Licence Appeal Tribunal File Number: 24-006423/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:
Lindel Molloy
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Amar Mohammed
APPEARANCES:
For the Applicant:
David Carranza, Paralegal
For the Respondent:
Stacey Morrow, Counsel
HEARD:
By Way Of Written Submissions
OVERVIEW
1Lindel Molloy, the applicant, was involved in an automobile accident on October 15, 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, Wawanesa Mutual 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. 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?
ii. Is the applicant entitled to $1,896.25 for an Attendant Care Needs Assessment, proposed by Excel Medical Diagnostics Inc. in a plan dated April 4, 2023?
iii. Is the applicant entitled to $1,302.51 for chiropractic services, proposed by Complete Rehab Centre in a treatment plan/OCF-18 (“plan”) dated January 23, 2023?
iv. Is the applicant entitled to $1,072.01 for chiropractic services, proposed by Complete Rehab Centre in a plan dated April 3, 2023?
v. Is the applicant entitled to $2,896.42 for other assistive devices, proposed by Excel Medical Diagnostics Inc. in a plan dated April 28, 2023?
vi. Is the applicant entitled to $1,892.15 for chiropractic services, proposed by Complete Rehab Centre in a plan dated January 5, 2024?
vii. Is the applicant entitled to $1,082.32 for chiropractic services, proposed by Complete Rehab Centre in a plan dated March 22, 2024?
viii. Is the applicant entitled to $2,200.00 for a Psychological Assessment, proposed by Excel Medical Diagnostics Inc. in a plan dated July 18, 2023?
ix. Is the applicant entitled to $3,566.29 for psychological services, proposed by Excel Medical Diagnostics Inc. in a plan dated May 23, 2024?
x. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
xi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not subject to the MIG.
4The applicant is not entitled to a plan proposing $2,896.42 for other assistive devices.
5The applicant is entitled to the rest of the plans in dispute.
6The applicant is entitled to interest pursuant to s. 51 of the Schedule.
7The respondent is not liable to pay an award in accordance with s. 10 of Reg, 664.
8The application is granted in part.
PROCEDURAL ISSUES
9I find that the May 2, 2025 report of Dr. Abdulhusein should not be excluded.
10I am not granting the respondent’s request to exclude the May 2, 2025 report of Dr. Abdulhusein. On May 5, 2025, the applicant received a medical report dated May 2, 2025 completed by the applicant’s family doctor, Dr. Mustafa Abdulhusein. The applicant delivered a copy to the respondent on May 5, 2025. On May 6, 2025, the applicant requested consent to file and rely on the report because it was provided 45 days prior to the written hearing scheduled to take place on June 27, 2025. The applicant argues this is sufficient time for the respondent to consider and respond to the report.
11Further, the applicant submits that Dr. Abdulhusein has been the applicant’s family doctor since 2013 and that the report pertains to his clinical notes and records. In this context, the applicant argues that Dr. Abdulhusein is in the best position to contrast the applicant’s pre- and post-accident medical status. The applicant confirms in submissions that the report simply summarizes the applicant’s medical records. The applicant argues that the exclusion of the report would prevent the applicant from meeting his onus on the central issue of removal from the MIG.
12The respondent argues that the report should be excluded because of non-compliance with the production and exchange deadlines in the Case Conference Report and Order. Further, the respondent argues there is a lack of explanation as to why the report could not have been obtained earlier, and there is prejudice to the respondent due to insufficient time to obtain a medical review and prepare rebuttal submissions concerning the report.
13Having considered the positions of the parties, I find that the report should not be excluded. The applicant will be prejudiced by the exclusion of the evidence which summarizes clinical notes and records he is relying on at this hearing. The respondent will not be prejudiced since it is simply a summary of the clinical notes and records that already form part of the evidence at this hearing, and because the respondent had sufficient time to review the summary. Since the summary is relevant to the issues in dispute and because the substance of the information is already in the knowledge of the respondent, it is more procedurally fair to not exclude the evidence.
14However, in terms of weight and its probative value, I am not persuaded that a report that simply summarizes clinical notes and records is anything more than duplicative of the clinical notes and records already filed. Further, the applicant’s family doctor’s evidence is not expert evidence before me as he is the treating physician of the applicant. Since the report’s function is to summarize the clinical notes and records and there is no new medical evidence in the report, it ultimately has little probative value. Nothing at this hearing turns on the contents of the report due to its duplicative nature.
15For the reasons above, I find, on a balance of probabilities, that procedural fairness favours that the report of Dr. Abuldhusein dated May 2, 2025 is not excluded.
ANALYSIS
The applicant’s injuries are not subject to the MIG
16I find that the applicant’s injuries are not subject to the MIG.
17Section 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.”
18An 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.
19The applicant argues that his injuries warrant removal from the MIG for two reasons:
i. he has a documented pre-existing injury or condition, namely chronic back pain, resulting from a prior accident in 2014, and
ii. he has a psychological condition as a result of this accident.
Documented pre-existing injury or condition combined with compelling medical evidence stating it precludes recovery within the MIG
20The applicant argues that the medical record establishes he has been diagnosed with chronic pain because of a prior motor vehicle accident in 2014, complicating his recovery after the more recent subject accident. The applicant’s family doctor, Dr. Mustafa Abdulhusein, diagnosed the applicant on September 10, 2020, and referred him to a psychiatrist, and to a physiatrist for his chronic and ongoing pain symptoms. On December 17, 2020, Dr. Abdulhusein diagnosed the applicant with neck, upper back, shoulder, and lumbar sprain. As a result of these diagnoses relating to the 2014 accident, the applicant’s prescription for Vimovo was renewed and he was referred for physiotherapy, massage therapy, and acupuncture. On November 15, 2021, Dr. Abdulhusein confirmed the applicant’s past medical history of chronic back pain from the prior MVA and prescribed Vimovo and Flexeril. Based on the above, I find that there is a pre-existing chronic pain condition clearly documented prior to the subject accident by the applicant’s longstanding family doctor and the first part of the test in section 18(2) is met.
21The respondent argues that the applicant’s pre-existing condition of chronic pain should be considered in the context of the six criteria in The American Medical Association’s, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, (“AMA Guides”). The Tribunal has held the criteria are a helpful tool in the assessment of chronic pain. While the AMA Guides criteria for chronic pain were not incorporated into the Schedule, this Tribunal has consistently considered them a useful interpretive tool for assessing claims of chronic pain in accident benefits disputes in the absence of a diagnosis of chronic pain. Since the applicant has been diagnosed with a pre-existing chronic pain condition, I am not persuaded by the respondent’s argument about the AMA Guides chronic pain criteria being useful in this case. As noted above, I find the first part of the test in section 18(2) has been established.
22I now turn to the second part of the test, that is, whether there is compelling medical evidence stating that the condition precludes recovery if the applicant is kept within the confines of the MIG.
23Dr. Rahim Jessa of Complete Rehab Centre tendered a clinical progress and reassessment report dated November 1, 2024 confirming the applicant’s facility based treatment ended April 5, 2024, suggesting funding has been exhausted. Dr. Jessa notes that the applicant suffers from ongoing pain and functional limitations more than 2 years post-accident because of his pre-existing chronic back pain, which was exacerbated by the accident. The applicant continues to have difficulty with push and pull tasks, bending, lifting, walking, turning in bed, reaching overhead, sitting for a prolonged period. While the applicant’s workplace duties as a forklift operator are difficult to manage, he continues to work due to his financial responsibilities. Dr. Jessa opines that due to the applicant’s chronic pain the applicant’s recovery is complex and requires ongoing facility-based treatment to prevent long-term disability. Dr. Jessa recommends a chronic pain assessment and a chronic pain management program under the circumstances. I find that this is compelling evidence that meets the second part of the test in section 18(2). I find Dr. Jessa’s opinion persuasive because it aligns with the content of the clinical notes and records from Dr. Abdulhusein, the applicant’s family doctor. I further find that Dr. Jessa’s conclusions above support that the applicant’s pre-existing chronic pain precludes recovery if the applicant is kept within the confined of the MIG.
24In reaching this conclusion, I note that the respondent relies on a s. 44 report by Dr. Patrick Tansey, orthopedic surgeon, dated August 16, 2023. Dr. Tansey was tasked with assessing whether two treatment plans are reasonable and necessary, and to provide an opinion on application of the MIG. Dr. Tansey highlights, in the relevant document review section, Dr. Abdulhusein’s note of December 17, 2020: “Complaining of back pain-upper back, neck, shoulders, lower back. Increased pain with movement, muscle stiffness, moderate in nature. Has some flare up with colder weather”. However, there is no mention of chronic back pain or chronic pain in Dr. Tansey’s document review, and he does not consider Dr. Abdulhusein’s pre-accident referral to a physiatrist and a psychiatrist for the applicant’s pre-existing condition. For this reason, I put little weight on Dr. Tansey’s opinion that the applicant’s pre-existing condition was merely intermittent back pain and that it will not prevent recovery within the MIG.
25In sum, I find that the applicant’s family doctor’s clinical notes and records, together with Dr. Jessa’s report, provide compelling medical evidence stating that the applicant’s documented pre-existing chronic pain condition precludes recovery if he is kept within the confines of the MIG. This evidence aligns with the applicant’s documented pre-existing condition whereas the respondent’s s. 44 report does not directly engage with the pre-existing condition of chronic pain.
26Accordingly, I find, on a balance of probabilities, that the applicant’s injuries are not subject to the MIG.
Is the applicant entitled to $1,896.25 for an Attendant Care Needs Assessment, proposed by Excel Medical Diagnostics Inc. in a plan dated April 4, 2023?
27I find that the applicant is entitled to $1,896.25 for an Attendant Care Needs Assessment.
28To 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 treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
29The 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.
30The applicant argues that this attendant care needs assessment is necessary to evaluate his functional impairments, and to make recommendations for his rehabilitation. The applicant refers me to Lippa v Aviva Insurance Company, 2023 CanLII 42632 (ON LAT) in support of his position that that this assessment is reasonable and necessary.
31The respondent denied the assessment based on application of the MIG. The respondent’s submissions focus on contrasting the s. 44 report of Dr. Tansey and the s. 25 report of Mr. Boris Potoyants, occupational therapist. Mr Potoyants’ assessment and report is the subject of the dispute at issue.
32I find that the applicant made specific functional complaints post-accident to his family doctor, including not being able to perform his household chores and requiring increased time to complete tasks at home. The family doctor’s clinical notes also state decreased range of motion, increased pain with movement, muscle stiffness, problems with prolonged standing and walking with back pain flare-ups. Further, the applicant’s reliance on prescription medication in order to assist in tolerating his work and household duties is noted. On this basis, it is reasonable that an assessment take place addressing the applicant’s functional complaints.
33In my view, the respondent’s submissions are not persuasive because the applicant has met his burden to establish that there are reasonable grounds to believe the applicant has a condition that warrants an attendant care needs assessment, without any reference to Mr. Potoyants’ report. There is sufficient evidence in the family doctor’s clinical notes and records establishing that some condition exists that warrants this assessment. Further, as noted above, I have given little weight to the conclusions of Dr. Tansey’s report. While that was in the context of the MIG test, the basis is substantially relevant on this issue as well. Where Dr. Tansey’s report does not directly account for the extent of the applicant’s pre-existing condition and the barrier to recovery, it does not directly appreciate the basis for this assessment being reasonable and necessary.
34For the reasons above, I find, on a balance of probabilities, that the applicant is entitled to $1,896.25 for an Attendant Care Needs Assessment.
Is the applicant entitled to $1,302.51, $1,072.01, $1,892.15, and $1,082.32 for chiropractic services, proposed by Complete Rehab Centre in plans dated January 23, 2023, April 3, 2023, January 5, 2024, and March 22, 2024?
35I find that the applicant is entitled to the plans in dispute proposing chiropractic treatment, as identified above.
36The applicant argues that the proposed plans are reasonable and necessary because they identify relevant goals focusing on the applicant’s pain, range of motion, and a return to activities by addressing his strength, flexibility, and endurance.
37The respondent argues that while there are some complaints in the family doctor’s records, the applicant took a two-week trip to Jamaica without reporting any complaints arising out of the trip. The respondent further argues that the February 16, 2024, visit to his family doctor, post-Jamaica-trip, notes mild lower back tenderness and some range of motion limitations. However, there were no additional treatments prescribed and no additional diagnosis was made.
38This ignores the applicant’s accident-related complaints made in November 2023 and on February 27, 2024, amongst other dates, establishing a record of contemporaneous and corroborating medical evidence supporting each of the treatment plans in dispute. I am not persuaded that I should ignore the applicant’s accident-related complaints both before and after the February 16, 2024 note that the respondent focuses on.
39Since the applicant continued to make accident-related complaints that align with the barriers and goals identified as requiring treatment in the proposed plans, the applicant is entitled to all of the plans in dispute. The applicant’s ongoing documented pain history in the evidentiary record supports this treatment.
40For the reasons above, on a balance of probabilities, I find that the applicant is entitled to the plans in dispute proposing chiropractic treatment, as identified above.
Is the applicant entitled to $2,896.42 for other assistive devices, proposed by Excel Medical Diagnostics Inc. in a plan dated April 28, 2023?
41I find that the applicant has not met his onus to establish on a balance of probabilities that this plan is reasonable and necessary because he did not make any submissions relating to this plan.
Is the applicant entitled to $2,200.00 for a Psychological Assessment, proposed by Excel Medical Diagnostics Inc. in a plan dated July 18, 2023?
42I find that the applicant is entitled to the treatment plan for a psychological assessment.
43On October 18, 2022, the applicant reported to his family doctor that he was feeling dazed and nervous. Further, on November 23, 2023, the applicant indicated to his doctor he was not sleeping well and was feeling very tired. The applicant was prescribed an antidepressant, Remeron. On November 23, 2022, the applicant’s family doctor completed a Disability Certificate (“OCF-3”) endorsing the following accident-related injuries, as summarized in submissions: “Whiplash Injury Grade II, Depression/Anxiety, Multi Body Part Injury, and Headaches.” On June 13, 2024, the applicant reported to his family doctor that he was experiencing stress and anxiety with driving, and that he was mainly driving to and from work.
44During a pre-screening telephone interview with Dr. Fahimeh Aghamohseni, psychologist, on July 18, 2023, the applicant reported non-restorative sleep issues, early awakening, nightmares, experiencing accident-related depression and anxiety, struggling with cognitive issues, and developing a fear of being in a car as a driver and as a passenger. Dr. Aghamohseni opined a formal psychological assessment was warranted. I give this evidence weight because it is consistent with the family doctor’s records and his opinion.
45The respondent argues that the assessment is not supported by objective or corroborating evidence to support the diagnosis in Dr. Aghamohseni’s eventual section 25 psychological assessment report. However, it is not necessary the applicant establish that a condition exists. Based on the applicant’s family doctor prescribing an antidepressant and noting depression and anxiety in an OCF-3, I find that there are reasonable grounds to believe the applicant has a psychological condition that warrants further investigation by way of an assessment. In my view, it is reasonable and necessary that an assessment take place.
46For the reasons above, on a balance of probabilities, I find that the applicant is entitled to the plan proposing a psychological assessment.
Is the applicant entitled to $3,566.29 for psychological services, proposed by Excel Medical Diagnostics Inc. in a plan dated May 23, 2024?
47I find that the applicant is entitled to the proposed psychological services.
48On February 21, 2024, the applicant was assessed by Dr. Aghamohseni and was diagnosed with Major Depressive Disorder, Single Episode in the moderate range with anxious distress; Somatic Symptom Disorder with predominant pain, in the persistent range at severe levels; and Specific Phobia, situational type vehicular. Dr. Aghamohseni opined that the applicant is suffering substantial psychological trauma and emotional accident sequelae as a result of the motor vehicle accident, and at sixteen months post-accident, he continued struggling with numerous mental and physical health difficulties. In Dr. Aghamohseni’s opinion, the prognosis was poor to guarded at best and I have decided this evidence should be given weight due to alignment with the family doctor’s records.
49The respondent argues that psychological treatment is not supported by objective or corroborating evidence to support the diagnosis in Dr. Aghamohseni’s s. 25 psychological assessment report. The applicant relies on the Section 25 assessments which diagnosed several psychological injuries and recommended a psychological assessment. The respondent submits that Section 25 psychological findings were based on subjective reports and are unsupported by treating medical records. No psychological concerns were raised to any treating provider following the Section 25 diagnosis.
50I have considered that I have found the assessment is reasonable and necessary. Further, Dr. Aghamohseni’s opinion is the only opinion before me to consider from a mental health practitioner. As I have no qualified opinion that would undermine or counter Dr. Aghamohseni’s opinion, to which I give weight for reasons above, the applicant should not be disentitled to psychological treatment based on unchallenged expert evidence.
51For the reasons above, on a balance of probabilities, I find that the applicant is entitled to the proposed psychological services.
Interest
52The applicant is entitled to interest, which applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
53The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
54The applicant argues that the respondent was unreasonable in holding the applicant within the MIG. Further, that the respondent did not reassess the file in good faith, which delayed the applicant’s access to treatment and assessments he requires to recover from his accident-related injuries and sequalae, since the applicant cannot afford to bear the costs on his own.
55The respondent argues that its conduct does not rise to the level described in Wayne Allan Plowright v. Wellington Insurance Company, 1993 ONICDRG 66, it must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate. The respondent argues that it diligently reviewed all medical records received and that they were inconsistent with the reports prepared by the applicant’s s. 25 assessors.
56I find that the respondent’s conduct does not rise to the high threshold for an award in relation to any specific benefit. An award does not attach to the MIG as it is not a payable benefit, and the insurer’s conduct must be in relation to the specific benefit to which an award may attach. As to the applicant’s argument that the respondent’s position on the MIG delayed access to the treatment plans in dispute, I find that the respondent engaged the services of an expert, Dr. Tansey, and relied on Dr. Tansey’s opinion in adjusting the file. It is well established that an insurer is entitled to rely on the opinions of s.44 assessors when adjusting a file. A key concept in accident benefits is the prompt payment of benefits, however, I do not have evidence of excessive, imprudent, stubborn, inflexible, unyielding or immoderate conduct by the respondent in adjusting the file. I have considered that all of the issues in dispute were largely denied on the basis of the application of the MIG, however, the respondent relied on its assessor’s opinion which it is entitled to do. Accordingly, I find that the respondent is not liable for unreasonably withholding or delaying the payment of benefits that the applicant is found to be entitled to on this application.
ORDER
57For the reasons above, I make the following orders:
i. The applicant is not subject to the MIG.
ii. The applicant is not entitled to a plan proposing $2,896.42 for other assistive devices.
iii. The applicant is entitled to the rest of the plans in dispute.
iv. The applicant is entitled to interest in accordance with s. 51 of the Schedule.
v. The respondent is not liable to pay an award pursuant to s. 10 of Reg. 664.
Released: January 22, 2026
__________________________
Amar Mohammed
Adjudicator