Mohamed v. Aviva Insurance Company of Canada, 2025 CanLII 129085

Mohamed v. Aviva Insurance Company of Canada, 2025 ONLAT 24-006648/AABS

Citation: Mohamed v. Aviva Insurance Company of Canada, 2025 ONLAT 24-006648/AABS

Licence Appeal Tribunal File Number: 24-006648/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:

Mawish Mohamed

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Bernard Trottier

APPEARANCES:

For the Applicant: Natalia Poliakova, Paralegal

For the Respondent: Christopher Lupis, Counsel

HEARD: By way of written submissions

OVERVIEW

1Mawish Mohamed, the applicant, was involved in an automobile accident on June 5, 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 Aviva Insurance Company of Canada, the respondent, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The 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 $2,200.00 for a psychological assessment, proposed by Excel Health Centre in a treatment plan/OCF-18 dated July 12, 2023?
3. Is the applicant entitled to $1,426.64 for physiotherapy services, proposed by Active Care Health Services Inc. in a treatment plan/OCF-18 dated June 19, 2023?
4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The 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.

4Since the applicant’s injuries are considered minor, the proposed treatment plans outside of the MIG are not payable.

5Since no benefits are payable, no interest is payable.

ANALYSIS

The Minor Injury Guideline

6Section 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.”

7An 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.

8The two treatment plans in dispute sought treatment outside of the MIG limit. In its submissions, the respondent indicated that the amount remaining for treatment within the MIG limit was exhausted.

9In 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

10The applicant submits that she is entitled to a psychological assessment to further investigate treatment options, because of her psychological complaints due to the accident. She submits that the need for a psychological assessment is supported by the findings of David Ross, registered social worker (“RSW”) with Excel Health Centre (“Excel”), based on a pre-screening interview conducted on June 28, 2023, where he noted that the applicant suffered from insomnia and persistent, intrusive thoughts about the accident. The applicant directed me to the notes in the disputed OCF-18, submitted by Mr. Ross on July 12, 2023, where they state that the applicant reported anxiety as a driver and as a passenger, flashbacks, and depression due to the distressing thoughts regarding the accident. The notes report, further, that “pain, cognitive, emotional and psychosocial accident sequelae are obstacles that are preventing [the applicant] from working at her full pre-accident level of functioning.”

11The OCF-18 recommended a psychological assessment to obtain a thorough understanding of her psychological difficulties and to develop a plan for treatment. The OCF-18 states that the psychological assessment would involve a psychosocial interview, clinical testing, consultation with professionals involved in the applicant’s rehabilitation, external file review, and a feedback interview with the applicant.

12The applicant submits that the disputed psychological assessment is further supported by a consultation report provided by Sheri Rumack, also an RSW with Excel, dated March 10, 2025. In her report, Ms. Rumack noted that she and the applicant discussed the following psychological issues:

1. Phobias acquired from the accident, both as a passenger and as a driver;
2. General anxiety disorder, with vehicle-related panic attacks;
3. Severe depression, situational as a result of the accident;
4. Insomnia; and
5. Post-traumatic stress disorder (“PTSD”) symptoms.

13The applicant submits that she did not have funding for her social work treatment and psychological consultation with Excel, and that she paid for these out-of-pocket. The applicant argues that the respondent has prevented her from receiving the required psychological treatment to be able to return to her pre-accident employment and social/recreational activities in full capacity.

14The respondent submits that the two RSWs, Mr. Ross and Ms. Rumack, are not qualified to diagnose the applicant with a psychological condition, and that their findings are uncorroborated by the clinical notes and records (“CNRs”) of the applicant’s family physician, Dr. Afrooz Drakhshan.

15The respondent submits that the CNRs of Dr. Drakhshan, dated June 9, 2022, July 5, 2022, and July 5, 2023, identify pain complaints but do not mention any psychological concerns. The respondent submits, further, that the notes from the pre-screening interview conducted by Mr. Ross did not indicate why the interview was done absent any prior psychological complaints in the applicant’s medical records, whether any documentation was reviewed, or whether any objective psychological testing was completed.

16The respondent submits that Ms. Rumack oversteps her qualifications, as an RSW, by diagnosing the applicant with numerous psychological conditions, without the required designation and without any reference to the applicant’s medical records.

17Lastly, the respondent relies on the insurer’s examination (“IE”) conducted by Dr. Terra Seon, psychologist, who provided a psychological assessment in a report dated January 3, 2024. In her report, Dr. Seon found that the applicant denied having any marked anxiety symptoms while travelling or operating a vehicle, and she found that the applicant did not exhibit any accident-related psychological impairment.

18For these reasons, the respondent argues that the applicant has not demonstrated that she suffers from ongoing, post-accident psychological symptoms or clinically significant psychological impairments that warrant removal from the MIG.

19I find that the applicant has not directed me to corroborating medical evidence that she suffered psychological impairments, as a result of the accident, which would require removal from the MIG. I find that Mr. Ross and Ms. Rumack, as social workers, would have insights into psychological indicators that might require a psychological assessment, even if their insights are not formal psychological diagnoses. However, I find that the applicant has not produced CNRs, prescription history or other evidence that would validate the findings and recommendations of Mr. Ross and Ms. Rumack.

20I find, further, that the IE report of Dr. Seon is persuasive in that, in addition to her clinical interview, it involved a review of the applicant’s OHIP records, hospital and physician CNRs, and collateral benefits claims, as well as standardized psychometric testing. For this reason, I attach weight to Dr. Seon’s findings that the applicant did not exhibit any significant impairment from a psychological perspective in relation to her social, occupational, or overall level of functioning, and that her psychological injuries would be considered minor as defined by the Schedule. I find, also, that Dr. Seon’s report is consistent with the CNRs of Dr. Drakhshan, who observed the applicant for an extended period post-accident, including six visits from June 9, 2022 to August 10, 2023.

21I find that the weight of the evidence before me indicates that the applicant’s psychological impairments, due to the accident, do not require treatment outside of the MIG. The applicant has not directed me to evidence that she discussed any psychological impairment with a physician or health care provider, other than her social workers at Excel. I prefer the assessment of Dr. Seon over that of Ms. Rumack, because Dr. Seon reviewed the applicant’s medical history and utilized standardized testing in addition to the applicant’s self-reports.

22I acknowledge that, in certain instances, an applicant could be entitled to a psychological assessment to counter the findings in an IE. I find that the applicant that has not directed me to evidence that her psychological presentation and level of function meet the threshold that would warrant removal from the MIG to fund the requested psychological assessment.

23For the reasons above, I find that that the applicant has not demonstrated, on a balance of probabilities, that she suffered psychological impairments that warrant removal from the MIG.

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

24The applicant submits that in her Disability Certificate/OCF-3, dated June 28, 2023, she was diagnosed by Dr. Simon Rom, chiropractor, with sprain and strain of the cervical spine, hip, shoulder joint and parts of the knee. She attended physiotherapy for approximately 1.5 years, and she ended her treatment due to lack of funding from the respondent.

25The disputed OCF-18 for further physiotherapy, dated June 19, 2023, listed the same injuries as in the OCF-3, with goals of the treatment identified by Dr. Rom as pain reduction, increased range of motion and return to activities of normal living.

26The applicant submits that she has met the burden of proof to establish that the treatment plan is reasonable and necessary, by diligently attending the required treatment, and that she has done her best to recover within the limits provided. She submits that she has ongoing pain symptoms that have prevented her from being able to enjoy social and recreational activities and being able to return to her pre-accident employment in full capacity. For these reasons, the applicant submits that she is entitled to physiotherapy treatment outside of the MIG limit.

27The respondent submits that, on the night of the accident, the applicant was diagnosed at the hospital emergency department with soft-tissue injuries only. The respondent submits that the subsequent CNRs of Dr. Drakhshan confirm that she suffered soft-tissue injuries that would fall within the definition of a “minor” injury according to s. 3(1) of the Schedule.

28The respondent submits that the applicant has not provided substantive treatment records to support ongoing benefits of physiotherapy, despite previous treatment. The respondent argues that further physiotherapy is not reasonable and necessary, because the applicant has not demonstrated that the goals of the treatment are being met to a reasonable degree.

29The respondent relies on the IE report of Dr. Seung-Jun Lee, general practitioner, dated September 22, 2023, who found that the applicant had suffered a sprain and strain of the right hip, had returned to most of her pre-accident activities and was not taking any pain medication. Dr. Lee found that the applicant’s physical injuries were “minor” as defined by the Schedule and therefore the disputed treatment plan was not reasonable and necessary. The respondent relies, also, on the addendum paper-review report of Dr. Lee, dated January 8, 2024, to support its argument that the applicant’s physical injuries were “minor”. In the addendum report, Dr. Lee opined that, after reviewing the CNRs of Dr. Drakhshan, he did not note any discussion of accident-related musculoskeletal symptoms, and he found no valid indicators to support ongoing accident-related musculoskeletal injury or impairment.

30I find the IE reports of Dr. Lee more persuasive than the notes of Dr. Rom in the OCF-18, because they are consistent with the CNRs of Dr. Drakhshan. The applicant did not direct me to any notes, outside of those of Dr. Rom, which recommend further physiotherapy at that point in her recovery.

31I find that the weight of the evidence before me indicates that the applicant’s physical injuries were “minor” as defined by s. 3(1) of the Schedule. I find that the applicant has not directed me to hospital records, treatment CNRs or other evidence than would indicate that her physical injuries warrant removal from the MIG for treatment.

32For these reasons, I find that the applicant has not demonstrated, on a balance of probabilities, that her physical injuries warrant removal from the MIG.

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

33To 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.

34Since 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. No further analysis of whether the disputed treatment plans are reasonable and necessary is required.

Interest

35Interest 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

36I find that:

1. The applicant has not demonstrated that her injuries cannot be treated within the limit set by the MIG.
2. The proposed treatment plans are not payable since they propose treatment outside of the MIG.
3. No interest applies on overdue benefits in dispute.