Licence Appeal Tribunal File Number: 24-011378/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:
Mohammed Alnahlawi
Applicant
and
Definity Insurance Company
Respondent
DECISION
ADJUDICATOR: Amar Mohammed
APPEARANCES:
For the Applicant: Jeton Memeti, Paralegal
For the Respondent: Camilla Oblak, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Mohammed Alnahlawi, the applicant, was involved in an automobile accident on November 25, 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, Definity 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 the treatment plans/OCF-18 (“plan”) prepared by Mississauga Rehab and Sprits Injury Clinic as follows:
i. $3,431.15 for psychological services in a plan dated May 9, 2023; and
ii. $1,822.00 for physiotherapy services in a plan dated May 16, 2023?
iii. Is the applicant entitled to the assessments proposed by Mississauga Rehab and Sports Injury Clinic as follows:
i. $2,539.10 for a psychological assessment in a plan dated March 7, 2023: and
ii. $2,486.00 of an orthopedic assessment in a plan dated July 20, 2023?
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?
3The applicant withdrew the following issue in his initial submissions:
i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from December 2, 2022, to January 2, 2023?
RESULT
4The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline. Since the applicant is subject to the MIG, it is not necessary to assess whether he is entitled to the plans in dispute. The applicant is not entitled to interest, and the respondent is not liable to pay an award.
PROCEDURAL ISSUES
Request to exclude
5The respondent’s request to exclude all of Dr. Kershner’s evidence is not granted.
6The respondent makes this request on the basis of three reasons. First, the respondent argues that the applicant has failed to comply with 9.4.2(b) of the Licence Appeal Tribunal Rules, 2023 (“Rules”) and the Case Conference Report and Order. Rule 9.4.2(b) relates to providing a list of witnesses for a hearing. However, this hearing was scheduled as a written hearing on consent of both parties, therefore Dr. Kershner is not a witness the applicant intends to call to give evidence at this hearing, Rule 9.4.2(b) does not apply.
7Second, that the respondent submitted a Rule 10.4 Notice to Challenge Expert Witness dated May 16, 2025, Since, on consent of both parties, this application proceeded to a written hearing rather than an electronic hearing with viva voce evidence, Dr. Kershner is not an expert witness within the meaning of Rule 10.4. Rule 10 regarding expert witnesses is clear that an expert witness is a qualified person that will testify at a hearing, as set out in Rule 10.1. There is no testimony at a written hearing, Rule 10.4 does not apply.
8Third, the respondent argues that the applicant has failed to provide an Acknowledgment of Expert Duty, in accordance with Rule 10.2. Similar to above, since this is a written hearing, Dr. Kershner is not an expert witness subject to the requirements of Rule 10.2 which apply in anticipation of testimony.
Request to exclude the applicant’s initial submissions
9The respondent request to exclude pages 6-8 of the applicant’s initial submissions is not granted.
10The respondent argues that the Tribunal’s order setting up this written hearing provided the parties with 10 double spaced pages for submissions. The applicant’s initial submissions are 8 pages and single spaced and are therefore not compliant. The respondent further argues that the applicant did not seek permission to amend the limits that were placed on the submissions of both parties equally. Therefore, the respondent argues that the applicant has the benefit of arguing his position with almost double the length of submissions in contrast to the respondent. The respondent requests that I not consider pages 6-8 of the initial submissions in order to ensure procedural fairness.
11Although the applicant provided reply submissions, he did not address these procedural matters or provide any reasons for not complying with the Tribunal’s procedural orders. In any case, after having read and considered the totality of the submissions of both parties, and in light of my findings below, I find there is no prejudice to the respondent and deny the request on this basis.
Request to exclude the applicant’s reply submissions
12I am not granting the respondent’s request to exclude the applicant’s reply submissions.
13The respondent argues that the applicant’s reply submissions were due on July 11, 2025. For a hearing that was scheduled for July 25, 2025. The applicant’s reply submissions were served more than 2 weeks late, after the date of the written hearing had already passed. Further, that the submissions are improper because they raise new arguments. The respondent submits that this is non-compliance with both the Motion Order of this Tribunal dated June 4, 2025 and the Notice of Written Hearing dated June 10, 2025, causing the respondent prejudice.
14The respondent did not refer me to which parts of the reply submissions it is alleging are new arguments being raised for the first time. It is not apparent on my review that there are any arguments in the reply submissions that were not specifically or generally already made in initial submissions. The respondent did not set out the prejudice it alleges would be suffered if I did not exclude the reply submissions. In this case, despite being filed late, I had before me all of the parties’ submissions during my analysis of the issues in dispute. I am not persuaded by any prejudice to the respondent. Under the circumstances, it is most procedurally fair to not grant the request to exclude the applicant’s reply submissions. I prefer to decide the issues in dispute on their merits.
ANALYSIS
The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit
15I find that the applicant has not established chronic pain with a functional impairment, or a psychological condition, to warrant removal from the MIG.
16Section 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.”
17An 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 injury or 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. In all cases, the burden of proof lies with the applicant.
18The applicant argues that his symptoms consistent with Post-Traumatic Stress Disorder (PTSD), chronic pain, adjustment disorder, and sleep disturbances are outside the definition of a minor injury. Accordingly, he argues that he should be removed from the confines of the MIG.
Chronic pain with a functional impairment
19The applicant’s submissions state that he meets the first part of the test because he has a diagnosis of chronic soft tissue musculoskeletal pain. However, he does not support these submissions with evidence of this diagnosis. The applicant also argues he meets the second part of the test because has chronic pain and a functional impairment; however, he does not refer me to evidence that would establish this. The applicant further argues he has pre-existing chronic neck, back, and shoulder pain that has been exacerbated by the accident. However, there is no reference to evidence to support this submission and submissions are not evidence.
20Further, the applicant submits that pages 143-148 and 155-158 of the applicant’s evidence labelled Tab 4 establish pre-existing pain that was exacerbated but the clinical notes and records (“CNRs”) of Kingsbridge Medical Centre Clinic, found at the pages referenced, do not support this argument. Between November 27, 2022, and January 9, 2023, the referenced records do not refer to any pre-existing neck, back, or shoulder pain, chronic or otherwise. I am also referred to an OCF-3 Disability Certificate dated January 10, 2023. The OCF-3 indicates under Part 8 where Prior or Concurrent Conditions are to be noted, that the applicant did not have any pre-existing disease, condition, or injury that is relevant. Further, Part 6 of the OCF-3 also indicates that the applicant has no disability relating to his employment, carrying on a normal life, any caregiving activities, educational pursuits, or housekeeping and home maintenance responsibilities, as a result of the accident.
21The applicant also refers me to a section 25 psychological assessment report dated April 4, 2023, of Dr. Betty Kershner, psychologist. In noting the applicant’s personal history, Dr. Kershner includes a paragraph of his pre-accident medical history. It is noted that the applicant has other medical conditions however there is no mention of any chronic pain.
22Since there is no evidence of chronic pain or of a functional impairment, the applicant does not meet either part of the two-part test. Accordingly, on a balance of probabilities, I find that the applicant has not established he has chronic pain with a functional impairment that warrants removal from the MIG.
Psychological condition
23The applicant argues he has been assessed, diagnosed, and confirmed to have psychological impairments in Dr. Kershner’s April 4, 2023, report. The applicant is diagnosed with Post-Traumatic Stress Disorder and Sleep Disorder (“PTSD”) under the Diagnostic and Statistic Manual of the American Psychiatric Association, Fifth Edition (“DSM-V”). Dr. Kershner based the diagnosis on the following tests:
i. Beck Depression Inventory – II (BDI-II)
ii. Beck Anxiety Inventory (BAI)
iii. Beck Hopelessness Scale (BHS)
iv. Impact of Events Scale (IES)
v. Injustice Experience Questionnaire (IEQ)
Dr. Kershner’s April 4, 2023, report
24During the assessment, it is apparent that the applicant did not have the benefit of an Arabic interpreter, whereas he accesses this Tribunal with the help of one. Considering that Dr. Kershner noted communication difficulties, including speaking with an accent, requiring explanation of words, requiring substitution of words, and speech tone being slow, it is a reasonable inference that there be less weight assigned to this assessment which was exclusively administered in English without the assistance of an interpreter. To account for communication difficulties Dr. Kershner opines:
…the test results are an under-estimate of his actual status due to the client’s reticence to acknowledge difficulties. In all but one instance, any symptom endorsement that he made was made at the lowest level of intensity or frequency, which was inconsistent with his report in interview. The client shared that written English is more difficult for him than spoken English. I suspect that he was unwilling to go down in writing with a symptom intensity that was more accurate to his actual condition.
25I am not persuaded by Dr. Kershner’s opinion that the inconsistencies indicate the applicant’s status is worse than the tests indicate. The report does not detail the extent of the inconsistencies for review.
26Further, the respondent argues that the assessment was completed solely based on the applicant’s self-reporting and that the assessment did not include any review of records. While the report suggests a document review was completed by referring to ‘Appendix A’, there is no appendix attached in the 7-page document and the body of the report does not suggest or refer to any medical records. In my view, this weakens the report.
Family Doctor’s notes and referral to CarePoint Health
27I give little weight to the self-administered tests because of the applicant’s reported difficulties with the English language and because he did not have the assistance of an Arabic interpreter.
28The respondent also argues that the applicant did not make any psychological complaints to his family doctor but that a referral was made after receipt of Dr. Kershner’s report. Dr. Linda Anvari, family physician, referred the applicant for PTSD post-accident to CarePoint Health (“CPH”). The CNRs of CPH are authored by Tianian Xu, Social Worker. The CNRs state that the applicant completed a phone screening and initial appointment on September 6, 2023, and he was discharged on November 7, 2023. There are two Discharge Notes, both dated November 7, 2023, and they seem to contradict each other as to whether the applicant was eligible for counselling services through CPH. Both versions state that after the initial appointment, the applicant cancelled the follow-up appointments in September and October because he would be away for 1-2 months. Since this is included in both versions, I take this part of the discharge reasons to be accurate.
29The first November 7, 2023 note recommends that the applicant reach out to CPH if he needs support, and the respondent argues that the applicant did not reach out. The second version recommends the applicant connect with his accident benefit insurer for mental health service if needed. This note goes on to address Dr. Anvari, the referring family physician, stating that the applicant will not be eligible for counselling while involved in an active accident benefit claim, but CPH can provide service navigation to help him access mental health services through his insurer.
30Since there are two Discharge Notes of the same date, it is unclear whether the discharge occurred because the applicant cancelled all of his appointments after the initial session, or because the applicant is not eligible for services through CPH. It may be the case that both reasons are correct, that the applicant cancelled his appointments and CPH decided he was also ineligible. In that sense, the reasons for discharge may have compounded between September 6 and November 7, 2023.
31In any case, the CNRs of CPH relating to the initial session on September 6, 2023, note the applicant’s score on two mental health questionnaires, the General Anxiety Disorder Questionnaire (“GAD-7”) and the Patient Health Questionnaire (“PHQ-9”). The applicant scored a 7, reflecting mild anxiety on the GAD-7, and he scored a 4 on the PHQ-9 reflecting minimal severity where the applicant may not need depression treatment, according to the scoring sheet. I give little weight to these self-administered tests because of the applicant’s reported difficulties with the English language and because he did not have the assistance of an Arabic interpreter.
Contrast to section 44 psychological assessment
32An example of inconsistency between the September 6, 2023, session at CPH and a section 44 assessment occurring on January 3, 2024 supports that I give the CPH CNRs less weight. For example, the CNRs of CPH, without the assistance of an interpreter, state that while the applicant did not have flashbacks of the accident during the day, he has nightmares of different accidents once every 2-3 weeks. It is noted that a focus of the sessions was to “trouble shoot with nightmare rescripting exercise”. On the other hand, a section 44 Psychological Assessment report by Dr. Cheryl Bradbury, Clinical Psychologist, with the aid of an interpreter, dated January 17, 2024, states:
Post-accident, Mr. Alnahlawi reported that his sleep has been somewhat disrupted, due to his physical pain and positioning. No persisting accident related nightmares were described.
His most predominant worry at this time is in relation to his continued physical recovery and when specifically queried he clearly indicated that he does not feel as though he needs/requires any formalized psychological assessment or treatment services at this time.
33Under the circumstances, I give more weight to the report of Dr. Bradbury because an interpreter was present to ensure accuracy of their communication. Dr. Bradbury does not provide any accident-related psychological diagnosis and concludes there is no psychological basis for removal from the MIG. This is not to say that the applicant does not suffer from any psycho-social symptoms, however, the applicant has not established that these are anything more than associated sequalae of his minor injury. As Dr. Bradbury notes:
[The applicant] did describe feelings of residual caution related to vehicular travel, along with some degree of frustration and concern in relation to his prolonged physical recovery course. Difficulties would be considered mild and sub-clinical in nature at this time.
34The Minor Injury Guideline, Superintendent’s Guideline 01/14, incorporates “Supportive interventions such as advice/education to deal with accident-related psycho-social issues, such as but not limited to: distress; difficulties coping with the effects of his/her injury; driving problem/stress.” Accordingly, in my view, the applicant’s accident-related psycho-social issues have not been reliably established to be beyond associated sequalae within the definition of a minor injury, on a balance of probabilities.
35For the reasons above, on a balance of probabilities, I find that the applicant has not established chronic pain with a functional impairment, or a psychological condition, to warrant removal from the MIG.
The plans in dispute
36Since the applicant is subject to the MIG, an analysis of whether the proposed plans are reasonable and necessary is unwarranted.
Interest
37There are no overdue benefits to which interest applies pursuant to s. 51 of the Schedule.
Award
38The 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. Since there are no benefits payable that were unreasonably withheld or delayed, the respondent is not liable to pay an award.
ORDER
39For the reasons above, I make the following orders:
i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline.
ii. Since the applicant is subject to the MIG, it is not necessary to assess whether he is entitled to the plans in dispute.
iii. The applicant is not entitled to interest.
iv. The respondent is not liable to pay an award.
Released: February 26, 2026
__________________________
Amar Mohammed
Adjudicator