Licence Appeal Tribunal File Number: 24-008454/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:
Sakina Mohamed
Applicant
and
Unifund Assurance Company
Respondent
DECISION
VICE-CHAIR:
Robert Maich
APPEARANCES:
For the Applicant:
Jasmine Patel, Counsel
For the Respondent:
Jonathan Wong, Counsel
HEARD: In Writing
OVERVIEW
1Sakina Mohamed, the applicant, was involved in an automobile accident on September 7, 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, Unifund Assurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant was the driver of her vehicle, travelling near the intersection of Steeles Avenue and Airport Road, in Brampton, Ontario. The applicant was making a right-hand turn with the right of way when a third-party vehicle collided with the applicant’s vehicle.
ISSUES
3The issues 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? Note: The parties agree the MIG limits have not been exhausted and their submission shall identify the amounts remaining.
ii. Is the applicant entitled to $1,920.52 for psychological services, proposed by Inline Rehabilitation Centre Inc. in a treatment plan/OCF-18 (“plan”) dated December 29, 2022?
iii. Is the applicant entitled to $4,217.71 for physiotherapy services, proposed by Inline Rehabilitation Centre Inc. in a plan dated January 26, 2023?
iv. Is the applicant entitled to $3,421.65 for physiotherapy services, proposed by Inline Rehabilitation Centre Inc. in a plan dated May 25, 2023?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.
5The applicant is not entitled to $1,920.52 for psychological services, proposed by Inline Rehabilitation Centre Inc. in a treatment plan dated December 29, 2022.
6The applicant is not entitled to $4,217.71 for physiotherapy services, proposed by Inline Rehabilitation Centre Inc. in a plan dated January 26, 2023.
7The applicant is not entitled to $3,421.65 for physiotherapy services, proposed by Inline Rehabilitation Centre Inc. in a plan dated May 25, 2023.
8As there are no benefits overdue, the applicant is not entitled to interest.
ANALYSIS
MIG
9I find the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.
10The 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 the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
11An 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.
12The onus is on the applicant to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.
13The applicant submitted she sustained physical and psychological injuries as a result of the accident and should be removed from the MIG.
14The applicant submitted she attended her family physician, Dr. Akotoye on September 12, 2022, 5 days after the accident complaining of pain symptoms and was prescribed Tylenol #2. On October 19, 2022 the applicant attended Dr. DeBilly at a walk in clinic, who diagnosed her with headaches and insomnia; he prescribed the applicant Doxepin and recommended she continue with physiotherapy.
15The applicant further submitted she was injured as a result of the accident as described in the OCF-3 completed September 19, 2022 by Dr. Bar, chiropractor, specifying the following injuries: mild cognitive disorder, chronic post-traumatic headache, insomnia, dizziness, nervousness, strains and sprains of the cervical, lumbar and thoracic spine. Dr. Bar completed another OCF-3 dated January 12, 2023 detailing the same injuries. A third OCF-3 dated June 4, 2023 was completed by Dr. Patel, chiropractor, detailing the same injuries as described in the previous OCF-3s plus additional injuries of muscle and tendon of shoulder and upper arm, sprain and strain of elbow, malaise and fatigue plus symptomology of acute stress reaction.
16The applicant submitted she has sustained a psychological injury as the result of the accident and should be removed from the MIG; she relies upon the s. 25 psychological assessment by Ms. Simmons, MA psychologist, dated March 11, 2023 who diagnosed her with Adjustment Disorder with Mixed Anxiety and Depressed Mood, in partial remission, and Specific Phobia (driving related). She relies upon the Tribunal decision 10-000835 v. Aviva Insurance Canada, 2018 CanLII 110948 (ON LAT) to argue that a psychological impairment excludes her from the MIG.
17The respondent submitted the applicant’s injuries place her within the MIG.
18The respondent noted that post accident the applicant attended with her family physician on September 8, 2022 and the balance of her family doctor’s records do not note the accident again; on October 19, 2022 the applicant reported to Dr. DeBilly that her shoulders/back were better with physiotherapy. On March 6, 2023 the applicant underwent an IE assessment with Dr. Chaudhry, physician. During physical examination, Dr. Chaudhry noted the applicant had normal range of motion in all areas tested and he diagnosed her with soft tissue injuries. Dr. Chaudhry opined the applicant had no evidence of objective neurological or radicular findings related to the accident.
19Further, the respondent submitted the applicant’s medical records supports that her injuries fall within the MIG. The medical records that have been produced contain minimal mention of accident-related complaints, instead focusing on non-accident-related complaints, such as diabetes consultations/screenings. The respondent argues that if the applicant’s accident-related injuries were affecting her to the extent alleged, she would have sought out some further treatment in the over two years since relevant records end.
20I have reviewed the clinical notes and records (“CNRs”) of Dr. Akotype and find that her complaints to her family physician are minimal and limited to the notation of September 12, 2022. I also noted in the CNR’s of Dr. Akotype that he made a pre-accident diagnosis on November 1, 2021 finding the applicant suffered from anxiety neurosis, hysteria, neurasthenia, obsessive compulsive neurosis and reactive depression.
21I have reviewed the psychological assessment by Ms. Simmons, MA psychologist, dated March 11, 2023 who diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood, in partial remission, and Specific Phobia (driving related). Upon review of the assessment, I note it was based upon an interview with the applicant and the application of 6 psychometric tests performed online. I note there was no discussion of Dr. Akotype’s diagnosis of anxiety neurosis, hysteria, neurasthenia, obsessive compulsive neurosis and reactive depression and the applicant denied to Ms. Simmons any history of mental health issues. Further, Ms. Simmons did not have the benefit of independent medical records of any healthcare professional including the CNRs of Dr. Akotype. I find Ms. Simmons based her diagnosis upon her interview with the applicant and the results of the testing applied.
22I note the testing by Ms. Simmons was mostly based upon self-reported questionnaires. The Depression Anxiety and Stress Scale (“DASS”) revealed a rating of moderate depression and anxiety with normal level of stress. I note no breakdown of scoring was provided in the report. The Patient Health Questionnaire (“PHQ-9”) indicated a moderate level of depression, again I note no scoring was revealed. The Accident Fear Questionnaire (“AFQ-PA”) and the Driving and Riding Avoidance Scale (“DRAS”) endorsed a score above the clinical rehabilitation-clinic population for fear and phobic avoidance, as well as moderate driving and riding avoidance; I note no scores where revealed. The Oswestry Disability Questionnaire (“ODQ”) indicated a self-perceived functional disability of 32.5% and that pain affected some of her activities of daily living, most notably lifting. The Pain Catastrophizing Scale (“PCS”) endorsed a score of 65th percentile comprising of 58th percentile for rumination, 50th percentile for magnification and 79th percentile for helplessness. I note Ms. Simmons did not apply a testing validity index.
23I further note that Ms. Simmons did not explain specifically how she arrived at her diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood, in partial remission, and Specific Phobia (driving related), other than to state that the applicant’s symptoms meet the criteria for the diagnosis. Given the thin discussion by Ms. Simmons as to how she arrived at her diagnosis, together with the heavy reliance on applicant self-reporting, the absence of accounting of other relevant medical records specifically the diagnosis by Dr. Akotype of anxiety neurosis, hysteria, neurasthenia, obsessive compulsive neurosis and reactive depression prior to the accident, the inaccurate denial of any mental health history, and absence of corroborating independent medical evidence in the face of the inaccuracy, combine to raise concern as to the validity of the report to the extent that I am compelled to assign it little weight.
24Having assigned little weight to the report of Ms. Simmons, I find there is insufficient evidence to establish that the applicant sustained a psychological injury as a result of the accident. I find the applicant has not met her burden.
25I find the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.
26As I have found that the applicant is entitled to treatment within the MIG limits, it is not necessary to determine if the treatment plans herein are reasonable and necessary.
Interest
27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find no interest applies in the circumstances herein.
ORDER
28The Tribunal’s final Orders:
i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.
ii. The applicant is not entitled to $1,920.52 for psychological services, proposed by Inline Rehabilitation Centre Inc.
iii. The applicant is not entitled to $4,217.71 for physiotherapy services, proposed by Inline Rehabilitation Centre Inc.
iv. The applicant is not entitled to $3,421.65 for physiotherapy services, proposed by Inline Rehabilitation Centre Inc.
v. The applicant is not entitled to interest on any overdue payment of benefits.
Released: April 17, 2026
Robert Maich
Vice-Chair