Citation: Alaarag v. Intact Insurance Company, 2026 ONLAT 24-010107/AABS

Licence Appeal Tribunal File Number: 24-010107/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:

Moath Alaarag

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Amanda Marshall

APPEARANCES:

For the Applicant:

Ilia Estrah, Counsel

For the Respondent:

Eluxmeenah Rishihesan, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Moath Alaarag, the applicant, was involved in an automobile accident on December 9, 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, 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 agree the MIG limits have not been exhausted and their submission shall identify the amounts remaining.

2. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Imperial Medical Assessments Inc. ("Imperial") in a treatment plan/OCF-18 ("plan") denied August 3, 2023?

3. Is the applicant entitled to $6,447.13 psychological counselling proposed by Imperial in a plan denied September 12, 2023?

4. Is the applicant entitled to $3,770.16 for physiotherapy services proposed by Mississauga Health & Wellness Centre Inc. in a plan denied on May 24, 2023?

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

RESULT

3The applicant is removed from the MIG as he has met his burden and demonstrated, on a balance of probabilities, that his injuries fall outside of the definition of a minor injury.

4The applicant is entitled to the psychological assessment.

5The applicant is not entitled to the psychological counselling treatment plan.

6The applicant is not entitled to the physiotherapy treatment plan.

7Interest is payable on the psychological assessment treatment plan.

ANALYSIS

Minor Injury Guideline

8I find the applicant is removed from the MIG as he has met his burden and demonstrated, on a balance of probabilities, that his injuries fall outside of the definition of a minor injury.

9Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are capped at $3,500.00 if the insured person sustains impairments that are predominantly a minor injury in accordance with the MIG. 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."

10In order to be removed from the MIG, an insured person must 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 supported by compelling medical evidence stating that the condition precludes recovery if they are kept within the MIG limits. The Tribunal has also determined that concussion or concussion syndrome, chronic pain with functional impairment, or a psychological condition may be grounds for removal from the MIG. In all cases, the burden of proof lies with the applicant.

11The applicant contends that he should be removed from the MIG based on a psychological condition and chronic pain. He relies on the s. 25 independent psychological assessment report of Cody Eriksen, psychologist, and the clinical notes and records ("CNRs") of family physicians, Dr. Rominder Kler and Dr. Payam Sadro.

12The respondent submits that the applicant has not produced any compelling evidence to show that his injuries warrant removal from the MIG and relies on the s. 44 Insurer Examination ("IE") physician assessment report of Dr. Alisa Naiman, general practitioner and the psychological assessment report of Dr. Douglas Saunders, psychologist.

Has the applicant sustained a psychological impairment as a result of the accident?

13I find that the applicant has sustained a psychological impairment as a result of the accident that warrants removal from the MIG.

14The evidence shows that the applicant has been experiencing persistent sleep-related symptoms since the accident. On January 31, 2023, he attended an appointment with Dr. Kler, during which he reported difficulty sleeping since the accident. Dr. Kler recommended that he pursue cognitive behavioural therapy for insomnia.

15On February 23, 2023, the applicant was assessed by Dr. Sandro and again reported significant sleep disturbances, including difficulty falling asleep and experiencing nightmares related to the accident. Dr. Sandro reiterated the recommendation for cognitive behavioural therapy and/or psychological treatment. At a follow-up appointment in December 2023, the applicant reported a severe nightmare during which he awoke screaming and had involuntarily urinated. In March 2024, he was prescribed Lorazepam for his symptoms. As of October 2, 2024, he continued to experience persistent sleep difficulties leading to daytime fatigue and impaired concentration.

16I find the independent psychological assessment conducted by Mr. Eriksen persuasive and consistent with the clinical notes and records of the applicant's family physicians. The applicant attended the assessment on August 15, 2023, and in his August 16, 2023 report, Mr. Eriksen notes that he administered multiple standardized testing, including the Automobile Anxiety Inventory, PCL-5, Beck Depression Inventory, Outcome Questionnaire, WHO Disability Assessment Schedule, Multidimensional Pain Inventory, and the Symptom Checklist-90-R. Based on the assessment results and interview, Mr. Eriksen concludes that the applicant is experiencing clinically significant psychological distress and functional impairment exacerbated by pain. He diagnoses major depressive disorder, severe, single episode, with anxious distress.

17I give little weight to Dr. Saunders' s. 44 IE report. Although the respondent relies on his conclusion that there was no credible evidence of significant accident-related psychological symptoms, Dr. Saunders' own observations are internally inconsistent.

18Dr. Saunders initially states that the applicant's behaviour and demeanour were consistent with his reported symptoms and test responses, yet he then concludes that the applicant likely exaggerated symptoms to such an extent that the test results were unreliable and did not reflect his actual clinical state. These findings contradict one another. If the applicant's presentation aligned with his symptoms as reported by Dr. Saunders, it is unclear how Dr. Saunders simultaneously determined that those same symptoms were the product of deliberate distortion. This inconsistency undermines the reliability of his opinion and reduces the weight I can assign to it.

19In sum, the applicant has consistently reported psychological symptoms since the accident, and has been referred for therapy for those symptoms by his family physician. He has been diagnosed by Mr. Eriksen with an accident-related psychological condition. Therefore, I find that the applicant has an accident-related psychological impairment that warrants removal from the MIG.

20I find that the applicant has proven on a balance of probabilities that he sustained a psychological impairment as a result of the accident that warrants removal from the MIG.

Does the applicant suffer from chronic pain as a result of the accident?

21I find no need to analyze whether the applicant is removed from the MIG due to chronic pain, as I have already found that the applicant should be removed from the MIG due to a psychological impairment.

22To 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. In the context of an assessment, while the applicant does not need to prove the condition exists, he must prove with persuasive evidence that there is some accident-related condition that warrants investigation via the proposed assessment.

Is the applicant entitled to $2,200.00 for the psychological assessment?

23The applicant is entitled to the psychological assessment.

24The applicant claims entitlement to $2,200.00 for a psychological assessment, proposed by Imperial in a treatment plan dated June 16, 2023.

25The applicant submits that he has exhibited enough psychological symptoms to warrant a psychological assessment.

26The respondent submits that the applicant is not entitled to the psychological assessment as it does not consider it to be reasonable and necessary and relies on Dr. Saunders' IE report that found the applicant may have exaggerated his symptoms.

27As set out above, the applicant has established on a balance of probabilities that he suffered a psychological impairment as a result of the accident. In this context, he has provided persuasive evidence of an accident-related condition that reasonably warrants further investigation through the proposed assessment. Based on the clinical notes and records of his family doctors, I am satisfied on a balance of probabilities that the psychological assessment was reasonable and necessary.

28I find that the applicant is entitled to the $2,200.00 psychological assessment proposed in the June 16, 2023 treatment plan.

Is the applicant entitled to $6,447.13 psychological counselling treatment plan?

29I find that the applicant is not entitled to the $6,447.13 psychological counselling treatment plan.

30The applicant seeks funding for the $6,447.13 psychological counselling plan proposed by Imperial on August 15, 2023. The plan recommends 24 counselling sessions of 1.5 hours each at a rate of $149.61 per hour. Its stated goals are to return the applicant to activities of normal living and pre-accident work, and to reduce anxiety and trauma related symptoms through cognitive behavioural strategies.

31The applicant submits that the treatment plan is reasonable and necessary to mitigate the effects of his psychological impairment.

32The respondent denied the plan based on the s. 44 report of Dr. Saunders.

33The applicant must establish the goals of treatment, how those goals would be met to a reasonable degree, and that the associated costs are reasonable. While the goals are adequately identified and I accept that psychological counselling is required, the applicant has not shown how the goals will be met or that the costs are reasonable, for the following reasons:

i) The plan was completed by Mr. Eriksen, yet it states that it was reviewed with the applicant by his therapist, Viktoria Tolmatshov.

ii) There is no indication that Ms. Tolmatshov is registered with the College of Registered Psychotherapists of Ontario, nor is there information regarding her training. Aside from noting that she works under the direct supervision of Mr. Eriksen, the plan does not explain the extent of Mr. Eriksen's involvement in the applicant's treatment, if any.

iii) The psychological assessment and the treatment plan were both completed on August 15, 2023. Instead of providing more information within the plan, the plan directs back to the assessment report. The assessment report concludes that the applicant's psychological symptoms are not yet well managed and that it is unclear when or if this will occur. Despite indicating that treatment length is difficult to predict, Mr. Eriksen recommended 24 sessions, and this recommendation was inserted into the treatment plan without explaining how this number was determined or why such an extensive course of treatment was proposed given the uncertainty regarding symptom management.

34Considering the above, I find that the applicant has not established on a balance of probabilities that the proposed psychological counselling treatment plan is reasonable and necessary. Accordingly, the applicant is not entitled to funding for the $6,447.13 treatment plan.

Is the applicant entitled to $3,770.16 for physiotherapy services?

35I find that the applicant has not established on a balance of probabilities that he is entitled to the $3,770.16 for physiotherapy services.

36The treatment plan in dispute totals $3,770.16 for physiotherapy services proposed by Mississauga Health & Wellness Center Inc. on May 23, 2023. The plan includes $522.30 for assistive exercise devices, eight exercise sessions at $187.95 per session, eight acupuncture sessions at $38.41 per session, eight sessions of multidisciplinary rehabilitation at $120.00 per hour, and $48.63 for vitamins as well as the cost for reassessment, and document completion.

37The goals of the plan are pain reduction, increased strength, and improved range of motion, with functional goals of returning the applicant to activities of normal living and pre-accident work activities.

38The applicant argues that the treatment plan is both reasonable and necessary, as the therapeutic goals are legitimate, proportionate, and achievable. The applicant further submits that the proposed therapy will assist in mitigating his pain symptoms.

39The respondent submits that the IE report of Dr. Naiman supports the position that the treatment plan is not reasonable and necessary as the doctor found that from a musculoskeletal perspective, the applicant sustained uncomplicated soft tissue injuries, and that further facility-based therapy is not warranted.

40I find, on a balance of probabilities, that the physiotherapy treatment plan is not reasonable and necessary. The family doctors' CNRs indicate that despite ongoing physiotherapy, the applicant's back pain remained unchanged. In May 2023, the records note no improvement in his symptoms. A September 2023 entry similarly reflects that the applicant attended 3-4 months of physiotherapy, which provided little benefit. By October 2024, the applicant reported completing 15 physiotherapy sessions without experiencing any meaningful improvement. These records demonstrate a lack of therapeutic effectiveness to date.

41Given the consistent lack of improvement documented over an extended period, I find on a balance of probabilities that the applicant has not demonstrated that the physiotherapy treatment plan will yield any meaningful benefit. The evidence does not establish that the treatment would be reasonable and necessary in the circumstances. Accordingly, the physiotherapy treatment plan is denied.

Interest

42Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that interest is payable for the psychological assessment treatment plan.

CONCLUSION

43For the above reasons, I find:

i. The applicant's injuries are not considered predominantly minor as defined in s. 3 of the Schedule, and therefore, the applicant has been removed from the MIG.

ii. The applicant is entitled to the psychological assessment.

iii. The applicant is not entitled to the psychological counselling treatment plan.

iv. The applicant is not entitled to the physiotherapy treatment plan.

v. Interest is payable on the psychological assessment treatment plan.