Citation: Barekzai v. The Personal Insurance Company, 2025 ONLAT 24-004056/AABS

Licence Appeal Tribunal File Number: 24-004056/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:

Masoud Barekzai

Applicant

and

The Personal Insurance Company

Respondent

DECISION

ADJUDICATOR:

Bernard Trottier

APPEARANCES:

For the Applicant:

Christopher Caffrey, Counsel

For the Respondent:

Nathan Fabiano, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Masoud Barekzai, the applicant, was involved in an automobile accident on March 15, 2023, 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.

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 services, proposed by 101 Assessments in treatment plans/OCF-18s (“plans”) as follows:

i. $2,460.00 for a psychological assessment, in a plan submitted October 2, 2023?

ii. $4,688.38 for psychological services, in a plan submitted February 21, 2024?

3. Is the applicant entitled to $2,394.69 for physical rehabilitation services, proposed by 101 Physio Medical Rehabilitation Centre in a plan submitted July 22, 2024?

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

RESULT

3The applicant has not demonstrated that his injuries are not minor, as defined by the Schedule, and 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 limit are not payable.

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

ANALYSIS

The Minor Injury Guideline limit

6The three treatment plans in dispute all sought treatment outside of the MIG limit. In his written submissions, the applicant indicated that the $3,500 MIG limit was exhausted.

7Section 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.”

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 parties dispute whether the applicant suffered psychological injuries and/or chronic pain with functional impairment, as a result of the accident, that would warrant removal from the MIG, and whether the treatment plans in this matter are reasonable and necessary.

The applicant’s psychological condition does not place him outside of the MIG

10The applicant submits that he had no pre-accident psychological problems. On October 2, 2023, 101 Assessments submitted the disputed psychological assessment plan on behalf of the applicant. In its Response to Medical Recommendations, dated October 7, 2023, the respondent denied payment for the assessment, indicating that it had insufficient corroborating evidence that psychological treatment was reasonable and necessary, and it requested clinical notes and records (“CNRs”) from the applicant’s family physician for review.

11In its response to the disputed psychological services treatment plan submitted February 21, 2024, the respondent indicated, on March 4, 2024, that it had not received any CNRs from the applicant’s treating physician to support the need for this treatment.

12November 27, 2023, the applicant was assessed by Tina Abadi, qualifying psychotherapist, under the supervision of Dr. Mehdi Lotfalizadeh, psychologist, both of 101 Assessments. For brevity, I will identify the report and the opinions therein as those of Dr. Lotfalizadeh. In his psychological assessment report, dated December 19, 2023, Dr. Lotfalizadeh opines that the accident has resulted in the following diagnoses of the applicant, according to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 5th Edition:

1. Somatic symptom disorder, with predominant pain, severe, persistent.

2. Adjustment disorder with mixed anxiety and depressed mood.

3. Specific phobia, situational type (motor vehicles).

13In his report, Dr. Lotfalizadeh recommended that the applicant receive ongoing psychological treatment, requiring 16 counselling sessions of 1.5 hours each, as well as attendances at a driving anxiety assessment and a chronic pain assessment.

14The applicant submits that he was not able to produce CNRs of a family physician because he had been unable to find one, due to the shortage of family physicians in Ontario. The applicant submits that the CNRs of 101 Physio Medical Rehabilitation Centre (“101 Physio”) provide corroborating evidence that he had suffered psychological impairments, when he reported that he was not reacting quickly, that he felt like he was in a fog, and that he was seeing a psychologist.

15The applicant submits that the respondent has not conducted any insurer’s examinations (“IEs”) of the applicant to refute the reasonableness and necessity of the psychological assessment and counselling services. The applicant argues, supported by the decision in Pottayya v. Unica Insurance Inc., 2021 CanLII 28673 (ON LAT) (“Pottayya”), that he has met his onus to show that the disputed psychological treatment plans are reasonable and necessary and that they place him outside of the MIG.

16The applicant submits that the findings of Dr. Lotfalizadeh demonstrate that he suffers from a psychological impairment, and that the decision in Pottayya supports the proposition that medical documentation beyond that of the treating and/or assessing professionals is not required to be removed from the MIG.

17The respondent counters that the applicant’s OHIP records indicate a lack of post-accident medical attention. The OHIP records indicate that the applicant did not have any post-accident medical visits from March 15, 2023, to November 10, 2023.

18The respondent submits that the applicant’s first post-accident visit to any physician was when he visited the Markham Fertility Centre on November 10, 2023, for conditions unrelated to the accident.

19The applicant provided CNRs of his primary care physicians at Intrepid Health Group (“Intrepid Health”), Dr. Chizoba Anne Nwobu and Dr. Isah Usman, from April 11, 2024 to August 29, 2024. The respondent submits that the CNRs indicate a total of four post-accident visits, that none of the CNRs indicates any complaints of psychological issues, and that they do not even mention the accident.

20The respondent submits, further, that the CNRs of 101 Physio, covering 26 visits from September 28, 2023 to August 29, 2024, are almost entirely silent on the applicant’s psychological condition, with blank spaces in the “how are you feeling today?” sections, in the “notes and recommendations” sections, and in the “subjective” and “objective” sections. The respondent argues that the applicant has not provided objective, corroborating medical evidence, in the CNRs of Intrepid Health or 101 Physio, to support his claim that he needs psychological services outside of the MIG, as a result of the accident.

21The respondent argues that the psychological assessment of Dr. Lotfalizadeh contains inaccurate self-reports from the applicant that were not verified. Specifically, the report states that the applicant visited a physician several days after the accident and that he was referred to a specialist and to a physiotherapist, whereas the OHIP records indicate that he did not see a physician for eight months following the accident. The report also states that the applicant had to switch to part-time work after the accident, whereas the applicant’s Application for Accident Benefits/OCF-1, submitted September 21, 2023, states that the applicant was working part-time (8 hours per week) before the accident, and therefore did not “switch to part-time work”.

22The respondent submits that there is no evidence that the psychological assessors reviewed any of the applicant’s medical documents to verify his self-reports, or that they completed any objective validity testing to identify exaggeration or over-reporting. The respondent argues that because the report of Dr. Lotfalizadeh has inaccurate information, and because the findings are not supported by any corroborating medical evidence, the report should be given limited weight.

23The respondent argues that Pottayya is distinguishable from the present matter because, in Pottayya, the applicant suffered a concussion and complained to his family physician of post-accident psychological issues. The respondent argues that, in the present matter, the applicant has not provided any contemporaneous evidence of psychological issues reported to a treating practitioner.

24I find that the applicant has not provided corroborating medical evidence, outside of Dr. Lotfalizadeh’s psychological assessment report, that the applicant suffered psychological injuries as a result of the accident. The applicant did not direct me to any specific section of the CNRs of 101 Physio where the applicant mentioned any psychological issues. Further, I find that the CNRs of Intrepid Health, about one year post-accident, do not mention psychological issues or even mention the accident.

25I find that Dr. Lotfalizadeh’s assessment relied on the applicant’s self-reports, which were found to be inaccurate in that they stated that the applicant switched to part-time work after the accident, while the OCF-1 indicated that he did not. The applicant’s self-report to Dr. Lotfalizadeh was inaccurate, also, in stating that he visited a physician shortly after the accident and was referred to a specialist, whereas the OHIP records indicate that this was not the case. I find that the applicant did not direct to me to any section of Dr. Lotfalizadeh’s report that demonstrates that they examined the applicant’s medical and work histories, among other statements, to test the validity of the applicant’s self-reports. For this reason, I assign limited weight to the report of Dr. Lotfalizadeh.

26I find the decision in Pottayya is distinguishable from the current matter, because in the present matter the applicant did not direct me to any corroborating medical evidence of psychological issues. The respondent argues that the decision in Sampson-Samuel v. Wawanesa Mutual Insurance Company, 2023 ONLAT 20-006829/AABS (“Sampson-Samuel”) should be relied upon, where the adjudicator found that a lack of corroborating psychological complaints led to a finding that the applicant did not establish impairment warranting removal from the MIG. While every matter before the Tribunal relies on its specific evidence, I find that Sampson-Samuel is more instructive than Pottayya in informing my decision.

27The applicant argues that the respondent failed to conduct IEs to refute the findings of the psychological assessment, and therefore the findings should be accepted. I find that the Schedule does not obligate an insurer to conduct IEs, and that the burden of proof remains with the applicant to demonstrate entitlement to benefits on a balance of probabilities.

28I find that the weight of the evidence before me does not demonstrate that the applicant suffered psychological injuries as a result of the accident that require treatment outside of the MIG. I find that the psychological assessment, to which I assign limited weight, does not meet the onus required by the applicant to prove entitlement to treatment outside of the MIG.

29For these reasons, I find that the applicant has not demonstrated, on a balance of probabilities, that he suffered a psychological impairment as a result of the accident that warrants removal from the MIG.

The applicant’s pain complaints do not place him outside of the MIG

30The applicant submits that, before the accident, he was healthy and fully functional in all of his activities of daily living. Between September 28, 2023 and August 29, 2024, the applicant attended sessions for various therapies at 101 Physio to treat his back, neck, right shoulder and left wrist. These therapies included inferential current therapy, hyperthermy, massage therapy, range of motion therapy, cardio therapy, stretching and acupuncture.

31The applicant submits that he suffers from severe chronic pain in his back, neck and right shoulder, rated by the applicant at 7 to 9 out of 10, and migraines rated by the applicant at a constant 10 out of 10, where “10” represents maximal pain and “0” represents no pain at all. The applicant submits, further, that he has suffered functional impairment as a result of the accident, including no longer participating in sports, bending, lifting and contributing to house chores.

32The applicant submits that, as with the psychological treatment plans above, that the respondent has not conducted any IEs to refute the applicant’s claims of chronic pain. The applicant argues, supported by the findings in Zhao v. The Personal Insurance Company, 2023 CanLII 56122 (ON LAT) (“Zhao”), that absent any medical findings from the respondent to support its position, the applicant’s ongoing pain complaints demonstrate the applicant’s case on a balance of probabilities.

33The applicant submits that Dr. Lotfalizadeh’s report indicates that the applicant is struggling with chronic pain and that his ability to function is severely limited. The applicant argues that this assessment is supported by the CNRs of 101 Physio, over the course of their treatment of the applicant.

34The respondent counters that the applicant did not seek medical attention in the months following the accident, and when he did, on November 10, 2023, it was to visit a fertility clinic. The respondent submits that in his four visits with Intrepid Health, from April 11, 2024 to August 29, 2024, the applicant did not complain of any pain and that he did not mention the accident. The respondent submits that the subject of the visits with Intrepid Health was blood tests, urinalysis and stomach issues, with no apparent discussion about accident-related pain.

35The respondent submits that the CNRs of Intrepid Health and 101 Physio do not note chronic pain complaints, indicating that the applicant did not voice anything of concern during these visits.

36The respondent submits, further, that the applicant did not demonstrate a loss of function consistent with a chronic pain diagnosis. The respondent submits that the applicant continued to work eight hours per week, as he did before the accident.

37The respondent argues that Zhao is distinguishable from the present matter in that Zhao involved an applicant who was found to suffer from chronic pain with functional impairment in line with the criteria used by American Medical Association’s Guides, 6th edition (the “AMA Guides”) for evaluating chronic pain claims.

38The Tribunal generally relies on the AMA Guides to determine whether chronic pain is medically valid (see, for example, the Tribunal’s analysis in 17-007825 v. Aviva Insurance Canada, 2018 CanLII 98282 ON LAT). The AMA Guides state that at least three of the following six criteria must be met for a diagnosis of chronic pain:

1. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.

2. Excessive dependence on health care providers, spouse, or family.

3. Secondary physical deconditioning due to disuse and or fear avoidance of physical activity due to pain.

4. Withdrawal from social milieu, including work, recreation, or other social contracts.

5. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.

6. Development of psychosocial sequelae after the initial incident, include anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

39The respondent submits that the applicant has not provided evidence to indicate that he meets any of the six criteria of the AMA Guides. Specifically, the respondent argues that the applicant has not demonstrated failure to restore pre-injury capacity to pursue work and family needs, as he continues to work part-time and he advised his psychological assessors that he continues to perform home maintenance activities and self-care.

40I find that the applicant’s complaints of chronic pain are inconsistent with the CNRs of his healthcare providers, Intrepid Health and 101 Physio. I find that the degree of pain mentioned to his psychological assessors (7-10 out of 10), if valid, should have been mentioned and captured somewhere in the CNRs, yet it was not. For this reason, I assign little weight to the pain complaints identified in the report of Dr. Lotfalizadeh.

41I find that the appellant has not demonstrated that he meets the criteria of chronic pain in the AMA Guides, generally relied upon by the Tribunal in determining whether chronic pain is medically valid. In his submissions, the applicant did not direct me to the criteria and argue how his condition meets those criteria.

42I find that the decision in Zhao is distinguishable from the present case, in that the applicant in Zhao relied on CNRs and other documentary evidence from several healthcare providers in the period following her accident, in support of her claim of a chronic pain diagnosis.

43A formal diagnosis of chronic pain is not required by the Tribunal for removal from the MIG. At the same time, the respondent is not obligated to conduct an IE of the applicant when there is a claim of chronic pain. I find there is insufficient evidence in the CNRs of the applicant’s treatment providers, and in the psychological assessment report of Dr. Lotfalizadeh, that the applicant suffered chronic pain with functional impairment.

44For these reasons, I find that that the applicant has not demonstrated that he suffers from chronic pain with functional impairment that would warrant removal from the MIG.

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

45I find that the applicant’s injuries fall within the definition of the MIG.

46As the MIG limits have been exhausted, there is no further entitlement to medical or rehabilitation benefits and therefore an analysis into whether the treatment plans are reasonable and necessary is not required.

Interest

47As no benefits are owing, the applicant is not entitled to interest.

ORDER

48For the reason above, I find that:

i. The applicant’s injuries are minor as defined by the Schedule;

ii. The applicant is not entitled to the disputed treatment plans; and

iii. The application is dismissed.