Gomes v. Intact Insurance Company, 2026 CanLII 15073

Citation: Gomes v. Intact Insurance Company, 2026 ONLAT 24-008496/AABS

Licence Appeal Tribunal File Number: 24-008496/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:

Tevon Gomes

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

John Mazzilli

APPEARANCES:

For the Applicant:

Adam Wilson, Counsel

For the Respondent:

Odette Ansell, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Tevon Gomes, ("the applicant"), was involved in an automobile accident on February 26, 2021, 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 Intact Insurance Company, ("the respondent"), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2In this case the applicant argues that he suffers from pre-existing physical and psychological injuries sustained from previous motor vehicle accidents that occurred in September 2017 ("accident one") and November 2017 ("accident two") and that his injuries have been exacerbated by the subject accident.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to $4,122.34 for psychology services, proposed by Toronto East Psychological Services in a treatment plan/OCF-18 ("plan") submitted November 9, 2023?

ii. Is the applicant entitled to $21,357.00 for a CAT assessment, proposed by Omega Medical Associates Ltd. in a plan submitted November 29, 2023?

iii. Is the applicant entitled to $5,573.81 for physiotherapy services, proposed by Excellent Care Physio, in a plan dated June 21, 2024?

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

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

Added Issue and Amended Issue

4On consent of the parties, issue iii. listed above was added as an issue in dispute.

5Issue ii. was partially approved by the respondent on February 6, 2025, in the amount of $16,205.33. The remaining dispute is a catastrophic impairment assessment under Criterion 8. In my decision, I will consider the applicant's entitlement to an assessment for catastrophic impairment under Criterion 8 in the amount of $3,250.00.

RESULT

6The applicant is entitled to $4,122.34 for psychological services.

7The applicant is entitled to $2,000.00 plus HST for a catastrophic impairment assessment under Criterion 8.

8The applicant is not entitled to $5,573.81 for physiotherapy services.

9Interest is owing on $4,122.34 and $2,000.00 plus HST in accordance with s.51 of the Schedule.

10The applicant is not entitled to an award.

ANALYSIS

The Treatment plans

11To receive payment for a treatment and assessment plan under sections 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.

$4,122.34 for psychological services dated November 9, 2023

12I find on a balance of probabilities that the applicant is entitled to $4,122.34 for psychological services because it is reasonable and necessary.

13The applicant submits that he had initially suffered psychological injuries from his first accident of 2017 and that the subject accident had a marked effect in the worsening his psychological symptomology which include, PTSD, anxiety, depression and headache. The applicant submits that the respondent has acted nonsensical in approving a psychiatric catastrophic impairment assessment, while denying him psychological treatment in the interim. The applicant relies on the psychological reports of Dr. Kanagaratnam, psychologist dated November 9, 2023, and November 9, 2024, and the CNRs of Dr. Nwosu, psychiatrist.

14The respondent argues that the applicant has failed to provide a linkage of his psychological complaints to the subject accident. The respondent argues that the applicant does not present with diagnosable psychological symptoms as a result of the subject accident, but rather the applicant's psychological complaints arise from his 2017 accident. The respondent argues that the applicant does not parse out which subsequent accident aggravated his pains. The respondent relies on the psychological report of Dr. Challis, psychologist dated July 13, 2023, and a paper review report by Dr. Challis dated January 8, 2024.

15The respondent's position in its denial of the treatment plan is that the subject accident did not cause the applicant's psychological injuries. In its denial letter the respondent relies on Dr. Challis' opinion that none of the applicant's psychological complaints stem from the subject accident but rather his psychological injuries are from the 2017 accidents, and therefore the plan is not reasonable or necessary. Dr. Challis in his report relies on the applicant's self report namely that his psychological complaints started after the first couple of accident, however I find that this does not negate the applicant from cumulative and necessary treatment because the evidence shows that the applicant's pre-existing injuries arising from his previous accidents have been exacerbated by the subject accident.

16For example, I am persuaded by the reports of Dr. Kanagaratnam which are based on objective testing and the applicant's self reports. In his report Dr. Kanagaratnam opines that "it is clear that his pre-existing psychological issues worsened as a result of the February 2021 motor vehicle accident" and Dr. Kanagaratnam is further of the opinion that the applicant's present outcome had the potential to be different had the subject accident not occurred.

17Dr. Kanagaratnam's opinion is corroborated by the CNRs of Dr. Nwosu as the CNRs of Dr. Nwosu show that on November 30, 2020, approximately two and half months before the subject accident Dr. Nwosu noted improvement in the applicant's mood, improvements in anxiety symptoms and panic attacks, and partial remission with respect to his PTSD diagnosis.

18Dr. Nwosu's post subject accident CNRs stand in contrast to the applicant's pre-subject accident psychological improvements. After the subject accident on January 10, 2022, Dr. Nwosu, diagnosed the applicant with PTSD and major depressive disorder and in October 2022, the applicant experienced worsening anxiety and low mood and in January 2023, Dr. Nwosu continues to note PTSD, unspecified anxiety disorder, panic attacks, disturbed slip, increased anxiety and ongoing pain and migraines.

19The evidence shows that the applicant's psychological injuries arise from his 2017 accidents, and his psychological injuries have been exacerbated by the subject accident, which I find does not negate the respondent's obligation to provide the applicant the necessary psychological treatment.

20I find on a balance of probabilities that the applicant is entitled to $4,122.34 for psychological services because it is reasonable and necessary.

$3,250.00 for a catastrophic impairment assessment ("CAT") under Criterion 8

21I find on a balance of probabilities that the applicant is entitled to a catastrophic impairment assessment under Criterion 8 in the amount of $2,000.00 plus HST because it is reasonable and necessary.

22The applicant submits that the respondent approved a catastrophic impairment psychiatric assessment under Criterion 7, however it denied a catastrophic impairment assessment under Criterion 8. He submits that an assessment under Criterion 8 is reasonable and necessary because Criterion 8 involves separate assessments, psychometric testing and conclusions, therefore an assessment under Criterion 8 is distinct from an assessment under Criterion 7.

23The respondent argues that the applicant's assessment facility, Omega Medical Associates Ltd requested that the assessment be withdrawn on March 12, 2025. It argues that it notified the applicant by way of email on June 30, 2025, regarding the withdrawal, however the applicant has not withdrawn the issue. It argues that a subsequent OCF-18 for CAT assessments was submitted by the applicant on March 13, 2025, therefore the issue at hand is not in dispute at this hearing.

24It argues in the alternative should I consider line item #5, which amounts to $3,250.00 for a psychiatry assessment under Criterion 8 then the assessment ought not be payable as it exceeds the maximum payable amount for an assessment under the Schedule.

25Indeed, the applicant's assessment facility Omega Medical Associated Ltd withdrew the CAT assessment in dispute on March 12, 2025, and re-submitted the functionally identical assessment on March 13, 2025, however the assessment facility withdrew this assessment without the knowledge of the applicant, and on the following day resubmitted the assessment plan, which I note the respondent partially approved.

26Given that the issue is functionally identical, in the interest of efficiency and expediency I will add the issue as a disputed issue for the hearing. I find that as both parties made submissions on the substantive issue of entitlement to the disputed CAT assessment, there is no prejudice to the respondent by me adding the issue for a CAT assessment Under Criterion 8. In accordance with The Licence Appeal Tribunal Rules 3.2 and 3.1(b) I find that as the disputed portion of the OCF-18's are functionally identical, namely the CAT assessment under Criterion 8, the most efficient, proportional and timely resolution of the merits of the claim are best met by considering the assessment as part of this decision. For the reasons above I added the CAT assessment under Criterion 8 to the issues in dispute at the hearing.

27In its denial letter dated February 6, 2025, the respondent denied the applicant a catastrophic impairment assessment in the amount of $3,250.00 on the basis that a second psychiatric assessment is not required as it approved a psychiatric assessment under Criterion 7, therefore the respondent denied the assessment on the grounds that it was a duplicative assessment. I disagree for the following reason.

28Criterion 7 relates to the combination of permanent impairments that are of a physical and mental/behavioral nature, whereby the applicant must demonstrate that he suffers from a whole person impairment ("WPI") greater than 55%. Criterion 7 psychological WPI is derived using the 6th Edition of the American Medical Association Guides ("the Guides"), whereas the disputed assessment is under Criterion 8, which considers solely the applicant's mental/behavioral impairments. The impairments under Criterion 8 are derived from the 4th Edition of the Guides which requires a pre and post accident comparison of the applicant's function in multiple areas, therefore it is a completely different medical consideration than that of the 6th edition under Criterion 7.

29In addition, the respondent in its explanation of benefits letter which I note approved both an in-home and situational occupational therapy assessments under Criterion 8 further supports a finding that a psychiatric assessment under Criterion 8 is reasonable and necessary because the approved occupational therapy assessments are assistive to the psychiatric/psychological assessor under Criterion 8.

30Accordingly, the applicant is entitled to a catastrophic impairment assessment under Criterion 8 and in accordance with s.25(5)(a) of the Schedule the assessment is limited to the amount of $2,000.00 plus HST.

31I find on a balance of probabilities that the applicant is entitled to a catastrophic impairment assessment under Criterion 8 in the amount of $2,000.00 plus HST because it is reasonable and necessary.

$5,573.81 for physiotherapy services dated June 21, 2024

32I find on a balance or probabilities that the applicant is not entitled to $5,573.81 for physiotherapy services because it is not reasonable or necessary.

33The applicant submits that physiotherapy is intended to address his neck, back and headache related pain which worsened following the subject accident. The applicant relies on an OCF-18 dated June 21, 2024, completed by physiotherapist Kathiresan Kumar, the CNRs of Dr. Cheung, neurologist, the CNRs of Dr. Tsang, neurologist, the report of Dr. Kekosz, physiatrist dated December 11, 2023, and the chronic pain report of Dr. Friedlander, physician- chronic pain specialist.

34The respondent argues that the treatment plan is not only for physical rehabilitation in the amount of $2,570.36 but it consists of $99.75 for a full body assessment and $2,825.00 for a Tempur mattress and $78.70 for taping and that there is no objective evidence of impairment to warrant an assessment, mattress, taping or ongoing formal treatment over 3 years post subject accident. The respondent argues that the applicant has not met his onus to prove that the treatment plan is reasonable and necessary. The respondent relies on the report of Dr. Moolla, physiatrist dated August 20, 2024.

35I was not pointed to a sufficient explanation or contemporaneous evidence as to how the assistive devices, namely the Tempur mattress, a full body assessment or taping will assist the applicant with his accident-related injuries or his pre-existing injuries by any of the abundant medical experts that the applicant relies on to support his claim. While the applicant points to the CNRs of Dr. Cheung and Dr. Tsang that show worsening headaches and chronic back and neck pain, I was not pointed to evidence from these medical experts that recommend a Tempur mattress. It is well established that an OCF-18 is not sufficient to establish entitlement to a treatment plan on its own.

36In addition, the remaining portion of the OCF-18 is for physiotherapy treatment, which the applicant has failed to demonstrate the reasonableness and necessity of such treatment. The goals of the treatment plan are pain reduction and strengthening. While the applicant points to various reports and CNRs to support his claim pain, I am not pointed to ongoing physiotherapy as a recommend treatment by the contemporaneous evidence, but rather gym-based exercises with a personal trainer, home exercise, and medications are recommended.

37The applicant relies on the physiatry report of Dr. Kekosz, however I find this report to be generic and outdated. For example, Dr. Kekosz in her report was asked to opine on various benefits, such as the minor injury guideline for the 2017 accidents, and income replacement benefits for the 2017 accidents, and the subject accident. In addition, Dr. Kekosz's opinion that ongoing physical treatment is required is based on the three motor vehicle accidents combined which I find to be generic.

38I placed more weight to the report of Dr. Moola because the report specifically addresses' the OCF-18 in question and because his assessment of the applicant is most current, rather than the applicant's less current and wide-ranging evidence which does not support his claim to entitlement. Accordingly, I accept Dr. Moola's opinion that "The claimant sustained uncomplicated soft tissue injuries only, which would have physiologically resolved within 8 to 12 weeks. My examination did not reveal any objective evidence of impairment to warrant an assessment, a mattress, taping or ongoing formally- based treatment at this stage of the claimant's recovery, over three years since the subject accident. Rehabilitative treatment at this point may further reinforce pain-focused behaviours. He should continue to exercise independently with his own self-directed exercises".

39Accordingly, I find on a balance of probabilities that the applicant is not entitled to $5,573.81 for physiotherapy services because it is not reasonable and necessary.

Interest

40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest is owing on $2,000.00 and $4,122.34 in accordance with s.51.

Award

41I find that the respondent is not liable to pay an award to the applicant.

42The applicant sought an award under s. 10 of 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.

43The applicant submits that an award is warranted for all outstanding benefits and treatment plans due to the respondent's refusal to promptly deal and fund same. He submits that the respondent failed to consider the medical opinions in support of his claim, and instead relied upon superficial and incomplete assessments.

44The respondent argues that the applicant's submissions for an award are vague, boilerplate and contain no details as to what specific behavior, correspondence or dates give rise to an award. It argues that its decisions were reasonably made based on the information provided and that the applicant was provided explanations for the denials and as such it did not unreasonably without any benefits from the applicant.

45I find that the respondent is not liable to pay an award to the applicant. While I did find that the psychological treatment plan is reasonable and necessary, the respondent did provide reasons for its denial based on the medical evidence of an insurers examination, which ultimately found that the 2017 accident was the cause of the applicant's psychological injuries and that the applicant did not suffer any psychological injuries as a result of the subject accident, which I do not find to be an imprudent or unreasonable response for its denial.

46With respect to the catastrophic impairment under Criterion 8 assessment, while I also find it payable, the respondent does have a legitimate claim for not approving the assessment based on the withdrawal of the assessment from the applicant's assessment facility, therefore the respondent's behavior in my view does not amount to circumstances that give rise to an award claim.

47For the reasons above I find that the respondent is not liable to pay an award to the applicant.

ORDER

48It is ordered that:

i. The applicant is entitled to $4,122.34 for psychological services.

ii. The applicant is entitled to $2,000.00 plus HST for a catastrophic impairment assessment under Criterion 8.

iii. The applicant is not entitled to $5,573.81 for physiotherapy services.

iv. Interest is owing on $4,122.34 and $2,000.00 plus HST in accordance with s.51 of the Schedule.

v. The applicant is not entitled to an award.