Citation: Uzaman v. Co-operators General Insurance Company, 2026 ONLAT 24-000156/AABS

Licence Appeal Tribunal File Number: 24-000156/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:

Qamar Uzaman

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Yanick Charbonneau

APPEARANCES:

For the Applicant: Gurpreet Farmaha, Counsel

For the Respondent: Russell Tilden, Counsel

HEARD: In Writing

OVERVIEW

1Qamar Uzaman, the applicant, was involved in an automobile accident on February 13, 2021, 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, Co-operators 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. Whether the applicant is entitled to receive a Non-Earner Benefit (“NEB”) in the amount of $185.00 per week from March 13, 2021 until February 13, 2023?

ii. Whether the applicant is entitled to the OCF-18 in the amount of $2,593.78 for chiropractic services dated August 18, 2021, and denied on October 14, 2022?

iii. Whether the applicant is entitled to payment for assessments proposed by A&B Medical Assessments as follows:

a. A treatment plan / OCF-18 in the amount of $2,486.00 for a chronic pain assessment dated June 9, 2021, and denied June 24, 2021?

b. A treatment plan / OCF-18 in the amount of $2,486.00 for a psychological assessment dated August 30, 2021, and denied September 1, 2021?

iv. Whether the respondent is liable to pay an award under Section 10 of Regulation 664 due to unreasonably withholding or delaying payments to the applicant?

v. Whether the applicant is entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicant is not entitled to the payment of a Non-Earner Benefit.

4I also find that the applicant is not entitled to the payment of the treatment plans for chiropractic treatment, a chronic pain assessment, and a psychological assessment, given as I find that the treatment and assessment plans are not reasonable and necessary.

5The respondent is not liable to pay an award under Regulation 664.

6As no benefits are owing, no interest is payable.

ANALYSIS

Is the applicant entitled to a Non-Earner Benefit (“NEB”) in the amount of $185.00 per week from March 13, 2021 until February 13, 2023?

7I find that the applicant has not established entitlement to a Non-Earner Benefit.

8Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

9The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities. To meet the test, an insured person must be continuously prevented from engaging in substantially all of their pre-accident activities and, where pain is present, it should practically prevent them from engaging in those activities.

10The applicant submits that he sustained a complete inability to carry on a normal life due to ongoing concussion symptoms limiting his activities of a daily living; and that he sustained chronic lower back pain, radiating to both legs and neck pain. Since the accident, and due to his mobility restrictions, the applicant submits he can no longer participate meaningfully in family life. He can no longer go out, see his friends, or play cricket; he now requires assistance with fundamental tasks as bathing, dressing and grooming, and needs support for basis transfers. Finally, he submits that his religious practice has been severely curtailed, given as he cannot perform the required physical movements independently.

11In support of his position, the applicant points to the entries in his GP Dr. Sarsam’s clinical notes and records (“CNRs”), and a diagnosis of Dr. Malik, FD, at the CPM Centre for Pain Management, following a referral for a spine MRI, which revealed disc protrusions with nerve impingement. Dr. Malik’s diagnosis: cervical and lumbosacral radiculopathy, myofascial pain, and degenerative disc disease. The applicant’s medications were noted as Celebrex, baclofen, cyclobenzaprine and Tylenol with Codeine The applicant was also diagnosed with depression and anxiety, as well as persistent headaches. He also relies on the psychological assessment of Dr. R. Sharifzadeh, and the OCF-3.

12The respondent argues that there were no accident - related impairments, and that the applicants post-accident pain complaints arose from degenerative changes in his spine that pre-date the accident. It also submits that there are no objective findings in support of a psychological diagnosis, and points to symptom magnification. The respondent relies on its IE assessors Dr. Jaroszynski, orthopedic surgeon, and Dr. Seon, a psychologists assessment reports, the CNRs of the applicants GP, as well as the OCF-3. In support of its position, the respondent also relies on an X-Ray from May 11, 2021, by comparison to an X-Ray from 2015.

13I am persuaded that the applicant`s chronic pain symptoms align with the diagnosis of degenerative disease posed by Dr. Sarsam and Dr. Malik, upon an assessment of the MRI.

14First and foremost, the applicant`s persistent pain had been documented by his GP Dr. Sarsam, and on May 20, 2021, a referral was made for an MRI of the neck and lumbar spine. Upon completion, the MRI revealed degenerative changes in the cervical spine, that is: disc protrusions with nerve impingement.

15This position is also corroborated by the chronic pain clinic attended by the applicant where, in a report dated February 2, 2024, Dr. Malik diagnosed the applicant with: myofascial pain syndrome and degenerative disc disease based on examination and pain results. I note that Dr. Malik has not provided an opinion on whether the diagnosis is linked to the accident.

16Given the foregoing, I find that the diagnoses of degenerative disease posed are persuasive in establishing that the applicant’s chronic pain was not caused by the accident, in view, also, of the following points underscored by the respondent, that:

• Based on the IE Report from Dr. Jaroszynski that these degenerative changes were the cause of his then current symptoms.
• Based, also, on an X-ray from May 11, 2021, compared to a 2015 x-ray, noting “some worsening” of the degenerative changes since 2015. The degenerative changes are long standing.

17The applicant did not direct me to any diagnosis or different interpretation of the X-Ray results, which deviated from the findings of Dr. Malik, a Pain Specialist, and corroborated by Dr. Jaroszynski. I find their opinions as to the degenerative changes as a cause of the applicant’s pain, to be persuasive.

18Accordingly, I find that the applicant did not succeed in demonstrating on a balance of probabilities that the accident was the cause of the degenerative disease or his ongoing pain symptoms.

19With respect to the applicant’s concussion - related symptoms, I note that the applicant has not been diagnosed with a concussion by Dr. Sarsam or any other medical professional, including the pain specialist Dr. Malik. Further, the neurological exams referenced in the CNRs of Dr. Sarsam, consistently show as normal, with normal gait, normal walk. Accordingly, I find the applicant did not succeed in demonstrating on a balance of probabilities that they had been diagnosed with a concussion.

20Furthermore, I am not persuaded that the applicant has sustained an impairment that continuously prevented him from engaging in substantially all of the activities in which he ordinarily engaged before the accident.

21From my review of the evidence, the applicant has not established that he is prevented from engaging in substantially all of his pre-accident activities. For instance, it was noted in the GP’s CNRs that the applicant had continued to work casually as a SKIP driver, which appears to be for the same number of hours as before the accident.

22Further, the CNRs of Dr. Sarsam do not contain any entries on the applicant’s restrictions to working and / or performing any daily activities relative to the accident, and the MRI taken reveals a degenerative disc disease unrelated to the accident.

23Moreover, the OCF - 3 also documents that the injuries that the applicant had sustained are treatable within the MIG.

24Given that, on the balance of the probabilities, the medical records, including an MRI show that the applicant’s degenerative disease aligns with their ongoing pain symptoms to the neck and lumber back, and that they have returned to their casual work as a SKIP driver; also, given as the CNRs of their GP and their chronic pain specialist do not, in my view, link their neck and lower back restrictions to the accident, I find that the applicant has not established entitlement to a NEB. Accordingly, I dismiss their application for NEB.

Is the applicant entitled to the OCF-18 in the amount of $2,593.78 for chiropractic services dated August 18, 2021?

Is the applicant entitled to the OCF-18 in the amount of $2,486.000 for a chronic pain assessment dated June 9, 2021?

25On balance, I find that the applicant did not succeed in demonstrating that the chronic back and neck pain they have sustained is as a result of the accident. There is probative evidence including an MRI that the lumbar back and neck pain experienced by the applicant is due to a degenerative disc disease. Therefore, I find that the chiropractic treatment and chronic pain assessment proposed are not reasonable and necessary.

26In order to be entitled to payment for a treatment and assessment plan under the Schedule, the onus is on an applicant to demonstrate that it is reasonable and necessary as a result of the accident. To be successful, an applicant should establish that the treatment goals are reasonable, that the cost of the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.

27The applicant submits that the chiropractic treatment and assessment (for chronic pain) are satisfied by objective medical evidence, including the MRI findings showing disc protrusions with nerve impingement. The applicant also bases their analysis on the complete disruption of the applicant’s pre-accident life, due to limits to his functional movements and ability to participate in sustained activities, to the extent the applicant has sustained chronic lower back pain radiating to both legs and neck pain.

28The respondent submits there are no valid or objective findings to support the chiropractic and the chronic pain treatments. Relying upon their IE assessments, notably that of Dr. Jaroscynski, opining that the degenerative changes in his neck and back were the cause of his “then-current symptoms” and that these degenerative changes are long-standing.

29The stated reasons for the proposed chiropractic treatment plan are that the applicant continues to struggle with neck pain, headaches and post-concussion syndrome. This treatment plan’s goals are pain reduction, increased range of motion, increase in strength, and return to activities of normal living. The therapy is set to include chiropractic treatment, acupuncture, soft tissue/joint mobilisation and injury specific/strengthening.

30I agree with the respondent that, based on their IEs, there is a high likelihood that the symptoms the applicant has experienced are related to the degenerative changes. These degenerative changes have been documented in an MRI of the neck and lumbar spine which showed disc bulges.

31Of note, the applicant’s GP Dr. Sarsam and, later, Dr. Malik (chronic pain specialist), upon examination of the MRI, have opined that these are degenerative changes to the lumbar back.

32The CNRs of both Dr. Marsan and Dr. Malik do not contain entries which corroborate that the degenerative disc changes are linked to the accident.

33For these reasons, I find that the applicant did not meet their onus to prove that the injuries sustained are resulting from the accident, and accordingly, I find that the treatment plans for chiropractic and a chronic pain treatment are not reasonable and necessary.

Is the applicant is entitled to the OCF-18 in the amount of $2,486.00 for a psychological assessment dated August 30, 2021?

34I find that the applicant has not established that the proposed psychological assessment is reasonable and necessary.

35The applicant submits that he has sustained depression, anxiety and persistent headaches. The goals identified in the psychological assessment proposed are such: Pain reduction, and return to activities of normal living, and return to pre-accident work activities.

36The respondent asserts that there are no valid or objective medical findings to support a psychological diagnosis.

37I agree with the respondent. Based on the CNRs of the applicant’s treating physicians referenced above, notably that of Dr. Sarsam, GP, and Dr. Malik, there are no indications that the applicant has sustained a psychological disorder resulting from the accident.

38Further, the applicant has not directed me to any entries in the CNRs of their GP Dr. Sarsam, where Dr. Sarsam diagnosed the applicant with a psychological impairment, or any mention of a referral from Dr. Sarsam to a psychologist.

39I further find the applicant’s psychological assessment to be of limited persuasive value. In the report of Dr. B. Sharifzadeh, Psychologist, dated February 13, 2021, the applicant was found to have a current GAF score which equals 55, suggesting a moderate impairment in several areas including social, occupational, family relations and mood, and the applicant was diagnosed with Adjustment Disorder with Depressed Mood. However, the symptoms of depression are not linked to the accident, but to multiple factors, for a treatment is warranted to further investigate these psychological factors, in the context that “beliefs regarding severity and degree of severity, as well as coping style, have been shown to be important variables of an individual’s recovery”.

40Upon administrating tests to the applicant, Dr. B. Sharifzadeh also opines that: DASPS in the Negative Bias scale is elevated indicating that “ the applicant may be presenting himself as especially symptomatic, may be randomly responding or may be experiencing an unusual number of atypical symptoms”. Further, in their view, the scores for PAI are, yet again, elevated, and for which no interpretation can be provided. In view of these reserves / qualifications in their report, and the guarded prognosis, I have reservations as to the validity of the tests and the result / diagnosis of moderate depression.

41Although I am sympathetic to the applicant’s life - altering changes due to their degenerative disc disease, overall, I find that the applicant has not succeeded in demonstrating that they had sustained a psychological impairment resulting from the accident. Accordingly, I find that the treatment plan proposed for a psychological assessment is not reasonable and necessary.

Interest

42Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest does not apply as there are no benefits payments owed.

Award

43The 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.

44Given my conclusions above, and notably that the respondent based their decisions on the medical evidence, I find that the respondent is not liable to pay an award under Regulation 664.

ORDER

45For the reasons outlined above, I find that:

i. The applicant is not entitled to a NEB.

ii. The applicant is not entitled to the disputed treatment plans.

iii. The respondent is not liable to pay an award under regulation 664.

iv. The applicant is not entitled to interest.