Licence Appeal Tribunal File Number: 25-001233/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:
Emily Street
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Nadia Mauro
APPEARANCES:
For the Applicant:
Yousef Jabbour, Counsel
For the Respondent:
Ryan Jeffries, Paralegal
HEARD:
By way of written submissions
OVERVIEW
1Emily Street, the applicant, was involved in an automobile accident on December 16, 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, Unifund Assurance 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:
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 limit (MIG)?
Is the applicant entitled to $2,338.88 for physiotherapy, proposed by Complete Rehab Centre in a treatment plan (“OCF-18”) submitted February 23, 2023?
Is the applicant entitled to $2,460.00 for psychological assessment, proposed by Complete Rehab Centre in an OCF-18 submitted June 26, 2023?
Is the applicant entitled to $2,299.14 for physiotherapy, proposed by Complete Rehab Centre in an OCF-18 submitted May 10, 2023?
Is the applicant entitled to $2,700.00 for an orthopaedic assessment, proposed by Complete Rehab Centre in an OCF-18 submitted June 20, 2023?
Is the applicant entitled to $1,328.10 ($1,553.72 less $225.62) for physiotherapy, proposed by Complete Rehab Centre in an OCF-18 submitted August 22, 2023?
Is the applicant entitled to $1,695.52 for physiotherapy, proposed by Shelburne Physio in an OCF-18 submitted November 11, 2024?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries warrant removal from the MIG.
4The applicant is entitled to the proposed physiotherapy treatment plans submitted on February 23, 2023, and May 10, 2023, plus interest.
5The applicant is not entitled to the proposed physiotherapy treatment plans submitted on August 22, 2023 and November 11, 2024, the psychological assessment plan submitted on June 26, 2023, the orthopaedic assessment plan submitted on June 20, 2023, or an award.
ANALYSIS
The applicant has sustained a non-minor injury
6I find that the applicant has proven, on a balance of probabilities, that her accident-related injuries warrant removal from the MIG.
7Section 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.”
8An 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 injury or 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.
9The applicant submits that she should be removed from the MIG due to a diagnosis of a herniated/bulging, and possible labral tear, in addition to chronic pain and psychological impairment. The applicant relies on the clinical notes and records of Mountainview Medical Centre & Walkin (Mountainview), and her present family practitioner, Dr. Eniola Bajomo.
10I find that the medical evidence supports that the applicant has sustained a disc herniation as a result of the accident. The applicant reported the accident to physician Dr. Kamal Grewal, of Mountainview on February 3, 2022, and complained of neck pain, upper back pain, and shoulder pain. On February 14, 2022, the applicant returned to Dr. Grewal complaining of neck and shoulder pain. On November 23, 2022 the applicant reported to Dr. Elrefai Thaer of Mountainview of back pain radiating to the legs. Dr. Thaer requisitioned an x-ray of the lumbar spine. X-ray of the lumbar spine, dated December 14, 2022 states “slight narrowing in a 24 year old of L5-S1, minimal in degree, maybe related to injury. Loss of lordosis usually attributed to spasm and pain.” On February 8, 2023, the applicant again presented to Dr. Grewal with complaints of accident-related neck, shoulder and back pain. Dr. Grewal referred the applicant for an MRI of the neck, lumbar spine, and left shoulder. The evidence supports the applicant continued to attend the Mountainview clinic with accident-related complaints of neck, back and shoulder pain thereafter.
11An MRI of the cervical spine, dated May 31, 2023, indicates small disc bulge broad-based with flattening of the thecal sac at C5-C6.
12An MRI of the lumbar spine, dated June 2, 2023, indicates very mild disc herniation of the protrusion variety at L4-L5, without significant central or foraminal impingement.
13The applicant’s present family practitioner, Dr. Bajomo, reported on April 3, 2025, “history of car accident in 2021 resulting in herniated and bulging discs. Symptoms include nerve pain in the leg, numbness, and itching sensation.”
14The respondent does not make submissions with respect to the purported disc herniation and disc bulge.
15A disc herniation, however mild, is not captured by the definition of a minor injury as defined above. Given that the applicant’s family practitioner has linked the disc herniation to the accident I find that the applicant has established, on a balance of probabilities, that she has sustained a non-minor injury that would warrant removal from the MIG.
Physiotherapy services plan submitted on February 23, 2023 and May 10, 2023
16I find that the applicant has proven, on a balance of probabilities, that the proposed physiotherapy treatment is reasonable and necessary.
17To 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.
18The OCF-18, completed by Dr. Rahim Jessa, chiropractor, submitted on February 23, 2023, sought funding for 16 rehabilitation sessions, 16 sessions of massage, electrodes, and the completion of the OCF-18.
19The OCF-18, completed by Dr. Ravdeep Sekhon, chiropractor, submitted on May 10, 2023, sought funding for a rehabilitation program including chiropractic and physiotherapy services, back support, and the completion of the OCF-18.
20The goals of the treatment plans are to reduce pain, increase range of motion, increase strength, and to return to activities of normal living and pre-accident work activities.
21The applicant submits that the treatment plans are reasonable and necessary due to her frequent and reported ongoing symptoms of neck, left shoulder, and back pain. The applicant further submits that the goal of the treatment plans are to improve and restore strength and endurance to affected areas. It is the applicant’s position that the goals of the treatment plans do not necessarily have to be full recovery, and treatment that provides even temporary relief of symptoms will usually be found to be reasonable and necessary.
22I find that there is contemporaneous evidence to support that the proposed treatment plans are reasonable and necessary. The applicant’s medical practitioners repeatedly referred and/or recommended the applicant for physiotherapy in 2023, when the treatment plans were submitted for consideration. On February 8, 2023, Dr. Grewal recommended physiotherapy after the applicant presented with ongoing complaints of neck, low back, and shoulder pains since the accident. On June 7, 2023, Dr. Grewal recommended physiotherapy after follow-up with respect to the results of the applicant’s MRI of the cervical and lumbar spine. Moreover, orthopaedic surgeon, Dr. Osama Benmoftah, in his orthopaedic chronic pain assessment report, dated August 10, 2023, recommended physiotherapy treatment.
23I am unpersuaded by the s. 44 physician assessment report of Dr. Charanjit Sandhu, internal medicine specialist, dated July 6, 2023, because I find the objective medical evidence contradicts his finding that “there was also no documentation of substantial underlying pathology. It is noted that she has undergone an MRI of the cervical and lumbar spine and left shoulder.” The MRI of the applicant’s cervical and lumbar spine revealed disc herniation/bulge, as indicated above. As a result of these findings, the physicians of Mountainview recommended physiotherapy.
24As such, I find that the applicant has established, on a balance of probabilities, that the proposed physiotherapy treatment submitted on February 23, 2023, and May 10, 2023 are reasonable and necessary.
Physiotherapy services plan dated August 22, 2023
25The applicant does not provide a copy of the OCF-18, therefore, this treatment plan was not before me to consider its goals, whether they would be met to a reasonable degree, and the overall costs of the OCF-18.
26In any event, even if the OCF-18s were in evidence, the applicant has not made any submissions with respect to this treatment plan. As such, I find that the applicant has not met her burden to prove, on a balance of probabilities, that the treatment plan is reasonable and necessary.
Physiotherapy services plan dated November 11, 2024
27I find that the applicant has not established, on a balance of probabilities, that the proposed physiotherapy services are reasonable and necessary.
28The OCF-18 completed by Ms. Larisa Emmons, physiotherapist, on November 11, 2024, sought funding for 12 sessions of physical rehabilitation, 5 sessions of therapy, multiple body sites, assessment, and documentation support activities. The goals of the treatment plan are to reduce pain, increase strength, and to return to activities of normal living.
29The applicant submits that this treatment was submitted following the results of her MRI, revealing bulging/herniated discs, and in addition to her consultation with orthopaedic surgeon, Dr. Bhargava, dated January 22, 2024, who wrote her a “prescription for physiotherapy”.
30I agree with the respondent’s position, in this case, that the proposed treatment is not reasonable and necessary because the applicant reported to both Dr. Grewal and Dr. Bajomo that physiotherapy was not helping around the time the treatment plan was submitted to the respondent for consideration. On January 21, 2025, the applicant reported to Dr. Grewal that she “feels like physio makes it worse and start [sic] lower back pain with physio. Don’t like physio.” To Dr. Bajomo on April 8, 2025, the applicant reported “stopped physiotherapy due to lack of improvement and worsening symptoms.” I am also not pointed to a referral or recommendation for physiotherapy around the time this treatment plan was submitted to the respondent for consideration. As such, I find that there is a lack of corroborating and contemporaneous medical evidence to support that this treatment plan is reasonable and necessary.
31Therefore, unlike my finding above, I find that the applicant has not established, on a balance of probabilities, that the proposed treatment plan dated November 11, 2024, is reasonable and necessary.
Psychological Assessment
32I find that the applicant has not proven, on a balance of probabilities, that the proposed psychological assessment is reasonable and necessary.
33The OCF-18 completed by Dr. Sedigheh Naisi, psychologist, submitted on June 26, 2023, sought funding for a psychological assessment.
34The applicant submits that this treatment plan is reasonable and necessary because of her reported symptoms of anxiety and frustration with excruciating pain that affects her daily living and employment. The applicant relies on the consultation report of physician, Dr. Tavis J. Basford, dated April 10, 2024 where it is reported that she has some depressive symptoms, and the CNRs of Dr. Benmoftah wherein the applicant reports anxiety and depression.
35I find that the evidence does not support that the proposed treatment plan is reasonable and necessary. I acknowledge that Dr. Basford noted during consultation on April 10, 2024, the applicant “reports her mood is irritable most days since the motor vehicle accident. She reports anxiety. She endorses low energy” and “she also has some depressive symptoms”, and Dr. Benmoftah reported in his chronic pain assessment, dated August 10, 2023, “symptoms of anxiety and depression”. However, the CNR of Dr. Grewal dated April 23, 2024 reports “pt denies any depression sx” and “pt mentioned that she clearly told Dr. Basford that she doesnot [sic] feel down/low mood.” Given this, I assign little weight to the consultation report of Dr. Basford, and the chronic pain assessment of Dr. Benmoftah, with respect to the applicant’s psychological presentation because I find that the applicant’s report to treating physician, Dr. Grewal, directly contradicts what is reported by Dr. Basford and Dr. Benmoftah.
36Moreover, Dr. Basford and Dr. Benmoftah’s reports are based on one-time assessments with the applicant and when compared with the lengthy history of reports to treating physicians at Mountainview, I prefer the latter. The applicant has not pointed me to any accident-related psychological complaint to the physicians of Mountainview or her present family physician Dr. Bajomo, that would support the need for the proposed psychological assessment.
37Therefore, I find that the applicant has not established, on a balance of probabilities, that the proposed psychological assessment is reasonable and necessary.
Orthopaedic Assessment
38I find that the applicant has not proven, on a balance of probabilities, that the plan for an orthopaedic assessment is reasonable and necessary.
39The OCF-18 completed by Dr. Rahim Jessa, Chiropractor, submitted on June 20, 2023, sought funding for an orthopaedic assessment, documentation support activity for claim form, and claimant transportation to treatment. The goals of the treatment plan were to document current function in order to help improve biopsychological capabilities and to help objectify subjective complaints/dysfunction in order to conceptualize current condition.
40The applicant submits that the proposed treatment plan is reasonable and necessary because of her ongoing complaints of pain in the neck, shoulder, and back. The applicant’s position is that the MRI results of her cervical and lumbar spine showed herniated/bulging discs which are objective findings that warrant the orthopaedic assessment.
41The respondent submits that the treatment plan for an orthopaedic assessment, completed by Dr. Bhargava, was submitted on June 20, 2023, and according to the CNRs of Dr. Grewal, the applicant was referred to the same orthopaedic assessor by Dr. Grewal through OHIP, of which a consultation took place on January 22, 2024. It is the respondent’s position that pursuant to s. 47(2) of the Schedule, the orthopaedic assessment was reasonably available to the applicant through OHIP.
42Section 47(2) of the Schedule states payment of a medical or rehabilitation, among others, 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. The onus rests on the respondent to establish, on a balance of probabilities, the benefit in dispute was reasonably available to the applicant through a collateral provider.
43I agree with the respondent’s position that the orthopaedic assessment was available to the applicant through OHIP. The medical evidence tendered by the applicant is supportive that Dr. Grewal referred the applicant on June 8, 2023 for an orthopaedic assessment given the findings of the MRI of the applicant’s left shoulder, and ongoing complaints shoulder pain, decreased range of motion, and “s/p [sic] injury Dec 2021”. On January 22, 2024, Dr. Manoj Bhargava, orthopaedic surgeon, assessed the applicant, provided a medical opinion, and made recommendations. I find that Dr. Bhargava is noted on Part 12 of the OCF-18 as the treatment provider who would administer the assessment. Given this, I find that the respondent has met its onus to establish that this assessment was reasonably available to the applicant through OHIP.
44Given the above, I find that the applicant has not proven, on a balance of probabilities, that the proposed orthopaedic assessment is reasonable and necessary.
Interest
45The applicant is entitled to interest on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
46The 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.
47The applicant submits that the medical evidence supports that her injuries fall outside of the MIG. The applicant further submits that based on the respondent’s behaviour being excessive, imprudent, stubborn, inflexible unyielding or immoderate, the applicant is entitled to an award because the medical benefits were unreasonably withheld.
48While I have found that the applicant is out of the MIG and entitled to some of the treatment plan in dispute, I do not find that the respondent acted unreasonably in its denials. The applicant has not directed me to evidence to substantiate the request for an award or that the respondent’s actions rose to the level of being excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.
49As such, the applicant is not entitled to an award.
ORDER
50I find that:
The applicant’s injuries warrant removal from the MIG;
The applicant is entitled to the proposed physiotherapy treatment plan submitted on February 23, 2023, plus interest;
The applicant is entitled to the proposed physiotherapy treatment plan submitted on May 10, 2023, plus interest;
The applicant is not entitled to the proposed physiotherapy treatment plan submitted on August 22, 2023;
The applicant is not entitled to the proposed physiotherapy treatment plan submitted on November 11, 2024;
The applicant is not entitled to the proposed the psychological assessment plan submitted on June 26, 2023;
The applicant is not entitled to the proposed orthopaedic assessment plan submitted on June 20, 2023; and
The respondent is not liable to pay an award.
Released: May 29, 2026
Nadia Mauro
Adjudicator