Licence Appeal Tribunal File Number: 24-007059/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:
Upasna Pathak
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Roderick Walker
APPEARANCES:
For the Applicant:
Bianca Pirrotta-Iaccino, Paralegal
For the Respondent:
Kateryna Borodenko, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Upasna Pathak, the applicant, was involved in an automobile accident on April 18, 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, TD General Insurance Company and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issue(s) 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 $1,995.33 for a psychological assessment, proposed by Alma Rehab Clinic Inc. in a treatment plan/OCF-18 (“treatment plan”) submitted July 5, 2022?
iii. Is the applicant entitled to $3,244.58 for chiropractic services, proposed by Alma Rehab Clinic Inc. in a treatment plan submitted August 17, 2022?
iv. Is the applicant entitled to $2,912.56 for chiropractic services, proposed by Alma Rehab Clinic Inc. in a treatment plan submitted December 7, 2022?
v. Is the applicant entitled to $2,208.83 for psychological services, proposed by Alma Rehab Clinic Inc. in a treatment plan submitted January 18, 2023?
vi. Is the applicant entitled to $2,912.56 for chiropractic services, proposed by Alma Rehab Clinic Inc. in a treatment plan submitted May 4, 2023?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find the applicant is removed from the MIG because of a psychological condition.
4All of the treatment plans are reasonable and necessary.
5Interest under s. 51 of the Schedule is payable on all treatment plans in dispute.
ANALYSIS
MIG
6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are 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.”
7An 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 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.
8The applicant in this case submits that he should be removed from the MIG on the basis of a chronic pain impairment and a psychological condition.
The applicant does suffer from a psychological condition.
9I find that the applicant does suffer from a psychological condition that would remove her from the MIG.
10The applicant relies on an OCF-3 Disability Certificate was submitted on April 27, 2022. The OCF-3 indicated that the applicant suffered from sprain and strain cervical, thoracic, lumbar spine, neck, pelvis, shoulders, hips, knee, ankle, and foot, muscle strain, headache, anxiety disorder, disorders initiating and maintaining sleep, insomnia, nightmares, stress, and problem related to lifestyle, physical environment, psychosocial circumstances as a direct result of the accident.
11The applicant also relies on the clinic notes and records, ( CNR’s ) of Dr. A. Dhami, family doctor with complainants of flashbacks, neck pain, and disturbed sleep. Dr. Dhami recommended psychological therapy, prescribed Flexeril, and noted PTSD in relation to the accident. Ms. Pathak visited Dr. Dhami on August 3, 2022, to complain of neck pain, flashbacks, and ongoing PTSD. Dr. Dhami recommended psychological therapy and ordered an x-ray and ultrasound. She also relies on the CNR’s of Dr.K. Papazoglou, Psychologist, s. 25 assessor and his report dated, January 11, 2023.
12The applicant cites the case Scarlett v. Belair Insurance Company Inc. 2015 ONSC 3635, where the Ontario Divisional Court states that the burden is on the insured to establish entitlement to the appropriate level of benefits under the Schedule. The Divisional Court also found that whether the evidence in a particular case insufficient to meet the test of "compelling" must be determined on the facts of each case.
13In Applicant v. Scottish & York 2018 CanLII 112111 (ON LAT), , the adjudicator found that a psychological assessment was reasonable as the applicant reported symptoms consistently during all assessments and the MIG does not include psychological symptoms in its definition. The adjudicator states “a psychological diagnosis isn’t necessary: what is necessary is the applicant was exhibiting psychological symptoms related to the MVA and the issues were affecting their life.”
14During the assessment, Ms. Pathak complained of ongoing pain (neck, shoulders, back), headaches, disturbed sleep, nightmares, flashbacks, decreased memory and concentration, loss of interest, sadness and low mood, driving anxiety and avoidance, and difficulty completing activities of daily living. She also notes that treatment is helpful. Ms. Pathak’s test scores indicate severe anxiety (Beck Anxiety Inventory), high risk for development of chronicity (Pain Catastrophizing Scale), and above average range symptoms (Pain Patient Profile). Dr. Papazoglou indicated a diagnosis of adjustment disorder with mixed anxiety and depressed mood, specific phobia (driving and passenger), and somatic symptoms disorder.
15The respondent relies on their s. 44 assessor, Dr. Amena Syed, Psychologist, to assess Ms. Pathak in a s.44 Psychological Assessment which took place on August 29, 2022. During the assessment, Ms. Pathak complained of ongoing pain, daily headaches, blurry vision and dizziness, decreased concentration and memory, sadness, depressed mood, anger and irritability, excessive worry, social isolation, disturbed sleep and nightmares, daily flashbacks, driving avoidance, and vehicular anxieties. She noted that she was healthy prior to the accident and that her accident-related psychological injuries are significantly affecting her ability to functions.
16The applicant visited her family Dr. Dhami on May 26, 2022, and August 3, 2022, to complain about flashbacks, neck pain, and disturbed sleep. Dr. Dhami recommended physiotherapy and psychological therapy, prescribed Flexeril, and noted PTSD in relation to the accident. Ms. Pathak visited Dr. Dhami on August 3, 2022, to complain of neck pain, flashbacks, and ongoing PTSD. Dr. Dhami recommended physiotherapy, Flexeril, psychological therapy, and ordered an x-ray and ultrasound.
17Dr. Papazoglou indicated a diagnosis of Adjustment Disorder with mixed anxiety and depressed mood, specific phobia (driving and passenger), and somatic symptoms disorder. His notes indicate that her symptoms will worsen without treatment. Dr. Papazoglou recommends 12 sessions of psychological therapy, driving assessment, in-vehicle sessions, chronic pain assessment, sleep study, and occupational therapy.
18Further the applicant was examined by the respondent’s s. 44 assessor, Dr. A. Syed, Psychologist, to assess the applicant in a Psychological Assessment which took place on August 29, 2022. During the assessment, the applicant complained of ongoing pain, daily headaches, blurry vision and dizziness, decreased concentration and memory, sadness, depressed mood, anger and irritability, excessive worry, social isolation, disturbed sleep and nightmares, daily flashbacks, driving avoidance, and vehicular anxieties. She noted that she was healthy prior to the accident and that her accident-related psychological injuries are significantly affecting her ability to functions.
19The applicant’s test scores from Dr.A. Syed indicates severe anxiety, post-traumatic stress, and depression (Beck Anxiety and Depression Inventories). Her results under the Pain Catastrophizing Scale indicate a high risk of rumination, magnification, and helplessness.
20The respondent relies on Dr. Syed, Psychologist, S.44 Psychological Paper Review Report dated, December 16, 2022, wherein the assessor’s findings remain unchanged.
21Dr. Syed also reassesses the applicant in a s.44 psychological assessment which took place on March 10, 2023. During the assessment, the applicant complained of constant headaches, blurry vision and dizziness, constant pain, numbness, decreased concentration and memory, indecisiveness, sadness, depressed mood, anger and frustration, irritability, worthlessness, social isolation, disturbed sleep, fatigue, decreased appetite and sexual interest, ideations of self-harm, panic attacks, post-traumatic thoughts, flashbacks, nightmares, and driving avoidance and anxiety. Dr. Syed continues to maintain that there is no evidence of a psychological condition, and a diagnosis was not made.
22After reviewing the evidence and expert assessments, I find that the applicant has sustained psychological condition as a result of the accident.
23The applicant consistently reported symptoms including flashbacks, nightmares, disturbed sleep, headaches, chronic pain, decreased memory and concentration, sadness, anxiety, and driving avoidance. These complaints were documented by her family physician, Dr. Dhami, and confirmed during psychological assessments.
24I find that Dr. Papazoglou, the applicant’s s.25 assessor, conducted a comprehensive evaluation on January 11, 2023. His assessment included standardized testing, which revealed severe anxiety, post-traumatic stress, and depression, as well as a high risk of chronic pain behaviors. Based on these findings, he diagnosed the applicant with Adjustment Disorder with mixed anxiety and depressed mood, specific phobia (driving and passenger), and somatic symptom disorder. He recommended psychological treatment and additional rehabilitative measures, noting that symptoms would worsen without intervention.
25Conversely, Dr. Syed, the respondent’s s.44 assessor, examined the applicant on August 29, 2022, and March 10, 2023, and conducted a paper review on December 16, 2022. Despite the applicant’s consistent symptoms and severe test scores indicating anxiety, PTSD, and depression, Dr. Syed concluded that there was “no evidence of a psychological condition” and declined to provide a diagnosis, citing validity concerns. This conclusion is not supported by the weight of the evidence, particularly given the repeated severe test results that both assessors provided.
26I find Dr. Papazoglou’s assessment to be more persuasive. His diagnosis is consistent with the applicant’s symptoms, objective test results, and clinical observations. Dr. Syed’s opinion, by contrast, fails to reconcile the applicant’s severe psychological test scores with his conclusion of no diagnosis.
27Therefore, I accept Dr. Papazoglou’s opinion and find that the applicant suffers from Adjustment Disorder with mixed anxiety and depressed mood, specific phobia related to driving, and somatic symptom disorder. I find on the balance of probabilities that the applicant is removed from the MIG due to a psychological condition.
28To 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.
OCF-18 for a Psychological Assessment in the amount of $1,995.33 and the OCF-18 in the amount of $2,208.83 for psychological services
29I find the plans are reasonable and necessary.
30The applicant states that she incurred the cost of the assessment, with a report being produced by Dr. Papazoglou, Psychologist, on January 11, 2023. During the assessment, she complained of disturbed sleep, nightmares, flashbacks, decreased memory and concentration, loss of interest, sadness and low mood, driving anxiety and avoidance, and difficulty completing activities of daily living. She also notes that treatment is helpful. The applicant’s test scores indicate severe anxiety (BAI), high risk for development of chronicity (PCS), and above average range symptoms (Pain Patient Profile).
31The respondent states that the applicant has not met her onus to prove that the treatment plans in dispute, completed by Alma Rehab, is reasonable and necessary. No objective psychological testing was completed. The applicant made only three psychological complaints in the span of eight months and has not made any subsequent complaints in over two years.
32The respondent states that Dr. Dhami failed to administer any psychological testing to assess the applicant’s alleged psychological condition. Instead, Dr. Dhami produces a letter based on what can only be assumed as the applicant’s self-reported condition which speaks to the applicant’s functional limitations despite none being noted in the clinical notes and records in the months since the accident.
33To date, the applicant has not provided any evidence of attending any psychological treatment or being prescribed any medication for any alleged psychological conditions. The applicant’s inaction to pursue care, for over two years, leads the respondent to conclude that the treatment plans are neither reasonable nor necessary. I disagree.
34I find according that Dr. Papazoglou, the applicant’s s.25 assessor, conducted a comprehensive evaluation on January 11, 2023. His assessment included standardized testing, which revealed severe anxiety, post-traumatic stress, and depression, as well as a high risk of chronic pain behaviors. Based on these findings, he diagnosed the applicant with Adjustment Disorder with mixed anxiety and depressed mood, specific phobia (driving and passenger), and somatic symptom disorder. He recommended psychological treatment and additional rehabilitative measures, noting that symptoms would worsen without intervention. The applicant’s goals for the plan are for Pain management, trauma symptoms, anxiety, depression, driving anxiety.
35As I review the respondent’s evidence ,Dr. Syed, the respondent’s s.44 assessor, examined the applicant on August 29, 2022, and March 10, 2023, and conducted a paper review on December 16, 2022. Despite the applicant’s consistent symptoms and severe test scores indicating anxiety, PTSD, and depression, Dr. Syed concluded that there was “no evidence of a psychological condition” and declined to provide a diagnosis, citing validity concerns.
36I find that the plans are reasonable and necessary. The applicant’s complaints submitted as evidence on the OCF-3, and the disputed plans and the assessors are of disturbed sleep, nightmares, flashbacks, decreased memory and concentration, loss of interest, sadness and low mood, driving anxiety and avoidance, and difficulty completing activities of daily living. She also notes that treatment is helpful. The applicant’s test scores indicate severe anxiety (BAI), high risk for development of chronicity (PCS), and above average range symptoms (Pain Patient Profile).
37Even if I dismiss the evidence of the s. 25 assessor of Dr. Papazoglou, who diagnosed her with Adjustment Disorder, the evidence is clear that even Dr. Syed noted in his assessments dated August 29, 2022, and March 10, 2023, the applicant’s scores are above the normal range for anxiety, PCS, and the PPP., actually severe range. I find the treatments plans above are reasonable and necessary.
OCF-18 for $3,244.58 for chiropractic services, and an OCF-18 for $2,912.56 for chiropractic services and an OCF-18 for $2,912.56 for chiropractic services proposed by Alma Rehab Clinic Inc.
38I find the treatment plans are reasonable and necessary.
39The applicant relies on the CNR’s of Dr. A. Dhami, family doctor MD, on May 10, 2022, to complain of accident related back, neck and ankle pain, together with difficulty walking. Dr. Dhami recommended physiotherapy and provided a referral.
40On May 26, 2022, she visited Dr. Dhami again to complain of flashbacks, neck pain, and disturbed sleep. Dr. Dhami recommended physiotherapy and psychological therapy, prescribed Flexeril, and noted PTSD in relation to the accident. The applicant visited Dr. Dhami on August 3, 2022, to complain of neck pain, flashbacks, and ongoing PTSD. Dr. Dhami recommended physiotherapy, Flexeril, psychological therapy, and ordered an x-ray and ultrasound. The applicant states that the treatment plans in dispute are reasonable as they provide alternative approaches to alleviating her accident-related injuries.
41The applicant states that she attended treatment at Alma Rehab Clinic (“Alma”) until April 24, 2023. The treatment records of Alma note the following:
i. Physiotherapy Initial Assessment dated April 25, 2022, she complains of headaches, severe and constant pain (cervical, thoracic, and lumbar spine, shoulders, hips, knee, ankles), stress, nightmares, disturbed sleep, anxiety, and reduced range of motion (lumbar and cervical spine, shoulders).
ii. Chiropractic Assessment dated April 18, 2022, she complains of headaches, constant pain (cervical, thoracic, and lumbar spine, shoulders, hips, and ankles), anxiety, insomnia, trouble sleeping, stress, and decreased range of motion (lumbar and cervical spine). The chiropractor recommends a TENs unit, hot compress, and active care. Ongoing treatment was recommended at a rate of 2 times per week.
iii. April 27, 2022, to July 12, 2022, weekly treatment records completed by the chiropractor indicate that the applicant’s injuries remain the same as the last assessment.
iv. Chiropractic Reassessment dated July 21, 2022, the applicant complains of severe headaches, pain (cervical, thoracic, and lumbar spine), leg pain, reduced range of motion (lumber and cervical spine, shoulders), tenderness, and decreased ability to sit, stand, walk, bed, and lift. The chiropractor recommends a TENs unit, active care, stimulation, and education. Ongoing treatment was recommended at a rate of 2 times per week.
v. July 12, 2022, to August 5, 2022, weekly treatment records completed by the chiropractor indicate that her injuries remain the same as the last assessment.
vi. Chiropractic Reassessment dated August 12, 2022: she complains of headaches, pain (cervical, thoracic, and lumbar spine), and decreased range of motion (lumbar and cervical spine). The chiropractor recommends a TENs unit, hot and cold compresses, massage therapy, ultrasound, active care and education, and shockwave therapy.
vii. August 10, 2022, to November 10, 2022: Weekly treatment records completed by the chiropractor indicate that her injuries remain the same as the last assessment.
viii. Chiropractic Reassessment dated December 6, 2022, the applicant complains of headaches, pain (cervical thoracic, and lumbar spine, shoulders), and decreased range of motion (lumbar and cervical spine, shoulders). The chiropractor recommends a TENs unit, hot and cold compresses, active care, and education. Ongoing treatments are recommended at a rate of 2 times per week.
ix. November 24, 2022, to April 19, 2023, weekly treatment records completed by the chiropractor indicate that the applicant’s injuries remain the same as the last assessment.
42The respondent states that the applicant attended a s.44 Physiatry Assessment on August 25, 2022, conducted by Dr. Belfon, Physiatrist, and notes a diagnosis of sprain/strain of the cervical spine, right upper trapezius musculature, lumbosacral spine, and left calf and “it is acknowledged that myofascial pain persists in these areas.” The applicant states despite a diagnosis being made, Dr. Belfon does not make any recommendations to alleviate the pain. Dr. Belfon did not comment as to why the injuries had not resolved and to make any recommendations for treatment.
43Dr. Belfon completed S.44 Physiatry Paper Review Reports on September 22, 2022, and December 16, 2022, where the assessor’s findings remain unchanged from his August 25, 2022, examination.
44The respondent retained Dr. Belfon to reassess the applicant in a s.44 Physiatry Assessment which took place on July 27, 2023. During the assessment, the applicant complained of neck, back, and calf pain, and headaches. A diagnosis of sprain/strain of the cervical spine, right upper trapezius musculature, lumbosacral spine, and left calf is made. Dr. Belfon recommends an MRI of the spine and defers comments regarding her ongoing headaches to the appropriate specialist. Notably, the respondent did not have her assessed by any medical professional for her headache complaints.
45I find in this case that each OCF‑18 in dispute above, describes plan goals, pain reduction, ROM gains, improved tolerance for sitting, standing, walking, bending, lifting and barriers to recovery, sleep disturbance, anxiety, ongoing pain.
46Further, I find that the plans are coherent, tailored to impairments, and aimed at functional improvement with reasonable expectations for each plan. They therefore meet the reasonable and necessary threshold under s. 15/16.
47In summary, I find on a balance of probabilities that the three OCF‑18 chiropractic treatment plans proposed by Alma Rehab Clinic in the amounts of $3,244.58, $2,912.56, and $2,912.56 are payable as reasonable and necessary under s. 15 and s. 16 of Schedule.
Interest
48Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest is payable to all of the approved plans.
ORDER
49I find the applicant is removed from the MIG because of a psychological condition.
50All of the treatment plans are reasonable and necessary.
51Interest under S. 51 of the Schedule is payable on all treatment plans in dispute.
Released: January 15, 2026
__________________________
Roderick Walker
Adjudicator