Licence Appeal Tribunal File Number: 23-008958/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:
Ibrahim Farah
Applicant
and
BelairDirect Insurance Company
Respondent
DECISION
ADJUDICATOR: Samia Makhamra
APPEARANCES:
For the Applicant: Dayana Soto Santana, Paralegal
For the Respondent: Robbie Brar, Counsel
HEARD: By way of Written Submissions
OVERVIEW
1Ibrahim Farah, the applicant, was involved in an automobile accident on April 10, 2023, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, BelairDirect 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. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from April 17, 2023, and ongoing?
ii. Is the applicant entitled to $900.00 ($4,102.52 less $3,202.52) for physiotherapy services, proposed by 101 Physio in a treatment plan/OCF-18 (“plan”) submitted April 12, 2023, and denied July 25, 2023?
iii. Is the applicant entitled to $3,145.99 for physical rehabilitation services, proposed by101 Physio in a plan submitted August 2, 2023, and denied August 8, 2023?
iv. Is the applicant entitled to $2,359.52 for physical rehabilitation services, proposed by 101 Physio in a plan submitted November 27, 2023, and denied November 28, 2023?
v. Is the applicant entitled to $1,247.33 ($3,790.70 less $2,543.37 approved) for a psychological assessment, proposed by 101 Assessments in a plan submitted June 23, 2023, and denied July 20, 2023?
vi. Is the applicant entitled to $2,460.00 for a neurological assessment, proposed by 101 Assessments Centre, in a plan submitted July 24, 2023, and denied July 26, 2023?
vii. Is the applicant entitled to $2,460.00 for cognitive assessment, proposed by 101 Assessments Centre, in a plan submitted July 20, 2023, and denied July 21, 2023?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to an income replacement benefit (“IRB”).
4The treatment plans in dispute are not reasonable and necessary.
5The applicant is not entitled to interest, as there are no overdue payments of benefits.
ANALYSIS
The applicant is not entitled to an IRB
6To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
7I find the applicant is not entitled to receive an IRB. More specifically, and as explained below, I am not persuaded that he suffered a substantial inability to perform the essential tasks of his pre-accident employment as a result of the accident. He has not persuaded me that there was any functional impact to his work from a physical or psychological perspective. While I accept that he has sustained psychological impairments as a result of the accident, and that he has also been diagnosed with chronic pain by his family doctor, the applicant has not persuaded me that these conditions have led to a substantial inability to perform the essential tasks of his pre-accident employment.
8Before the accident, the applicant was employed as a yard check-in for trucks. According to a job site evaluation by Dawn Rodie, physiotherapist, conducted on June 8, 2023, some of the physical demands of this work include walking for long periods of time, opening truck doors, climbing inside trucks, and bending under trucks. The applicant has not returned to work since the accident. He submits he is entitled to an IRB because of the severity of his injuries, as he was diagnosed with chronic back pain and a psychological impairment. He relies on the clinical notes and records of his family doctor, Dr. Ehab Saad; records from treatment providers at 101 Physio Medical Rehabilitation Centre; and records from Samy’s Family & Wellness Clinic. Further, the applicant is critical of the Insurer’s Examinations (IE) assessors’ reports because they did not review any of the clinical notes and records of his family doctor or his treatment providers.
9The respondent relies on reports from its s. 44 IEs to support its position that the applicant is not entitled to an IRB. The applicant was assessed by: Dawn Rodie, physiotherapist, for a functional abilities evaluation and physical demands analysis on June 8, 2023; Dr. Ahmed Mian, family physician, on June 13, 2023; and Dr. Howard Waiser, psychologist, on June 20, 2023. All three IEs concluded that the applicant did not meet the eligibility test for an IRB.
10I find that the applicant has not shown he suffered a substantial inability to perform the essential tasks of his pre-accident employment. The medical evidence tendered in support of the applicant’s position are notes from his family doctor, who diagnosed him with chronic lower back pain during an appointment on May 30, 2023, notes from Samy’s Family and Wellness Clinic, where he was assessed for lower right side pain, as well as medical records from 101 Physio Medical Rehabilitation Centre, where the applicant received regular weekly treatments, indicating lower back pain. However, this evidence does not inform me of the types of tasks the applicant was unable to perform because of this back pain. In other words, there is no evidence that, within 104 weeks after the accident, the applicant suffered a substantial inability (from a physical or psychological perspective) to perform the essential tasks of his employment.
11I am persuaded by the IE reports from July 2023, a few weeks after the applicant’s chronic pain diagnosis by his family doctor. They provide a more complete and fulsome analysis of the applicant’s abilities as they relate to the type of work he did before the accident. More specifically, Ms. Rodie found no restrictions, based on a physiotherapy examination, although functional testing was limited in scope as the applicant declined to perform certain tests due to pain, such as lifting, bending, crouching and kneeling. Dr. Mian found that the applicant had sustained soft tissue injuries to the cervical and lumbar spine and left knee in the form of sprain/strain, and he opined that the applicant would recover as these were transient and self-limiting injuries. Dr. Waiser diagnosed the applicant with mild-moderate adjustment disorder, and, although he could not predict when the applicant would be recovered, it was his opinion that this was a temporary condition. In other words, in examining the essential tasks of the applicant’s pre-accident work, the IE assessors concluded that he did not suffer a substantial inability to complete these tasks.
12Further, the fact that the IE assessors did not review the applicant’s medical records is not as concerning to me given that they examined and interviewed the applicant and did not require additional documentation before presenting their findings.
13To conclude, based on the submissions and evidence, I find that the applicant has not demonstrated that he suffered a substantial inability to perform the essential tasks of his employment. As such, the applicant is not entitled to an IRB.
The unpaid portion of the treatment plan for physiotherapy services, submitted on April 12, 2023, is not reasonable and necessary
14This treatment plan was partially approved following an IE assessment by Dr. Behzad Taromi, orthopaedic surgeon. The amount of $900.00 that is left in dispute is for transportation services, denied in accordance with s. 3(1) of the Schedule. Section 3(1) limits the amount payable for transportation to a 50 km deductible per round trip unless the injuries are deemed catastrophic. As the applicant’s injuries are not deemed catastrophic and the transportation did not meet the criteria for funding, the respondent denied this portion of the treatment plan.
15I have not been provided with any evidence by the applicant to persuade me that the transportation expense denied in this treatment plan should be allowed, or that the respondent erred in its denial. This portion of the treatment plan is, therefore, not reasonable and necessary.
The treatment plan for physical rehabilitation services, submitted on August 12, 2023, is not reasonable and necessary
16To 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.
17The applicant argues that the severity of his injuries and the diagnosis of chronic pain by his family doctor demonstrate that this treatment plan, which proposes several sessions of physical rehabilitation, is reasonable and necessary.
18The respondent denied this treatment plan following a paper review by Dr. Behzad Taromi, orthopedic surgeon, dated September 12, 2023, who concluded that this treatment plan was not reasonable and necessary.
19I am persuaded by the conclusions of Dr. Taromi, who reviewed medical records that were available at the time, and, based on this review, concluded that this treatment plan was not reasonable and necessary. In addition to a number of treatment plans, the medical records reviewed included: a physician’s assessment by Dr. Mian; a psychological assessment by Dr. Waiser; a psychological assessment by Dr. Konstantinos; and a functional abilities evaluation by Ms. Rodie. In short, Dr. Taromi maintained his opinion that the applicant had sustained uncomplicated soft tissue injuries, and he did not require the treatment proposed in this treatment plan. In addition, I have not been provided with evidence to challenge Dr. Taromi’s conclusions.
20Therefore, I find that the applicant has not demonstrated that this treatment plan is reasonable and necessary.
The treatment plan for physical rehabilitation services, submitted on November 27, 2023, is not reasonable and necessary
21This treatment plan proposes several sessions of physical rehabilitation and acupuncture that are similar to the treatment plan submitted on August 12, 2023. The respondent denied this treatment plan on the same basis.
22I agree with the respondent. Also, I have not been provided with evidence by the applicant that shows this treatment plan is reasonable and necessary.
The unpaid portion of the treatment plan for a psychological assessment, submitted on November 27, 2023, is not reasonable and necessary
23This treatment plan was partially approved by the respondent, with the remaining amount of $1,247.33 corresponding to proposed charges in excess of the reasonable hourly rates and sessions lengths pursuant to the fee guidelines.
24I have not been provided with evidence by the applicant to show that the denied amount in this treatment plan should be allowed, nor has he demonstrated that the respondent erred in its denial. This portion of the treatment plan is, therefore, not reasonable and necessary.
The treatment plans for a neurological assessment, submitted on July 24, 2023, and a cognitive assessment, submitted on July 20, 2023, are not reasonable and necessary
25The applicant relies on a psychological assessment report by Dr. Konstantinos on June 12, 2023 in support of both assessments. Dr. Konstantinos found mild to moderate changes in the applicant’s memory and concentration levels, as the applicant had become more forgetful, such as in missing appointments. He also had issues completing tasks due to distractions from the pain and discomfort. Dr. Konstantinos recommended both of these treatment plans.
26The respondent denied these treatment plans based on conclusions by two IE assessors who did not find them to be reasonable and necessary. Dr. Brandon Kucher, neurologist, completed a neurology assessment on September 23, 2023, and concluded that the proposed plan was not reasonable and necessary, as there were no existing, objective neurological impairments from the accident. Dr. Cheryl Bradbury, psychologist, completed a cognitive assessment on September 25, 2023. She concluded that there was nothing, from a strictly neurological standpoint, that would preclude the resumption of the applicant’s pre-accident day-to-day, vocational, or leisure pursuits, or that would necessitate any formalized, accident-specific cognitive assessment or intervention at the time.
27I find the evidence of the IE assessors is more reliable and compelling than the applicant’s evidence. They examined the applicant, reviewed several medical records (including assessment reports and several treatment plans), and, based on their specific findings, concluded that these assessment plans were not reasonable and necessary.
Interest
28As there are no overdue payments of benefits, the applicant is not entitled to interest.
ORDER
29Based on the above, I order the following:
i. The applicant is not entitled to an IRB.
ii. The treatment plans in dispute are not reasonable and necessary.
iii. The applicant is not entitled to interest, as there are no overdue payments of benefits.
iv. The application is dismissed.
Released: August 18, 2025
Samia Makhamra
Adjudicator