Citation: Arafat v. TD General Insurance Company, 2026 ONLAT 24-012793/AABS

Licence Appeal Tribunal File Number: 24-012793/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:

Arafat Arafat

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Roderick Walker

APPEARANCES:

For the Applicant:

Ryan Coulter, Counsel

For the Respondent:

Yuki Qiu, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Arafat Arafat, the applicant, was involved in an automobile accident on November 10, 2023, 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 TD General Insurance Company, the respondent, 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 predominately minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit (“MIG”)?

ii. Is the applicant entitled to $3,308.00 for Physical Rehab Services, proposed by HealthMedica Erin Mills in a treatment plan/OCF-18 (“plan”) dated November 11, 2024?

iii. Is the applicant entitled to the assessments proposed by All Health Medical Centre, as follows:

1. $2,200.00 for an Attendant Care Needs Assessment, in a plan dated December 30, 2023?

2. $2,520.00 for a Neurological Assessment, in a plan dated January 30, 2024?

3. $4,260.00 for an EMG Assessment, in a plan dated April 15, 2024?

4. $2,200.00 for a Psychological Assessment, in a plan dated January 16, 2025?

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 Issue?

RESULT

3The applicant’s injuries are predominantly minor in nature, and the applicant remains in the MIG.

4As a result of the applicant remaining in the MIG, an analysis of whether any of the disputed treatment plans is reasonable and necessary is not required.

5The respondent is not liable to pay an award under s. 10 of Reg. 664.

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 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.”

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 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. In this case, the applicant seeks removal from the MIG due to a chronic pain impairment and/or a psychological condition.

The applicant does not suffer from a chronic pain impairment.

8I find, on a balance of probabilities, that the applicant does not suffer from chronic pain with functional impairment that warrants removal from the MIG.

9The applicant relies on the clinical notes and records (“CNRs”) of Dr. S. Fahmy, family physician; the s. 25 assessment of Dr. M. Beniar, neurologist, and his report dated January 25, 2024; Dr. M. Basile, Neurologist’s report dated May 8, 2025; and a disability certificate (OCF-3) dated January 25, 2024, prepared by completed by Michelle Schober, physiotherapist, listing injures as thoracic sprain and strain, lumbar sprain and strain, and WAD 2. Also, the applicant relies on the disputed treatment plans to establish his chronic pain.

10The applicant submits that soon after the accident, on November 13, 2023, he was seen by his family doctor, Dr. Fahmy, and began physiotherapy. At that visit, the applicant reported headaches, neck pain, back pain, muscle stiffness, and limited movement. In the weeks after the accident, Dr. Fahmy diagnosed the applicant with a concussion symptom. Dr. Fahmy noted that the applicant had balance problems, dizziness, and numbness. He referred the applicant to a concussion clinic and prescribed pain medication and muscle relaxants to help with pain and stiffness.

11On January 25, 2024, the applicant was assessed by a s. 25 assessor, Dr. M. Beniar a neurologist. Dr. Beniar diagnosed the applicant with a concussion and a mild traumatic brain injury (mTBI). The applicant’s symptoms included headaches, dizziness (vertigo), and numbness in the arms and legs.

12On February 22, 2024, Dr. Fahmy reported that the applicant had leg pain that travelled from his back. On July 18, 2024, Dr. Fahmy diagnosed the applicant with post‑traumatic chronic pain. Later, on November 29, 2024, Dr. Fahmy reported that the applicant was suffering from unexplained fatigue. On March 8, 2025, Dr. Fahmy noted that the applicant continued to experience pain related to muscle strains and sprains.

13On May 8, 2025, the applicant was assessed by s. 25 assessor, Dr. V. Basile, neurologist. Dr. Basile diagnosed the applicant with mild traumatic brain injury, post‑traumatic headaches, vertigo, soft‑tissue injuries, and accident‑related nerve problems, including right‑sided S1 nerve root irritation.

14The respondent submits that the applicant suffered only minor injuries as a result of the accident and should remain within the Minor Injury Guideline (MIG).

15The respondent argues that Dr. Fahmy failed to accurately diagnose either head trauma or chronic pain syndrome, and that the medical records do not substantiate a valid diagnosis of chronic pain. The respondent further submits that the applicant’s reported symptoms represent nothing more than the expected residual effects of soft‑tissue injuries. In addition, the respondent notes that the Tribunal has previously determined that a mere reference to chronic pain, without more, is insufficient to remove an applicant from the MIG.

16The respondent relies on a section 44 assessment by Dr. A. Belfon, MD, dated September 25, 2024. Dr. Belfon found that the applicant’s injuries were sprains and strains of the neck and mid‑to‑lower back. Dr. Belfon concluded that these injuries meet the definition of minor injuries under section 3(1) of the Schedule.

17The respondent also relies on a s. 44 neurological report by Dr. N. Yahmad, Neurologist, dated September 25, 2024. Dr. Yahmad stated that the applicant’s headaches were caused by neck and muscle problems, not by a neurological condition. Dr. Yahmad found no neurological disability or impairment. The respondent submits that, from a neurological perspective, the applicant’s injuries remain within the MIG. The respondent cites Brown v. Co‑operators, 2024 CanLII 54026 (ON LAT) which states that a concussion diagnosis based only on an applicant’s self‑report is not enough to prove a concussion caused by an accident. I agree.

18The respondent also states that the medical records do not clearly show that the applicant suffered a concussion in the accident. The applicant denied hitting his head, face, or body inside the vehicle during the collision.

19The respondent disputes the applicant’s claim that he was referred to a concussion clinic by Dr. Fahmy. The respondent points to the records from LifeMark, the physiotherapy provider, which show that no concussion clinic referral was made. Instead, the applicant’s physiotherapist, M. Yassa, diagnosed a concussion based only on the applicant’s self‑reported symptoms. The respondent submits that diagnosing a concussion is outside the scope of practice of a physiotherapist. I agree.

20The respondent further states that Dr. Fahmy did not diagnose a concussion based on his in‑person examination. On December 30, 2023, Dr. Fahmy performed a neurological exam and found no weakness, no sensory loss, and normal vision. The only diagnosis at that visit was a neck muscle sprain, and the applicant was advised to take muscle relaxants.

21On January 25, 2024, the applicant was assessed in person by Dr. M. Beniar at the I Scope Concussion and Pain Clinic. Dr. Beniar’s physical examination showed no abnormal findings. Dr. Beniar recommended an MRI, but the applicant did not provide MRI results to the respondent. Dr. Beniar also suggested vestibular therapy, but there is no evidence that the applicant attended this treatment.

22Finally, the respondent submits that the applicant’s symptoms are not related to the accident. The applicant had a pre‑accident history of low testosterone and side effects from hormone therapy. The respondent notes that the applicant had complained of fatigue and light‑headedness before the accident.

23I find that the applicant does not suffer from chronic pain with functional impairment as a result of the accident. As I review the CNRs of Dr. Fahmy, he references chronic pain based on the applicant’s own self reporting. I do not find that this singular entry of a chronic pain complaint warrants the applicant’s removal from the MIG.

24I find that in Dr. Fahmy’s notes that the applicant has no head trauma from the accident and does not diagnose him with a concussion from the accident. Further, the applicant did not get a referral to a concussion clinic by Dr. Fahmy. I find that this referral was made by his physiotherapist, M. Yassa, who diagnosed a concussion based only on the applicant’s self‑reported symptoms. I find that diagnosing a concussion is outside the scope of practice of a physiotherapist. In the CNR’s of Dr. Beniar s. 25 assessor, there was no abnormality in the applicant’s physical examination on January 25, 2024.

25Dr. Beniar recommended an MRI for the applicant and also suggested vestibular therapy. Also, in the CNR’s of Dr. Fahmy it does not explain how the chronic pain reported by the applicant has interfered with the applicant’s day to day function, nor does the applicant report any restrictions in his activities due to pain. Dr. Fahmy prescribed medication for the applicant’s pain, however there is no evidence of a lack of functionality about the applicant in his entries.

26On December 30, 2023, Dr. Fahmy performed a neurological exam and found no weakness, no sensory loss, and normal vision. The only diagnosis at that visit was a neck muscle sprain, and the applicant was advised to take muscle relaxants. I find that these are minor injuries under s. 3(1) of the Schedule.

27I further find that the surveillance relied upon on October 30, 2024, by the respondent is helpful. The applicant proceeded to park his black Audi from his driveway onto the street and appeared to walk normally and without pain. His gait looked normal, and he was walking at a normal pace back to his house. This surveillance is over a year from the accident and the same time that the treatment plans were prepared. This video is helpful as it portrays the applicant’s current physical condition.

28I find, on a balance of probabilities, that the applicant has not met his onus, and does not suffer from chronic pain with a functional impairment that warrants removal from the MIG.

The applicant does not suffer from a psychological condition.

29I find, on a balance of probabilities, that the applicant does not suffer from a psychological condition as a result of the accident that would warrant removal from the MIG.

30The applicant relies on the CNR’s from his family doctor, Dr. Fahmy, a s. 25 psychological report by Dr. J. Pilowsky, psychologist and Dr. Sagratti, psychologist dated April 17, 2025, and also the disputed plan for a $2,200.00 for a psychological assessment.

31The respondent relies on its s. 44 assessment report of Dr. D. Mandel, psychologist, dated September 25, 2024. Dr. Mandel, based upon an information from the clinical interview, documentation review, behavioural observation, and psychological test data, found that the applicant does not meet DSM- 5 TR diagnostic criteria for a clinical diagnosis. The respondent submits that this report was completed in person, and the assessor reviewed all the available medical records in preparation for the report.

32The applicant states that he has suffered from a psychological condition as a result of the accident.

33The applicant states in her s. 25 psychological report, Dr. Pilowsky found that the applicant’s score on the Beck Depression Inventory II indicated that he was experiencing symptoms of depression in the mild range. On the Beck Anxiety Inventory (BAI) the applicant scored minimal levels of anxiety, on the Pain Patient Profile (P-3), the applicant’s score was in the appropriate range, indicating valid and interpretable results. In the Miller Forensic Assessment of Symptoms Test (M-FAST), the applicant’s score was not indicative of malingered symptomatology. Dr. Pilowsky concluded that based on the testing above, the applicant was diagnosed with: Persistent, Moderate Somatic Symptom Disorder with Predominant Pain (300.82) with depressed mood, Vehicular anxiety. Dr. Pilowsky states that the applicant suffers from the above-noted diagnosis as a result of the accident, and therefore, the patient’s impairments should not be considered “minor.” His injuries and impairments are beyond the scope of the definition of “minor injury.”

34The respondent submits that the applicant reported to Dr. Mandel that his mood was okay, denied any feelings of hopelessness, uselessness, worthlessness, sadness, or tearfulness, and he denied experiencing any panic attacks, flashbacks, or any visual and/or auditory hallucinations. He reported that he continues to have an emotional connection with others as well as a desire with respect to usual activities but has "limitations." In terms of driving behaviour, the applicant relayed that he is still driving, denying any feelings of nervousness, pedestrian, or passenger anxiety. Dr. Mandel questioned as to interest in therapy, and the applicant stated he does not feel he needs it. The respondent suggests that there are no complaints of accident related psychological or emotional problems in any of the applicant's family doctor records. Dr. Fahmy's CNR entry dated November 29, 2024, notes no depression, no chronic diffuse muscle pain, and no loss of interest, hopelessness or feeling down.

35I prefer the opinion of Dr. Mandel over that of Dr. Pilowsky. In her assessment, Dr. Pilowsky found that the applicant’s score in the Beck Anxiety Inventory (BAI) was in the minimal levels of anxiety, on the Pain Patient Profile (P-3), the applicant’s score was in the appropriate range, indicating valid and interpretable results. This, I find is not in the severe range of anxiety, or a range where treatment outside the MIG can be beneficial to the applicant. I find that the test scores do not appear to support Dr. Pilowsky’s diagnoses.

36In contrast, Dr. Mandel stated that the applicant described his mood to be okay, denying any feelings of hopelessness, uselessness, worthlessness, sadness, or tearfulness. He denied any suicide ideation and/or intent at present. He reported that he has avoidant behaviour around lifting heaving things and playing sports. He denied the experience of any panic attacks, flashbacks, or any visual and/or auditory hallucinations. He continues to have an emotional connection with others as well as a desire with respect to usual activities but has “limitations.”

37I find in terms of driving behaviour, the applicant relayed that he is still driving, denying any feelings of nervousness, pedestrian, or passenger anxiety. He denied taking public transit as he has his own vehicle. He cited that he is more alert with loud noises, and he has not gone by the scene of the index accident as he has no reason to. I find that Dr. Mandel concluded based upon an integration of information from the clinical interview, documentation review, behavioral observations, and psychological tests data, the evidence from the current examination indicates that the applicant does not meet DSM-5-TR diagnostic criteria for a clinical diagnosis.

38I further find that the family doctor entries do not reveal any psychological complaints as a result of the accident. Dr. Fahmy's records indicate one entry dated November 29, 2024, where psychological symptoms are discussed, but it states that there is no depression, no chronic diffuse muscle pain, and no loss of interest, hopelessness or feeling down.

39For the above reasons, I find the applicant, on the balance of probabilities has not meet his onus to prove an accident-related psychological impairment and remains in the MIG.

40Since I have found that the applicant’s injuries are predominantly minor and can be treated within the MIG, it is not necessary for me to consider whether the disputed treatment plans are reasonable and necessary.

Interest

41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to any interest because no benefits are payable.

Award

42Pursuant to section 10 of Regulation 664, the Tribunal may award up to 50% of the total benefits payable plus interest if it determines that the insurer unreasonably withheld or delayed the payment of benefits. I find that since no benefits are payable, no benefits have been unreasonably withheld or delayed. The applicant is not entitled to an award.

ORDER

43On the totality of the evidence, I order that:

i. The applicant’s injuries are predominately minor, and the applicant remains in the MIG.

ii. The applicant is not entitled to the treatment plans in dispute or interest.

iii. The respondent is not liable to pay an award under s. 10 of Reg. 664.

iv. The application is dismissed.