Citation: Ahmed v. The Personal Insurance Company, 2025 ONLAT 24-005251/AABS

Licence Appeal Tribunal File Number: 24-005251/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:

Razina Ahmed

Applicant

and

The Personal Insurance Company

Respondent

DECISION

ADJUDICATOR: Bernard Trottier

APPEARANCES:

For the Applicant: Jasmine Patel, Counsel

For the Respondent: Nathan Fabiano, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Razina Ahmed, the applicant, was involved in an automobile accident on October 28, 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 Personal Insurance Company, the respondent, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2There were no preliminary issues identified in the Case Conference Report and Order (“CCRO”) dated September 23, 2024. In its submissions, the respondent raised a preliminary issue of the 2-year limitation period with respect to one of the treatment plans in dispute. This treatment plan was denied in a Response to Medical Recommendations letter dated April 20, 2022. An application for this proceeding was served on the respondent on April 17, 2024.

3The preliminary issue raised by the respondent is not properly before the Tribunal, since it was not identified at the case conference, nor was it added to the matter at any time between the case conference and the applicant’s submissions. Each of the parties is entitled to know the case it needs to meet. The respondent’s preliminary issue in its submissions is prejudicial to the applicant because it does not afford her the proper notice of the case being argued. As a result, I will make no ruling on the preliminary issue raised by the respondent.

ISSUES

4The issues in dispute are:

1. 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?

2. Is the applicant entitled to $4,688.38 for psychological services, proposed by A&B Medical Assessments in a treatment plan/OCF-18 (“plan”) dated November 14, 2022?

3. Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by A&B Medical Assessments in a plan dated July 12, 2022?

4. Is the applicant entitled to $1,620.65 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a plan dated April 5, 2022?

5. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5The applicant has not demonstrated that her injuries are non-minor, as defined by the Schedule, and that they could not be treated within the Minor Injury Guideline (“MIG”) limit.

6Since the applicant’s injuries are considered minor, the proposed treatment plans outside of the MIG are not payable.

7Since no benefits are payable, no interest is payable.

PROCEDURAL ISSUES

8The CCRO ordered that the applicant’s written submissions, evidence and authorities were due 30 days before the written hearing date of June 13, 2025. Accordingly, they were due on May 14, 2025. The applicant filed her submissions on May 20, 2025. The respondent argues that the missed deadline caused it to prepare submissions that were focused on s. 7(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), dealing with a party who does not provide submissions. The respondent submits that the applicant’s late submissions, and failure to answer correspondence from the respondent, caused it to alter its submissions while under a more limited timeline than that ordered in the CCRO. The respondent seeks a remedy of $1,000 in costs under s. 17.1 of the SPPA, which empowers the Tribunal to order a party to pay for another’s costs when conduct has been unreasonable.

9The CCRO ordered that the respondent’s submissions were due 14 days before the written hearing date, namely on May 31, 2025. I note that the respondent filed its submissions on May 23, 2025.

10Section 17.1 of the SPPA empowers a tribunal to order costs, subject to that tribunal’s rules. Under Rule 19.5, in deciding whether to order costs and the amount of costs to be ordered, the Tribunal may consider all relevant factors including, among others: whether the conduct was in breach of an order of the Tribunal, whether the party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient and effective process, and prejudice to the other party.

11I find that the applicant’s submissions were late, in contravention of the deadline ordered in the CCRO. However, I find that it required only three days (from May 20 to May 23) for the respondent to prepare and serve its submissions, and that it served them eight days ahead of its own May 31, 2025 deadline for respondent submissions.

12I find that the respondent has not demonstrated that the applicant’s late filing of submissions interfered with the Tribunal’s ability to carry out a fair, efficient and effective process. I find, also, that the respondent has not demonstrated how the late filing was prejudicial to the respondent’s ability to respond, given it served its submissions well ahead of its own deadline. For these reasons, I dismiss the respondent’s request for costs.

ANALYSIS

The Minor Injury Guideline

13Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500 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.”

14An 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.

15The three treatment plans in dispute sought treatment outside of the MIG limit. The CCRO indicated that, on the date of the case conference, the MIG limit had not been exhausted. In their submissions, neither party identified the amounts remaining for treatment within the MIG limit.

16In this matter, the applicant argues that her psychological impairments warrant removal from the MIG and that her physical injuries are non-minor as defined by the Schedule.

The applicant’s psychological impairments do not place her outside of the MIG

17The applicant submits that she suffered psychological impairment, as a result of the accident, that warrants removal from the MIG. The applicant submits that she visited Dr. Mohammed Imana, general practitioner, on October 31, 2021 (3 days post-accident) where she complained of pain, panic attacks and sleep difficulties. The applicant directed me to the clinical notes and records (“CNRs”) of Dr. Imana on that same date, where he referred the applicant to a psychologist.

18The applicant relies on the psychological assessment report of Mandeep Singh, supervising psychological associate, and Julie Sarwan, psychotherapist, dated November 10, 2022, as evidence of a psychological impairment. For brevity, I will refer to this report as that of Ms. Singh.

19Ms. Singh’s report states that the applicant displayed psychological symptoms that would be consistent with the following diagnoses based on the criteria of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition:

1. Post-traumatic stress disorder
2. Adjustment disorder with mixed anxiety and depressed mood
3. Major depressive disorder, single episode, severe
4. Specific phobia, situational type (travelling in a motor vehicle)

20The applicant submits that she has incurred most of the costs of the disputed psychological treatment and assessment plans. She argues that this demonstrates the necessity of these plans for her recovery from her accident-related injuries.

21The applicant relies on the Tribunal’s decision in 17-002734/AABS v. Tradition Mutual Insurance Company, 2018 CanLII 2299 (ON LAT) (“17-002734”) to argue that a psychological assessment is necessary to determine the level of psychological impairment from an accident, and what psychological treatment the applicant requires.

22The respondent submits that the only CNRs of any medical visits by the applicant are from the single visit with Dr. Imana three days after the accident. The respondent argues that, if the applicant suffered the psychological injuries that she is alleging, she would visit a physician more than once in over three years.

23The respondent submits that Ms. Singh’s findings are based on the applicant’s self-reports, and that they are contradicted by the applicant’s statements within Ms. Singh’s assessment report. The respondent directed me to the report, where the applicant stated that she did not take time off work after the accident, and that her job involved frequent long-distance and international travel. She also told Ms. Singh that she was a professional dancer and that she continued to dance professionally after the accident. The respondent argues that this level of activity in inconsistent with Ms. Singh’s conclusion, regarding the applicant’s inability to return to pre-accident activities of daily living, stating that the applicant was largely unable to perform her vocational responsibilities and was “unable to be physically active”. Because of these inconsistencies, the respondent argues that Ms. Singh’s report should be given little weight.

24The respondent argues, further, that Ms. Singh has a financial incentive to conclude that the applicant has a psychological impairment that requires treatment outside of the MIG. For this reason, the respondent argues that a psychological assessment that is not supported by corroborating medical evidence should be given little weight. In supported of that argument, the respondent directed me to the Tribunal decision in Sampson-Samuel v. Wawanesa Mutual Insurance Company, 2023 CanLII 26924 (ON LAT) (“Sampson-Samuel”).

25The respondent argues that, on a balance of probabilities, the applicant has not met her onus of demonstrating that her accident-related psychological impairments warrant removal from the MIG.

26I find that the medical records of the applicant do not corroborate the proposition that she suffered psychological impairments, as a result of the accident, that require treatment outside of the MIG. I am persuaded by the findings in Sampson-Samuel, among other Tribunal decisions, that front-line physicians play a role in providing psychological services, including prescribing medications. I find that the absence of any physician visits, beyond the single post-accident visit with Dr. Imana, persuades me that the applicant’s psychological impairments and pain complaints did not rise to the level of a non-minor injury.

27I find that corroboration of the psychological assessment findings, from a physician, prescription history, employment records, collateral benefits providers or other evidence, is important in assessing the validity of those findings, which depend largely on the self-reports of the injured person. I find that corroboration from persons with no self-interest in the outcome mitigates any potential conflicts of interest. I find that Dr. Imana’s CNRs from the single post-accident visit, where he referred the applicant to a psychologist, is insufficient corroboration on the necessity of the longer-term psychological interventions recommended by Ms. Singh.

28I find that this matter is distinguishable from 17-002734 because, in 17-002734, the applicant provided corroborating CNRs from the applicant’s family physicians, along with prescription history, that indicated that the applicant had suffered psychological impairment. I find insufficient corroborating evidence from the applicant in this matter that the applicant suffered the psychological impairments claimed.

29I find that, despite the assertions that the applicant incurred the cost of the disputed psychological treatment plans, the applicant has not directed to me evidence that she did.

30For the reasons above, I find on a balance of probabilities that the applicant has not established that she suffered a psychological impairment warranting removal from the MIG.

The applicant’s physical injuries are “minor” as defined by the Schedule

31The applicant submits that she attended Mackenzie Medical Rehabilitation Centre after the accident, where she received physiotherapy, Transcutaneous Electric Nerve Stimulation/Inferential Current (“TENS/IFC”) treatment, heat therapy, massage and chiropractic treatment. She submits that she mitigated her pain by taking over-the-counter medication including Tylenol and Advil. The applicant argues that the treatment she received to date provided temporary pain relief, but that her complaints of ongoing pain require further facility-based treatment and removal from the MIG.

32The applicant submits that her pain complaints are corroborated in the psychological assessment report of Ms. Singh, where she reported pain in the neck, shoulders and back, and that the pain restricted her movements and daily activities.

33The applicant submits that she incurred the cost of the disputed chiropractic treatment plan, demonstrating its necessity.

34The respondent submits that the applicant’s sole post-accident visit with Dr. Imana is insufficient evidence that she suffered anything more than a minor injury. The respondent submits that Dr. Imana diagnosed the applicant with whiplash, and that he advised her to rest and to take over-the-counter pain medication. The respondent argues that this fits the definition of a minor injury as defined in s. 3(1) of the Schedule.

35The respondent argues that, if the applicant’s pain complaints were beyond those of a minor injury, she would have had further medical visits in the more than three years post-accident. The respondent argues that there is insufficient medical evidence that the applicant’s physical injuries were more than a minor injury.

36I find that the applicant has not demonstrated that she suffered physical injuries beyond those defined as “minor” in s. 3(1) of the Schedule. I find that the pain complaints reported to Ms. Singh, about one year post-accident, do not point to any diagnoses that would fall outside of the definition of a minor injury.

37I find that, despite the assertion that the applicant incurred the cost of the disputed chiropractic treatment plan, the applicant has not directed to me evidence that she did.

38For the reasons above, I find on a balance of probabilities that the applicant has not established that she suffered physical injuries warranting removal from the MIG.

The applicant is not entitled to the funding for the proposed treatment plans

39To receive payment for treatment and assessment plans 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.

40Since I have determined that the applicant’s injuries are “minor” as defined by the Schedule, the OCF-18s seeking treatment outside of the MIG are not reasonable and necessary, and therefore not payable. In light of my decision, the applicant may apply for further treatment within the MIG limit, subject to the treatment plans being found to be reasonable and necessary.

41The respondent submits, further, that the applicant has access to collateral benefits through her work, as indicated in her Application for Accident Benefits/OCF-1, and that she continued to work full-time after the accident. As a result, collateral benefits would still be available to her. The respondent submits that, under the Schedule, the applicant needs to demonstrate that coverage from her collateral benefits is not reasonably available. The respondent submits that she has not done so. As a result, the respondent argues that any portion of the disputed treatment plans is not reasonable and necessary.

Interest

42Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are payable, no interest is payable.

ORDER

43The applicant has not demonstrated that her injuries cannot be treated within the limit set by the MIG.

44The proposed treatment plans are not payable since they propose treatment outside of the MIG.

45No interest applies on overdue benefits in dispute