Licence Appeal Tribunal File Number: 24-003029/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:
Umar Farooq
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR: Harouna Saley Sidibé
APPEARANCES:
For the Applicant: Ivy So, Paralegal
For the Respondent: Ryan Jeffries, Paralegal
HEARD: By way of written submissions
OVERVIEW
1Umar Farooq, the applicant, was involved in an automobile accident on July 20, 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:
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 $3,192.50 for physiotherapy services, proposed by Good Health Rehab Centre in a treatment plan/OCF-18 (“plan”) submitted December 22, 2021?
iii. Is the applicant entitled to $3,192.50 for physiotherapy services, proposed by Good Health Rehab Centre in a plan submitted March 26, 2022?
iv. Is the applicant entitled to $3,566.29 for psychological services, proposed by Excel Medical Diagnostics in a plan submitted May 11, 2022?
v. Is the applicant entitled to $3,218.60 for physiotherapy services, proposed by Good Health Rehab Centre in a plan submitted September 8, 2023?
vi. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Excel Medical Diagnostics in a plan submitted December 20, 2021?
vii. Is the applicant entitled to $52.52 ($111.56 less $59.05 approved) for prescription expenses submitted on a claim form (OCF-6) dated September 26, 2022?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons below, I find that:
The applicant’s injuries are not predominantly minor, so he is not subject to the MIG limit.
The applicant is entitled to the disputed treatment plans for physiotherapy services, psychological services, and psychological assessment, plus interest.
The applicant is not entitled to the outstanding amount of $52.52 for prescription expenses related to the OCF-6.
PROCEDURAL ISSUES
Exclusion of Section 44 Reports
4Section 44(1) of the Schedule provides that an insurer may require an insured person to be examined at an insurer’s examination (“IE”) to assess entitlement to a benefit under the Schedule, but not more than is reasonably necessary. A proper notice under s. 44(5) must state the medical and any other reasons for the examination; whether the insured’s attendance is required at the IE; the name, title and designation of the assessor conducting the IE; and the date, time and location of the assessment. The insurer shall make reasonable efforts to schedule the IE for a day, time and location that are convenient for the insured.
5The applicant argues that the psychological IE reports by Dr. Ricardo Harris (psychologist) are inadmissible because the notices lacked sufficient medical grounds, citing M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT), 16-003316 v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) and Waring v. Aviva General Insurance Company, 2022 CanLII 59513 (ON LAT). He submits that attendance does not cure defective notice.
6The respondent concedes that the notices lacked medical grounds, but argues that the exclusion is disproportionate and unsupported by Tribunal case law. It relies on Sunavsky v. TD General Insurance Company, 2025 CanLII 3782 (ON LAT) and Malone v. RSA Insurance, 2025 CanLII 518 (ON LAT), submitting that the only remedy for a deficient notice is the right not to attend. If the insured attends, the reports remain admissible.
7The February 8, 2022, notice stated: “Further to our correspondence dated February 7, 2022, we require an examination under Section 44 in relation to the additional medical documentation recently provided.” This does not identify specific medical reasons or missing information, contrary to s. 44(5).
8Medical reasons must include details about the insured’s condition or the required information. The respondent provided neither, making the notice insufficient for an informed decision. Attendance does not cure a deficient notice or waive substantive rights. The only right waived is the ability to argue non-attendance, not entitlement.
9Excluding reports after voluntary attendance would create an unfair tactical advantage and an absurd result. The Schedule protects insureds by allowing refusal to attend, not by invalidating reports post-attendance.
10In the absence of explicit language in the Schedule requiring exclusion, I find the reports are not void ab initio and may be relied upon.
11Accordingly, the psychological IE reports authored by Dr. Harris are admissible and will be considered.
Exclusions of Medical Articles
12The respondent submits that the applicant introduced, with his written submissions, for the first time since the date of loss, two medical articles, contrary to the Case Conference Report and Order (“CCRO”). This late disclosure prevented the respondent from obtaining expert comment. The respondent also argues that the applicant has not established the reliability of the articles, as there is no evidence of the authors’ qualifications, the publications' reputations, or any indication of whether the content was peer-reviewed. It characterizes the disclosure as “trial by ambush”, and it submits that the articles should not be relied upon, or alternatively, given no weight.
13The applicant made no submissions regarding these articles. The two articles are titled:
i. Flawed Studies of SIMS’s Diagnostic Accuracy by Teams of Puente-Lopez and Capilla Ramirez; and
ii. The Test of Memory Malingering (TOMM): normative data from cognitively intact, cognitively impaired, and elderly patients with dementia.
14While medical articles can provide general information, they are not a substitute for a medical opinion addressing an applicant’s specific circumstances. These articles were disclosed late and lack evidence of reliability. The applicant also did not respond to the respondent’s arguments regarding these materials. For these reasons, although I admit them into evidence, I assign no weight to them in my determination.
ANALYSIS
Are the applicant’s injuries predominantly minor?
15I find that the applicant’s injuries are not predominantly minor and thus the MIG limit does not apply.
16Section 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.”
17An 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 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.
18The applicant submits that his injuries are not minor because of chronic pain and psychological impairments.
Psychological impairments
19The applicant submits that psychological impairments generally remove an insured person from the MIG. In support of this position, the applicant relies on the Tribunal decision in M.G. (16-002951) v. Primmum Insurance Company, 2017 CanLII 33672, where the Tribunal found that an applicant’s psychological impairment took her treatment outside of the MIG. The applicant asserts that his psychological impairments, as reported to Dr. Ayodeji Babatope (family physician), Dr. Rohanna Robertson-Moore (psychiatrist), and Dr. Fahimeh Aghamohseni (psychologist), and as reflected in their diagnoses, demonstrate that he should be removed from the MIG.
20The applicant further submits that his complaints to these practitioners and the prescription summary were consistent, which he says supports the credibility and genuineness of his psychological impairments.
21The respondent argues that the applicant has not met the burden of proof on a balance of probabilities. It submits that the applicant relies primarily on self-reporting, Dr. Babatope’s notes, one note from Dr. Robertson-Moore, and Dr. Aghamohseni’s report. The respondent contends that none of these providers conducted validity testing and accepted the applicant’s statements at face value, without considering motivation or timing, despite the potential for secondary gain. The respondent further asserts that the applicant’s credibility is negatively impacted by his failure to produce medical documents ordered in the Case Conference Report and Order (“CCRO”), including an OHIP summary for the period between February 22, 2023, and January 5, 2024, and clinical notes from Dr. Babatope after August 2022. It seeks an adverse inference that the applicant has not seen any OHIP-funded healthcare providers since February 22, 2023, and that Dr. Babatope’s later records would not have supported his case. The respondent also argues that Dr. Aghamohseni’s report should be given less weight than Dr. Harris’s, as Dr. Harris reviewed medical records and OCF forms, while Dr. Aghamohseni relied solely on clinical interview and testing.
22In reply, the applicant explains that his health card expired on February 25, 2023, the same day his work permit ended, leaving him unable to access OHIP-funded services thereafter. He states that updated records from Dr. Babatope were provided on October 16, 2024. He relies on his prescription history and consistent complaints to his providers as evidence of credibility.
23The medical evidence includes diagnoses of anxiety, PTSD, and depression from Dr. Babatope and Dr. Robertson-Moore, and psychological testing by Dr. Aghamohseni. Dr. Harris’s report raises concerns about malingering, but his conclusion is not definitive. His addendum notes that Dr. Aghamohseni did not test for malingering, which complicates the reliability assessment.
24On September 23, 2021, Dr. Babatope diagnosed the applicant with high-level anxiety. On January 5, 2022, the applicant reported depressed mood, loss of interest, decreased appetite, sleep disturbance, fatigue, and impaired concentration. Dr. Babatope counselled the applicant on PTSD, referred him to Dr. Robertson-Moore, and recommended psychotherapy and/or medication.
25On March 1, 2022, Dr. Robertson-Moore diagnosed PTSD, major depressive disorder, and moderate to severe insomnia. She noted the applicant endorsed the classic trifecta of PTSD, depression, and insomnia, and recommended antidepressant therapy, medication, such as paroxetine and prazosin, psychotherapy, and time off work.
26On April 25, 2022, Dr. Aghamohseni administered a battery of psychological tests, including the Beck Depression Inventory-II, Beck Anxiety Inventory, Pain Patient Profile, Symptom Checklist 90-R, and Davidson Trauma Scale. He was diagnosed with cognitive concerns, such as memory and concentration decline, avoidance of intrusive accident thoughts, emotional symptoms of depression and anxiety, irritability, and in-vehicle anxiety symptoms. She opined that, nine months post-accident, the applicant continued to suffer substantial psychological trauma and that his prognosis was poor to guarded.
27Dr. Harris, in his March 24, 2022, report, indicated that the applicant failed two malingering tests, which prevented a definitive psychological diagnosis. In an October 28, 2022, addendum, Dr. Harris noted that Dr. Aghamohseni’s report did not include any malingering tests.
28I have considered the evidence and submissions of both parties. The applicant has provided diagnoses of PTSD, depression, and anxiety from qualified practitioners, supported by psychological testing. These diagnoses, if accepted, would generally remove an insured from the MIG. However, I must weigh this against the respondent’s concerns regarding reliability, timing, and validity testing.
29Dr. Aghamohseni’s report is detailed and based on standardized testing, but she did not review medical records, which limits the weight I can assign to her opinion. Dr. Robertson-Moore’s diagnosis of PTSD and depression is significant, but based on a single assessment. Dr. Babatope’s notes confirm psychological complaints, though these arose several months post-accident. Dr. Harris’s report raises concerns about malingering, but his conclusion is not definitive and does not outweigh the consistent diagnoses from multiple practitioners.
30Regarding the respondent’s argument on non-production, I accept the applicant’s explanation that his OHIP coverage ended when his work permits expired, which reasonably accounts for the absence of OHIP-funded treatment after February 2023. Updated records from Dr. Babatope were eventually provided. In these circumstances, I decline to draw an adverse inference.
31I also considered the prescription summary. It shows that the applicant was prescribed medications for pain, depression, and anxiety, including paroxetine and trazodone, which are consistent with his reported symptoms and the diagnoses by his treating practitioners. This supports the credibility of his psychological complaints.
32I find that the applicant has established, on a balance of probabilities, that he suffers from psychological impairments due to the accident. I have considered the respondent’s concerns about reliability, timing, and validity testing. Dr. Harris’s concerns about malingering were not definitive, given two failed tests and a lack of a complete assessment. His addendum noted that Dr. Aghamohseni did not test for malingering, but her standardized testing used validated tools. Although she did not review medical records, her results matched diagnoses by Drs. Babatope and Robertson-Moore. The timing of complaints—months after the accident—was explained by symptom progression and prescription history for antidepressants and pain medication. The respondent’s argument about missing OHIP records was addressed: the applicant explained his coverage ended when his work permits expired, and records were later provided. I do not infer any wrongdoing. Overall, diagnoses from qualified practitioners, supported by testing and prescriptions, outweigh the respondent’s concerns, establishing that the applicant’s psychological impairments are significant and outside the MIG.
33Accordingly, I find that the applicant’s injuries are not predominantly minor and that he is entitled to benefits beyond the MIG limits.
34Since the applicant is out of the MIG due to psychological impairments, I do not need to address the arguments about chronic pain.
Are the Physiotherapy Services and Prescription Expenses Payable Under Section 38 of the Schedule?
35Before addressing the merits of the disputed treatment plans, I note that the applicant has not made substantive submissions about why these plans are reasonable and necessary. Instead, his position is based primarily on alleged procedural breaches under s. 38 of the Schedule and the argument that, once removed from the MIG, the insurer’s stated reason for denial no longer applies.
36I find that the applicant is entitled to payments for the physiotherapy treatment plans and prescription expenses.
37Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18, which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well as the medical and other reasons why it considered any of the goods and services not to be reasonable and necessary.
38If an insurer fails to comply with its obligations under s. 38(8), the following consequences, as set out in s. 38(11) of the Schedule are triggered:
The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).
39The following treatment plans and expense claims are in dispute:
i. OCF-18, dated December 22, 2021, for physiotherapy services totalling $3,192.50.
ii. OCF-18, dated March 26, 2022, for physiotherapy services totalling $3,192.50.
iii. OCF-18, dated September 8, 2023, for physiotherapy services totalling $3,218.60.
iv. OCF-6, dated September 26, 2022, for prescription expenses totalling $52.52 ($111.56 less $59.05 approved).
40The applicant submits that these plans were denied solely because his injuries were classified as MIG. He argues that if the Tribunal finds he is not subject to the MIG, the disputed items should be payable under s. 38(8) and (11) because the respondent’s stated reason for denial would no longer be valid. These sections impose strict notice requirements and consequences for non-compliance. The applicant also relies on Co-operators v. Bennett, 2024 ONSC 467, where the Divisional Court held that an insurer cannot “split the determination” and continue to apply the MIG to some injuries once the insured is removed from it. While Bennett does not address s. 38(8) or (11), the applicant cites it to support his argument that the insurer’s MIG-based denials cannot stand once he is found to be outside the MIG.
41The respondent submits that the applicant bears the onus of proving that the treatment plans are reasonable and necessary. The applicant has made no submissions on this point. The respondent argues that the applicant remains subject to the MIG, the MIG limits have been exhausted, and there is no objective evidence warranting removal from the MIG.
42The January 6, 2022, denial (based on the plan dated December 22, 2021) was timely and included notice of the applicant’s dispute rights. However, the medical reasons provided lack sufficient detail to meet the requirements under s. 38(8). The letter states that the applicant’s treatment “should be subject to the limits of the ‘Minor Injury’ coverage” and explains that minor injuries “can be treated within the Minor Injury Guideline (MIG).” While this references the MIG framework, it does not provide individualized medical reasons addressing the applicant’s condition or why the proposed psychological assessment and treatment were considered unnecessary.
43The denial notice dated April 1, 2022 (plan from March 26, 2022) states that the applicant experienced “uncomplicated self-resolving soft tissue injuries,” which it categorizes as minor injuries under s. 44 examination reports. This provides more detail than the December letter and includes references to medical findings. Overall, I find this notice to be compliant with s. 38(8).
44The denial notice dated September 22, 2023 (from the plan from September 8, 2023) states that the claim was denied based on prior IE reports by Dr. Bansal and Dr. Harris, who concluded that the injuries are minor and that the MIG limit has been reached. The notice was timely, clearly presented specific medical reasons, and included the right to dispute. I consider this notice to be compliant.
45The October 18, 2022 denial (for the OCF-6 dated September 26, 2022) was issued more than 10 business days after the date of the OCF-6 and provides no medical explanation for why the applicant remains within the MIG or why the prescription expenses are not payable. The justification is purely administrative. I note that sections 38(8) and 38(11) of the Schedule apply only to treatment and assessment plans (OCF-18) and do not govern expense reimbursement requests under an OCF-6. Therefore, the automatic payment consequence in s. 38(11) does not apply here. Because the applicant did not provide evidence of the reasonableness and necessity of these expenses, the remaining $52.52 in prescription expenses is not payable.
46I have found that the applicant has been removed from the MIG due to psychological impairments. The insurer denied the physiotherapy plans solely on the grounds that the applicant was subject to the MIG at the time of denial. Section 38(8) requires insurers to provide medical and other reasons when issuing a denial so that the applicant understands the basis for the decision and can take steps to challenge it. This obligation applies at the time the denial is made; it does not require the reasons to remain accurate indefinitely. While the insurer’s MIG-based reasons were valid for notice purposes when given, they are no longer relevant to determining entitlement now that the applicant has been found to fall outside the MIG. In these circumstances, the insurer’s stated reason for denial does not justify the continued refusal of the plans. I also note the Divisional Court’s decision in Co-operators v. Bennett, which confirms that an insurer cannot “split the determination” and continue to apply the MIG to some injuries once the insured is removed from it.
47The respondent did not provide any alternative reasons for denying the physiotherapy plans beyond the MIG position. Accordingly, the physiotherapy treatment plans dated December 20, 2021, March 26, 2022, and September 8, 2023, are payable.
48Accordingly, on a balance of probabilities, I find that the physiotherapy treatment plans dated December 20, 2021, March 26, 2022, and September 8, 2023, are payable. The outstanding amount for the prescription expenses is not payable.
Is the applicant entitled to the treatment plans for psychological treatment and assessment?
49To receive payment for a treatment and assessment plan under s. 15 and s. 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.
50The purpose of assessments is to determine whether a condition exists. For an applicant, they bear the onus of demonstrating that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
Psychological Treatment
51I find that the applicant is entitled to the psychological treatment plan.
52The treatment plan, dated May 11, 2022, seeks $3,566.29 for psychological services. It outlines 12 sessions of therapy, 12 service preparation, 1 mental health test and one documentation of support activity.
53The applicant submits that he suffers from psychological impairments and is entitled to treatment, including psychotherapy and medications, such as Teva-Trazodone and PMS-Paroxetine, as prescribed by his treating physicians.
54The applicant relies on the OCF-18 prepared by Dr. Aghamohseni (December 3, 2021), which documents anxiety, trauma symptoms, and mood disturbances, and recommends psychotherapy. He also points to the medication history and clinical notes from Dr. Babatope and Dr. Robertson-Moore, which corroborate psychological distress.
55The respondent argues that these diagnoses are unreliable because they are based solely on the applicant’s self-reporting. Neither Dr. Aghamohseni nor Dr. Robertson-Moore reviewed relevant medical records, conducted validity testing, or considered the timing of the assessment request.
56I have reviewed the evidence and submissions. The applicant’s psychological issues are documented by multiple practitioners, supported by prescribed medications, and consistent over time. While the respondent raises valid concerns about the methodology, the diagnoses are thorough and backed by clinical notes and treatment history. On January 5, 2022, Dr. Babatope recommended psychotherapy, and on March 1, 2022, Dr. Robertson-Moore also recommended psychotherapy.
57On balance, I am satisfied that the applicant’s psychological impairment is real, functionally limiting, and accident-related. The proposed treatment plan, which includes 12 sessions of psychotherapy, service preparation, and mental health testing, is designed to address the applicant’s ongoing symptoms of anxiety, depression, and trauma. Psychotherapy is a recognized and appropriate intervention for these conditions, and the plan aligns with recommendations from Dr. Babatope and Dr. Robertson-Moore. Given the persistence of symptoms and the applicant’s limited progress to date, I find that the treatment outlined in the plan is likely to improve coping strategies, reduce psychological distress, and support functional recovery.
58Accordingly, I find that the psychological treatment plan dated May 11, 2022, for $3,566.29, is reasonable and necessary and is payable.
Psychological Assessment
59I find that the applicant is entitled to the psychological assessment plan.
60The plan, dated December 20, 2021, is for $2,200.00. The applicant relies on F.H. (17-003735) v. Certas Direct Insurance Company, 2018 CanLII 39445 (ON LAT), in which the Tribunal held that an applicant needs only to prove that it is reasonable to investigate whether an impairment exits, not that the impairment exists. The applicant submits that he has met this burden and is entitled to funding for the assessment.
61The respondent argues that the diagnoses of psychological impairments are unreliable for the reasons noted above: reliance on subjective complaints, lack of validity testing, and failure to review medical records. It also questions the timing of the request and the potential for secondary gain.
62I accept the principle in F.H. that the threshold for an assessment may be lower than that for treatment. The applicant reported psychological symptoms within a reasonable timeframe, and clinical findings and medication prescriptions later corroborated his complaints. On balance, I am satisfied that there were sufficient grounds to warrant investigation.
63Accordingly, I find that the psychological assessment plan, dated December 20, 2021, for $2,200.00 is reasonable and necessary and is payable.
Interest
64Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies to all overdue benefits.
ORDER
65For the above reasons, it is ordered that:
i. The applicant’s injuries are not predominantly minor, so he is not subject to the MIG limit.
ii. The applicant is entitled to the disputed treatment plans for physiotherapy services, psychological services, and psychological assessment, plus interest.
iii. The applicant is not entitled to the outstanding amount of $52.52 for prescription expenses related to the OCF-6.
Released: December 12, 2025
Harouna Saley Sidibé
Adjudicator