Licence Appeal Tribunal File Number: 25-003433/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:
Mahsa Emadi
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Mary Henein Thorn
APPEARANCES:
For the Applicant:
Denise Junkin, Counsel
For the Respondent:
Ibrahim Farag, Counsel
Court Reporter:
Guido Riccioni
Interpreter:
Khalil Popal, (Farsi language)
HEARD by Videoconference:
January 5,6 & 7, 2026
OVERVIEW
1Mahsa Emadi, the applicant, was involved in an automobile accident on August 27, 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 issues in dispute are:
i. Is the applicant entitled to an income replacement benefit (IRB) in the amount of $264.15 per week from March 1, 2025, to date and ongoing?
ii. Is the applicant entitled to $3,743.56 for physiotherapy services, proposed by Newmarket Health & Wellness Center in a treatment plan/OCF-18 (“plan”) submitted October 28, 2023?
iii. Is the applicant entitled to $3,874.71 for chiropractic services, proposed by Newmarket Health & Wellness Center in a plan submitted March 9, 2023?
iv. Is the applicant entitled to $3,879.38 for chiropractic services, proposed by Newmarket Health & Wellness Center in a plan submitted June 4, 2024?
v. Is the applicant entitled to $31,727.00 for a post 104 IRB assessment, proposed by HAL Disability Management in a plan submitted March 19, 2025?
vi. Is the applicant entitled to $1,018.00 for emergency medical services, submitted on a claim form (OCF-6) December 18, 2023?
vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the benefits in dispute, an award or interest.
PRocedural ISSUES
Request for an Adjournment
4Applicant’s counsel advised at the start of the hearing that the applicant was not feeling well, she was suffering from flu-like symptoms and would prefer to adjourn the hearing to another day. The applicant was present during the discussion. The respondent agreed to the adjournment.
5Pursuant to Rule 16.2 a party may make an oral request for an adjournment in compelling circumstances where the party did not or could not have known of the circumstances prior to the event. Given that the applicant testified she was feeling slightly unwell a few days prior to the hearing, and she had no way to predict she was getting worse the day of the hearing, I considered Rule 16.3.
6Rule 16.3 of the Licence Appeal Tribunal Rules, 2023 (“Rules”) and made the following inquiries.
7I asked the applicant if she had seen a doctor or had a medical note that would preclude her from participating in today’s hearing. She replied in the negative. I then inquired if she was taking medication or there was any reason that her symptoms would hinder her testimony. She replied that she was able to understand and answer questions fully. I then asked if she was provided with sufficient breaks would she be able to proceed, she confirmed she could.
8Although the request was on consent, this is not determinative. Given that the applicant had confirmed she could proceed, and taking into consideration the age of the file (over 296 days old), I denied the adjournment request and ordered that we proceed with the hearing.
ANALYSIS
Background
9The applicant was educated in her native country Iran with a master’s in psychology and worked as a psychologist before moving to Canada on April 2, 2022. Since she could no longer continue working in her capacity as a psychologist in Canada, she found part time employment in a customer service position as a greeter at Walmart. She worked 20-30 hours per week up to the date of the accident, took a leave of absence for two years post-accident, then resigned the position. While she was not working, she was approved for LTD benefits up to March 1, 2025, when the benefits were terminated.
10It was the applicant’s intention to upgrade her education when she came to Canada and take English lessons to improve her English language skills. She testified she took the role of a greeter to strengthen her communication skills and pursue a higher education in Canada but due to the physical and psychological impairments she suffered because of the accident, she testified she has not been able to.
Post 104 Income Replacement Benefits
11I find the applicant is not entitled to a post post-104 IRB.
12The applicant received a pre-104 IRB which was stopped by the respondent on March 1, 2025, due to the section 44 assessors’ opinion that the applicant does not meet the test for IRB. The applicant disagrees with the finding, and she now seeks post-104 IRB.
13To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.
14The applicant submits due to her injuries she is unable to continue working in any capacity and she takes the position she is entitled to a post 104 IRB benefit.
15The respondent argues the applicant does not meet the test for a post 104 IRB and she is able to continue working in some capacity for which she is suited by her education, training or experience.
16The applicant testified she suffers sleep disturbances, headaches, pain in her neck, shoulder, back, left side, left hand and chronic pain for which she takes Tylenol when needed for relief. Her injuries make it difficult to sit, stand or reach and she has reduced stamina which affects her ability to do her job. She also testified psychologically she suffers from a depressed mood, anxiety, prefers to be isolated, and overall, she has no desire to socialize. Since the accident she testified she has experienced relief in her knee and back, but all of her other impairments remains the same or worse. She also testified that she is quite reliant on her husband to assist her with her activities of daily living. For those reasons she is unable to sustain any employment.
17The applicant testified her job as a part-time greeter working 20-30 hours per week, four days a week was both physically and psychologically demanding. Her job entailed greeting customers, checking their receipts upon leaving the store, assisting with providing coins for shopping cart use, and once per week restocking shelves.
18In addition to her testimony, the applicant relies on the executive summary authored by Dr. Tajedin Getahun, Orthopedic Surgeon, dated May 21, 2025; a report dated April 30, 2025 by Ms. Angelique Cheddesingh, Vocational Assessor; a report authored by Farhana Jessa, Occupational Therapist, and her report dated May 1, 2025; Dr. Getahun’s Orthopaedic report dated April 2, 2025; and a Psychiatry report by Dr. Joan Quinn, Psychiatrist, dated May 20, 2025.
19The vocational assessment conducted by Ms. Cheddesingh was to determine what positions the applicant was suited for, based on the applicant’s education, training and experience using the National Occupation Classification (“NOC”). Ms. Cheddesingh concluded the applicant can fill the following roles; cashier (NOC 6611), other service support occupations such as a door attendant (NOC 6742) or other customer service and information services representatives/information clerks (NOC 6552).
20In addition, to better assess the applicant’s ability to function in a work environment, a situational work assessment was conducted over a two-day period, seven-hours a day to simulate a regular workday by Ms. Jessa. The applicant did not complete the full assessment on both days due to complaints of an exacerbation of her impairments. On day 1, she participated 4 hours and 7 minutes or (68%) of the day and had non-continuous productivity time for 2 hours and 49 minutes. On day 2, the applicant attended 3 hours and 52 minutes of the full day or (59%) and had 2 hours and 17 minutes of non-continuous productivity time.
21Ms. Jessa indicated in her report that the applicant deteriorated and had a need for multiple breaks and accommodations throughout the assessment. Ms. Jessa concluded the applicant exhibited pain behaviour and was not able to endure office type background noise as it agitated her headache, increased frustration, and she had difficulty managing the demands of work like tasks while managing her own symptom aggravation. In her opinion, the applicant would not be competitively employable on a full-time basis in many of the suggested NOC positions for which the applicant would be suited by way of education and training. These positions would require the applicant to lift, pull, push, follow instructions and focus, things the applicant had difficulty with during the assessment. These difficulties, in Ms. Jessa’s opinion, would impede the applicant’s ability to meet the demands of the suggested jobs, therefore creating a barrier for competitive employment. At best, in Ms. Jessa’s opinion, the applicant had the capacity to work part time hours or less at any position she would be suited for given her current impairments. She further opined that although the applicant may not be competitively employable today, by learning pain management strategies she may be able to increase her potential for recovery, vocational capacity, and her functional abilities with an eventual reintroduction to full time work.
22Dr. Getahun conducted an in-person assessment and determined the applicant suffers from chronic myofascial strain of the cervical spine, chronic myofascial strain of the thoracic spine, left shoulder strain and patellofemoral syndrome in her left knee. He further opined that although the applicant’s injuries are soft tissue and should have resolved within a 6–9 month period, in this case they did not.
23Dr. Getahun also opined the applicant met 5 out of 6 criteria for a chronic pain syndrome diagnosis pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition (“AMA Guides”), which are as follows.
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
ii. Excessive dependence on healthcare providers, spouse, or family.
iii. Secondary physical deconditioning due to disuse and/or fear, avoidance of physical activity due to pain.
iv. Withdrawal from self, family including work, recreation, or other social contacts.
v. Failure to restore pre-injury function after a period of disability such that the physical capacity is insufficient to pursue work, family, or recreational deeds.
vi. Development of psychosocial sequelae after the initial accident including anxiety.
24Dr. Getahun determined the applicant does not meet criteria one, but she does meet criteria two because she reported she is heavily reliant on her husband for her activities of daily living. She meets criteria three because of the physical deconditioning he observed during his assessment which affects her range of motion in her spine and left shoulder. Because of the applicant’s reporting to her assessors that she is withdrawn from her social life and her activities of daily living, she meets criteria four. Dr. Getahun also opines because her injuries have not restored to her pre-accident levels of functioning, she meets criteria five. Lastly, because of her physical impairments and the development of psychosocial sequalae, she meets criteria six.
25Dr. Getahun also indicates in his report that, upon examination, the applicant demonstrated she has a restricted range of motion of the thoracic spine, and left shoulder which has resulted in impaired sitting, standing and walking tolerance and impaired ability to lift, carry and reach. He further opines the applicant’s impairments are serious and permanent because her symptoms have persisted for over two years.
26Based on these findings, Dr. Getahun testified that the applicant suffers significant physical impairments which triggers other psychological sequalae that makes her unemployable in his opinion. However, he also testified that the applicant can do some tasks and may be able to work perhaps one hour at a time in some capacity but she would not be a reliable employee. The applicant would have a difficult time finding an employer who would want to provide that level of accommodation.
27Dr. Quinn conducted a psychiatric evaluation which included an interview with the applicant and her husband to assess the applicant’s ability to work post 104 weeks. The applicant ended the assessment early and indicated she would not return at another time to complete the assessment. Dr. Quinn testified that the applicant answered yes or no questions and that no questionnaires or validity tests were conducted during the assessment.
28Based on her assessment, Dr. Quinn testified that the applicant met five out of seven criteria in the DSM-5 which point to multiple diagnosis including of a major depressive disorder, specific phobia (situational vehicular driver and passenger), adjustment disorder with mixed anxiety and depressed mood, sleep wake disorder with other sleep disorder persistent. The nature of these disorders includes low mood, ruminating thoughts, loss of restorative sleep, fatigue, low energy, poor coping skills, decreased ability to focus and engage in social, recreational and occupational activities, and an overall decrease in enjoyment and pleasure in life.
29Because of these impairments, it is the opinion of Dr. Quinn that the applicant cannot return to her prior employment, nor is she able to return to any other employment for which she is reasonably suited by education, training or experience. Impairments such as depression, anxiety lack of restorative sleep affects the ability to concentrate, process information, communicate, and interact with others making it difficulty to be employable. She also opined when the applicant is faced with daily stressors, she emotionally deteriorates, making her prognosis poor.
30Together, the applicant’s assessors opine that although the applicant from a transferable skills perspective may be suited for the suggested NOC positions suggested by the vocational assessor, from a psychological and a physical perspective, her accident related sequalae would impede her ability to be employed.
31It is the respondent’s position that the applicant has not proven on a balance of probabilities that she has a complete inability to engage in any employment or for which she reasonably suited by education, training or experience. The respondent takes the position that the applicant does not meet the test for post 104 IRB and disagrees with the applicant’s assessors.
32It relies on the executive summary of Dr. Yong-Kyong Michael Ko, Physiatrist, and his report both dated February 18, 2025; the opinions of Dr. Seung-Jun Lee, General Practitioner, and a report dated June 25, 2024, Dr. Shahriar Moshiri, Psychologist, who examined the applicant three times and submitted four reports dated April 14, 2023, October 1, 2024, June 25, 2024 and February 18, 2025; and Mr. Andrew Holland, Chiropractor, who examined the applicant and submitted a Functional Capacity Evaluation Report dated December 18, 2023.
33According to the respondent, the applicant was not treated as a trauma patient at the hospital, her gait was not off, and her injuries are relatively minor. It points to the applicant’s testimony that she no longer has issues with her knee, and her injuries are sprain/strain type injuries that over time have improved or healed according to both her testimony and subjective reporting to her assessors.
34The respondent also raises the issue that, although the applicant’s employer supports work accommodations for the employees that need it, the applicant did not make a written formal request from her employer to request any accommodations. She simply quit after a two-year period.
35It also points to the fact that although the applicant’s family doctor, Dr. Horri Koroush provided a medical note for a limited leave of absence from work, there is no indication in his clinical notes and records that the applicant is unable to continue working, there isn’t a referral for chronic pain, the MRI referral he prescribed, the applicant did not attend and no prescription medications with refills were prescribed for her impairments. This supports the respondent’s submission that her injuries were mainly strain and sprain and are not substantial enough that she is unable to work.
36Further, the respondent raises credibility issues and points to inconsistencies in the applicant’s reporting to each assessor, the conscious limiting of her ability during an assessment and the often cutting the assessment short or declining to participate in activities meant to assess her, as she did with Dr. Quinn, Ms. Jessa, and Mr. Andrew Holland.
37In the second last assessment Dr. Moshiri conducted on June 25, 2024, he diagnosed the applicant with mixed anxiety and depressed mood, specific (isolated) phobias, vehicular, insomnia disorder, persistent somatic symptom disorder and opined again at that time the applicant had a substantial inability to perform the tasks of her pre-accident employment. His findings were in line with Dr. Quinn’s opinion. However, his opinion changed after his last assessment.
38In his report dated February 18, 2025, Dr. Moshiri opined the applicant’s current impairments do not rise to a level that meets the post 104 IRB test based on his clinical observations, over-reporting on the PAI, the findings on the Symptom Validity test, Driver and Passenger Fear Questionnaire, Vehicle Anxiety Questionnaire, and P-3. He re-diagnosed the applicant with an adjustment disorder with mixed anxiety and depressed mood, and insomnia disorder, persistent, with other sleep disorders.
39During his testimony, when questioned about the difference between his findings and that of Dr. Quinn, he argued that Dr. Quinn did not base her opinion on objective evidence, she simply relied on the applicant’s self reporting and that her assessment was cut short. He advised that without validity testing, in his opinion, the results are less credible. He also testified that he found some over-reporting and credibility issues in previous assessments, but while assessing her for the pre-104 IRB, the applicant’s impairments were enough to meet the pre-104 IRB test, while assessing her for post-104 IRB, the totality of his testing and observations indicate she does not meet the threshold.
40The applicant reported to Dr. Moshiri that she was feeling 20% better with psychotherapy treatment and 30-40% better with the use of antidepressants. She also complained of a moderate level of depression and 30% improvement in her level of anxiety and 30-40% improvement in her symptoms of PTSD. She also reported she started driving which was an improvement from his last assessment. His overall opinion is that the applicant does not suffer a complete inability to engage in any employment for which she is reasonably suited by way of education, training or experience and he also opined the options presented in the Transferable Skills Analysis (“TSA”) report are appropriate from a psychological perspective.
41In Chiropractor Dr. Andrew Holland’s Functional Capacity Evaluation assessment on August 26, 2024, he notes the applicant demonstrated self-limited and inconsistent efforts while being evaluated with 69% consistency measures recorded as reliable. He noted she either declined or terminated testing for any pushing, pulling, walking, stooping/bending, lifting, carrying, stairs, kneeling, reaching forward and overhead on the left and right. The applicant also terminated the grip strength testing prior to Rapid Exchange testing.
42Dr. Holland continues to say that the evaluation in his opinion is not a true indication of the applicant’s true abilities and that she may be capable of greater abilities than what was demonstrated. He does not specifically point to a credibility issue, he notes that the sub-maximal effort could be due to pain, fear of symptom exacerbation, or a lack of understanding of the purpose of the assessment.
43Dr. Ko also assessed the applicant and opined she suffers strain/sprain type of injuries which do not prohibit her from being gainfully employed. Examination of the upper extremities demonstrated normal colour and temperature. Shoulders were of equal height with normal bulk and no signs of atrophy or hypertrophy. She demonstrated full forward flexion and abduction on the right and 90 degrees of forward flexion and abduction on the left. She expressed discomfort diffusely on the left shoulder with digital palpation. While her upper extremity weight was fully supported by the examiner, there was full external and internal rotation. Examination of the thoracic and lumbar spine demonstrated normal curvature. Muscle bulk was normal with no signs of atrophy or hypertrophy. She reported no pain with digital palpation of the thoracic or lumbar musculature. There was full lumbar flexion, side flexion, and extension. Examination of the lower extremities demonstrated normal colour and temperature. Internal and external rotation of the hip was full with no reported pain. Flexion and extension of the knees were also full. She reported no pain on the bilateral knee joint line with digital palpation. Upon examination, he found there was no clinical evidence of ongoing musculoskeletal pathology or nerve impingements that would impede her ability to work.
44Dr. Lee also assessed the applicant and found she has soft tissue injuries including sprain/strains of the left shoulder and left knee.
45The respondent also argues the applicant testified that she is able to do the prescribed home exercises by the physiotherapist, she can cook, drives, grocery shops and attends to her self-care needs, and in the physiotherapy report it indicates she engages in walks, biking and does her banking independently, this is contradictory to her reporting to the assessors that she is heavily reliant on her husband and she is unable to be independent.
46Collectively it is the opinion of the respondent’s assessors that the applicant suffers minimal impairments, and she can continue to work in the same or a similar role as she has in the past. The respondent takes the position based on the totality of the evidence; the applicant has not met her onus she meets the test for a post 104 IRB benefit.
47I find the applicant is not entitled to a post-104 week IRB, as she has not met her burden on a balance of probabilities that she has a complete inability to engage in any employment for which they are reasonably suited by education, training or experience.
48First, the applicant testified her knee injury has healed completely, and she has improved 30-40% from a psychological perspective and 30% from a physical standpoint. She is able to go for walks, do her banking, socialize with her family, cooks, and drives.
49I also take into consideration the lack of a notation in her family doctor records of a referral to a pain specialist, any prescribed medication or his opinion that the applicant has an inability to work. Even though her family doctor provided a request for a leave of absence document dated December 26, 2023, in support of her leave of absence, it does not reference the specific reason or the cause.
50I find the objective evidence is not consistent with the applicant’s account of her impairments. I also find in many cases the applicant either declined or terminated an assessment early leading to inaccurate results as with Ms. Jessa, Dr. Quinn, and Mr. Holland.
51Further, I am not persuaded by the opinion of Dr. Getahun. Although he found the applicant has a complete inability to work in a position for which she is suited by way of education, training and experience due to her impairments, he did also testify that she has some ability but would not be a desirable candidate to an employer because of her need for accommodation. As much as she may need accommodations in his opinion, she is able to complete some work-related tasks for a portion of the time.
52I find at the time Ms. Jessa assessed the applicant, she witnessed some decompensation and pain behaviours which ended the 2 day assessment earlier. However, the applicant did manage over 50% of the activities which simulate a work like environment.
53I prefer the opinion of Dr. Moshiri than that of Dr. Quinn. I find Dr. Quinn did not base her opinion on any objective findings, her interview was cut short by the applicant, and the questions were yes or no questions according to Dr. Quinn’s testimony. I find Dr. Moshiri was able to track the applicant’s progression as he assessed her three times and filed four reports, he also conducted validity testing and other testing that I find more accurately speaks to the applicant’s true capacities.
54Based on the totality of the evidence, I find the applicant is not entitled to a post 104-week IRB, as she has not met her burden on a balance of probabilities proving her entitlement to this benefit.
Physiotherapy Services in the amount of $3,743.56
55I find the applicant is not entitled to physiotherapy services.
56To receive payment for a medical benefit under s. 15 and s. 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.
57The applicant testified and the OCF-18 indicates the goal of the plan is to reduce the applicant’s pain, increase her strength and return to her activities of daily living.
58The respondent declined to pay for the physiotherapy services, as it submits the applicant’s injuries were minor strain/sprain injuries and she was removed from the Minor Injury Guideline for her psychological impairments.
59Further the applicant testified “she did not get a good result”, and the treatment plan outlines the applicant reported little improvement in her upper back pain, left knee and there was no change in her neck pain from the last treatment plan which was fulfilled. She testified that she had only momentary relief from the pain after treatment. She also testified she was provided with instructions for home exercises which she does at home.
60I find this plan is not reasonable or necessary based on the outcome of the last round of physiotherapy and the applicant’s testimony. Given that the applicant testified she was not achieving the results the plan intended, the treatment is not meeting the goals.
61On a balance of probabilities, I find that the applicant has not established entitlement to this treatment plan.
Chiropractic Services in the amount of $3,874.71 and $3,879.38
62Neither the applicant nor the respondent made any submissions, nor did they provide any evidence regarding the reasonableness or necessity of these plans for chiropractic services.
63The applicant reported that the different modalities of treatment has not improved her physical abilities to her assessors, and she did not provide any further submissions or evidence in support of the reasonableness or necessity of these plans. Therefore, I find on a balance of probabilities these treatment plans are not reasonable or necessary.
64These treatment plans are denied.
$31,727.00 for a post 104 assessment, proposed by HAL Disability Management
65The applicant testified it was necessary to get a post-104 IRB independent assessment, but she did not point me to evidence in support of this.
66The respondent disagrees and submits the assessment is not reasonable or necessary.
67As the applicant has not made submissions or pointed me to evidence in support of this treatment plan beyond that it is reasonable and necessary, she has not met her onus.
68Therefore, the cost for this assessment is denied.
$1,018.00 for Emergency Medical Services, submitted on a claim form (OCF-6) December 18, 2023
69The applicant submits the emergency services invoice was denied on the premise that it would be covered by OHIP. The applicant testified she did not have OHIP coverage until approximately three weeks prior to the hearing.
70The respondent argues this invoice is not payable by the respondent as the applicant did not provide proof she applied to OHIP for this expense nor did she submit the invoice to her collateral benefits provider through her husband’s work.
71Upon review of the OCF-6 it indicates the date of the service was on August 22, 2022, prior to the date of the accident which occurred on August 27, 2022. I find this invoice has no relation to the accident and therefore it is not payable.
72The applicant has not met her burden this invoice is payable, therefore it is denied.
Interest
73Interest applies on the payment of any overdue benefits, pursuant to section 51 of the Schedule. Since I have not determined that any benefits are overdue, no interest is payable.
Award
74Under s. 10 of Reg. 644 the Tribunal may award up to 50 percent of the total benefits claimed, plus interest, if it determines the insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined an award is justified where the delay or withholding of benefits by the insurer is unreasonable, meaning its behaviour, is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. The onus is on the applicant to prove, on a balance of probabilities, the respondent’s conduct meets this criterion.
75The applicant claims an award on the basis that the respondent’s section 44 assessors failed to review the applicant’s treating documents and the respondent failed to continuously adjust the file. She did not provide me with specific examples of how the respondent’s assessors did not review the applicant’s treating documents and how it affected the adjustment of the file and resulted in the payment of benefits being delayed or withheld.
76Further, since I found nothing payable, the respondent cannot have unreasonably withheld or delayed payments. As such, no such award will be granted.
77The applicant is not entitled to a s.10 award.
ORDER
78For the reasons outlined above, I order that:
i. The applicant is not entitled to IRB, the plans in dispute, interest or an award.
ii. The application is dismissed.
Released: April 14, 2026
Mary Henein Thorn
Adjudicator
