Citation: Nazir v. Wawanesa Mutual Insurance Company, 2026 ONLAT 24-009550/AABS

Licence Appeal Tribunal File Number: 24-009550/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:

Isbah Nazir

Applicant

And

Wawanesa Mutual Insurance Company

Respondent

DECISION

VICE-CHAIR:

Henry Harris

APPEARANCES:

For the Applicant:

Ilia Estrah, Counsel

For the Respondent:

Louise A Kanary, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Isbah Nazir (the “applicant”) was involved in an automobile accident on November 1, 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 Wawanesa Mutual Insurance Company (the “respondent”) 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 $3,790.71 for psychological services, proposed by HM Medical Network Ltd. in a treatment plan/OCF-18 (“plan”) submitted November 8, 2023?

iii. Is the applicant entitled to $2,095.28 for physiotherapy services, proposed by Activa Mississauga in a plan submitted January 22, 2024?

iv. Is the applicant entitled to the assessments proposed by HM Medical Network Ltd., as follows:

a. $2,200.00 for a psychological assessment, in a plan submitted August 7, 2023; and

b. $2,200.00 for a driving re-integration assessment, in a plan submitted November 8, 2023?

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

RESULT

3The applicant remains subject to the MIG.

4As the applicant remains in the MIG, there is no need to consider if any of the plans in dispute are reasonable and necessary.

5The applicant is not entitled to interest.

6The application is dismissed.

PROCEDURAL ISSUES

Applicant’s request to exclude respondent’s s. 55(1)2 argument granted

7The respondent argues towards the end of its written submissions that the applicant should be barred from proceeding with this hearing due to non-compliance with s. 55(1)2 of the Schedule because she failed to attend an insurer’s examination (“IE”) under s. 44.

8In her reply submissions, the applicant argues that the respondent failed to request a preliminary issue hearing at the case conference to advance the s. 55(1)2 argument and should be precluded from do so now in its written submissions.

9I agree with the applicant and find that the respondent’s submission amounts to a request to add a preliminary issue. I decline to add this preliminary issue. The respondent did not raise this preliminary issue at the case conference held on December 5, 2024 and it was not included as an issue in dispute in the Case Conference Report and Order dated December 6, 2024 (the “CCRO”). Nor did the respondent bring a motion in the period before this hearing to request to add the preliminary issue. Rather, the respondent appears to have raised this preliminary issue for the first time in its written hearing submissions, after the applicant had already provided her initial written hearing submissions. I find that to add this preliminary issue at this late stage would be prejudicial to the applicant, as she did not have notice of an issue that could be dispositive to her application. Moreover, the respondent has not provided any explanation as to why this preliminary issue could not have been raised at any point prior to the written hearing.

10Further, as part of the applicant’s request, she argues that email correspondence between Direct IME and the respondent regarding the scheduling of an IE should be excluded, as such correspondence was not served on applicant during the applicable production period. It was not clear from the submissions as to when or whether such correspondence was provided the applicant prior to the hearing.

11The respondent’s submissions related this correspondence to the preliminary issue, which I have excluded as an issue at this hearing. Although the correspondence is not related to the issues before me, I nevertheless grant the applicant’s request to exclude this correspondence. The parties are required to exchange all documents and things they intent to rely on as evidence, prior to the hearing. Specifically, the CCRO states that such exchange shall take place no later than 60 calendar days from the case conference. The respondent provided no explanation for such non-compliance. I find it would be a breach of procedural fairness to allow the correspondence to be included in such circumstances. Therefore, I order that this correspondence be excluded as evidence and it will not be considered as part of this written hearing.

ANALYSIS

The applicant remains within the Minor Injury Guideline (MIG)

12I find that the applicant has not established on a balance of probabilities that she suffers from an accident-related injury or condition that warrants removal from the MIG.

13Section 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.”

14An 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.

15In all cases, the burden of proof lies with the applicant.

16The applicant submits that she should be removed from the MIG because she sustained accident-related psychological injuries.

The applicant is not removed from the MIG on the basis of psychological impairment

17I find that the applicant has not proven on a balance of probabilities that she sustained a psychological impairment due to the accident that warrants removal from the MIG.

18In order to be removed from the MIG due to psychological impairments, the applicant must show that she has an actual psychological impairment and not just post-accident sequelae. Psychological impairment is not included in the minor injury definition. An impairment is defined in s. 3(1) of the Schedule as a “loss or abnormality of a psychological, physiological or anatomical structure or function.”

19The applicant submits that she has been diagnosed with psychological impairments as a result of the accident and, as such, should be removed from the MIG. In support of her position, the applicant relies on the October 4, 2023 s. 25 psychological assessment report of Ms. Mila Popova, psychotherapist, under the supervision of Dr. Kenneth Keeling, psychologist. That applicant submits that Dr. Keeling diagnosed the applicant with DSM-5 impairments, based on applicant’s self-reporting followed by objective testing. The applicant was diagnosed with Major Depressive Disorder, Single Episode, Moderate; Generalized Anxiety Disorder; Post-Traumatic Stress Disorder; and Pain Disorder with Related Psychological Factors.

20The respondent counters that the applicant has not established that she has any psychological impairments as a direct result of the accident. The respondent argues that the applicant’s report diagnosing her with psychological impairments should not be given any weight because there is no other corroborating medical evidence to support her subjective reports to the assessor. The respondent asserts the diagnoses were made by Ms. Popova, a psychotherapist, who is not qualified to make a psychological diagnosis. The respondent further argues that the report should not be given any weight due to it being silent on the extent of Dr. Keeling’s involvement in the interview, assessment, administering psychological testing, or rendering a diagnosis.

21The respondent did not complete a psychological IE.

22The applicant refers to two Tribunal decisions to support her removal from the MIG: Raja-Mohamad v The Personal Insurance Company 2022 CanLII 33191 (ON LAT) (“Raja-Mohamad”), and Elbahja v. Wawanesa Mutual Insurance Company, 2023 CanLII 116485 (ON LAT), (“Elbahja”). In both decisions, the insurer did not pursue its own independent medical examination, and the Tribunal rejected the insurer’s argument that insured’s assessments should not be given any weight because there is no other corroborating medical evidence to support subjective reports to the assessors.

23I disagree with the applicant’s assertion that that these decisions support the proposition that a s. 25 assessment is conclusive in its diagnosis in the absence of corroborating evidence. Rather, the decisions found that in the absence a contrary medical opinion, the adjudicator’s role is not to scrutinize the diagnosis made by medical professionals within their expertise but to weigh the evidence presented. While I am not bound by decisions of the Tribunal, I find these decisions are distinguishable as they do not deal with challenges to the reports and the supervision of a psychotherapist, as has been raised in this matter. Further, these decisions were issued prior to the 2025 Divisional Court decision in Dooman v. TD Insurance Company, 2025 ONSC 184 (Div. Ct.) (“Dooman”), to which I am bound. As the trier of fact, the Tribunal is not required to accept all of a medical expert’s evidence merely because there is no contrary expert evidence. It is within the Tribunal’s discretion to determine if it finds medical evidence persuasive as part of considering all the evidence before it: see Dooman at para. 36.

24To provide context to the October 4, 2023 psychological report that the applicant relies on, the applicant was assessed virtually on September 18, 2023 by Ms. Popova, a psychotherapist, under the supervision of Dr. Keeling, a psychologist. I disagree with the respondent’s assertions that the diagnoses were made by Ms. Popova. I accept that the clinical formulation and diagnoses resulting from the assessment by Ms. Popova were offered by Dr. Keeling as this is indicated in the headings in those sections of the report. However, I find there to be a lack of clarity as to the scope and nature of Dr. Keeling’s involvement in the assessment, if any involvement at all. There is no indication that Dr. Keeling met with the applicant during the virtual assessment or otherwise, and the report provides little context in the sections attributed to him as to what he reviewed and considered in formulating his opinion.

25The applicant argues in reply that these questions on Dr. Keeling’s role do not undermine the report as the respondent did not demonstrate any required standards of the College of Psychologists regarding assessments and supervision of psychotherapists. I disagree, as questions about the role Dr. Keeling played is a consideration for the Tribunal to weigh in reviewing the report. Considered as a whole, I find this to be a limiting factor in the reliability of the psychological diagnoses.

26I find there is a lack of evidence that corroborates the applicant’s own reports to Ms. Popova of psychological difficulties. In my view, this diminishes the probative value of the diagnoses offered by Dr. Keeling. The only document listed in the report as being reviewed is the clinical notes and records (“CNRs”) of Dr. Aliya Ali, family physician, “various dates”. The report does not refer to anything from such CNRs, other than the applicant’s first visit with Dr. Ali a couple days after the accident.

27The lack of evidence is supported in the respondent’s submissions, which point to only two visits to Dr. Ali in the period of more than 2.5 years post-accident, and no mention in Dr. Ali’s CNRs of the made no mention of the accident, pain complaints, psychological complaints, or any referrable issues. There are no complaints of psychological difficulties documented on this visit, no medications prescribed to treat psychological symptomology, and no referrals for psychological assessment or services. I am not persuaded by the applicant’s argument in reply that these visits were for unrelated medical issues and the CNRs only refer to the subject matter of the visit itself. Dr. Ali documents that the applicant is generally healthy and no other concerns.

28The assessment with Ms. Popova occurred in September 2023. The applicant did not point to evidence of contemporaneous psychological symptomology in medical records or otherwise from the time of the accident to her assessment, almost 11 months later. For example, the applicant’s submissions do not direct me to evidence that establishes she suffered, at any point prior to the assessment report, from psychological symptoms of social withdrawal, loss of motivation and interest in life, and excessive worry that is impacting her daily functioning.

29Finally, the applicant’s evidence included an OCF-3 Disability Certificate dated March 2, 2023, completed by Ms. Sandeep Kaur, physiotherapist, which she references in the background section of her submissions but does not explain how or whether it supports removal from the MIG. The OCF-3 includes physical injuries, as well as other anxiety disorders and insomnia in the last two items in the list of accident-related injuries and sequelae. The OCF-3 was not a document referenced as reviewed by Ms. Popova in the assessment. In any event, any psychological diagnoses made on the OCF-3 are outside of the scope of Ms. Kaur as a physiotherapist, and I give no weight to such diagnosis.

30When considered as a whole, I find that the applicant has not proven on a balance of probabilities that she sustained a psychological impairment due to the accident. Therefore, I find that the applicant is not removed from the MIG and, as a result, remains subject to the MIG.

31As I have found that the applicant is not removed from the MIG, it is not necessary to engage in an analysis of whether the disputed plans are reasonable and necessary as a result of the accident.

Interest

32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are owing, interest does not apply.

ORDER

33For the reasons outlined above, I find that:

a. The applicant shall remain in the MIG;

b. As the applicant is in the MIG, it is not necessary to consider if the plans in dispute are reasonable and necessary;

c. The applicant is not entitled to interest; and

d. The application is dismissed.