Licence Appeal Tribunal File Number: 23-014367/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:
Amirarshia D Esfahani
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Nicholas Whelan, Paralegal
For the Respondent:
Ashley Dunkley, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Amirarshia Esfahani, the applicant, was involved in an automobile accident on January 13, 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, Security National Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2Is the applicant barred from proceeding to a hearing for non-earner benefits (“NEBs”) because he wilfully made a material misrepresentation when he applied for accident benefits?
ISSUES
3The issues in dispute are:
i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to an NEB of $185.00 per week from March 1, 2022, to date and ongoing?
iii. Is the applicant entitled to physiotherapy services proposed by 101 Physio as follows:
a) $316.40 in a treatment plan/OCF-18 (“plan”) submitted on February 8, 2022?
b) $1,551.47 in a plan submitted on July 25, 2022?
c) $1,862.52 in a plan submitted on February 28, 2023?
iv. Is the applicant entitled to $539.00 for translation services proposed by 101 Physio in a plan submitted on February 28, 2023?
v. Is the applicant entitled to $2,560.00 for psychological services proposed by 101 Assessments in a plan submitted on June 1, 2022?
vi. Is the applicant entitled to $2,460.00 for a psychological assessment proposed by 101 Assessments in a plan submitted on March 22, 2022?
vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is barred from proceeding to a hearing for NEBs.
5The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG, therefore it is not necessary to determine the reasonableness and necessity of the disputed treatment plans.
6The respondent is not liable to pay an award.
7The applicant is not entitled to interest.
PRELIMINARY ISSUE
8The applicant is barred from proceeding to a hearing for NEBs because he wilfully made a material misrepresentation when he applied for accident benefits.
9Pursuant to s. 31(1)(b) of the Schedule, if a person has made a material misrepresentation that induced the insurer to enter into a contract of automobile insurance, the person is disqualified from receiving specified benefits.
10The respondent submits that it is unable to issue a policy to anyone who wishes to use their vehicle for work-related purposes. On January 6, 2022, it entered into an agreement with the applicant for an automobile policy for personal use only.
11The respondent relies on an Investigation Report dated February 25, 2022 indicating that on February 25, 2022, the applicant confirmed to a field investigator that he used his personal vehicle to make deliveries with Instacart. The respondent refers to screenshots provided to the investigator by the applicant showing that the applicant worked for Instacart between January 3 and 9, as well as on January 10 and 11, 2022. The respondent sent a letter to the applicant dated April 27, 2022 advising him that he is not entitled to specified benefits due to a material misrepresentation.
12The respondent relies on the decision of Primmum Insurance Company v. Baley-Daley, 2015 CanLII 154395 (ON LAT), where the Tribunal defined “misrepresentation” as “any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts.” The Tribunal also held that silence, or a failure to report can constitute wilful misrepresentation.
13The respondent also refers to the decision of TD Insurance Company v. Haribalan, 2024 CanLII 23454 (ON LAT) where the Tribunal held that the applicant was not entitled to an NEB because he wilfully misrepresented his desires when entering into a contract for insurance in that he used his vehicle for commercial purposes.
14The applicant did not make any submissions on this issue. The respondent submits that an adverse inference should be drawn that the applicant used his vehicle for commercial purposes and that he wilfully made misrepresentations about the use of his vehicle when entering into the contract.
15In the absence of any submissions or evidence from the applicant, I accept the evidence of the applicant’s admission to the respondent’s investigator that he used his vehicle for deliveries with Instacart, as well as the screenshots of the applicant’s phone showing that he was paid to make deliveries between January 3 and 9, as well as on January 10 and 11, 2022, which overlaps with the date of January 6, 2022, when he entered into an agreement with the respondent for an automobile policy for personal use only. I find that the applicant’s conduct in signing this contract for personal use only when he was using his vehicle to work for Instacart, amounts to “an assertion not in accordance with the facts.”
16For these reasons, I find on a balance of probabilities that the applicant made a material misrepresentation that induced the respondent to enter into a contract of automobile insurance, and accordingly, the applicant is barred from proceeding to a hearing for NEBs.
ANALYSIS
Applicability of the Minor Injury Guideline
17Section 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.”
18An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside 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.
19The applicant submits that he should be removed from the MIG based on physical and psychological injuries. The respondent submits that the applicant has not proven that he should be removed from the MIG.
The applicant has not proven that he should be removed from the MIG based on disc bulge
20The applicant has not met his onus to prove on a balance of probabilities that he should be removed from the MIG based on disc bulge that he alleges resulted from the accident.
21The applicant relies on radiologist reports from his home country of Iran from October 2023 and submits that these reports demonstrate ongoing issues and impairments that would warrant removal from the MIG. The applicant submits that he is not a Canadian citizen and does not have access to OHIP, and therefore he should not be prejudiced for seeking medical attention in Iran. The applicant also submits that the reports show significant issues with mild diffuse bulging at multiple sites, and other issues with the spinal cord and shoulder. The applicant further submits that the radiologist who completed the reports has a fellowship of CT, MRI and Interventional radiology from Canada, is an Ottawa Hospital Board certified radiologist, and his findings should not be discounted.
22The applicant relies on the decision of 17-002907 v. Aviva Insurance Company, 2018 CanLII 13153 (ON LAT), where the Tribunal held that the applicant’s injuries were not minor based on a CT scan that showed disc bulges.
23The respondent submits that the applicant met with Dr. David Berbrayer, physiatrist, for an insurance examination on June 16, 2023, in which Dr. Berbrayer requested that the applicant complete an MRI, EMG and nerve conduction test. On September 5, 2023, the applicant failed to attend for an EMG and nerve conduction study. The respondent sent letters dated December 13, 2023 and February 13, 2024 to the applicant, following up with the request for the MRI, EMG, and nerve conduction testing. The respondent submits that to date, the applicant has only provided an MRI from Iran, but no EMG or nerve conduction tests.
24The respondent further submits that little weight should be given to the MRI from Iran for the following reasons. The MRI has a letterhead from JAM Medical, which is a clinic in Iran, but was stamped from Dr. Amir Ali Yazdani, fellow at the Ottawa Hospital. The respondent submits that a fellowship is a doctor training in a specific area. Dr. Yazdani’s name does not appear on the College of Physicians and Surgeons of Ontario register, further questioning why a stamp with such details was on the Jam Medical imaging report. In addition, the MRI is not a complete document, but rather a short summary, which does not include how the findings came to be and the testing measures that were taken.
25I place little weight on the MRI from Iran. I find that the document only lists conclusions, without any details with respect to how the findings were made, and there is no information about the applicant’s complaints that were to be investigated. Further, the date on the document is in the Iranian calendar and the applicant submits it would correlate to October 2023, however I note that the x-ray images that are attached to the MRI summaries indicate two dates: December 24, 2000, and December 24, 2023.
26For these reasons, I find that the applicant has not met his onus to demonstrate on a balance of probabilities that he should be removed from the MIG based on an alleged disc bulge caused by the accident.
The applicant does not suffer from chronic pain as a result of the accident
27The applicant has not met his onus of establishing on a balance of probabilities that he suffers from chronic pain with functional impairment because of the accident.
28The applicant submits that because of the accident, he suffers from chronic pain which is evident in his constant complaints to his family doctor, imaging completed, and the s. 44 reports.
29The applicant refers to the clinical notes and records (“CNRs”) dated February 11, 2022 of his family physician, Dr. Afshin Jafarian where the applicant complained of ongoing neck and lower back pain because of the accident. The applicant also submits that there are several entries of post accident headaches, lower back pain, knee and leg pain, and neck and shoulder pain over six months after the accident. I note that on July 26, 2022, the applicant complained of post accident intermittent headache and anxiety, pain in the knees and leg, neck and shoulder. I also note, however, that Dr. Jafarian’s CNRs dated March 24 and 30, 2022 related to the applicant’s knee pain indicate that it was due to a probable ACL tear from a football injury.
30The applicant submits that he complained more than six months after the accident about his constant pain, which is an indicator of chronic pain. He further submits that, more than eighteen months after the accident, Dr. Berbrayer noted the following: neck pain, posttraumatic headaches, mechanical low back pain, bilateral rotator cuff tendinitis, tenderness at C3-C7, and bilateral shoulder pain. The applicant also submits that Dr. Konstantinos Papazoglou, psychologist, diagnosed him with Somatic Symptom Disorder, which contributes to a diagnosis of chronic pain as a result of the accident.
31The applicant relies on the decision of Green v. Aviva General Insurance, 2024 CanLII 115437 (ON LAT) (“Green”), where the Tribunal held that the applicant had chronic pain, submitting that his case is similar. I am not bound by other decisions of the Tribunal; however, I agree with the reasoning in Green. I find that Green is distinguishable for several reasons. First, the applicant in that case complained of accident-related pain to his doctor for over three years, on eight occasions, and was referred to a specialist for pain management. Second, the applicant’s pain affected several aspects of his life, with functional impairment. Finally, the Tribunal held that the applicant met three of the six criteria in the American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pp. 23-24 (“Guides”).
32This case is distinguishable from Green. The applicant only reported accident-related complaints to his family doctor on two occasions: February 11 and July 26, 2022, and his doctor did not refer him to a specialist for pain management. Further, the applicant has not made submissions about or directed me to medical evidence establishing that his functionality is impaired and that the chronic pain is the cause of that impaired functionality. Finally, the applicant has not referred to the Guides and has not provided submissions establishing that he meets of any of the criteria of chronic pain described therein.
33The respondent submits that the applicant has not adduced any records that suggest a diagnosis of chronic pain or chronic pain syndrome.
34The respondent also submits that the applicant has not satisfied any of the chronic pain diagnostic criteria as outlined in the Guides as follows:
i. He does not use prescription medication for his pain.
ii. He does not have excessive dependence on health care providers or family in that he has not consistently reported ongoing pain or psychological illnesses as a result of the accident.
iii. There is no corroborated evidence of physical deconditioning or avoidance of physical activity. The applicant was able to play football in March of 2022, maintain a relationship for the two years following the accident, travel back to Iran, hold multiple employment positions, and complete his diploma on time.
iv. For the reasons set out above in iii, there is no corroborative evidence of social withdrawal because of the accident.
v. There is no evidence of lack of ability to perform his pre-accident recreational and leisure activities as a result of the accident.
vi. There is no corroborating evidence to suggest that the applicant’s complaints of psychosocial sequelae are as a result of the accident.
35The respondent also submits that the applicant has not met his onus of proof because he did not refer to specific evidence within his submissions, which was a requirement pursuant to the Case Conference Report and Order (“CCRO”). The respondent relies on the decision of Barlow v. Wawanesa Mutual Insurance Company, 2024 CanLII 67359 (ON LAT), where the Tribunal held that when a CCRO expressly specifies that the parties’ submissions must make specific reference to the evidence and law by tab and page number, and a party does not do so, it is not the Tribunal’s role to advocate for the party. The Tribunal further held that it cannot presume to know which evidence or portion thereof, if any, that a party intends to rely on in advancing its case. Although I am not bound by other decisions of the Tribunal, I agree with the reasoning in this decision.
36I find that the Guides are helpful in assessing whether a person has chronic pain. Since the applicant has not made submissions in this regard, and when considering the totality of the evidence, I find that the applicant has not demonstrated that he meets three of the six criteria for chronic pain as set out in the Guides. I also find that the applicant has not directed me to a diagnosis of chronic pain by any treating physician.
37Further, for chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant has not made submissions on or directed me to medical evidence that his accident-related injuries have had a detrimental impact on his functionality. More is required to establish to what extent a chronic pain condition, be it syndrome or “chronicity of symptoms,” affects functionality. This opinion must be supported by medical evidence that establishes an applicant’s functionality is impaired and that the chronic pain is the cause of the disability.
38Based on all the evidence before me, I find that the applicant has not proven on a balance of probabilities that his injuries are outside of the MIG as a result of chronic pain.
The applicant does not suffer from a psychological impairment as a result of the accident
39The applicant has not met his onus of establishing on a balance of probabilities that he suffers from a psychological impairment because of the accident that would take him out of the MIG.
40The applicant refers to the s. 44 psychological assessment that was completed by Dr. Amena Syed, psychologist, on June 15, 2022, pointing out that Dr. Syed noted that the applicant was feeling sad most of the time, especially when thinking of the accident, angry and irritable, worried a lot, had generalized anxiety post-accident, post-traumatic stress, notably having accident-related flashbacks on a daily basis, nightmares, as well as passenger and driver anxiety. However, Dr. Syed concluded that the applicant did not have a psychological impairment due the accident.
41The applicant submits that there are vast similarities between the s. 44 assessment, the s. 25 report, and complaints to his family doctor, that would support a psychological diagnosis. The s. 25 report, dated April 28, 2022, was prepared by Dr. Papazoglou, who diagnosed the applicant with adjustment disorder (with mixed anxiety and depressed mood), specific (isolated) phobia (driving/passenger), and somatic symptom disorder with predominant pain. The applicant submits that there were no validity concerns with Dr. Papazoglou’s testing.
42Dr. Jafarian’s CNRs indicate that on February 11, 2022, the applicant reported that he has had anxiety and flashbacks with insomnia since the accident and that he was afraid of driving. Dr. Jafarian referred the applicant to a psychotherapist. Further, on July 26, 2022, the CNRs indicate that the applicant complained of post accident anxiety. The applicant submits that Dr. Papazoglou’s report, along with Dr. Jafarian’s CNRs, should be given the most weight.
43The applicant relies on the Tribunal decision of Metallo v. Economical Insurance Company, 2024 CanLII 86472 (ON LAT) (“Metallo”), where the applicant reported various similar psychological complaints to a s. 25 assessor, as well as to a s. 44 assessor. The applicant submits that the facts in Metallo are similar to this case, in that the s. 44 assessor opined that no diagnosis was warranted. In Metallo, the applicant was removed from the MIG as a result of an accident-related psychological impairment.
44I find that the Metallo decision is distinguishable. In that case, the Tribunal preferred the s. 25 report over the s. 44 report, however there was no indication that there were issues with invalidity. In this case, Dr. Papazoglou administered six self-reporting psychological tests, with only one of the tests, the Pain Patient Profile, containing a validity index. On that test, the applicant attained an invalid profile. Further, as outlined below, there were validity issues with respect to Dr. Syed’s testing.
45The respondent relies on Dr. Syed’s in-person assessment of the applicant on June 15, 2022. As part of the assessment, Dr. Syed reviewed the applicant’s treatment documentation and medical records, including Dr. Jafarian’s CNRs. Eight psychological tests were administered, five of which had validity measures. Dr. Syed indicated that the findings suggest that the applicant may not have answered in a completely forthright manner and that he attempted to portray himself in a negative or pathological manner in particular areas. Dr. Syed further indicated that the applicant presented with certain patterns or combinations of features that are unusual in clinical populations but relatively common among individuals feigning mental disorder. Accordingly, Dr. Syed opined that limited confidence can be ascribed to the reliability and validity of the data gathered in the evaluation and concluded that the examination found no objective evidence to substantiate the applicant’s self-reporting of psychological impairment related to the accident.
46The respondent submits that Dr. Papazoglou’s assessment should be given little to no weight because it was conducted over the internet, and there is no indication that Dr. Papazoglou reviewed or relied on any medical records. The respondent refers to the decision of Kalirasa v. Wawanesa, 2024 CanLII 115427 (ON LAT), where the Tribunal gave little weight to the evidence of Dr. Papazoglou given that he relied heavily on the applicant’s self-reporting. The respondent also points out that there were validity concerns in both Dr. Papazoglou’s report and Dr. Syed’s report.
47I am not persuaded on a balance of probabilities by Dr. Papazoglou’s diagnoses because he relied solely on the applicant’s self-reporting, without a review of any medical documentation, and the only test conducted that contained a validity measure had an invalid result. This is concerning considering the reliability issues found in Dr. Syed’s testing measures. The applicant has directed me to two occasions where he reported psychological symptoms to his family physician, which included anxiety, flashbacks, insomnia, and a fear of driving. Yet, Dr. Jafarian did not diagnose the applicant with a psychological impairment. The applicant does not refer to any other evidence of psychological impairment caused by the accident.
48Based on the evidence before me, although I find that the applicant suffers from psychological symptoms as a result of the accident, as reported to his family doctor, I am not persuaded on a balance of probabilities that these symptoms amount to a psychological impairment. In my view, these are best captured as clinically associated sequelae to the applicant’s minor injury.
49For these reasons, I find that the applicant has not met his onus of demonstrating on a balance of probabilities that he suffers from a psychological impairment because of the accident that would take him out of the MIG.
50Accordingly, I find that the applicant has not met his onus of proving on a balance of probabilities that his accident-related impairments warrant removal from the MIG.
51As the applicant is in the MIG, it is unnecessary to consider the reasonableness and necessity of the treatment plans in dispute.
Interest
52Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.
Award
53The 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. Since no benefits were unreasonably withheld or delayed, the applicant is not entitled to an award.
ORDER
54For the above reasons, I find:
i. The applicant is barred from proceeding to a hearing for NEBs.
ii. The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG, therefore it is not necessary to determine the reasonableness and necessity of the disputed treatment plans.
iii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule.
iv. The respondent is not liable to pay an award.
Released: October 3, 2025
Laura Goulet
Adjudicator