Citation: Mohsen v. Insurance Company, 2025 ONLAT 23-013983/AABS

Licence Appeal Tribunal File Number: 23-013983/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:

Aisar Mohsen

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Amanda Marshall

APPEARANCES:

For the Applicant:

Michael Adamek, Counsel

For the Respondent:

Emily Schatzker, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Aisar Mohsen, the applicant was involved in an automobile accident on June 19, 2020, and sought benefits from the respondent, Co-operators General Insurance, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied the treatment plans in dispute because the respondent determined that her accident-related impairments fell under the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

2A reconsideration decision dated December 3, 2025 ordered that the decision of October 1, 2025 be canceled and the appeal reheard by a different adjudicator.

ISSUES IN DISPUTE

3The issues to be decided in the hearing 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 $3,290.00 for a Psychological Assessment, proposed by Ghassan Arabieh in a treatment plan dated December 24, 2021?

3. Is the applicant entitled to the assessments/treatment plans proposed by Vitality Rehabilitation Group, as follows:

i. $2,503.45 for an Attendant Care Assessment, in a treatment plan dated April 13, 2022?

ii. $2,099.75 for a Chronic Pain Assessment, in a treatment plan dated April 13, 2022?

iii. $6,725.24 for Occupational Therapy Services, in a treatment plan dated April 13, 2022?

iv. $6,120.05 for Social Worker Services, in a treatment plan dated April 13, 2022?

4. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

4In her submissions, the applicant identifies that an award under s. 10 of Regulation 664 is an issue in dispute. Upon review of the Case Conference Report and Order (“CCRO”) dated May 17, 2024, I note the issue of an award is not listed. However, both parties have provided submissions on the award issue and therefore, I have added the issue to the hearing.

5The respondent provided submissions on whether the applicant is entitled to interest on any overdue payments. The issue of interest is not an issue properly before me as it was not listed on the CCRO nor was it included in the applicant’s submissions. Therefore, I will not be adding it to hearing.

RESULT

6I find that:

i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the MIG. It is not necessary to consider whether the disputed treatment plans are reasonable and necessary.

ii. The respondent is not liable to pay an award.

ANALYSIS

Applicability of the Minor Injury Guideline

7I find the applicant has not demonstrated on a balance of probabilities that she suffers from accident-related injuries that warrants removal from the MIG.

8Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are capped at $3,500.00 if the insured person sustains impairments that are predominantly a minor injury in accordance with the MIG. 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.”

9In order to be removed from the MIG, an insured person must 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 supported by compelling medical evidence stating that the condition precludes recovery if they are kept within the MIG limits. The Tribunal has also determined that concussion or concussion syndrome, chronic pain with functional impairment, or a psychological condition may be grounds for removal from the MIG. In all cases, the burden of proof lies with the applicant.

10The applicant argues that she should be removed from the MIG based on the following:

a. Accident-related chronic pain; and

b. An accident-related psychological condition.

11She relies on the clinical notes and records of her family physician, Dr. Dolly Nahri, a psychological assessment report from Dr. Alex Weinberger, psychologist, an occupational therapy process report from Casey Cadeau, occupational therapist, in-home assessment conducted by Fathima Thuan-Kichil, occupational therapist, the clinical notes and records from Ottawa Hospital as well as records from Dr. Peter Lapner, orthopaedic surgeon, and Dr. Amal Amer, general practitioner.

12The respondent submits that the applicant’s injuries are minor and relies on the Insurer Examination (“IE”) s. 44 assessments from the following:

i. Physiatry assessment by Dr. Mohammed Abdul Wahab Khan, physiatrist;

ii. Neurological assessment by Dr. Rehan Dost neurologist;

iii. Physiatry assessment by Dr. Farooq Ismail, physiatrist; and

iv. Psychological assessment by Dr. Christopher Cooper, psychologist.

Does the applicant suffer chronic pain with functional impairments as a result of the accident that warrants removal from the MIG?

13I find that the applicant has not established on a balance of probabilities that she suffers chronic pain with functional impairments as a result of the accident warranting removal from the MIG.

14To remove an applicant from the MIG, chronic pain must be more than a sequela of soft-tissue injuries. It must either amount to chronic pain syndrome or be continuous and severe enough to cause functional impairment or disability.

15The applicant relies on Dr. Weinberger’s 2018 psychological assessment. Dr. Weinberger’s assessment was completed for the applicant’s ODSP application. The assessment highlights the applicant’s significant limitations in her level of functioning due to both physical and psychological issues. His findings suggest that her physical pain and psychological challenges substantially restrict her ability to maintain autonomy and fulfill essential life roles. I find Dr. Weinberger’s assessment helpful in understanding the applicant’s capabilities and level of functioning pre-accident.

16Family physician records show the applicant reported headaches, severe joint pain, particularly in the right shoulder and lower back escalating from the S1 joint, throughout 2019, with difficulty sleeping due to pain. Post-accident records (June–October 2020) document three visits for headaches, right shoulder, neck, and lower back pain—complaints like those noted before the accident.

17The doctor recommended x-rays. A head CT was unremarkable, while a lumbar MRI showed mild degenerative changes with a small L5-S1 disc protrusion. A right shoulder MRI (Nov 12, 2020) suggested a healing or healed partial tear, but given pre-accident shoulder pain, the timing of the tear is unclear.

18An independent in-home assessment was completed on October 5, 2022 by Fathima Tuan-Kichil. I am not persuaded by Ms. Tuan-Kichil’s report for the following reasons:

i. During the functional cognition portion of the assessment, the applicant’s limited English proficiency posed challenges in completing the evaluation. I am concerned that an interpreter should have been provided throughout the entire assessment, as the absence of one raise uncertainty about whether instructions and information were accurately conveyed and received.

ii. Ms. Tuan-Kichil relies on Ms. Cadeau’s October 19, 2020 occupational therapy progress report, but its validity is questionable as well as no interpreter was present and the applicant’s pre-accident medical records were not considered. Had Ms. Cadeau reviewed the records, she would have found the applicant was diagnosed with chronic pain and psychological issues pre-accident.

iii. The assessment report indicates that the applicant was not taking any medications pre-accident but that conflicts with the family doctor’s records.

iv. Furthermore, I find Ms. Tuan-Kichil’s report’s portrayal of the applicant as happy, social, and active pre-accident contradicts pre-accident records, which document poor social interaction, concentration issues, a significant mental health condition, and physical challenges due to pain.

v. The report notes the applicant’s claim that weakness in her right arm caused her to drop a kettle, resulting in a burn to her right hand. However, hospital records do not provide reasons for the injury, making it unclear whether the burn was related to her accident-related injuries.

vi. Ms. Tuan-Kichil reports that the applicant’s pain has affected all aspects of her life including her ability to work yet Ms. Tuan-Kichil has not taken into consideration that the applicant has been on ODSP with limited capabilities both physically and mentally, and unable to work since 2018.

vii. The report notes that the applicant had a hard time following instructions and concentrating on tasks, but this has already been established in Dr. Weinberger’s assessment from 2018.

viii. Lastly, Ms. Tuan-Kichil acknowledges the applicant was observing a month-long religious holiday at the time of the assessment which can influence the applicant’s performance due to fasting, lack of sleep, and pain.

19I prefer Dr. Ismail’s October 18, 2022 IE physiatry report for the following reasons: The assessment was conducted with an Arabic interpreter and included an extensive review of the applicant’s medical history spanning seven years (2015–2022), which confirms that the applicant experienced chronic pain prior to the accident. Dr. Ismail incorporated family physician records, independent assessments, insurer examination reports, diagnostic imaging, and treatment plans. His physical examination revealed only mild, self-limited active range of motion and no evidence of myelopathy or cervical/lumbosacral radiculopathy. While he noted concerns regarding the November 12, 2020 right shoulder MRI, his specialized tests during the assessment were within normal limits, indicating no isolated impairment of the right shoulder.

20Dr. Ismail concludes that the applicant sustained soft tissue injuries to her cervical spine (WAD II), her right shoulder, and lumbar spine as a result of the subject accident. These findings do not indicate a chronic pain condition caused by the accident, and I see no reason to dispute his opinion. The applicant’s ongoing pain complaints are more consistent with her pre-existing chronic pain history rather than any new pathology from the accident.

21Having considered the assessments and medical evidence, I now turn to the American Medical Association Guides (“AMA Guides”) which outline six factors for assessing chronic pain and its impact on function. The Guides are not binding on the Tribunal and are not incorporated into the Schedule. However, several of the Tribunal’s decisions have found the AMA Guides to be a useful interpretative tool for evaluating chronic pain claims. The AMA Guides provides that you can be diagnosed with chronic pain when you have three or more of the six factors.

22I do not find that the applicant has three or more of the six factors.

23The applicant claims ongoing dependence on prescription medications and injections four years post-accident. However, the evidence shows little difference between her pre- and post-accident medications: before the accident, she was prescribed Baclofen, Ibuprofen, Tylenol 3s, Trintellix, Cipralex, and Pantoprazole; after the accident, Baclofen, Naproxen, Acetaminophen, Tylenol 3s, and Pantoprazole. The B12 injections she received pre-and post-accident are to treat anemia. Because the treatment regimen remained largely unchanged, I do not find this satisfies one of the six factors for chronic pain.

24While the applicant notes that she has excessive dependence on health care providers, I do not agree. The family doctor records provided are to October 2020. The only treating facility records are copies of the treatment plans in dispute. In terms of her dependence on family, as per the occupational progress report and in-home assessment, it is reported that she is unable to complete household tasks and gets her children and sister to assist her. As indicated above, I have concerns as to the validity of these reports. None-the-less, she consistently reported to all assessors that her son and sister have taken on more responsibilities. Even though I do not find she is dependent on health care providers, I find that she has somewhat met this factor based on her increased reliance on family.

25In terms of withdrawing from all social and recreational activities, as per the report of Dr. Weinberger pre-accident, the applicant had poor social interacting. It mentions that she does not have close friends, nor does she go out with others. She does not entertain or engage with the broader community. This has not changed post-accident, and therefore, this factor is not met.

26One criterion for diagnosing chronic pain is the failure to restore pre-injury function, resulting in insufficient physical capacity to meet work, family, or recreational needs. Pre-accident, the applicant had psychological issues and chronic pain with evidence she had difficulties looking after herself and her family, leaving her unable to work, participate in the community and engage in activities. Her functional status did not significantly change post-accident. I find she has not met this factor.

27Finally, I find that the applicant did not develop psychosocial sequelae after the accident. The applicant was experiencing anxiety, fear-avoidance, and depression, and nonorganic illness behaviours prior to the accident. I do not find her conditions increased as a result of the accident. Therefore, she has not met this factor.

28I find the applicant does not meet three or more of the AMA Guides criteria for chronic pain.

29In conclusion, I find that the applicant does not have chronic pain with functional limitations as a result of the accident.

Does the applicant suffer from a psychological condition as a result of the accident that warrants removal from the MIG?

30I find the applicant does not have a psychological condition as a result of the accident.

31To be removed from the MIG due to psychological impairments, the applicant must show that he has a psychological impairment and not just post-accident psychological sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.

32It is well documented that the applicant was suffering from a psychological condition for many years prior to the accident as evidenced by Dr. Weinberger’s assessment as well as her family doctor’s records.

33The applicant submitted family doctor records up to October 27, 2020, which contain minimal post-accident information. Ten days after the accident, she saw her family doctor, who noted she was tearful and upset when discussing the accident. However, subsequent visits show no documented psychological concerns. I find there is no contemporaneous evidence of a psychological condition directly linked to the accident.

34Ms. Tuan-Kichil’s attendant care assessment report identifies that the applicant has low mood, struggles to follow conversations, feels socially isolated and anxious with crowds and social gatherings triggering nervousness. These complaints are consistent with Dr. Weinberger’s 2018 report.

35The applicant does not accept the Insurer Examination findings but bears the onus of proving her case on a balance of probabilities. Despite this, she has not directed me to any substantive evidence demonstrating that she suffers from a psychological condition as a result of the accident. Mere disagreement with the insurer’s conclusions is insufficient; the applicant must provide persuasive medical or other objective evidence to establish causation and impairment. In the absence of such evidence, I am unable to find that the accident caused a psychological condition.

36Consequently, I find that the applicant does not suffer from a psychological condition as a result of the accident that warrants removal from the MIG.

37As the applicant is in the MIG, it is unnecessary to consider the reasonableness and necessity of the treatment plans in dispute.

Section 10 Award

38The applicant also sought an award under s. 10 of O. Reg. 664. Under s. 10, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. Since no benefits were unreasonably delayed or withheld by the insurer, the applicant is not entitled to an award.

CONCLUSION

39For the above reasons, I find:

i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the MIG.

ii. The applicant is not entitled to the treatment plans in dispute.

iii. The applicant is not entitled to an award.