, or object to the respondent’s position that they are resolved. Accordingly, I find that the issues are resolved and have not included the resolved issues, listed below, as issues in dispute at this hearing.
i. Is the applicant entitled to $98.76 for prescription expenses, submitted on a claim form (OCF-6) dated August 4, 2023?
ii. Is the applicant entitled to $1,791.53 for physiotherapy, proposed by Michael Koonar Physiotherapy Professional Corporation in a plan submitted June 21, 2024?
iii. Is the applicant entitled to $2,059.02 for physiotherapy, proposed by Koonar Physiotherapy in a plan submitted November 8, 2024?
RESULT
4The applicant is not entitled to an income replacement benefit in the amount of $400.00 per week from January 1, 2023 to date and ongoing.
5The applicant is not entitled to $549.22 ($8,190.11 less $7,640.89 approved) for psychological treatment.
6The applicant is entitled to the plan proposing $2,486.00 for a chronic pain assessment.
7The applicant is not entitled to $74.80 ($897.66 less $822.86 approved) and $299.20 ($1,196.88 less $897.68 approved) for psychological treatment, submitted on standard invoices (OCF-21s) and denied February 10, 2025.
8The issues identified in paragraph 3 have been resolved.
9The respondent is not liable to pay an award under s. 10 of Reg. 664.
10The applicant is entitled to interest pursuant to s. 51 of the Schedule.
11The applicant is not entitled to costs.
PROCEDURAL ISSUES
12I am granting the applicant’s request to rely on the late produced addendum report. However, I am assigning it little weight.
13The applicant brought a motion seeking an order admitting a two-page chronic pain assessment addendum report dated July 9, 2025 by Dr. Mark Goldstein to add analysis of six chronic pain criteria and a diagnosis of Chronic Pain Syndrome.
14The respondent opposes inclusion of this addendum report primarily arguing that it was served late and introduces new evidence. According to the Case Conference Report and Order, the deadline to produce any further materials to be relied upon was June 12, 2025. The Addendum was served on the respondent on July 15th, 2025. The applicant brought the motion after having filed her submissions for the hearing.
15Since the applicant did not comply with the Case Conference Report and Order with respect to this addendum report, Rule 9.3 provides that she may not rely upon it without permission of the Tribunal. In determining whether she may rely upon it, I have considered the following factors set out in Rule 9.3.
the reasons for non-compliance;
16The applicant submits that during preparation for this hearing it became apparent that the original chronic pain assessment report did not include analysis of the six criteria, that such analysis is standard and therefore this was an error in the report, discovered on or about July 6, 2025. The applicant then requested an addendum report by Dr. Goldstein based solely on the prior assessment. The addendum report was completed on July 9, 2025 and provided to the respondent on July 15, 2025, nearly three months in advance of the written hearing but nonetheless, after the deadlines for production had passed as noted above.
17The report states that the addendum is required because:
Due to formatting and typographical errors, the original report dated September 29, 2024, did not include the standard six criteria required for the diagnosis of Chronic Pain Syndrome. Therefore, this addendum has been prepared to incorporate these diagnostic criteria. Additionally, the diagnosis of Chronic Pain Syndrome is confirmed.
18The respondent’s position on the reasons for late production is that that it was applicant’s counsel during preparation for this hearing that reviewed the report and requested inclusion of the further analysis and diagnosis. Accordingly, there is no support in the evidence that it was because of a formatting or typographical error that the analysis and diagnosis were not contained in the original report.
19I find that the reasons explain the delay but are not reasonable because the submissions of the parties clarify that there are no notes or draft reports supporting the reasons provided. The evidence does not support the position that the additional analysis and diagnosis provided in July 2025 was not included in the original report due to formatting or typographical errors. Accordingly, the addendum report is new evidence as it contains fresh analysis and provides a fresh diagnosis. Although the new evidence resulted from information Dr. Goldstein had at the time of his original report, both the analysis and diagnosis are new evidence. I also note that underlying the Tribunal’s process is the principle that the applicant must be prepared to proceed at the time an application is filed, in this case the application was filed on December 17, 2024. The parties also engaged in a case conference on March 27, 2025, providing an additional opportunity to address the exchange of evidence, and the parties consented to the deadlines that were ultimately set.
whether a party will be prejudiced by the admission or exclusion of the evidence and the extent to which that prejudice can be mitigated by any other order;
20From a procedural fairness perspective, the applicant argues I should focus on whether the prejudice to the applicant outweighs the prejudice to the respondent. The applicant argues that she offered the respondent options to consider addressing any potential prejudice by the inclusion of the addendum report. For example, since the report was provided approximately three months prior to the written hearing date, the applicant would consent to the respondent filing an addendum report of its own. The applicant also argues that the addendum report was solely based on the information obtained at the prior assessment and therefore did not review or obtain any fresh evidence, limiting prejudice to the respondent. While I appreciate the approach taken, I have found above that the report still adduces new evidence because it engages in a fresh analysis and provides a fresh diagnosis not otherwise contained in the evidence.
21The applicant’s motion material requesting inclusion of the addendum report do not clearly set out what the additional analysis and diagnosis will address in the context of the legal tests that apply to the issues in dispute. I note that the parties dispute entitlement to a chronic pain assessment in their substantive submissions. The applicant’s initial submissions correctly state that entitlement to assessments do not require a diagnosis. In context, without the addendum report, as of September 2024, the applicant was already diagnosed by Dr. Goldstein with Chronic Pain, Probable Spinal Muscular Deconditioning, Chronic Lumbar Spine Musculoligamentous Pain, Chronic Right Hip Musculoligamentous Pain, Chronic Right Sacroiliac Joint Musculoligamentous Pain. Under the circumstances, the applicant has not substantiated her position that she would be prejudiced by exclusion of this fresh analysis and diagnosis. However, nor has the respondent persuaded me that analysis of six chronic pain criteria and an additional diagnosis provided approximately three months before the hearing did not provide a fair opportunity to respond. If the respondent made unsuccessful efforts to obtain an opinion responding to the fresh evidence, it did not lead that evidence before me.
the extent to which the substance of the information or testimony lies within the knowledge of the other party;
22I find that the substance of the information including the specific analysis and diagnosis were not within the knowledge of the respondent prior to the production deadline. However, the respondent was aware of the report since July 15, 2025 and was able to make at least some submissions addressing the addendum report for my consideration in the course of the hearing.
whether the other party opposes the admission of the evidence or testimony;
23The respondent opposes admission of the evidence, or alternatively, requests that the evidence be assigned little weight. I find that the alternative approach is reasonable for all of the reasons addressed.
the relevance of the document, thing, or testimony to an issue in dispute in the proceeding.
24As noted above in reviewing the potential prejudice to the parties, the applicant did not clearly indicate the relevance of an additional diagnosis of a pain condition when she has already been diagnosed with other pain related diagnoses by the same assessor at the same assessment. The question of what the applicant’s diagnoses are is not before me, rather, my decision will consider whether a chronic pain assessment is reasonable and necessary, as the applicant correctly argues in her initial submissions for the substantive hearing.
25For the reasons above, I am admitting the report but assigning it little weight.
ANALYSIS
i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from January 1, 2023 to date and ongoing?
26I find that the applicant is not entitled to an income replacement benefit in the amount of $400.00 per week from January 1, 2023 to date and ongoing.
Pre-104 Week IRB
27To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
Post-104 Week IRB
28To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.
29Although the applicant did not directly address entitlement to an income replacement benefit, she made general submissions relating to her employment. The applicant’s submissions state that the applicant’s capacity to work has been impacted due to the accident as follows. Initially, the applicant completely withdrew from work and has more recently returned on a part-time basis. Further, that despite working reduced hours and receiving assistance from her co-workers, she comes home tired and sore.
30I agree with the respondent that the applicant’s onus on this issue requires establishment of entitlement and quantum, and that she has not done so. Further, the respondent submits that on the basis of the applicant’s post-accident income, even if she is entitled, the calculation of the quantum results in a nil payment. The applicant’s reply submissions do not address these arguments.
31The applicant has not addressed or provided evidence that meets the test under s. 5(1). It is necessary to establish entitlement to a pre-104-week income replacement benefit to be entitled to a post-104 income replacement benefit under s. 6(1), see Paesano v. Coseco Insurance Company, 2025 ONSC 3245 at paras. 40-41 (Div. Ct.). Therefore, I find that the applicant has not met her onus to establish entitlement.
32For the reasons above, on a balance of probabilities I find that the applicant is not entitled to an income replacement benefit in the amount of $400.00 per week from January 1, 2023 to ongoing.
ii. Is the applicant entitled to $549.22 ($8,190.11 less $7,640.89 approved) for psychological treatment, proposed by ORS Clinics in a treatment plan/OCF-18 (“plan”) submitted May 15, 2023?
33I find that the applicant is not entitled to the partial amount disputed for this plan because the applicant did not address the issue in her submissions. I find on a balance of probabilities that the applicant is not entitled to this treatment plan.
iii. Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by Dr. Goldstein in a plan submitted September 4, 2024?
34I find that the applicant is entitled to this plan proposing $2,486.00 for a chronic pain assessment.
35To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
36The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds to suggest that some condition exists that warrants investigation by way of an assessment.
37The plan proposes block fees of $2,000.00 for a chronic pain assessment and $200.00 for form completion, plus applicable tax. I find that these amounts are in line with the Schedule and reasonable for this chronic pain assessment. The rationale provided for the assessment is that despite 2 years elapsing since the accident, the applicant has not fully recovered because her pain has persisted beyond the usual healing time, it affects her day-to-day activities, and because she has pre-existing lumbar arthritis due to a degenerative disc disease.
38The respondent argues that the assessment is not reasonable and necessary because the applicant does not meet the criteria for a chronic pain diagnosis as opined by s. 44 physiatry assessor, Dr. Yuri Marchuk, in a report dated December 20, 2024. The respondent’s denial notice states that it is of the view that the applicant does not meet three of the six criteria in The American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008 (“AMA Guides”). While the AMA Guides’ criteria for chronic pain are not incorporated into the Schedule, this Tribunal has consistently considered them a useful interpretive tool for assessing claims of chronic pain in accident benefits disputes in the absence of a diagnosis of chronic pain. However, the applicant correctly argues that neither a diagnosis is required, nor does the applicant need to establish that she meets three of the six criteria in advance of the assessment that aims to address the very question of diagnosis. Accordingly, my focus is whether there are grounds to suggest that a chronic pain condition exists that warrants an investigation.
39The applicant is entitled to this assessment because there are grounds to suggest an investigation is warranted. In a psychological consultation update report dated August 16, 2024, Malini Ondovcik, registered psychotherapist, and Dr. Oren Amitay, psychologist, noted the applicant continued to experience some chronic pain, muscle tension, and occasional sleep disturbances, limiting her functioning. The applicant’s family doctor, Dr. Armin Mulaosmanovic records the applicant’s pain symptoms in the clinical notes and records dated December 8, 2022, March 7, 2023, April 6, 2024, May 3, 2024, May 28, 2024, and November 19, 2024. Dr. Goldstein, chronic pain physician, in a s. 25 report dated September 29, 2024, diagnosed the applicant with the following accident-related conditions: Chronic Pain, Probable Spinal Muscular Deconditioning, Chronic Lumbar Spine Musculoligamentous Pain, Chronic Right Hip Musculoligamentous Pain, Chronic Right Sacroiliac Joint Musculoligamentous Pain. In my view, it is warranted that the applicant investigates her pain symptoms by way of this chronic pain assessment and that the treatment plan is reasonable and necessary.
40For the reasons above, on a balance of probabilities, the applicant is entitled to this plan proposing $2,486.00 for a chronic pain assessment.
iv. – v. Is the applicant entitled to $74.80 ($897.66 less $822.86 approved) and to $299.20 ($1,196.88 less $897.68 approved) for psychological treatment, submitted on standard invoices (OCF-21s), denied February 10, 2025?
41I find that the applicant is not entitled to the partial amounts disputed on these invoices.
42The applicant argues that she is entitled to the full payment of these invoices because they are for services incurred in accordance with the plan that was fully approved by the respondent. The applicant also argues that the respondent did not deny the benefits within 10 business days as required under s. 38(8) and it is therefore liable to pay for the incurred services in full under s. 38(11) in accordance with Kyrylenko v. Aviva Insurance Canada, 2021 ONSC 4929.
43The respondent argues that while the plan was approved in full, it is only liable to pay for incurred expenses in accordance with the approved plan. Its position is that while the plan was approved accounting for one hour of psychological treatment per session, the clinic only provided 45 minutes of treatment per session and spent the rest of the hour completing other tasks. When the handling adjuster contacted the clinic for an explanation, she was told that the extra fifteen minutes was for set-up time, note taking and inter-professional dialogue.
44As to the shall pay provision under s. 38, the respondent argues that it does not operate to require payment by the respondent for services not incurred in accordance with the underlying plan. Rather, the respondent argues that the shall pay provision requires payment of incurred services between the 11th business day and the date a compliant notice is provided. In this case, the plan was approved. I agree with the respondent’s position with respect to s. 38 of the Schedule in that it does not require the respondent to pay for incurred expenses that are not in keeping with the underlying plan.
45I find that the applicant is not entitled to payment of the partial invoice amounts disputed because the applicant has not established that the incurred service in dispute corresponds with a service that was approved on the plan. I am not persuaded by the applicant’s position that the clinic has sufficiently explained its practice of including indirect services of file review, supervision, documentation, updating treatment plans, and coordinating care with other professionals, into the time billed for treatment sessions. The applicant argues that providers would not be properly prepared for treatment sessions without billing for these services. However, the respondent states and it is apparent from a review of the plan that it separately approved $448.83 for “assessment”, $149.61 for “planning service” and $299.22 for “documentation support activity” in addition to $200.00 for form completion. Since these approved services are preparatory in nature and were approved in addition to treatment sessions, the applicant has not established that taking approximately 15 minutes out of each treatment session for various administrative tasks is in line with the approved plan.
46For the reasons above, on a balance of probabilities, the applicant is not entitled to the partial amounts disputed on these invoices.
Interest
47The applicant is entitled to interest because it applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
48The 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.
49Under s. 10 of Reg. 664, the Tribunal may award up to 50 per cent of the total benefits payable if it determines that the 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.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.
50According to the Case Conference Report and Order, the submissions of the parties were limited to 15 pages in length. Although there were originally 8 issues in dispute when the page limits were set by the Tribunal, not including interest and award, the applicant only ultimately addressed three of those eight issues and did not indicate whether the other issues were resolved or withdrawn, as reviewed previously in this decision. Despite what is effectively a drastic narrowing of the issues, the applicant’s initial submissions are just under 15 full pages in length and do not address the issue of an award except that I am referred to further submissions, “Special Award Submissions, dated July 9, 2025”. These additional submissions are contained in a 238-page document, in the applicant’s brief, which includes an additional 15 pages of submissions relating to an award and an additional document brief with 27 further documents.
51In these additional submissions, the applicant seeks an award of 50 per cent related to all eight issues originally disputed between the parties. I note that an award must be connected to an unreasonable withholding or delay of a benefit to which the applicant is entitled, as interpreted by the Divisional Court in Gutierrez v. Security National Insurance Company, 2025 ONSC 5174. The applicant must establish particulars of entitlement which forms the basis on which a lump sum may be awarded. On this point, I have found that the applicant is entitled to the chronic pain assessment and is not entitled to the remaining benefits disputed at this hearing. As to the disputes that were resolved, the applicant did not advance particulars establishing how and when they were resolved. Since the onus is on the applicant, and I do not have submissions or evidence led by the applicant addressing the extent of the applicant’s entitlement to the resolved benefits, the applicant has not established the necessary particulars required for consideration of an award.
52As to the plan proposing a chronic pain assessment, to which the applicant is entitled, the applicant makes the following specific arguments:
i. the respondent’s denial was not within 10 business days as required by s. 38(8) of the Schedule,
ii. the denial did not contain medical reasons,
iii. the respondent did not reasonably investigate the applicant’s entitlement to this benefit.
53The respondent argues that the plan was denied on the basis of an opinion of a s. 44 assessor addressing that plan, Dr. Marchuk. I find that Dr. Marchuk had opined that the plan was not reasonable and necessary. I find that the denial included reference to the six chronic pain criteria and indicated an insurer examination was required to address whether the plan is reasonable and necessary. I agree with the respondent that the denial and the respondent’s conduct do not rise to the threshold of being unreasonable warranting an award.
54For the reasons above, on a balance of probabilities, the respondent is not liable to pay an award.
Costs
55I find that the applicant is not entitled to costs.
56The applicant seeks costs of at least $106.00 to offset the Tribunal’s filing fee, and an additional amount to address the time and effort involved in proceeding to a hearing, because the respondent was unwilling to resolve the issues in dispute in advance of the hearing. This request and submissions are included in the concluding paragraph of the applicant’s submissions. The respondent did not address the applicant’s request for costs.
57Rule 19 governs how costs may be requested, the type of conduct that must be addressed in submissions, and the factors the Tribunal will consider in deciding whether to order costs and the amount of costs to be ordered. The applicant has not established that the respondent has acted unreasonably, frivolously, vexatiously, in bad faith, or that it breached a direction or order issued by the Tribunal. In addition, the applicant has not addressed whether the respondent’s conduct interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process. Without addressing these important factors and engaging with Rule 19, the applicant has not met her onus in establishing that I should order costs.
58For the reasons above, on a balance of probabilities, the applicant is not entitled to costs.
ORDER
59For the reasons above, I make the following orders:
i. The applicant is not entitled to an income replacement benefit in the amount of $400.00 per week from January 1, 2023 to date and ongoing.
ii. The applicant is not entitled to $549.22 ($8,190.11 less $7,640.89 approved) for psychological treatment.
iii. The applicant is entitled to the plan proposing $2,486.00 for a chronic pain assessment.
iv. The applicant is not entitled to $74.80 ($897.66 less $822.86 approved) and $299.20 ($1,196.88 less $897.68 approved) for psychological treatment, submitted on standard invoices (OCF-21s) and denied February 10, 2025.
v. The respondent is not liable to pay an award under s. 10 of Reg. 664.
vi. The applicant is entitled to interest pursuant to s. 51 of the Schedule.
vii. The applicant is not entitled to costs.
Released: May 28, 2026
__________________________
Amar Mohammed
Adjudicator