Citation: Rizwan v. Intact Insurance Company, 2025 ONLAT 23-009675/AABS

Licence Appeal Tribunal File Number: 23-009675/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:

Hassan Rizwan

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Rasha El Sissi

APPEARANCES:

For the Applicant: Gjergji Laloshi, Paralegal

For the Respondent: Leslie Jack, Counsel

HEARD: By way of written submissions

OVERVIEW

1Hassan Rizwan, the applicant, was involved in an automobile accident on November 22, 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 the respondent, Intact Insurance 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 $689.25 for physiotherapy services, proposed by PhysioMed (Milton) in a treatment plan/OCF-18 ("plan") dated January 12, 2023?

iii. Is the applicant entitled to $1,358.70 for physiotherapy services, proposed by PhysioMed (Erin Mills) in a plan dated May 10, 2023?

iv. Is the applicant entitled to $2,429.26 for physiotherapy services, proposed by PhysioMed (Erin Mills) in a plan dated January 9, 2023?

v. Is the applicant entitled to $3,100.00 for a Psychological Assessment, proposed by Dr. Jeremy Frank & Associates in a plan dated March 6, 2023?

vi. Is the applicant entitled to $2,975.29 for a Chronic Pain Assessment, proposed by Medex Assessments in a plan dated June 15, 2023?

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

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

RESULT

i. The applicant is removed from the MIG.

ii. The applicant is entitled to the treatment plans proposed by PhysioMed, i.e., dated January 12, 2023 ($689.25), May 10, 2023 ($1,358.70) and January 9, 2023 ($2,429.26)

iii. The applicant is entitled to the treatment plan proposed by Medex Assessments, i.e., dated June 15, 2023 ($2,486.00).

iv. The applicant is not entitled to the treatment plan proposed by Dr. Jeremy Frank & Associates, i.e., dated March 6, 2023.

v. The applicant is entitled to interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule.

vi. No award is granted.

ANALYSIS

MIG

3Section 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."

4The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under s. 18(2), that he has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if he is kept within 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.

Does the MIG apply?

5I find that the MIG does not apply on account of the applicant's chronic pain with functional impairment. As a result, the applicant is no longer subject to the $3,500.00 treatment limit.

6The applicant submits that the injuries sustained as a result of the subject accident clearly fall outside the MIG because they are far more serious and long-term than the limitations of the MIG can accommodate. The applicant points to his post-accident diagnosis of chronic pain syndrome and psychological conditions. The applicant relies on the clinical notes and records ("CNR") of Dr. Aneil Bhandari prior to the subject accident, and of Dr. Erum Perveen, family doctor, after the accident. The applicant points to the CNR of his treating health practitioners at PhysioMed. He also relies on a chronic pain assessment of Dr. Yen-Fu (Tom) Chen, specialist, a psychological assessment of Dr. Jeremy Frank, psychologist and a psychiatric consultation of Dr. Zia Ul-Haque, psychiatrist. He seeks an order that his impairments fall outside the MIG, that the treatment plans in dispute be found reasonable and necessary, and a special award.

7The respondent submits that applicant's injuries fall within the definition of "minor injury" and that the applicant does not have a pre-existing injury or condition that would hinder his healing. The respondent submits that the applicant has not demonstrated that he suffers from either chronic pain with a functional impairment or chronic pain syndrome. The respondent argues that Dr. Chen's chronic pain syndrome diagnosis is not substantiated with medical evidence that demonstrates that at least three of the six chronic pain criteria in the 6th edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment Guides (the "Guides") are met. It seeks an order that the MIG applies, and the applicant is not entitled to the disputed treatment plans or a special award.

Physical Impairment

8The applicant was assessed and treated for strains / sprains and myofascial pain in multiples areas of the body following the subject accident. There is no indication in the medical evidence that the applicant suffered physical injuries in the accident that would necessarily fall outside the definition of minor injuries.

9Following the accident, the applicant was first seen by his family doctor, Dr. Perveen on December 5, 2022, who assessed low back strain and RHQ pain with mild tenderness. Dr. Perveen ordered an X-ray and ultrasound, which were normal for any musculoskeletal injuries. Dr. Perveen recommended physio and massage therapy, Advil, Tylenol and muscle relaxants.

10The applicant sought physical and massage therapy at PhysioMed in January 2023. The disability certificate ("OCF-3") signed on January 9, 2023 by Dr. Anthony Yearwood, chiropractor, states that the applicant suffered injuries of low back pain, neck pain, thoracic pain and superficial injury of lower leg. The applicant was initially assessed by a physiotherapist at PhysioMed on January 19, 2023. The physiotherapist diagnosed cervicothoracic sprain/strain, lumbosacral sprain/strain, General MFPS [myofascial pain syndrome] of LE's [lower extremities].

11All of this medical evidence indicates that the applicant's injuries were within the scope of a "minor injury" as defined by the Schedule.

Psychological Condition

12The applicant's position is that he has severe psychological impairments resulting from the subject accident that necessitate treatment beyond the MIG limit.

13The applicant relies on the psychological assessment of Dr. Jeremy Frank, psychologist, dated May 31, 2023. Dr. Frank diagnosed the applicant with mood disturbance marked by irritability, low mood, as well as persistent worry since the accident. He noted that these symptoms were most closely aligned to DSM-V-TR criteria for Adjustment Disorder with Mixed Anxiety and Depression, classified as mild to moderate in severity. He did not go so far as to make a DSM-V-TR diagnosis, however. He recommended 12 sessions of psychotherapy.

14The respondent relies on the s. 44 psychological assessment of Dr. Rakesh Ratti, dated April 27, 2023. Dr. Ratti concluded that the applicant presented with minimal emotional/psychological distress regarding the accident, that there was no evidence that psychological factors resulted in functional limitations, and that he did not meet DSM-V-TR criteria for any mental health diagnosis.

15I find Dr. Frank's opinion of diminished value, because the results of the applicant's psychometric testing by Dr. Frank were unremarkable. This finding then allows me to infer that Dr. Frank's diagnosis was principally based on the applicant's presentation and information gathered during the clinical interview. I prefer Dr. Ratti's opinion that there is no DSM-V-TR diagnosis because the interview, test results and assessment are consistent with each other.

16Dr. Frank states that the applicant completed the following four psychometric tests: Personality Assessment Inventory (PAI); Depression Anxiety Stress Scales -- 21 items (DASS-21); Pain Catastrophizing Scale (PCS); and Pre-Post Symptom Questionnaire. According to Dr. Frank, the results of the applicant's PAI showed a valid profile with no clinical indicators of impairment; the applicant's DASS-21 response profile was indicative of normal reports of stress and free-floating anxiety, normal reports of psychological anxiety and panic symptoms, and normal reports of depression; his PCS scores suggested the applicant was not reporting a significant tendency to fixate on the pain and its negative consequences when it occurred, to dwell on worst case scenarios when experiencing pain, or to feel relatively ineffectual at coping with pain. Finally, in the applicant's self-report symptom questionnaire, Dr. Frank reported that the applicant indicated the following symptoms were a mild problem now as compared with before the accident (headaches, sleep disturbance, fatigue or tiring more easily, being irritable or easily angered, feeling depressed or tearful, and poor concentration) and the following symptoms were the same before the accident (noise sensitivity, feeling frustrated, forgetfulness or poor memory, and taking longer to think).

17Regarding the lack of alignment, Dr. Frank states that the psychological tests were not normed for the applicant's first language or cultural background and therefore should be interpreted with caution. No other evidence was presented to support this.

18I am not persuaded that the applicant's psychological symptoms identified by Dr. Frank warrant removal from the MIG. Removal from the MIG is focused on restoring function. The report of Dr. Frank indicates that the applicant was functioning despite his symptoms. For instance, he continued with self-care, housekeeping, employment and working out at the gym, though at a lesser frequency and/or with breaks.

19The applicant also provided an independent psychiatric consultation report by Dr. Zia Ul Haque, dated November 14, 2023, based on an assessment on November 9, 2023. Dr. Ul Haque diagnosed the applicant with Major Depression with Anxiety (partial remission) and Post-Traumatic Stress Disorder ("PTSD"), both subsequent to the accident.

20I do not find this consultation report compelling for the following reasons. First, it does not explain what "partial remission" of Major Depression with Anxiety means, and, therefore, it is unclear to me what depression and anxiety symptoms continued a year after the accident. This lack of clarity is compounded by evidence of a contemporaneous report to Dr. Anthony Yearwood, chiropractor at PhysioMed, dated October 30, 2023, that states that the birth of the applicant's son led to issues with his wife and depression "which have resolved". The applicant points to Dr. Yearwood's SOAP notes in his submissions on pain.

21In addition, the applicant's PTSD related symptoms -- flashbacks, nightmares and hyperarousal -- reported to Dr. Ul Haque are not consistent with symptoms reported to Dr. Frank six months earlier. In his interview with Dr. Frank, the applicant specifically denied flashbacks, nightmares, recurrent, intrusive or distressing memories, or any fear as a driver, passenger, pedestrian. There is no explanation of this inconsistency.

22I also note that there is no evidence of any follow-up with Dr. Ul Haque.

23Finally, apart from a report to Dr. Marsha Dunkley on November 3, 2023 (the practitioner who referred the applicant to Dr. Ul Haque), there is no evidence the applicant complained about his mental health to any physician. I note that Dr. Dunkley was not the applicant's family physician, and there is only one encounter with her in evidence. The applicant did not complain about psychological concerns to his family doctor, Dr. Perveen, other than a reference to "having psychological assessment this week for insurance" in a note dated April 10, 2023. The notes and records of the applicant's health practitioners at Physiomed contain only one reference to psychological complaints (to Dr. Yearwood mentioned above). There is also no complaint about psychological concerns made to Dr. Jason Ali, whom the applicant consulted virtually several times after the accident for accident-related pain.

24Therefore, I do not find, on a balance of probabilities, that the applicant has an accident-related psychological condition that warrants removal from the MIG.

Chronic Pain with Functional Impairment

Chronic Pain Disorder Diagnosis

25I find the applicant has established that he sustained chronic pain as a result of the accident, such that he should be removed from the MIG.

26The applicant relies on Dr. Chen's chronic pain assessment and submits that it represents a transition from what might have been initially considered soft tissue injuries to a complex, long-term condition requiring multidisciplinary management.

27The respondent submits that Dr. Chen's chronic pain diagnosis is not substantiated with medical evidence, and, therefore, it is unconvincing. The respondent relies on the diagnosis by Dr. Sangit Sharma, s. 44 IE physician assessor, that the applicant sustained accident-related soft tissue injuries only, i.e., cervical myofascial strain (WAD I); thoracic myofascial strain; and nonspecific low back strain -- pre-existing and exacerbated by the index accident.

28I find Dr. Chen's report compelling for the following reasons. Dr. Chen assessed the applicant in person, with a focus on chronic pain, and included an evaluation of the applicant's functional impairment from pain. Dr. Chen's report unites various diagnoses into an explanation of the applicant's ongoing pain complaints and how they result from soft-tissue injuries. In addition to myofascial injuries of the spine and limb muscles; post-traumatic insomnia, as reported by the applicant; and aggravation of pre-existing musculoskeletal impairments from previous injuries, Dr. Chen diagnosed the applicant with chronic pain disorder with associated psychological impacts. Dr. Chen opined that the applicant's prognosis for full recovery to pre-accident function and physical level was guarded and recommended multidisciplinary treatment, along with a TENS machine for home use.

29The s. 44 report of Dr. Sharma is more limited in value. Dr. Sharma's assessment was a physician's assessment in connection with the OCF-18 dated May 10, 2023 proposed by PhysioMed for physiotherapy services, and it focused on musculoskeletal injuries and impairment.

30I find that the applicant's complaints reported to Dr. Chen are corroborated by other medical evidence. It is evident from the reports of both assessors, and the CNR of his treating physicians and health practitioners at PhysioMed, that the applicant was experiencing pain in different body parts after the accident. His pain was constant or intermittent and moderate to severe. Approximately four months after the accident, the applicant commenced virtual consultations with Dr. Ali, which run from March to September 2023. In the CNR of Dr. Ali from this period, the applicant's sole reason for the consultation is back pain and leg pain. There is also corroboration for these complaints of ongoing pain in the reports of his health practitioners at PhysioMed, as well as in Dr. Chen's findings of tenderness and guarding on palpation and mild to moderate reductions in range of motion. I note that the record of these complaints in the CNR of PhysioMed practitioners continues until 10 months after the accident, and that they sometimes improve and sometimes worsen, but never resolve.

31I find that Dr. Sharma supports Dr. Chen's conclusion of chronic pain in that he recommends that the applicant consult his family doctor to optimize his pain medication and consider other pain management intervention. However, Dr. Sharma maintains that the applicant's prognosis is good, in time, because the applicant does not have any musculoskeletal injuries, whereas Dr. Chen maintains that the applicant's symptoms are likely to persist (prognosis is "guarded").

32Given Dr. Chen's expertise and clinical experience, and that the applicant continued to experience pain throughout his body for many months after the accident, I find Dr. Chen's diagnosis of chronic pain compelling, and I do not find that Dr. Sharma's opinion displaces that.

Functional Impairment

33In order for chronic pain to be a basis for removal from the MIG, there must be functional impairment associated with the pain. I find there is evidence of functional impairment related to the applicant's pain experience.

34Regarding functional impairment, the applicant points to Dr. Chen's report. Dr. Chen uses the 4th edition of the Guides, in which 4 of 8 characteristics are required to establish chronic pain syndrome. Dr. Chen lists these characteristics and opines that 6 of 8 have been met, i.e., duration, drugs, depression, disuse, dysfunction and dependence.

35The respondent submits that Dr. Chen's conclusion that the applicant has a functional impairment is unconvincing. The respondent points to the assessment by Dr. Sharma in a paper review after receiving the OCF-18 for Dr. Chen's assessment. Dr. Sharma discussed the applicant's functional impairment associated with chronic pain using the 6th edition of the Guides and found he did not meet a majority of the criteria.

36The Tribunal has found the 6th edition of the Guides can be a useful interpretive tool when assessing a claim of chronic pain. However, meeting a particular number of the criteria of the Guides is not required in order for an insured person to be removed from the MIG due to chronic pain because the Schedule does not statutorily incorporate the Guides.

37The criteria of the 6th edition of the Guides are:

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

ii. Excessive dependence on health care providers, spouse, or family;

iii. Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain;

iv. Withdrawal from social milieu, including work, recreation, or other social contacts;

v. 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; and

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.

38Three of six of the criteria must be met under the 6th edition of the Guides. Dr. Sharma found that the applicant met criteria iv and v only.

39Having reviewed the evidence, I find the applicant's reports of various functional impairments, reflected in the CNRs and assessment reports in evidence, have weight because they are consistent over time and detailed. It is on the basis of these that I find the applicant has functional impairment related to his ongoing pain. I note that the functional impacts I have found were also noted by Dr. Chen, and, to an extent, by Dr. Sharma, in their interviews of the applicant.

40Prior to the accident, the applicant worked as an IT consultant from home and sat for long periods of the day; his wife was pregnant and gave birth after the accident. He had social and recreational hobbies. After the accident, I find that the applicant continued to work and help out at home, but that he was more limited in doing so, as well as more limited in his social and recreational hobbies. I also find that he was impaired in sleeping due to pain.

41Starting approximately two months after the accident, the CNR for the initial physiotherapy assessment described the applicant's functional impairments related to these physical injuries as follows: the applicant is working from home (full duties), which is aggravating his neck, but he has to work; he is doing all housework with aggravation; and he is continuing cardio exercise at the gym, but not weights. The CNR for the initial chiropractic assessment around the same time described the applicant's report of lower extremity pain when sitting and getting ready for sleep.

42Approximately five to six months after the accident, the applicant was assessed by Dr. Ratti for a s. 44 psychological assessment and by Dr. Frank for a s. 25 psychological assessment. I find that these reports are consistent with the reports the applicant made to Dr. Chen and Dr. Sharma in various areas of function. For instance, regarding sleep, Dr. Chen diagnosed the applicant with post-traumatic insomnia, as reported by the applicant. The applicant also reported to Dr. Sharma that he experienced poor sleep due to pain. Dr. Ratti and Dr. Frank both recorded that the applicant complained of delayed onset of sleep and waking up at night and struggling to return to sleep.

43Additionally, the CNR of Dr. Perveen, about 10 months after the accident, notes that the applicant is complaining of back and neck pain, that it hurts to sleep and asks for muscle relaxant after trying Tylenol and Naproxen. Having reviewed the evidence, I note that the applicant reported to various assessors that he found it more challenging to concentrate because of daytime fatigue, related to pain. He also reported that he takes more breaks and performs his employment work of an IT consultant more slowly.

44The applicant also made statements regarding withdrawing from social and recreational activities and avoiding physical activities to Dr. Frank, Dr. Sharma and Dr. Chen. Dr. Sharma recorded, 7 months after the accident, that the applicant only goes to the gym for stretching and the sauna now due to pain; he is no longer able to play soccer or swim due to pain; and he rarely socializes with his friends and primarily stays home due to pain. Dr. Chen noted that, 10 months since the accident, the applicant has not enjoyed playing sports and exercising in the same manner. He also has not enjoyed going to the movies and shopping.

45The applicant reported to Dr. Chen that he is limited in his ability to lift and carry his child, lift and carry the car seat and change diapers. He reported to Dr. Yearwood, in an intermediate chiropractic assessment 10 months after the accident, that he continued to have tension in his legs, made worse with prolonged sitting and increased childcare. He also reported to Dr. Dunkley, at a similar time after the accident, that he is not able to play with and or help with his infant son as he would like to due to ongoing pain from the subject accident.

46In conclusion, I find that the applicant has met his burden to prove, on a balance of probabilities, that he suffers from functional impairment related to pain in the areas of sleep, childcare, and social and recreational activities. The evidence of functional impairment supports the reliability of the chronic pain disorder diagnosis that Dr. Chen made. I find that these impairments meet criteria ii, iii, iv and v of the 6th edition of the Guides and the characteristics of duration, disuse, dysfunction and dependence of the 4th edition of the Guides. I find that the applicant's condition of chronic pain with functional impairment lies outside of the definition of a minor injury and warrants treatment outside of the MIG.

47I find that the applicant has demonstrated that the following plans are reasonable and necessary:

i. $689.25 for physiotherapy services, proposed by PhysioMed in a plan dated January 12, 2023;

ii. $1,358.70 for physiotherapy services, proposed by PhysioMed in a plan dated May 10, 2023;

iii. $2,429.26 for physiotherapy services, proposed by PhysioMed in a plan dated January 9, 2023; and

iv. $2,486.00 (reduced in the applicant's submissions from $2,975.29 as listed in the case conference report and order) for a Chronic Pain Assessment, proposed by Medex Assessments in a plan dated June 15, 2023.

48I find that the applicant has not demonstrated that the following treatment plan is reasonable and necessary:

i. $2,486.00 (reduced in the applicant's submissions from $3,100.00 as listed in the case conference report and order) for a Psychological Assessment, proposed by Dr. Jeremy Frank & Associates in a plan dated March 6, 2023.

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.

50Furthermore, the purpose of an assessment is to determine whether a condition exists. The applicant bears the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

Physiotherapy, Massage Therapy and Chiropractic Services

51I find the applicant has established entitlement to the three treatment plans for physiotherapy, massage therapy, and chiropractic services.

52The plan for $689.25 is for an assessment, physiotherapy services and documentation, proposed by PhysioMed (Milton) on January 12, 2023. The plan relates to injuries and sequelae of generalized anxiety disorder, radiculopathy, and sprains and strains of the cervical, thoracic, and lumbar spine. The goals of the plan are reducing pain and increasing strength and range of motion to enable the patient to return to activities of daily living and resume pre-accident work activities. The plan states that the applicant has difficulty with sustained prolonged postures, that his job demands aggravate his symptoms and in turn increase his anxiety.

53The plan for $2,429.26 is for an assessment, chiropractic services, physiotherapy, massage therapy and documentation, proposed by PhysioMed (Erin Mills) on January 9, 2023. The plan relates to injuries and sequelae of low back pain, cervicalgia, pain in thoracic spine and superficial injury of lower leg. The goals of the plan are reducing pain and increasing strength and range of motion to enable the patient to return to activities of daily living and resume pre-accident work activities. The plan states that this is the initial plan from this facility.

54The plan for $1,358.70 is for an assessment, physiotherapy, massage therapy and documentation, proposed by PhysioMed (Erin Mills) on May 10, 2023. The plan is for the same injuries and goals as in the preceding paragraph. The plan states that the patient continues to have difficulty performing activities as a result of pain and requires further treatment to resolve pain issues.

55The applicant submits that physiotherapy and massage therapy were recommended by his family doctor, Dr. Perveen, and that they were effective at reducing his pain and improving his function. He also submits that he required more therapy than allowed by the MIG for pain relief and improved functioning. The applicant points to the CNR of Dr. Perveen on April 10, 2023, and the following recommendation of Dr. Chen in his report:

After the previous treatment attempts, persistent chronic pain is still reported by the examinee. Multidisciplinary pain management may be considered at this time if it has not been previously attempted. This kind of team management has been documented in medical literature... to provide better pain and functional improvement effect.... In my opinion, this type of pain treatment is a reasonable and necessary option for this examinee.

56The respondent submits that the treatment providers have not outlined any clear goals for the applicant's recovery, nor did the applicant submit convincing medical evidence to support the need for the plans. In addition, the respondent relies on Dr. Sharma's opinion that the applicant suffered minor soft tissue injuries in the subject accident, had received extensive passive therapy already, did not require additional facility-based therapy, and, accordingly, that the plans are not reasonable and necessary. The respondent further submits that the applicant did not provide evidence of reaching the goals or making appropriate progress via a home-based exercise program.

57Having found that the applicant is not limited to the MIG because of chronic pain with functional impairment, I find that the plans, which have as goals reducing pain and increasing strength and range of motion to enable him to return to activities of daily living and resume pre-accident work activities, are reasonable and necessary.

58The CNR of Dr. Perveen dated December 5, 2022 and April 10, 2023 indicate that the doctor's assessment and plan included the applicant receiving massage and physio. The CNR of Dr. Ali, between March and September 2023, also endorse continuing physical therapy as recommended by Dr. Perveen. The recommendation of Dr. Chen is not specific, but I find that it clearly endorses ongoing treatment to provide better pain and functional improvement effect for the applicant. I note that Dr. Sharma's opinion is that the applicant has received sufficient treatment to date, but on balance that view is outweighed by the views of Dr. Perveen, Dr. Ali and Dr. Chen.

59In conclusion, I am of the view that the three plans are supported by the applicant's ongoing pain symptoms and functional impairment related to pain, as well as by contemporaneous medical evidence, and that the applicant is entitled to the services proposed in these plans in the amounts of $689.25, $2,429.26 and $1,358.70.

Chronic Pain Assessment

60The plan for $2,975.29 is for a chronic pain assessment, completion of the OCF-18, brokerage service and transportation, proposed by Medex Assessments on June 15, 2023. There is a list of physical and psychological injuries identified in the plan. The goal is a return to activities of normal living. The plan summarizes a medical pre-screening, which states that the applicant is still symptomatic, experiencing neck, back, hips and lower extremity pain and other physical symptoms, disturbed sleep, difficulty remembering and concentrating and low mood.

61At the time the plan was proposed, six months had passed since the accident, and the applicant was continuing to have pain symptoms with functional impairment, as discussed above in the contemporaneous CNR of the applicant's physicians, PhysioMed practitioners and various assessors.

62The purpose of the plan was to determine whether the applicant suffered from chronic pain, what its impacts were and what treatment was recommended. I find that the applicant has met his onus to demonstrate that there were grounds on which to believe, at the time, that this condition exists that would warrant further investigation by way of the proposed assessment. I do not find that Dr. Sharma's previous physician's examination of the applicant, with a finding of no physical impairment, rendered Dr. Chen's assessment unnecessary and unreasonable. In my view, Dr. Chen's specialist assessment offered the possibility of establishing a diagnosis and recommending treatment for better outcomes than had been achieved to date.

63The respondent submits that the applicant failed to show that the chronic pain assessment and initial assessments were not reasonably available through OHIP. Further, the respondent submits that the applicant did not point to any evidence that the "assessment, and initial assessments" were not reasonably available. The respondent submits that Dr. Perveen could have referred the applicant to another physician to be assessed, which would have been funded by OHIP.

64In reply, the applicant submits that, apart from a general statement, no evidence has been offered by the respondent about how OHIP operates, or how it would cover the cost of the proposed assessment. The applicant argues that no reference has been made to the section the respondent is relying on for this assertion, nor did the respondent offer any supporting arguments. The applicant cites 16-001283 v. Unifund Assurance Company, 2017 CanLII 33656 (ON LAT) ("Unifund").

65Having reviewed the evidence, I do not find the respondent has met its onus to demonstrate that the kind of chronic pain assessment proposed in this treatment plan was reasonably available from OHIP, following the guidance provided in Unifund.

66Accordingly, on a balance of probabilities, I find that the applicant is entitled to the cost of the chronic pain assessment report and OCF-18 in the amount of $2,486.00 ($2,200.00 plus tax of $286.00, as reduced in the applicant's submissions from $2,975.29).

Psychological Assessment

67The plan for $3,100.00 is for a psychological assessment and documentation proposed by Dr. Jeremy Frank & Associates on March 6, 2023. The injuries are adjustment disorders, and the goal is to return to activities of normal living.

68In his submissions, the applicant states that he limits his request to $2,000.00 for a psychological assessment and $200.00 for the completion of the OCF-18, plus HST, which is the maximum allowed under the Schedule.

69In support of the reasonableness and necessity of the plan, the applicant points to the pre-screening interview on March 6, 2023, summarized in the plan, which states that the applicant reported having intrusive memories of the accident and experiencing feelings of anger, irritability, helplessness and hopelessness.

70The applicant also points to the later diagnoses and opinions provided by Dr. Frank and Dr. Ul-Haque, psychiatrist. As discussed under "Psychological Condition", I place little weight on these opinions due to the lack of positive psychometric test results in Dr. Frank's case; the lack of contemporaneous evidence of psychological complaints to Dr. Perveen, Dr. Ali and the health practitioners at PhysioMed; Dr. Ul-Haque's notation that the applicant was in partial remission; and the inconsistency between Dr. Frank and Dr. Ul-Haque regarding the applicant's reports of symptoms of post-traumatic stress disorder.

71I do not find that the applicant has demonstrated that there were grounds, at the time, on which to believe that an accident-related psychological condition exists that would warrant further investigation by way of a psychological assessment.

72Accordingly, on a balance of probabilities, I do not find that the applicant is entitled to the cost of the proposed psychological assessment.

Interest

73Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on any overdue payment of benefits.

Award

74The applicant sought an award under s. 10 of O. Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

75The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning "behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate." The onus is on the applicant to prove, on a balance of probabilities, that the respondent's conduct meets this threshold.

76The applicant submits that it was unreasonable of the respondent to deny the benefits proposed by the plans in light of the medical information and his indicated needs. The applicant takes specific issue with the respondent's reliance on the s. 44 reports of Dr. Sharma, which the applicant submits did not fully address the complexity of his symptoms.

77The respondent submits that its reliance on the medical reports of Dr. Sharma and Dr. Ratti was reasonable, and that there is no evidence that its decisions were improper.

78I do not find that the applicant has met his burden to provide that the respondent's conduct meets the high threshold for an award. The applicant did not provide persuasive evidence that the insurer's conduct was excessive, imprudent, stubborn, etc.

79Accordingly, on a balance of probabilities, I find that no award is granted.

ORDER

80For the above reasons, I find:

i. The applicant is removed from the MIG.

ii. The applicant is entitled to the treatment plans proposed by PhysioMed, i.e., dated January 12, 2023 ($689.25), May 10, 2023 ($1,358.70) and January 9, 2023 ($2,429.26).

iii. The applicant is entitled to the treatment plan proposed by Medex Assessments, i.e., dated June 15, 2023 ($2,486.00).

iv. The applicant is not entitled to the treatment plan proposed by Dr. Jeremy Frank & Associates, i.e., dated March 6, 2023.

v. The applicant is entitled to interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule.

vi. No award is granted.