Citation: Opoku v. Intact Insurance Company, 2026 ONLAT 25-004428/AABS

Licence Appeal Tribunal File Number: 25-004428/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:

Millicent Opoku

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Sam Moini

APPEARANCES:

For the Applicant:

Sandy A Williams, Counsel

For the Respondent:

Anthea Chan, Counsel

Court Reporter:

Breanna Clancy, Network Reporting and Mediation

HEARD by Videoconference:

February 9 to 11, 2026

OVERVIEW

1Millicent Opoku, the applicant, was involved in an automobile accident on August 28, 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 the respondent, Intact 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 (IRBs) in the amount of $400.00 per week from September 4, 2023 to date and ongoing?

ii. Is the applicant entitled to $3,886.58 for chiropractic services proposed by 1836580 Ontario Limited, in a plan dated June 7, 2024?

iii. Is the applicant entitled to $3,331.34 for physiotherapy services proposed by 1836580 Ontario Limited, in a plan dated January 8, 2025?

iv. Is the applicant entitled to $2,200.00 for chronic pain assessment proposed by East Rehab, in a plan dated November 22, 2024?

v. Is the applicant entitled to costs?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

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?

RESULT

3The applicant is entitled to an IRB in the amount of $400.00 per week from September 4, 2023 to August 28, 2025.

4The applicant is not entitled to an IRB in the amount of $400.00 per week from August 29, 2025 to date and ongoing.

5The applicant is entitled to $3,886.58 for chiropractic services proposed by 1836580 Ontario Limited, in a plan dated June 7, 2024.

6The applicant is entitled to $3,331.34 for physiotherapy services proposed by 1836580 Ontario Limited, in a plan dated January 8 2025.

7The applicant is entitled to $2,200.00 for chronic pain assessment proposed by East Rehab, in a plan dated November 22, 2024.

8The applicant is not entitled to costs.

9The applicant is entitled to interest, as per s. 51 of the Schedule.

10The applicant is not entitled to an award.

PROCEDURAL ISSUES

I allowed the clinical notes and records (CNRs) of Mind by Design

11The applicant requested to include CNRs of Mind by Design, the applicant’s treating psychological records. The applicant submitted these records were received just before the hearing date, were produced once received and would be relevant to the issues in dispute.

12The respondent submitted to exclude these records as they did not meet the timelines set out in the Case Conference Report and Order (CCRO). The respondent also submitted that a response to these records would be impossible given the time they were produced.

13I allowed CNRs of Mind by Design into evidence, as I found them relevant to the issues in dispute and that it would prejudice the applicant if not allowed into evidence. I found that the applicant’s prejudice in not being able to rely on these relevant medical records outweighs the respondent’s prejudice as the respondent would be aware of the applicant’s psychological condition prior to the hearing. Further, given their late production, I notified the parties that I would consider what weight to give the evidence based on the submissions of the parties.

I allowed the applicant’s book of authorities

14The respondent submitted that the applicant’s book of authorities did not meet the deadlines set in the CCRO and it was unclear why it was left out.

15The applicant submitted the documents in the book of authorities is commonly accessible in legal practise and would not prejudice the respondent.

16After hearing the parties’ submissions, I find that the respondent has not persuaded me that they suffer any prejudice by the late filing of the applicant’s book of authorities. I find that the book of authorities is not evidence. I allowed the respondent time to review the book of authorities and allowed supplementary authorities if needed, which the applicant agreed to.

I allowed a CNR of Dr. Felix Asekomhe, family physician

17During the hearing, the respondent submitted that the CNR be admitted, asserting that the sections pertaining to the applicant’s family physician are incomplete in the applicant’s brief.

18The applicant submitted that the records should be excluded, as they were not filed within the timeline set out in the CCRO. The applicant further submitted that it was the respondent’s responsibility to ensure that all documents were submitted in accordance with the CCRO timeline.

19I allowed the CNR of Dr. Asekomhe. I found that the applicant would not be prejudiced by the CNR, as they would have had access to it from the outset. Accordingly, permitting the CNR does not result in any unfairness or procedural disadvantage to the applicant. Further, given their late production, I notified the parties that I would consider what weight to give the evidence based on the submissions of the parties.

Dr. Charles Pierce’s, psychologist, testimony where documents being referenced were not before the Tribunal

20During the hearing, applicant’s counsel observed that Dr. Pierce was referring to documents that were not before the Tribunal. Specifically, Dr. Pierce was reviewing a draft report and raw test data that had not been disclosed. Upon this being raised, the respondent agreed to provide the documents with applicant’s counsel once they received it from Dr. Pierce. The applicant requested an opportunity to review the materials and to cross-examine Dr. Pierce the next day which the respondent agreed.

21As the parties agreed, I found it procedurally fair to allow the applicant to cross examine Dr. Pierce the following day. In reaching this decision, I considered that both parties had consented to this proposed arrangement, and the brief adjournment would not result in any prejudice or undue delay. Allowing the cross examination to proceed on the next day ensured that the applicant had a full and fair opportunity to test Dr. Pierce’s evidence while maintaining the overall efficiency and integrity of the proceedings.

ANALYSIS

Pre-104-week IRBs

22I conclude that the applicant has established that she is entitled to payments of IRBs in the amount of $400.00 from September 4, 2023 to date to August 28, 2025.

23Section 5(1) of the Schedule states that insured persons are entitled to an IRB if they are employed at the time of the accident, and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

24The applicant is basing her claim for IRBs on her pre-accident employment at Ontario Services 4U Inc. as a general labourer at a warehouse.

25Starting with the essential tasks, the applicant’s testimony and both s. 44 and s. 25 reports provide an account of the applicant’s pre-accident employment. The applicant testified that she was a full-time general labourer at a factory. She worked 4 of the 5 days per week doing physical work which included bending, packaging, and lifting objects weighing 20 to 30 pounds. The remaining day of the week she worked in an administrative setting, mostly doing paperwork and at times interacting with colleagues.

26I find the applicant’s essential tasks of her pre-accident occupation to be that of a general labourer with medium strength demands including lifting and bending and doing administrative tasks that would require concentration and attention to detail.

27Turning to the applicant’s accident-related impairments, the applicant argues the accident caused her psychological and physical impairments. The applicant argued these impairments caused her an inability to work in the timeframe in dispute. The applicant also testified that due to the accident she has only been able to attend her college virtually, occasionally attending in person when group assignments were required, due to her physical pain.

28The applicant relies on the reports and CNRs of Dr. Felix Asekomhe, family doctor, Dr. Mohamed Abounaja, pain specialist, and Dr. Cody Erikson, psychologist. Dr. Abounaja diagnosed the applicant with chronic pain syndrome, post-traumatic headaches, chronic whiplash associated disorder, mechanical lower back pain pattern, bilateral rotator cuff syndrome, depression, anxiety, and post dramatic stresses disorder (PTSD). The applicant submits Dr. Asekomhe saw the applicant on several occasions after the accident, and she consistently complained of her psychological and physical pain. A note dated September 23, 2023 from Dr. Asekomhe stated the applicant should be permitted to do online schooling for one month for medical reasons. A CNR dated April 20, 2024 from Dr. Asekomhe assessed the applicant with chronic pain syndrome as well as post traumatic distress disorder, recommending physiotherapy, massage therapy, and counselling supportive therapy. A letter dated October 17, 2024 from Dr. Asekomhe stated that the applicant was not able to return to work due to injuries from her motor vehicle accident starting from September 28, 2023 to September 19, 2024 and continued to be unable to work.

29The applicant also relied on the testimony and report dated January 13, 2025 of Dr. Erikson, who diagnosed the applicant with post traumatic stress disorder and major depressive disorder, moderate, single episode. Dr Erikson based his diagnosis on the applicant’s self-reporting, valid psychological testing, and corroborating medical records. His report indicates the applicant has high anxiety and depression due to the accident. Dr. Erikson testified the applicant has diminished concentration and memory as a result of her injuries caused by the subject accident.

30The respondent submits that the applicant has not met her onus to prove she has a substantial inability to perform the essential tasks of her employment and primarily relies on s. 44 reports of Dr. Charles Pierce, psychologist, Dr. Brent Souter, chiropractor, and Dr. Mohamed Khaled, physician.

31Dr Khaled’s report dated December 6, 2023 diagnosed the applicant with mechanical middle and low back pain as well as grade 2 whiplash of the neck, which he considers to be uncomplicated soft tissue injuries as a result of the accident. Dr. Khaled did not find any valid indicators to support residual or permanent musculoskeletal, neurological, or orthopaedic accident-related injury or impairments as a result of the accident. Dr. Khaled opined that the applicant did not suffer a substantial inability to perform the essential tasks of her pre-accident employment as a result of the accident and should be able to return to her job without restrictions.

32Dr. Pierce’s report dated September 13, 2024, diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood at a mild-moderate level as a result of the motor vehicle accident, in which he recommended psychological treatment. Dr. Pierce based his diagnosis on the applicant’s self-reporting, valid psychological testing, and corroborating medical records. Dr. Pierce opined, from a psychological perspective, that the applicant does not suffers a substantial inability to perform the essential tasks of her previous employment.

33The respondent further submitted that, both before and after the accident, the applicant was enrolled full time at Seneca College, where she was, and continues to be, pursuing an Honors Bachelor’s degree in Mental Health and Addictions. The respondent also submitted that, following the accident, the applicant completed approximately 100 hours of practicum required for this degree, which the applicant corroborated in her testimony.

34I find that the applicant has established she has an accident-related chronic pain and psychological impairments. Her testimony provided a compelling account of the physical difficulties she experienced following the accident, including a detailed description of a chronic pain and persistent headaches. I prefer the diagnosis of chronic pain syndrome offered by Dr. Abounaja over that of Dr. Khaled. The medical evidence, particularly of her family doctor, supports the conclusions that she suffers from chronic pain syndrome. Moreover, the applicant's testimony was consistent with the clinical findings and records of her family physician.

35I find that the applicant has also established accident-related psychological impairments. However, I prefer the diagnosis of adjustment disorder with mixed anxiety and depressed mood, assessed mild to moderate, as provided by Dr. Pierce, over that of Dr. Erikson. I found Dr. Erikson's report and testimony to be inconsistent with the preponderance of evidence. Dr. Erikson’s opinion that the applicant experiences diminished memory and concentration is not supported by the applicant’s demonstrated functional abilities. The evidence shows that she has been, and continues to be, enrolled in a full-time honors program at Seneca College, where she is successfully passing her courses. In addition, she completed a practicum course of approximately 100 hours, during which she worked primarily with high school students experiencing mental health challenges. Overall, I find the applicant’s condition and level of impairment are more consistent with the testimony and diagnosis provided by Dr. Pierce.

36Considering the essential tasks of the applicant’s pre-accident employment in light of her accident-related impairments, I conclude that she has a substantial inability to perform the essential tasks of her previous occupation. This is because the applicant’s pre-accident role was primarily that of a general labourer, involving medium-strength physical demands, with a minor administrative component requiring concentration. Having accepted both Dr. Abounaja’s and Dr. Asekomhe’s diagnosis of chronic pain syndrome, I find that she has a substantial inability to perform the essential duties of her pre-accident work because they require medium strength physical demands and an ability to concentrate that would be impacted by her accident-related chronic pain syndrome.

37I find the applicant has established on a balance of probabilities that she sustained an accident-related impairment that resulted in a substantial inability to perform the essential tasks of her pre-accident employment.

38Therefore, she is entitled to payments of IRBs in the amount of $400.00 from September 4, 2023 to date to August 28, 2025.

IRBs post-104 week

39I conclude that the applicant is not entitled to payments of IRBs in the amount of $400.00 from August 29, 2025 to date and ongoing.

40To 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.

41To determine entitlement past the 104-week mark post-accident, the Tribunal must ask the following questions when applying the complete inability test:

(a) What employment or self-employment is the applicant “reasonably suited by education, training or experience”?

(b) What, if any, impairments were caused by the accident?

(c) Did the applicant’s accident-related impairments cause a “complete inability” to perform any “reasonably suited” employment?

42The assessment of the employment that an insured person is reasonably suited to perform involves an appraisal of work history, education, and training. As noted above, testimony from the applicant and reports from the s. 44 and s. 25 assessors provided information about the applicant work history and education. The applicant’s pre-accident work consisted of her work at Ontario Services 4U Inc. as a general labourer at a warehouse.

43The applicant’s education and training were in the field of Mental Health and Addiction. She successfully completed three of the four years of the program and continues to be enrolled. The program consisted of a practicum program of approximately 100 hours, which the applicant completed post accident.

44I find that the applicant is reasonably suited to employment as a general laborer. I also find that the application is reasonably suited to work in the field of counseling, as well in mental health and addictions, as demonstrated through completion of the practicum course. The applicant testified that the practicum primarily involved working with high school students experiencing various mental health issues.

45I accept that the applicant’s accident-related injuries, as mentioned above in this decision, consist of chronic pain syndrome and adjustment disorder with mixed anxiety and depressed mood at a mild-moderate level.

46I am not persuaded that the applicant meets the post-104-week IRB requirement of a complete inability. Neither of the section 25 assessors concluded that the applicant has a complete inability to engage any reasonably suited employment. In addition, a clinical note dated August 27, 2024, from Dr. Syed Zaidi, family physician, who assessed the applicant and worked alongside Dr. Asekomhe, encouraged her to continue and/or return to work and advised against prolonged rest, amongst other things. While the applicant has not resumed employment, this note indicates to me that Dr. Zaidi considered her capable of working. Additionally, the applicant has also demonstrated the ability to perform the tasks required to work in counseling for mental health in addiction. The practicum course she completed post-accident demonstrates she possesses the abilities necessary to perform these tasks. In my view, this evidence supports a finding that she does not satisfy the complete inability test under the post-104-week criteria.

47Therefore, I find the applicant has not established on a balance of probabilities that she is entitled to IRBs from August 29, 2025 and ongoing.

$3,886.58 for chiropractic services

48To 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.

49I find that the applicant is entitled to the cost of this treatment plan.

50The treatment plan in dispute is for 28 sessions of exercise for multiple body sites, initial assessment, 18 sessions simulation of muscles, 18 sessions body therapy, documentation, 18 sessions of physical rehabilitation, 18 exercises for the shoulder joint, 18 sessions of manipulation of the spine. The goal of the plan is pain reduction, increased range of motion, and increased strength.

51The treatment plan was denied by the respondent based on Dr. Khaled’s report dated August 23, 2024, in which he concluded that the applicant sustained uncomplicated soft tissue injuries and should resume all aspects of life that she was engaged in prior to the accident without restrictions.

52I find the treatment plan is reasonable and necessary as I prefer the diagnosis of accident-related chronic pain offered by Dr. Abounaja and Dr. Asekomhe, over that of Dr. Khaled’s diagnosis. I accepted Dr. Asekomhe’s recommendation to continue with physiotherapy and chiropractic services based on his diagnosis.

53Therefore, I find this plan to be reasonable and necessary to address the applicant’s physical condition, and the cost of the treatment plan is reasonable to further that goal.

$3,331.34 for physiotherapy services

54I find that the applicant is entitled to the cost of this treatment plan.

55The treatment plan in dispute is for 26 sessions of exercise for multiple body sites, initial assessment, 14 sessions simulation of muscles, 14 sessions body therapy, documentation, 14 sessions of physical rehabilitation, 14 exercises for the shoulder joint, 14 sessions of manipulation of the spine. The goal of the plan is pain reduction, increased range of motion, and increased strength.

56The treatment plan was denied based on Dr. Khaled’s paper review dated February 21, 2025, in which he concluded that the applicant sustained uncomplicated soft tissue injuries and should resume all aspects of life that she was engaged in prior to the accident without restrictions.

57As indicated above, I prefer the diagnosis of accident-related chronic pain offered by Dr. Abounaja and Dr. Asekomhe over that of Dr. Khaled diagnosis. Dr. Asekomhe recommended, on many occasions, that the applicant continue with physiotherapy and chiropractic services, which I agreed bases on his diagnosis. This plan does not duplicate or overlap with that outlined above, as the two are separated by approximately 6 months, and the plan above would have concluded by the time this treatment plan commenced.

58Therefore, I find this plan to be reasonable and necessary to address the applicant’s physical condition, and the cost of the treatment plan is reasonable to further that goal.

$2,200.00 for a chronic pain assessment

59I find that the applicant is entitled to the cost of this treatment plan.

60The 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.

61This assessment consisted of a chronic pain assessment, report preparation, and completion of the OCF-18. The goal of this assessment is pain reduction and increase in strength.

62The applicant relied on the opinions of Dr. Abounaja and Dr. Asekomhe, who diagnosed the applicant with chronic pain syndrome, to support the position that the proposed chronic pain assessment was reasonable and necessary. This diagnosis suggested that the applicant symptoms have persisted beyond the expected recovery period for soft tissue injuries and had developed into a more complex, chronic condition requiring further specialized evaluation.

63The respondent relied on the report of Dr. Khaled dated January 3, 2025, where he concluded that the applicant sustained uncomplicated soft tissue injuries as a result of the accident. According to Dr. Khaled, the clinical findings did not support the presence of a chronic pain condition, and the applicant should resume all aspects of life that she was engaged in prior to motor vehicle accident without restrictions. On that basis, the respondent took the position that chronic pain assessment was neither reasonable nor necessary, as it was not supported by the objective medical evidence or the nature of the injuries sustained.

64As indicated above, I preferred the diagnoses of chronic pain syndrome of Dr. Abounaja and Dr. Asekomhe. In my view, these diagnoses support the need for a comprehensive chronic pain assessment to better understand the nature and extent of the applicant's condition and to guide appropriate treatment. Therefore, I find this assessment reasonable and necessary.

Costs

65Rule 19.5 provides that in considering whether to order costs and the amount to be ordered, the Tribunal shall consider all relevant factors including the seriousness of the misconduct, whether the conduct was in breach or a direction or order issued by the Tribunal, whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient and effective process; prejudice to the other parties; and the potential impact an order for costs would have on individuals access the Tribunal system.

66The applicant is not entitled to costs.

67The applicant submitted, as outlined in the procedural section of this decision, Dr. Pierce was seen referencing documents that were not before the tribunal. The applicant further submitted that the respondent failed to comply with the applicable CCRO requirements by requesting only updated notes from Dr. Pierce rather than his complete notes. The applicant submitted that this resulted in undue cost and additional burden, particularly in preparing for the cross examination of Dr. Pierce, as additional time and resources were required to review the materials he referenced, which were not formally before the tribunal. It was also argued that this amounted to a failure to properly adhere to disclosure obligations. During closing submission, the applicant sought an order for costs in the amount of $500.00.

68The respondent submitted that the CCRO was adhered to, and the files were produced. The respondent was also unaware of the documents Dr. Pierce was referencing to at the time.

69I find that the applicant has not established grounds for costs. The CCRO dated August 8, 2025 required production of a copy of the complete files of the insurer’s examination assessors for any issue in dispute, subject to receipt of a signed acknowledgement by the applicant, shall be produced. Though Dr. Pierce did reference documents that was not before the Tribunal, it was not within the knowledge of the respondent. Draft reports and raw test data were not included in the CCRO. Since the respondent did not have knowledge of the documents that Dr. Pierce was referencing, I find the respondent did not act unreasonably, frivolously, vexatiously, or in bad faith.

Interest

70Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

71The applicant is entitled to interest, as per s. 51 of the Schedule.

Award

72The applicant is not entitled to an award.

73The 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

74The applicant submitted the respondent unreasonably withheld benefits. The applicant claims the respondent did not do the necessary assessments for her claims, specifically a functional ability evaluation in regard to her income replacement benefits that may have supported the applicant’s claim for benefits.

75The respondent submitted that a change in position on benefits is not grounds for an award and that the respondent acted in good faith in adjusting the applicant’s file.

76I do not find the respondent unreasonably withheld or delayed payments of benefits. The respondent throughout the claim engaged with the applicant, considered expert assessments and though they disagreed with the applicant on whether some were reasonable and necessary, I find the evidence does not establish that the respondent acted excessively, immoderately, or in bad faith.

ORDER

77The applicant is entitled to an IRB in the amount of $400.00 per week from September 4, 2023 to August 28, 2025.

78The applicant is not entitled to an IRB in the amount of $400.00 per week from August 29, 2025 to date and ongoing.

79The applicant is entitled to $3,886.58 for chiropractic services proposed by 1836580 Ontario Limited, in a plan dated June 7, 2024.

80The applicant is entitled to $3,331.34 for physiotherapy services proposed by 1836580 Ontario Limited, in a plan dated January 8, 2025.

81The applicant is entitled to $2,200.00 for chronic pain assessment proposed by East Rehab, in a plan dated November 22, 2024.

82The applicant is not entitled to costs.

83The applicant is entitled to interest, as per s. 51 of the Schedule.

84The applicant is not entitled to an award.