Citation: Mohammadzada v. Intact Insurance Company, 2026 ONLAT 24-009161/AABS

Licence Appeal Tribunal File Number: 24-009161/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:

Masihullah Mohammadzada

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jim Zotalis

APPEARANCES:

For the Applicant:

Ivy So, Paralegal

For the Respondent:

Kevin So, Counsel

HEARD:

In Writing

OVERVIEW

1Masihullah Mohammadzada, the applicant, was involved in an automobile accident on December 3, 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 the respondent, Intact 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:

1. 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? Note: The parties agreed at the case conference that the MIG limits have not been exhausted, and their submissions shall identify the amounts remaining.

2. Is the applicant entitled to the assessments/treatment plans/OCF-18 ("plan") proposed by Toronto Medical Centre, as follows:

i. $1,243.70 for physiotherapy services, in a plan dated March 4, 2022;

ii. $1,215.50 for physiotherapy services, in a plan dated April 8. 2022;

iii. $2,294.54 for physiotherapy services, in a plan dated March 31, 2023;

iv. $2,231.00 for physiotherapy services, in a plan dated March 31, 2023;

v. $1,748.05 for a psychological assessment, in a plan dated January 24, 2022; and

vi. $1,995.32 for a psychological assessment, in a plan dated May 10, 2022?

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

4. The applicant withdrew issues 2iii, iv and v above.

RESULT

3The applicant is removed from the MIG on the basis of a psychological impairment.

4The applicant is entitled to a psychological assessment proposed by Toronto Medical Centre in a plan dated May 10, 2022, in the revised amount of $1,796.88, plus interest.

5The applicant is not entitled to the treatment plans for physiotherapy services, proposed by Toronto Medical Centre in plans dated March 4, 2022, and April 8, 2022.

BACKGROUND

6The respondent's submissions identify that to date, $2,312.81 has been paid in benefits to the applicant, and $1,1871.19 remains available under the MIG limit. The applicant's submissions are silent on this issue. Therefore, the applicant is entitled to treatment up to the limits under the MIG, in addition to the benefits awarded in this decision.

ANALYSIS

The Minor Injury Guideline

7The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined in s.3(1) of the Schedule as, "one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury." If the applicant's injuries are predominantly minor, the MIG will apply. As s. 18(1) of the Schedule provides, funding for treatment under the MIG is capped at $3,500.00.

8An 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 psychological impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

Does the applicant suffer from a psychological impairment because of the accident that warrants removal from the MIG?

9I find the applicant does suffer from a psychological impairment because of the accident that warrants removal from the MIG.

10The applicant submits that he should be removed from the MIG based on psychological impairments he submits were the result of the accident. For this, he relies on the clinical notes and records ("CNRs") of Dr. Al-Hellawi, internist, and the report of Humaira Khurshid, psychotherapist, supervised by Dr. Svetlana Gabidulina, psychologist, dated February 27, 2023. That report provides a diagnosis of unspecified depressive disorder and post-traumatic stress disorder.

11The respondent submits the applicant has only minor injuries and that he has not suffered any psychological impairments to warrant removal from the MIG. The respondent relies upon the report of Dr. Charlotte Lynn Gooden, psychologist, to support this position.

12The psychological assessment/report from Dr. Gabidulina used the following tests:

i. Beck Depression Inventory-II (BDI-II);

ii. Beck Anxiety Inventory (BAI);

iii. Severity Measure for Specific Phobia – Adult Version;

iv. Post-Traumatic Stress Disorder Checklist (PCL 5);

v. Pain Catastrophizing Scale (PCS); and

vi. Injustice Experiences Questionnaire.

13The results of this testing indicate that the applicant has scored on the severe range with respect to both depression and anxiety. The other tests revealed that the applicant scored on the moderate range with respect to specific driver and passenger phobia. As for results on the PCL 5, the applicant scored above the cut-off, which is consistent with the symptoms of PTSD. The PCS revealed a score below the cut-off range, which indicated a low level of intensity of the pain and low levels of feelings of helplessness. The final test indicated a score that is moderate at the cut-off range, which is interpreted to mean that, without treatment, the dysfunction will become chronic, even permanent.

14The testing employed by Dr. Gooden included:

i. Miller Forensic Assessment of Symptoms Test (M-FAST);

ii. Pain Catastrophizing Scale (PCS); and

iii. Clinical Assessment of Depression (CAD).

15The result of the M-FAST revealed that the applicant was not malingering psychopathology. As for the PCS scores, this indicated the applicant was not magnifying the extent of disability through catastrophic thoughts. The applicant's CAD score fell within the mild clinical risk range for diminished interest, anxiety/worry and cognitive and physical fatigue and the applicant scored in the very significant clinical risk range for depressed mood.

16I place more weight on the assessment/report from Dr. Gabidulina for the following reasons. First, she employs more objective testing than that of her counterpart. Second, her report findings mirror the results of the psychometric testing employed by the assessor. This lends credibility to the report's findings and for this reason I prefer the report from Dr. Gabidulina over that of Dr. Gooden. Dr. Gabidulina's findings tie the psychological impairment to the accident. The results are corroborated by the CNR of Dr. Al-Hellawi, who diagnosed the applicant with depressed mood and anxiety, which I find to be persuasive evidence.

17In the case of Dr. Gooden's report, although she finds that the applicant has scored in the very significant clinical risk range for depressed mood, the author states that the applicant's psychological symptomatology is not of a magnitude or severity to result in a formal DSM-5 diagnosis because of the accident and does not suffer a psychological impairment. I cannot reconcile the discrepancy in test results with the diagnosis provided by Dr. Gooden. Her report states that she has taken into consideration the clinical interview, psychometric test data and a review of the background information in coming to the conclusion that the applicant does not suffer a psychological impairment. In my opinion, she does not provide elaboration as to why she comes to that conclusion and for that reason I assign less weight to her opinion.

18On a balance of probabilities, I find that the applicant has met his burden of proof to demonstrate that he has sustained a psychological impairment that warrants removal from the MIG.

Is the applicant entitled to the treatment plan proposed by Toronto Medical Centre for physiotherapy services dated March 4, 2022?

19I find the applicant is not entitled to the treatment plan proposed by Toronto Medical Centre for physiotherapy services in the amount of $1,243.70.

20To 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 the treatment, how the goals would be met to a reasonable degree and the overall costs of achieving them are reasonable.

21The applicant submits he is entitled to the treatment plan for physiotherapy services, consisting of chiropractic service, physical rehabilitation, trigger point therapy and acupuncture as it is reasonable and necessary as a result of the accident. The treatment plan goals listed include pain reduction, increase in strength and range of motion as well as a return to activities of normal living.

22The applicant relies on a disability certificate ("OCF-3"), dated February 11, 2022, completed by Luela Louis, chiropractor, and which identifies injuries including but not limited to: sprain and strain of thoracic spine, lumbar spine, shoulder joint, ankle, cervical spine, whiplash associated disorder [WAD2] with complaint of neck pain, pain in thoracic spine, low back pain, headache, unspecified injury of head, nonorganic sleep disorders, depressive episode, nervousness, irritability, anger, malaise and fatigue. For the injuries and sequalae listed in the OCF-3 that are within the professional sphere of the health practitioner, all are treatable within the MIG. Where the health professional has identified, for example, depressive episode, a chiropractor is not qualified to opine on such an injury and sequela.

23The respondent relies on the report of Dr. David Mula who conducted a musculoskeletal assessment of the applicant, dated June 15, 2023, to support its position that the applicant has suffered minor injuries because of the accident.

24The applicant submits that he is entitled to payment of the benefit because the respondent denied payment based solely on the applicants' placement within the MIG. In other words, the applicant argues that the respondent did not provide a valid denial of the treatment plan in dispute in accordance with s.38(8) of the Schedule, and thus, the applicant is entitled to payment of the benefit by virtue of s.38(11) which is a shall pay provision of the Schedule.

25I disagree with the applicants' position on this issue. Specifically, I find the fact that the respondent advised the applicant that his injuries are within the MIG limits is a valid medical reason in accordance with s.38(8) of the Schedule. The denial letter states that the OCF-18 lists injuries that are primarily minor and further sets out what medical documents the respondent is seeking from the applicant to determine if the treatment plan is reasonable and necessary. I find that this satisfies the requirements under s. 38(8) of the Schedule because stating that the applicant's injuries are minor injuries and treatable withing the MIG limits is a medical reason.

26I also find that the record before me lacks compelling contemporaneous medical evidence to support a finding that the applicant sustained any physical impairment but soft tissue injuries because of the accident.

27The applicant reported during his s. 44 examination with Dr. Mula that his back and right ankle pain resolved approximately 6 months prior to that time. The applicant also denied having any other pains or other issues other than intermittent headaches from the accident. It is notable that the applicant also reported going to the gym 5 days a week and spending 1 hour and 45 minutes each time and reported to his assessor that he is completely fine, which further undermines his claim that physiotherapy is reasonable and necessary.

28For the reasons stated above, I find on a balance of probabilities that the applicant has not demonstrated that the treatment plan is reasonable and necessary.

Is the applicant entitled to the treatment plan proposed by Toronto Medical Centre for physiotherapy services dated April 20, 2022?

29I find the applicant is not entitled to the treatment plan proposed by Toronto Medical Centre for physiotherapy services in the amount of $1,215.50.

30The legal test to receive payment for a treatment plan is as stated above.

31The applicant submits he is entitled to the treatment plan for physiotherapy services, consisting of chiropractic service, physical rehabilitation, trigger point therapy and acupuncture as it is reasonable and necessary as a result of the accident. The treatment plan goals listed include pain reduction, increase in strength and range of motion as well as a return to activities of normal living.

32Both the applicant and respondent rely on the same documentation as above.

33The applicant submits that he is entitled to payment of the treatment plan if the Tribunal finds that the applicant is taken out of the MIG on the basis of any impairment. On this basis, the applicant contends that the treatment plan is payable by virtue of s.38(8) and s.38(11) of the Schedule because the initial reason for denial is no longer valid. In other words, because the applicant was confined to the MIG limits and eventually removed based on a psychological impairment, the applicant argues that the initial denial is invalid and by virtue of s.38(11) of the Schedule, the treatment plan is payable without engaging in an analysis as to whether the treatment plan is reasonable and necessary. In relation to this disputed treatment plan, the respondent scheduled a s.44 Insurer Examination ("IE") paper review, which the respondent is entitled to schedule.

34I do not agree with the applicant that s.38(11) of the Schedule makes this disputed treatment plan automatically payable, and I refer to my reasoning above. Although the applicant has been removed from the MIG funding limits based on a psychological impairment as a result of this hearing, this does not automatically engage s.38(11) of the Schedule by requiring payment of the disputed treatment plan. Just because the Tribunal finds that the applicant should not be subject to the MIG, it does not follow that the respondent's denial fails to comply with s. 38(8). Instead, the Tribunal must engage in a reasonable and necessary analysis with respect to the disputed treatment plan.

35I find that the record before me lacks compelling contemporaneous medical evidence to support a finding that the applicant sustained any physical impairment other than soft tissue injuries because of the accident. As a result, I find that the disputed treatment plan is not reasonable and necessary.

36I find on a balance of probabilities that the applicant has not demonstrated that the treatment plan is reasonable and necessary.

Is the applicant entitled to the treatment plan proposed by Toronto Medical Centre for a psychological assessment dated May 10, 2022?

37I find the applicant has demonstrated on a balance of probabilities that he is entitled to the treatment plan for a psychological assessment.

38The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

39The applicant submits the psychological assessment prepared by Dr. Gabidulina, psychologist, demonstrates that he has suffered from a psychological impairment because of the accident and thus is entitled to a psychological assessment. The report from Dr. Gabidulina provided a diagnosis of unspecified depressive disorder and post traumatic stress disorder.

40The respondent submits that there has been no contemporaneous objective medical evidence recommending or referring the applicant to any counselling, including psychiatrists or mental health assessments, nor has the applicant been prescribed any psychotropic medication.

41The respondent further argues that the treatment plan is problematic as it lists the rate for the psychotherapist at the rate of a psychologist in the Professional Services Guideline ("Guideline") at $149.61 per hour, which is significantly greater than the rate that a psychotherapist is entitled to receive under the Guideline of $58.19 per hour to $100.00 per hour.

42Based on the psychological assessment of Dr. Gabidulina, I find that the applicant has established that there are grounds on which to believe that the applicant suffers from a condition caused by the accident that would warrant further investigation by way of an assessment. I am not persuaded by the respondent's argument that there is a lack of contemporaneous objective medical evidence recommending or referring the applicant to counselling, including psychiatrists or mental health assessments. I say this because the assessment provided by Dr. Gabidulina has diagnosed the applicant with unspecified depressive disorder and posttraumatic stress disorder. The testing provided by the respondents' IE also indicated under the clinical assessment of depression that his symptom scales reflected levels within the very significant clinical risk range for depressed mood. I am persuaded by the evidence before me that the applicant has established that there are grounds on which to believe that a condition exists that warrants further investigation by way of an assessment.

43Under the Guideline, Insurers are not prohibited from paying above any maximum amount or hourly rate established in the Guideline.

44Services provided by health care professionals/providers, unregulated providers and other occupations not listed in the Guideline are not covered by the Guideline. The amounts payable by an insurer related to services not covered by the Guideline are to be determined by the parties involved. In this case, the rate of pay for a psychotherapist is at the unregulated provider rate of $58.19 per hour.

45When the parties are unable to resolve a dispute in terms of rate of pay for an unregulated service provider, (e.g. psychotherapist) the Tribunal shall make the final determination.

46I have reviewed the treatment plan proposing the psychological assessment and I note that the rate of pay proposed for the psychotherapist is the same as that of a psychologist or psychological associate, that is $149.61 per hour.

47Given that the respondent is not in agreement to pay the psychotherapist at the rate of $149.61 per hour, which is the rate of pay for a psychologist or psychological associate under the Guideline, I must make that determination based on the submissions of the parties. I note that the respondent has indicated a psychotherapist would be entitled to the rate closer to $58.19 to $100.00 per hour. The applicant did not provide any reply submissions on this matter. The respondent concedes that the rate could be $100.00 per hour. Considering the fact I have not received reply submissions from the applicant on this issue, I find that the cost of the treatment plan proposing a psychological assessment to be adjusted to reflect the hourly rate for the psychotherapist at $100.00 per hour, instead of $149.61 per hour as indicated in the treatment plan. I find this amount to be a reasonable cost of the service provider's hourly rate. This hourly rate of $100.00 is to be multiplied by the 4 hours allotted to the hours provided by the psychotherapist and results in a reduction in the plan cost of $198.44 from the total submitted, resulting in my approval of the plan at $1,796.88, plus interest.

48For the reasons stated above, I find on a balance of probabilities, that the applicant has demonstrated that the psychological assessment is reasonable and necessary in the amount of $1,796.88, plus interest.

Interest

49Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found the psychological assessment is payable, the applicant is entitled to interest on this treatment plan.

ORDER

50The Order of the Tribunal is as follows:

i. The applicant is removed from the MIG on the basis of a psychological impairment.

ii. The applicant is entitled to a psychological assessment, proposed by Toronto Medical Centre in a plan dated May 10, 2022, in the revised amount of $1,796.88, plus interest.

iii. The applicant is not entitled to the treatment plans for physiotherapy services, proposed by Toronto Medical Centre in plans dated March 4, 2022, and April 8, 2022.