Mohamud v. TD General Insurance Company, 2025 ONLAT 22-006178/AABS-R
RECONSIDERATION DECISION
Before: Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number: 22-006178/AABS
Case Name: Osman Mohamud v. TD General Insurance Company
Written Submissions by:
For the Applicant: Matthew Hyland, Counsel
For the Respondent: Adrianna Klukowska, Counsel
OVERVIEW
1On December 23, 2024, the respondent requested reconsideration of the Tribunal’s decision released December 2, 2024 (the “decision”).
2Stemming from an automobile accident on August 26, 2021, and a request for accident benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”), the Tribunal released the decision following a written hearing. According to paragraph 30 of the decision, the adjudicator ordered: “The applicant is entitled to $2,460.00 for an orthopaedic assessment, proposed in a treatment plan/OCF-18, which was submitted on May 3, 2022.”
3The adjudicator also made findings related to the applicability of the Minor Injury Guideline (“MIG”), though this issue was not in dispute.
4The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or
c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
5The respondent relies on Rule 18.2(a) and Rule 18.2(b) in its request for reconsideration. It is seeking an order to vary the decision to deem the orthopaedic assessment not payable.
6The applicant opposes the request for reconsideration. In the alternative, if the Tribunal finds a criterion for granting reconsideration is established under Rule 18.2, the applicant asks that the decision be upheld, pursuant to Rule 18.4.
RESULT
7The respondent’s request for reconsideration is granted, and, pursuant to Rule 18.4, the decision is cancelled.
8By rehearing the dispute based on the submissions and evidence from the initial written hearing, I conclude that the applicant has not established that the disputed treatment plan is reasonable and necessary. No interest is owing.
ANALYSIS
9The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
Rule 18.2(a) – Material Breach of Procedural Fairness
10I find the respondent has established a material breach of procedural fairness, such that Rule 18.2(a) is engaged. In light of this conclusion, I find it is not necessary to consider the respondent’s request pursuant to Rule 18.2(b).
11The respondent argues that the Tribunal breached its obligation of procedural fairness by focusing most of the decision on an issue that was not before the adjudicator. The case conference report and order noted that the applicant had been removed from the MIG. As a result, the only issues before the adjudicator were an orthopaedic assessment treatment plan (proposed by Dr. Darrel Ogilvie-Harris) and interest. Despite this scope, the respondent submits that the adjudicator “did not adequately focus” on the reasonable and necessary nature of the treatment plan, and instead spent much of the decision addressing whether the applicant remains in the MIG. Citing the Divisional Court’s ruling in Shahin v. Intact Insurance Company, 2024 ONSC 2059, the respondent claims the Tribunal effectively decided an issue without notice to the parties.
12In response, the applicant submits that: “The Tribunal took it upon themselves to assess the Applicant for Chronic Pain Syndrome”. In doing so, the applicant claims there was no error “in fact nor law as the Tribunal conducted their own testing to affirm the findings” of the disputed orthopaedic assessment report. The applicant further contends that the history of the claim, along with the respondent’s adjusting decisions, should show it would be unfair to require him to incur the costs of another assessment.
13I find the respondent’s concern about a lack of adequate “focus” on the treatment plan is best understood as an argument about the sufficiency of the reasons provided by the adjudicator. As noted by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”), reasons ensure the fairness and legitimacy of administrative decision-making by explaining how an adjudicator reached their conclusions (at paragraph 79, citations removed):
Reasons explain how and why a decision was made. They help to show affected parties that their arguments have been considered and demonstrate that the decision was made in a fair and lawful manner. Reasons shield against arbitrariness as well as the perception of arbitrariness in the exercise of public power…
14Further, as the Supreme Court stated at paragraph 39 in Baker v. Canada (Minister of Citizenship and Immigration, 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 (“Baker”), the provision of reasons allows decisions to be questioned: “Reasons… are invaluable if a decision is to be appealed, questioned, or considered on judicial review”.
15In the present case, it is difficult to discern the specific reasons for why the adjudicator concluded the applicant was entitled to the treatment plan, as a significant amount of her decision focused on the MIG. Guided by the principles from Vavilov and Baker, I find my inability, as the reviewing adjudicator, to discern the specific reasons for this essential finding constitutes a material breach of procedural fairness, pursuant to Rule 18.2(a).
16To start, the list of issues at paragraph 2 of the decision, as well as the “Result” section found at paragraph 3, both list the MIG limit as an issue. In the “Result” section, the adjudicator finds that the applicant “has demonstrated that removal from the MIG is warranted.”
17In the main body of the decision, there are several places where it is unclear what issue or issues the adjudicator’s findings apply to. For instance, when the following set of headers and paragraphs are read together, it is unclear whether the findings are addressing the MIG or the treatment plan [emphasis for headers in original decision; my emphasis added to the paragraphs 8 – 11]:
OCF-18 For Chronic Pain Assessment.
(a) Dr Darrel Ogilvie-Harris
I find that the applicant has non-minor injury that takes him out of the MIG.
To support the claim the applicant relies on the notes, reports of several medical practitioners as follows[.]
The applicant submitted an OCF-18 for a s. 25 Orthopaedic assessment by Dr. Darrel Ogilvie-Harris. Dr. Ogilvie-Harris had carried out a telephone assessment on the applicant on August 12, 2022. The purpose of the assessment was to determine the applicant’s orthopedic injuries, to provide diagnoses and recommend treatment. The medical evidence relied upon was a May 3, 2022, virtual orthopedic assessment report of Dr. Ogilvie-Harris, who diagnosed the applicant with chronic pain injuries and opined that he required a multidisciplinary rehabilitation program.
The respondent denied the treatment plan in dispute, relying on the insurer’s examination (IE) assessment of its General Practitioner, Dr. Seung-Jun Lee, dated March 18, 2022. Dr. Lee submitted that the applicant had sustained a soft tissue injuries including whiplash associated disorder, bilateral shoulder sprain/strain, and lumber myofascial sprain sprain/strain. Dr. Lee opined that the treatment was not reasonable and necessary.
18When these references to the treatment plan are paired with the conclusion that the applicant is removed from the MIG, I find a reader would likely be left without a clear understanding of what issue or issues the adjudicator is addressing. This uncertainty is further exacerbated by the reference to “notes, reports” that the applicant is relying upon to support an undefined “claim”. Specifically, is this “claim” about the disputed assessment mentioned in the header, or the MIG finding made at the start of this section? It is unclear.
19Then, in the second half of the decision, there is a detailed discussion about chronic pain and “removal from the MIG” that is based on Dr. Ogilvie-Harris’s disputed assessment. Again, I find the headers and paragraphs in this section would likely leave a reader uncertain as to what issue or issues the reasons are seeking to address [emphasis for headers in original decision; my emphasis added to the paragraphs 17, 18, 20, and 25]:
OCF-18 For Chronic Pain Assessment.
(b) Dr Darrel Ogilvie-Harris
Chronic Pain
I am satisfied that the applicant has chronic pain as a result of the accident.
The American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition 2008, (‘’AMA Guides’’) identify six criteria major’ characteristics of chronic pain syndrome, with three required to establish chronic pain syndrome.
Dr. Ogilvie-Harris report
In his report dated August 12, 2022, Dr. Ogilvie-Harris addresses the criteria under the AMA Guides. However, for reasons below, I assign much weight to Dr. Ogilvie-Harris’ opinion, he opined that the applicant scored positive criteria to 2, 3, 4, 5 and 6, which is a score of 5/6, which meets the threshold for a probable diagnosis of chronic pain syndrome. Based on the above-noted score as well as my own finding that the applicant has developed chronic pain syndrome. I find that the applicant met criteria 3, 4, 5 and 6, which is a score of 4/6.
After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant has met his evidentiary onus of showing that his chronic pain requires removal from the MIG[.]
20Once again, it is unclear whether the MIG or the treatment plan is being addressed. There is also an additional level of uncertainty created for the reader, since it appears the adjudicator is largely endorsing the findings and methodology of the assessment at issue in the treatment plan, but these conclusions are being used to support the applicant’s removal from the MIG.
21Finally, just before addressing interest and the order, the adjudicator states [at paragraphs 26 – 28, emphasis in original decision]:
The applicant has demonstrated on a balance of probabilities that he sustained impairment that justifies removal from the MIG.
Having determined that the applicant sustained an impairment that justifies removal from the MIG, I turn to an analysis of the treatment plan in dispute. In order for a medical or rehabilitation benefit to be payable under the Schedule the applicant must demonstrate that it is reasonable and necessary.
The treatment plan in dispute here is reasonable and necessary as $2,460.00 is a modest cost to pay in order to improve the applicant’s functioning.
22I find these reasons are insufficient to explain why the adjudicator concluded the treatment plan met the reasonable and necessary test. Aside from their largely conclusionary nature, I note that the reference to “a modest cost” appears to only address the “reasonable” wing of the entitlement test. There is no explanation for why the assessment is “necessary” to the applicant’s recovery. Also, despite referencing the need to “identify the goals of the plan” when summarizing the treatment plan entitlement test at paragraph 7, the adjudicator neither lists nor assesses the treatment goals from the plan.
23Turning to the applicant’s arguments, I find he has not satisfied me that the Tribunal met its obligation to provide a procedurally fair process. Whether I accept his position about the appropriateness of adjudicators confirming the opinions of assessors whose treatment plans are at issue, the fact remains that there is an unclear explanation of how this adjudicator concluded that this treatment plan was reasonable and necessary. Without sufficient reasons, the respondent has met its onus on reconsideration. In a similar vein, I further conclude that the applicant’s concerns about the fairness of this situation and the respondent’s adjusting decisions do not overcome my finding on Rule 18.2(a).
24In sum, I find that the decision does not adequately explain the decision-making process involved in granting entitlement to the treatment plan. I conclude that the reasons support the respondent’s submission that the adjudicator “did not adequately focus” on the applicant’s entitlement to the disputed treatment plan. As such, I find the respondent has established a material breach of procedural fairness, pursuant to Rule 18.2(a).
25Once again, it is not necessary for me to assess the respondent’s request based on Rule 18.2(b).
Rule 18.4 – Cancelling the Decision
26Having found the respondent established one of the criteria for reconsideration, I conclude it is appropriate to use my authority under Rule 18.4 to cancel the decision.
27The respondent has demonstrated that the decision did not provide sufficient reasons to establish entitlement to the plan. As such, I am satisfied that the only appropriate remedy is to cancel the decision. Put another way, since the decision did not possess a sufficient level of detail to explain how the hearing adjudicator reached her conclusions, it is, by extension, not possible for me as the reviewing adjudicator to confirm or vary the decision based on this same set of reasons. Instead, I will cancel the decision, and order it to be reheard based on the submissions and evidence from the written hearing.
28Further, considering the need for an efficient conclusion to this dispute, I am ordering that this rehearing will be completed by myself.
Rehearing
29Based on my review of the submissions and evidence from the written hearing, I find the applicant has not demonstrated entitlement to the disputed treatment plan. No interest is owing.
30To receive payment for a treatment and assessment plan 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.
31The disputed treatment plan was submitted on May 3, 2022. The applicant is seeking a total of $2,460.00 for: an orthopaedic assessment, a file review, report formulation and writing, and a fee for completing the OCF-18 form. The treatment goals include: pain reduction, increased range of motion, increase of strength, treatment recommendations, return to activities of normal living, and to identify impairments and help achieve maximum recovery. According to a comment made in the “Additional Comments” section of the form, the assessment will be “provided virtually” because of “the COVID-19 pandemic”.
32In the resulting report (dated August 12, 2022), Dr. Ogilvie-Harris noted that the virtual assessment took place over the telephone.
33The applicant supports payment of the treatment plan by claiming that he made persistent physical and psychological complaints to his family doctor, his treating clinic, insurance examiners, and others. He also highlights the findings made by Dr. Ogilvie-Harris in the resulting report.
34The respondent opposes the treatment plan, claiming that the medical evidence provided by the applicant does not provide sufficient corroboration for the assessment. Then, relying on case law involving virtual assessments conducted during the COVID-19 pandemic, the respondent claims the Tribunal has held that physical assessments should involve in-person testing. According to the respondent, Dr. Ogilvie-Harris’s telephone assessment not only deprived the assessor of in-person testing, but there was no way to see the applicant.
35I accept that the applicant has presented a compelling and consistent account of physical complaints in the months following the accident—physical complaints that can be explored with an orthopaedic assessment. For instance, the applicant complained about accident-related pain to his family doctor, Dr. Emad Abdulkarim, several days after the accident on August 30, 2021: “he has neck and shoulder and low back Paine [sic]”. During this visit, the doctor prescribed medication and referred him to physiotherapy.
36The applicant then made pain complaints to his treating clinic, Pro Physio & Sport Medicine. For instance, on November 19, 2021, the applicant reported continuing pain in his back. Then, on January 19, 2022, he complained about “hip pain”. His treating practitioners noted objective concerns as well, e.g., pain was recorded during several movements on December 14, 2021, while “Much difficulty” was noted during range of motion movements on January 11, 2022.
37Despite the respondent’s contention that there is insufficient evidence to support the applicant’s claim, I accept that there is a consistent timeline of physical complaints continuing up to the submission of the treatment plan in May 2022. Therefore, considering the consistency of these complaints and the objective findings from his clinic, I find the applicant has established that an assessment of his orthopaedic condition is a necessary step in his recovery, especially as a proposed goal is to prepare treatment recommendations. I also find the amount being sought is reasonable, as the cost of the assessment adheres to the funding limit under s. 25(5)(a) of the Schedule.
38Turning to its central argument, once again, the respondent takes issue with the assessor’s decision to conduct this assessment over the telephone. It contends that this format removed the ability of Dr. Ogilvie-Harris to not only interact physically with the applicant, but there was no way to see the applicant. Further, it argues that case law has questioned the value of physical assessments that do not include physical examinations, e.g., Lewis v. Cooperators General Insurance Co., 2022 CanLII 106460 (ON LAT).
39I find these submissions present a compelling challenge to my findings about the necessary nature of the assessment. Specifically, I find neither the assessor, nor the applicant, provided a sufficient explanation for why a telephone assessment was necessary in this case, as opposed to a virtual assessment that included a video component.
40First, at the start of the report, Dr. Ogilvie-Harris states the following:
A telephone consultation was performed with this patient. The patient’s consent was obtained in advance. The telephone consultation was carried out according to the recommendations of the College of Physicians and Surgeons of Ontario, the Ontario Medical Association, and the Ontario Health Insurance Plan. This specifically provides for telephone consultations where it is undesirable for the patient to make a personal appearance during the pandemic.
41I find there is no explanation provided by Dr. Ogilvie-Harris for why this specific assessment had to be conducted over the telephone. Briefly, I find there is no explanation for why a telephone call was used in place of a videoconferencing platform. This lack of a compelling explanation is a serious challenge to the necessary nature of the plan, as I find the lack of a visual element raises significant questions about Dr. Ogilvie-Harris’s ability to meet several of the proposed treatment goals, namely, increasing range of motion and identifying impairments.
42Second, the applicant did not expressly discuss the format of the assessment in his initial written hearing submissions, nor did he file any reply. Instead, many of his arguments focused on the contents of the resulting report, as well as his assertion that Dr. Ogilvie-Harris’s findings aligned with other medical evidence, e.g., the report from Dr. Rhonda Nemeth, psychologist (dated March 31, 2022); the records of Dr. Abdulkarim, etc. I do note that the applicant highlighted several questionnaires he completed during the assessment—a testing method that can be completed over the telephone. Yet, despite the ability to consider these test results, I still find the lack of a visual examination is a crucial, missing element from the assessor’s methodology—a missing element that neither the assessor nor the applicant adequately addresses. Overall, I conclude the respondent has successfully challenged the necessary nature of the treatment plan.
43In his responding reconsideration submissions, the applicant made several comments about the virtual format of the assessment. Specifically, the applicant argued that the respondent’s case law was factually distinct from this case, and he highlighted comments from Dr. Ogilvie-Harris’s report that supports the use of “Telemedicine in Orthopaedic Care during the COVID-19 pandemic”. Generally, submissions provided on reconsideration are not considered during a re-hearing of the underlying application. Yet, I do not see an issue with considering these comments, because they do not alter my findings. In addition to the fact that I am not bound by Tribunal case law, I note that the comments made by Dr. Ogilvie-Harris about telemedicine do not sufficiently challenge the concerns I raised above. Most of the commentary provided by Dr. Ogilvie-Harris does not differentiate between the use of videoconferencing platforms and telephones. In fact, the summary of his conclusions at the end of this section does not specifically mention the use of telephones, rather there is a general reference to “virtual care”.
44For these reasons, I find the applicant has not satisfied me that an orthopaedic assessment conducted over the telephone is necessary for the recovery of his accident-related impairments. As such, the applicant has not demonstrated, on a balance of probabilities, entitlement to payment of this treatment plan.
Interest
45Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue payment of benefits, no interest is owing.
CONCLUSION & ORDER
46The respondent’s request for reconsideration is granted.
47Pursuant to Rule 18.4, the decision is cancelled.
48Based on my review of the submissions and evidence from the written hearing, I find the applicant has not demonstrated, on a balance of probabilities, entitlement to the disputed treatment plan.
49No interest is owing to the applicant.
50The application is dismissed.
Craig Mazerolle
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: March 19, 2025