Licence Appeal Tribunal File Number: 24-015285/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:
Zafar Butt
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Yalini Yogeswaran, Paralegal
For the Respondent:
Oliva Hajdas, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Zafar Butt, the applicant, was involved in an automobile accident on August 25, 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. 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 chiropractic services, proposed by New Flow Medical Clinic, as follows:
a) $87.19 ($1,237.34 less $1,150.15 approved) in a treatment plan submitted November 2, 2023;
b) $3,789.49 in a treatment plan submitted December 28, 2023; and
c) $3,529.79 in a treatment plan submitted July 18, 2024?
iii. Is the applicant entitled to $3,710.00 for psychological services, proposed by Life Point Medical Inc., in a treatment plan submitted July 9, 2024?
iv. Is the applicant entitled to the assessments proposed by Life Point Medical Inc., as follows:
a) $2,000.00 for a psychological assessment, in a treatment plan submitted November 21, 2023;
b) $2,200.00 for a chronic pain assessment, in a treatment plan submitted May 14, 2024; and
c) $2,400.00 for a neurological assessment, in a treatment plan submitted August 21, 2024?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant is removed from the MIG as his injuries are not predominantly minor as defined in s. 3 of the Schedule.
4I find that the applicant is not entitled to the balance of the treatment plan for chiropractic services, submitted November 2, 2023.
5I find that the applicant is entitled to the treatment plans for chiropractic services, submitted December 28, 2023 and July 18, 2024, plus interest.
6I find that the applicant is entitled to the treatment plans for a psychological assessment, submitted November 21, 2023, psychological services, submitted July 9, 2024, a chronic pain assessment, submitted May 14, 2024, and a neurological assessment, submitted August 21, 2024, plus interest.
7I find that the applicant is not entitled to an award.
ANALYSIS
Minor Injury Guideline (“MIG”)
8I find that the applicant has met his onus and demonstrated that his accident-related impairments warrant removal from the MIG.
9Section 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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
10An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical recovery if they are kept within the confines of the MIG. In all cases, the burden of proof lies with the applicant.
11The applicant submits that he should be removed from the MIG because he suffers from chronic pain and a psychological impairment as a result of the subject accident.
The applicant is removed from the MIG on the basis of chronic pain
12I find that the applicant has demonstrated that he suffers from a chronic pain condition that warrants removal from the MIG.
13Chronic pain conditions are not included in the minor injury definition. In order to establish that the applicant has a chronic pain condition, he must demonstrate that his pain causes a functional impairment which adversely affects his well-being. A diagnosis of chronic pain, absent evidence of an ongoing functional impairment due to pain, is insufficient to establish a non-minor injury.
14While it is not part of the Schedule, the Tribunal has generally accepted the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”) when assessing whether a person suffers from a chronic pain condition. To meet the criteria, the person must demonstrate that they likely meet three of the following six criteria: use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances; excessive dependence on healthcare providers, spouse or family; secondary physical deconditioning due to disuse; a failure to restore pre-injury function after a period of disability; withdrawal from social milieu; and development of psycho-social sequelae after the initial incident.
15The applicant submits that he has chronic pain with functional limitations as a result of the accident. He submits that as a result of the accident, he sustained injuries to his lower back, shoulder, neck, leg, hip, arm, headaches, difficulty concentrating, whiplash, nightmares, flashbacks, insomnia and lethargy. He relies upon the Disability Certificate completed by Dr. John Bare, chiropractor, of New Flow Medical Clinic, dated September 7, 2023, which sets out his physical injuries.
16The applicant relies upon the Clinical Notes and Records (“CNR”) of New Flow Medical Clinic, to document objective clinical findings where lower back motion palpation shows segmental dysfunction of a chronic nature with L4-5 and L5-S1 facet joints inflamed. The CNRs document the applicant’s functional limitations of reaching, bending, lifting, prolonged walking, twisting, carrying objects and sleeping.
17The applicant also relies upon the CNRs of Dr. Nalia Siraj, family physician, to support his ongoing complaints and his functional limitations. He submits that Dr. Siraj diagnosed him with chronic pain and prescribed him physiotherapy, chiropractic therapy and medications. A referral was made by Dr. Saraj to Dr. Subhra Mohapatra, at the Newmarket Pain Clinic, due to his chronic back, neck and shoulder pain. Dr. Mohapatra in his report dated September 10, 2024, diagnosed the applicant with myofascial pain, query lumbar spine radiculopathy, piriformis irritation syndrome, mechanical neck pain and chronic pain syndrome. Trigger point injections/nerve blocks/joint injections were recommended due to the severity of the applicant’s impairments.
18The applicant submits that his symptoms have significantly impacted his activities of daily living, including difficulties performing basic household tasks including housekeeping duties, doing dishes, cleaning floors, cooking and carrying groceries.
19The respondent submits that the applicant does not suffer chronic pain as a result of the accident. It relies upon the General Practitioner Insurer’s Examination (“IE”) report, prepared by Dr. Pravesh Jugnundan, dated January 31, 2024, who diagnosed the applicant with headaches, trapezius region sprain/strain, WAD I, bilateral shoulder soft tissue injuries, mechanical low back pain, poor sleep and psychological complaints. Dr. Jugnundan concluded that the applicant’s injuries were soft tissue in nature and generally temporary. The applicant further relies upon the General Practitioner IE report of Dr. Veejai Sawh, dated November 29, 2024, who diagnosed the applicant with soft tissue sprains of the cervical, thoracic and lumbar regions, which have likely resolved. He opined that the applicant sustained minor injuries, and he does not meet the necessary three out of the six criteria for a chronic pain diagnosis according to the AMA Guides.
20The respondent submits that more weight should be placed on the assessments completed by the s. 44 assessors as opposed to the clinical records. It submits that the assessors employed several tests during their assessments to determine the applicant’s level of functioning, which would provide a more objective view of the applicant’s functioning.
21The respondent further submits that the applicant’s family physician has not diagnosed the applicant with chronic pain syndrome, which is fundamentally different than simply having chronic pain. With respect to the records of Newmarket Pain Clinic, the respondent submits that while Dr. Mohapatra states that his initial impression is one of chronic pain syndrome, along with some myofascial and mechanical neck pain, there is no mention of the six criteria in the AMA Guides or why Dr. Mohapatra thought the applicant met this diagnosis.
22The respondent submits that the applicant does not meet the criteria set out in the AMA Guides. There is no documentation to support that he has used prescription drugs beyond the recommended duration or continues to rely on drugs to function. He continues to do all his own personal care, activities of daily living and housekeeping duties. There is no evidence of any physical deterioration due to pain. He continues to work and socialize. Even if there is some evidence of subclinical psychological symptoms, which is questionable, he would not meet the three out of six criteria to be diagnosed with chronic pain.
23The applicant in his reply submissions states that Dr. Mohapatra’s findings in his report satisfy at least three of the criteria in the AMA Guides, specifically physical deconditioning, failure to restore function and psychosocial sequalae. The applicant further submits that the respondent has mischaracterized the test for chronic pain in the AMA Guides as it fails to acknowledge that these criteria are illustrative, not exhaustive.
24I find that the applicant has met the evidentiary onus to prove, on a balance of probabilities, that he suffers from chronic pain with functional limitations.
25I give significant weight to the CNRs of the applicant’s treating practitioners provided in this matter. I do not agree with the respondent that s. 44 assessment reports should be given more weight than CNRs because objective testing is performed in assessing the applicant. I find that the records of a treating practitioner who consistently sees a patient should be given significant weight as they are in the best position to assess the applicant and any improvement, or deterioration experienced, on an ongoing basis.
26I find upon review of the medical evidence, that the applicant consistently complained to various medical practitioners, including the respondent’s assessors, of persistent pain in his back, neck and shoulders. Specifically, the CNRs of Dr. Siraj, family physician, Dr. Mohapatra, and New Flow Medical Clinic, and the IE reports, indicate that the applicant’s complaints have continued since the accident, and well beyond the three-month period projected for healing.
27I further find that the applicant’s evidence establishes that, on a balance of probabilities, his accident-related chronic pain has caused functional impairment, adversely affecting his well-being.
28I give weight to the CNRs of Dr. Siraj, who consistently documented the applicant’s ongoing physical complaints and psychological complaints as a result of the subject accident. He provided prescriptions for medication, physiotherapy, chiropractic therapy, psychological assessment, as well as psychotherapy. On February 14, 2024, he noted the applicant’s ongoing issues with neck, shoulder and back pain and assessed him with chronic pain. He then referred the applicant to Newmarket Pain Clinic for his back and neck pain. He further notes the applicant suffers from chronic pain and psychological issues in his CNR dated October 2, 2024. In a letter to “Whom It May Concern”, dated December 19, 2024, Dr. Siraj states that the applicant continues to suffer from moderate to severe depression, fear and anxiety with Post Traumatic Stress Disorder (“PTSD”) like symptoms affecting his sleep, daily functioning and ability to work and his relationships after his accident. It has affected his functioning very significantly and pain is also ongoing. He sees a pain clinic once a week. He is also taking medication to help with fear and depression with titrating doses at this time.
29I also give weight to the report of Dr. Mohapatra, dated September 10, 2024, where the applicant is diagnosed with myofascial pain, query lumbar spine radiculopathy, piriformis irritation syndrome, mechanical neck pain and chronic pain syndrome. The report notes that the applicant’s symptoms have impacted the quality of his life, and that the applicant performs his daily activities with difficulty and experiences mood and poor sleep. The applicant’s current medications are listed as Meloxicam, Jaridance, Metformin, Crestor and Sertraline. Nerve blocks and trigger point injections were recommended which the applicant subsequently received. I do not agree with the respondent’s submissions that the report of Dr. Mohapatra should be given less weight because he did not explain why he thought the applicant met the diagnosis of chronic pain and he did not mention the six criteria in the AMA Guides. I accept that Dr. Mohapatra reached the diagnosis based on the history of the applicant, the subjective complaints of the applicant and his objective assessment and findings which are all set out in his report. I also do not accept that he is required to refer to the AMA Guides in his report, as he is a treating practitioner and was not retained to complete a s. 25 assessment report where he would have been asked specific questions to address in his report. I agree with the applicant, that in reference to the AMA Guides, Dr. Mohapatra’s report supports that the applicant was taking prescription medication, was physically deconditioned, suffered a failure to restore function and suffered from psychosocial sequalae.
30I further find that upon review of the CNRs from New Flow Medical Clinic, that the applicant attended from August 31, 2023 to July 25, 2024. These CNRs support the applicant’s ongoing physical complaints to his neck, back and shoulders. The records further note the applicant’s increased anxiety symptoms as well as his trouble sleeping because of pain. In the Progress Report, dated April 11, 2024, Dr. Bare notes the applicant’s complaints of pain in his cervical, thoracic, and lumbar areas and that the applicant continues to lack muscular strength and endurance requiring additional therapy. The Progress Report further notes the applicant’s recovery percentage as 35%. Dr. Bare states that the applicant’s activities of daily living are affected as a result of the accident, specifically he has functional limitations in performing tasks such as carrying groceries, general cleaning, meal preparation, washing dishes, garbage disposal and laundry duties. The report further notes he has difficulty with prolonged walking, sitting, standing, turning and other activities entailing strength and endurance.
31I give little weight to the IE report of Dr. Jugnundan, which was prepared to assess the applicant’s entitlement to an IRB, and not whether his injuries were MIG. I note that Dr. Jugnundan concludes that the applicant suffered soft tissue injures in nature and generally temporary. However, he noted that the applicant’s prognosis is guarded as he is still highly symptomatic, although he reported good improvement. There is no opinion provided as to whether the applicant should remain in the MIG.
32I also give little weight to the IE report of Dr. Sawh. I find that this report supports the applicant’s complaints of ongoing pain and limited functionality. I find that despite the applicant’s complaints, Dr. Sawh concluded that considering the date of the accident and the time elapsed, any soft tissue injuries should have reasonably healed by now. He concluded that the persistent complaints described are not fully corroborated by objective findings on examination. He then concludes that the applicant’s current symptoms are unlikely to be related to the subject accident but provides no other basis for what may have caused the applicant’s current symptoms. I find based on the medical documentation provided, while the applicant was involved in a previous motor vehicle accident, I have not been pointed to any evidence that supports that the applicant’s complaints are not related to the subject accident. With respect to the analysis of the AMA Guides, Dr. Sawh concludes that the applicant does not meet three of the six criteria, yet he notes that the applicant’s medication history indicates controlled use of anti-inflammatory medications and occasional use of Gabapentin, that he reports receiving some assistance from family members with household chores, he has reduced his recreational activities, he reports pacing himself and some limitations with work, family and recreational needs and there is compelling evidence of significant psychosocial sequelae affecting his recovery.
33I find based on the medical evidence submitted, that the applicant does meet three out of six of the criteria for a chronic pain condition. While the applicant has not provided a prescription summary, it is clear from the CNRs of Dr. Saraj, that the applicant was prescribed medications following the accident and he reported continuing to take multiple prescriptions which are listed in the Cardiology Report of Dr. John Charles Symmes, dated March 13, 2025, which is the last medical report on file. The applicant regularly visited with healthcare practitioners as demonstrated in the CNRs of Dr. Saraj, Dr. Mohapatra which note the injections he received, and the CNRs of New Flow Medical Clinic. The report of Dr. Mohapatra confirms that the applicant is deconditioned due to disuse and has failed to restore to his pre-accident function. Finally, it is clear from the medical documentation, that the applicant developed psycho-social sequelae and suffers a psychological impairment.
34I find that the applicant has provided persuasive evidence, not only indicating that he has developed a chronic pain syndrome, from his physical, accident-related injuries, but that the pain adversely affected his everyday functioning.
35For the reasons outlined above, I find that the applicant has proven on a balance of probabilities, that he suffers from chronic pain with a functional impairment, and therefore he is removed from the MIG on this basis.
36As I have found that the applicant is removed from the MIG due to chronic pain, I will not address whether the applicant is also removed from the MIG due to a psychological impairment.
Entitlement to Medical Benefits
37To receive payment for a treatment and assessment plan under ss. 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 that the goals of treatment are reasonable, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
38In the context of an assessment, while the applicant does not need to prove the condition exists, he must prove with persuasive evidence that there is some accident-related condition that warrants investigation via the proposed assessment.
Entitlement to the balance of the treatment plan for chiropractic services, dated November 2, 2023
39I find that the applicant is not entitled to the balance of the treatment plan for chiropractic services, dated November 2, 2023.
40The applicant claims entitlement to $87.19 ($1,237.34 less $1,150.15 approved), in a treatment plan dated November 2, 2023.
41The respondent submits that the denied portion of the treatment plan dated November 2, 2023, in the amount of $87.19, is related to a form fee, which was approved for one hour of the treatment provider’s hourly rate. The respondent relies upon the Tribunal decision in [H.R.] v. Intact Insurance Company, 2023 CanLII 56030 (ON LAT) ([H.R.], at para. 31 where the Tribunal held that the applicant must prove why additional time for filling out a form is warranted. The respondent submits that the applicant has not commented on this in his submissions and therefore the denial should remain upheld.
42I find that with respect to the balance of the treatment plan, dated November 2, 2023, the applicant has not provided specific submissions with respect to this issue. I agree with the Tribunal decision in [H.R.], that the onus is on the applicant to prove why additional time for filling out a form is warranted. As the applicant has not provided any submissions as to why more than an hour of time was required to complete the treatment plan, dated November 2, 2023, I do not find that he is entitled to the balance of the treatment plan.
43For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that he is entitled to the balance of the treatment plan for chiropractic services, dated November 2, 2023.
Entitlement to the balance of the treatment plan for chiropractic services, dated December 28, 2023 and July 18, 2024
44I find that the applicant is entitled to the treatment plans for chiropractic services, dated December 28, 2023 and July 18, 2024.
45The applicant claims entitlement to $3,789.49 for chiropractic services, proposed by New Flow Medical Clinic, in the treatment plan submitted on December 28, 2023. The treatment plan recommends:
Reassessment: $ 200.00 20 sessions of therapy, multiple body sites: $1,128.20 20 sessions of functional exercise: $ 947.60 20 sessions of manipulation of spine: $1,000.00 Personalized Exercise Program: $ 56.40 Progress Report: $ 190.00 15 sessions of manual therapy: $ 436.50
46The applicant also claims entitlement to $3,592.70 for chiropractic services, proposed by New Flow Medical Clinic, in a treatment plan submitted on July 18, 2024. The treatment plan recommends:
Completion of OCF-18: $ 200.00 18 sessions of therapy, multiple body sites: $1,015.38 18 sessions of functional exercise: $1,852.84 18 sessions of manipulation of spine: $ 900.00 Personalized Exercise Program: $ 56.40 Progress Report: $ 190.00 13 sessions of manual therapy: $ 378.17
47The goals of the treatment plans are pain reduction, increase in strength, increase range of motion, improve muscular strength and endurance, and prevent chronicity of injuries. The functional goals of the treatment plans are to return to activities of normal living, return to modified work activities, and return to pre-accident work activities.
48The applicant submits that the treatment plans in dispute recommending chiropractic treatment are reasonable and necessary because he suffers from myofascial pain, query lumbar spine radiculopathy, piriformis irritation syndrome, mechanical neck pain and chronic pain syndrome. He submits that myofascial dysfunction responds well to manual therapy, myofascial release and spinal/joint mobilization that are within the scope of a chiropractor and are evidence-based intervention for managing chronic pain.
49The applicant further relies upon the CNRs of New Flow Medical Clinic and specifically the Progress Report of Dr. Bare dated April 11, 2024, which recommends additional treatment to improve the applicant’s overall well-being since the applicant continues to lack muscular strength and endurance recovery percentage is at 35%. The applicant submits that despite the denial of the treatment plans in dispute, he continued to attend treatment and has incurred a balance of $4,126.97 at New Flow Medical Clinic, for physical therapy
50The respondent submits that with respect to the treatment plan dated December 28, 2023, the applicant was advised by letter dated February 20, 2024, that the treatment plan was denied based on Dr. Jugnundan’s IE report that found the applicant’s injuries fell within the MIG. The respondent submits that with respect to the treatment plan, dated July 18, 2024, the applicant was advised by letter dated July 26, 2024, that the treatment plan was denied because it was substantially similar to the previously submitted treatment plan dated December 28, 2023, which was denied based on the IE report of Dr. Jugnundan. The respondent further submits that the applicant has not proven that he would benefit from additional chiropractic services and he has not provided any s. 25 reports disputing these findings.
51The applicant in his reply submissions submits that the respondent’s suggestion that further chiropractor care is unnecessary ignores the documented chronic dysfunction at L4-L5 and L5-S1 by New Flow Medical Clinic. He argues that the recommended manual therapy and mobilization have well-established efficacy in chronic myofascial conditions, producing reduction and range of motion improvement.
52I find that the applicant has proven on a balance of probabilities that the treatment plans dated December 28, 2023 and July 18, 2024, are reasonable and necessary. Having found that the applicant suffered chronic pain with functional limitations as a result of the accident, I find that the applicant has proven that he required ongoing chiropractic services post-accident. This is further supported by the recommendations of his family physician to continue with treatment which are made contemporaneous to the treatment plans submitted.
53In addition, I find that the applicant continued to attend for treatment at New Flow Medical Clinic from August 31, 2023 to July 25, 2024, which supports his need for ongoing treatment. The CNRs from New Flow Medical Clinic support the applicant’s ongoing physical complaints to his neck, back and shoulders. I find that the Progress Report, dated April 11, 2024, prepared by Dr. Bare, notes the applicant’s complaints of pain and recommends additional therapy to address his lack of muscular strength and endurance.
54I give little weight to the IE report of Dr. Jugnundan to support that the applicant’s injuries are MIG because I have found that the applicant is not in the MIG. I note that while Dr. Jugnundan concludes that the applicant injuries are soft tissue in nature and are generally temporary, his conclusion that the applicant is highly symptomatic, is consistent with the applicant’s position that his injuries had not yet resolved and further treatment would be reasonable and necessary.
55For the reasons outlined above, I find that the applicant has proved on a balance of probabilities that he is entitled to the treatment plans for chiropractic services, dated December 28, 2023 and July 18, 2024.
Entitlement to the treatment plans for a psychological assessment
56I find that the applicant is entitled to the treatment plan for a psychological assessment.
57The applicant claims entitlement to $2,000.00 for a psychological assessment, proposed by Life Point Medical Inc., in a treatment plan submitted on November 21, 2023. The goals of the assessment are to gather information to diagnose the applicant’s conditions and to guide his treatment.
58The applicant submits that he suffered a psychological impairment as a result of the accident. He submits that he suffers from heightened anxiety and fear of driving, flashbacks, nightmares, poor sleep, daytime fatigue, increased irritability, diminished enjoyment of activities and strained relationships. He relies upon the CNRs of his family physician, Dr. Siraj, that support his ongoing psychological complaints. He also relies upon the psychological screening report, prepared by Dr. Mandeep Kaur Singh, dated October 26, 2023 and the psychological assessment report of Dr. Singh, dated June 13, 2024, that diagnosed him with an Adjustment Disorder with Mixed Anxiety and Depressed Mood, persistent; Major Depressive Disorder, single episode, moderate; Somatic Symptom Disorder with predominant pain, persistent, moderate.
59The respondent submits that the applicant does not have significant psychological symptoms from the accident. The respondent further submits that Dr. Siraj did not diagnose the applicant with anxiety and PTSD but only noted that the applicant has symptoms of these disorders.
60The respondent submits that the treatment plan for a psychological assessment was denied based on the IE report of Dr. Mohammed Nikkhou, dated February 16, 2024, which concluded that there was some evidence of the presence of persistent pain and subclinical features of Adjustment Reaction, however the applicant’s psychological symptoms are not outside of the MIG. Dr. Nikkhou also noted that there was concern regarding under/over reporting of his symptoms, and subsequent concerns about the validity of the psychometric test results. Dr. Nikkhou’s Addendum report completed on November 17, 2024, came to the same conclusions.
61The applicant in his reply submissions submits that the IE report of Dr. Nikkhou is undermined by acknowledged validity concerns mentioned in the respondent’s submissions. He argues that rather than disproving impairment, those inconsistencies themselves confirm psychological distress. As Dr. Nikkhou states in his report, exaggeration or under-reporting on testing can be symptomatic of pain and anxiety rather than malingering.
62I find that the applicant has provided sufficient compelling evidence indicating that there are grounds on which to believe that a psychological condition exists, such that further investigation is warranted.
63I find that the applicant’s reports of his psychological symptoms are consistent across the CNRs, s. 25 report and IE Assessment reports. I find that the CNRs of Dr. Saraj, support the applicant’s early reporting of psychological complaints post-accident. The applicant first made psychological complaints to Dr. Saraj on October 30, 2023. Dr. Saraj administered a Major (ICD-10) Depression Inventory Questionnaire and assessed the applicant with anxiety and mild PTSD like symptoms and situational stress. A prescription for a Psychological Assessment was prepared by Dr. Saraj. In Dr. Siraj’s subsequent CNRs, the applicant makes complaints about being frustrated and suffering poor sleep and nightmares. On August 21, 2024, there is a second prescription for a psychological assessment for PTSD and anxiety symptoms. The applicant returned to see Dr. Siraj on October 2, 2024, with psychological complaints with respect to his mood and sleep and there is a note that the applicant was taking Sertraline, which is a medication used to treat depression. On December 19, 2024, there is a letter to “Whom It May Concern”, advising that the applicant continues to suffer from moderate to severe depression, fear and anxiety with PTSD like symptoms affecting his sleep, daily functioning and ability to work and his relationships after his MVA. The letter notes that he is taking medication to help with fear and depression with titrating doses at that time. A recommendation is made to have regular counselling/therapy sessions. On February 19, 2025, there is a prescription for psychotherapy for PTSD like symptoms and anxiety post-accident. On May 20, 2025, Dr. Saraj provided a prescription for “assessment of driving anxiety” due to anxiety post-accident.
64I find that the pre-screening report, prepared by Dr. Singh, dated October 26, 2023, notes the applicant’s complaints of sadness, low mood, low energy levels, social withdrawal and isolation, anger, irritability, relationship discord and sleeplessness. Dr. Singh provides a provisional diagnosis of PTSD and Adjustment Disorder with Mixed Anxiety and Depressed Mood and submitted the subject treatment plan in dispute for a more thorough psychological assessment.
65Upon review of the IE psychological assessment report of Dr. Nikkhou, the applicant reported difficulty sleeping; nightmares; irritability/anger control; worry about his current health conditions and financial strain; mood drop, and states that he is deteriorating emotionally over time. Dr. Nikkhou found that there was some evidence of the presence of persistent pain and subclinical features of adjustment reaction and some mild emotional concerns. He finds these symptoms to be temporary and expected to improve within 3-6 months. I find that with respect to the validity testing, while Dr. Nikkhou notes that the current psychometric testing and the reported symptomatology should be interpreted with caution, he does not definitely state that the scores are invalid. Dr. Nikkhou states that the applicant’s profile shows evidence of “possible” over-reporting and that his responses “may” occur in individuals with substantial emotional dysfunction, but it could also reflect exaggeration. Dr. Nikkhou then concludes that the treatment plan for a psychological assessment is not reasonable and necessary in light of the lack of a formal psychological diagnosis and the applicant’s appropriate level of psychological functioning. I find that the report of Dr. Nikkhou supports that the applicant has psychological symptoms, based on his finding that there is evidence of persistent pain and subclinical features of adjustment reaction and some mild emotional concerns. I find that it was reasonable and necessary for the applicant to pursue a psychological assessment by a medical practitioner of his choice, to help determine whether he suffers a psychological impairment.
66For the reasons outlined above, I find that the applicant has proven on a balance of probabilities that the treatment plan for a psychological assessment is reasonable and necessary.
Entitlement to the treatment plan for psychological services
67I find that the applicant has proven entitlement to the treatment plan for psychological services, dated July 9, 2024.
68The applicant claims entitlement to $3,710.00 for psychological services, proposed by Life Point Medical Inc., in a treatment plan dated July 9, 2024. The treatment plan recommends the following:
Completion of OCF-18: $ 200.00 16 – 1.5 hours therapy, mental health: $3,240.00 Progress report: $ 270.00
69The goals of the treatment plan are pain reduction, to optimize coping with pain, reduce psychological symptoms of depression and vehicular anxiety, and improve emotional state.
70The applicant submits that the treatment plan for psychological services is reasonable and necessary based on the CNRs of his family physician, Dr. Siraj, that support his ongoing psychological complaints and the psychological assessment report of Dr. Singh, dated June 13, 2024, that diagnosed him with an Adjustment Disorder with Mixed Anxiety and Depressed Mood, persistent; Major Depressive Disorder, single episode, moderate; Somatic Symptom Disorder with predominant pain, persistent, moderate. Dr. Singh recommended 16 psychological sessions to help him address the clinical symptoms he is experiencing. Dr. Singh noted that without therapy, he may progress towards more serious psychological distress.
71The respondent submits that the treatment plan is not reasonable and necessary. It argues that the applicant has not proven he suffers from any clinically significant psychological symptoms because of the accident, and he was never diagnosed by his family doctor or the s. 44 assessors. The respondent argues that more weight should be placed on the IE report of Dr. Nikkhou, dated October 4, 2024, than the s. 25 assessment report of Dr. Singh, because the IE was conducted in person, while the s. 25 assessment was conducted virtually. In addition, the s. 25 assessment notes the applicant was assessed by Stacy Yong, psychotherapist, not a psychologist, who is unable to render a diagnosis for the applicant. While the report notes that she was supervised by Dr. Singh, no part of the report makes it clear which aspects were completed by which individual, or whether Dr. Singh ever engaged directly with the applicant. It further argues that the s. 25 assessment only relied on short, self-reporting asks, while the IE report employed several longer, objective tests and there was no validity measures used in the s. 25 assessment. The respondent relies upon the Tribunal decisions in Lobo v. Intact Insurance Company, 2022 CanLII 73103 (ON LAT) and Raduga v. Economical Insurance, 2023 CanLII 122889 (ON LAT), where the Tribunal has found these factors make the conclusions outlined in the s. 25 report unreliable.
72In reply, the applicant submits that the respondent’s reliance on invalidity scales ignores consistency across treating evidence. The applicant suffers persistent nightmares, flashbacks, driving anxiety, and avoidance behaviour which demonstrate functional limitations beyond a “minor injury”. The applicant argues that therapy addresses not only emotional recovery but functional reintegration and safe driving, key rehabilitative goals envisaged by s. 14 of the Schedule.
73I find that the applicant is entitled to the treatment plan for psychological services.
74As outlined above, at paragraph [63] of my decision, I find that the CNRs of Dr. Saraj support the applicant’s ongoing psychological complaints. In addition, I find that the applicant’s reported symptoms and functional limitations are consistently reported to Dr. Siraj, Dr. Singh and Dr. Nikkhou. I therefore give more weight to the report of Dr. Singh which provided a formal psychological diagnosis upon review of the available medical documentation, the subjective complaints of the applicant and the objective psychometric testing performed.
75I do not agree with the respondent that less weight should be given to the report of Dr. Singh because the assessment was conducted virtually. I find that where the assessor is conducting a psychological examination of the applicant, and not a physical examination, I am not convinced that a virtual assessment is fundamentally less reliable than in person. In addition, while the respondent argues that no weight should be given to the report of Dr. Singh because part of the assessment was completed by a psychotherapist, I find that the report specifically notes that aspects of the assessment was completed by Ms. Yong who is a registered psychotherapist but that the assessment report was supervised by Dr. Singh. While a detailed breakdown of the role of Dr. Singh is not indicated, I do not give less weight to the report just because aspects were completed by the psychotherapist as Dr. Singh is qualified to make the final psychological diagnoses.
76Similarly, as outlined in paragraph [65] of my decision, I agree with the applicant that the respondent’s reliance on the invalidity scales does ignore the consistency across the medical evidence. In addition, I agree based on the comments of Dr. Nikkhou, that exaggeration or under-reporting on testing can be symptomatic of pain and anxiety rather than malingering. I find that Dr. Nikkhou did not provide a definitive opinion as to why the test results were as they were or that the testing was invalid. Rather he set out possible reasons for the test results but did not provide a definitive opinion for the results.
77I find that the goals identified by the applicant for the proposed psychological sessions are reasonable and necessary to support pain reduction, to optimize coping with pain, to reduce psychological symptoms of depression and vehicular anxiety, and to improve his emotional state. I further accept Dr. Singh’s conclusion that without the proposed psychological services, he may progress towards more serious psychological distress. This is supported in the CNRs of Dr. Siraj that continue to note his emotional deterioration.
78For the reasons outlined above, I find that the applicant has proven on a balance of probabilities that the treatment plan for psychological services, is reasonable and necessary.
Entitlement to the treatment plan for a chronic pain assessment
79I find that the applicant is entitled to the treatment plan for a chronic pain assessment.
80The applicant claims entitlement to $2,200.00 for a chronic pain assessment, proposed by Life Point in a treatment plan, submitted on May 14, 2024. Under Additional Comments, it states that the assessment was recommended “based on the length of time of this patient’s pain duration in conjunction with compelling medical evidence available on file” … “to determine whether the applicant suffers from chronic pain or chronic pain syndrome, and if further treatment is reasonable and necessary.”
81The applicant submits that the treatment plan for a chronic pain assessment is reasonable and necessary. He argues that his condition has progressed into complex pain disorder. The chronic pain assessment will provide objective, evidence-based recommendations tailored to his needs, thereby improving his chances of meaningful recovery. He further argues that in the absence of this assessment, he risks continued decline in function and prolonged disability.
82The respondent submits that the applicant does not meet the criteria of chronic pain syndrome, and that he does not suffer from chronic pain because of the accident.
83As I have found that the applicant suffers from chronic pain and is therefore removed from the MIG on this basis, I find that the applicant has provided sufficient compelling evidence indicating that there are grounds on which to believe that a chronic pain condition exists, such that further investigation is warranted.
84I find that the goals of the treatment plan have been met, specifically to assess the applicant and make recommendations for further treatment and assessments to improve his chance of meaningful recovery.
85For the reasons outlined above, I find that the applicant has proven on a balance of probabilities that the treatment plan for a chronic pain assessment is reasonable and necessary.
Entitlement to the treatment plan for a neurological assessment
86I find that the applicant has proven entitlement to the treatment plan for a neurological assessment.
87The applicant claims entitlement to $2,400.00 for a neurological assessment, proposed by Life Point Medical Inc., in a treatment plan submitted on August 21, 2024. The goals of the assessment are to identify any neurological abnormalities that affect function and activities of daily living and to generate a diagnosis based on these findings.
88The applicant submits that the treatment plan for a neurological assessment is reasonable and necessary based on the CNRs of Dr. Siraj where it mentions the applicant’s headaches. The applicant submits that the neurological assessment can rule out or identify underlying neurological complications contributing to the applicant’s injuries. A neurological assessment can determine the most effective management plan tailored to specific presentation and provide objective medical evidence to guide future treatment and prognosis to prevent further deterioration and improve quality of life by addressing the root cause rather than only managing symptoms.
89The applicant further submits that the Neurological IE report of Dr. Davar Nikneshan, dated October 3, 2024, fails to account for the chronicity, severity and functional impact of the applicant’s symptoms. He claims that persistent post-traumatic headaches are not adequately addressed by treatment within the MIG. The applicant argues that Dr. Nikneshan acknowledges that headache management is currently suboptimal.
90The respondent submits that the treatment plan for a neurological assessment is not reasonable and necessary based on the IE Neurological Assessment report of Dr. Nikneshan. Dr. Nikneshan found that the mechanism of the injury appeared to be neck flexion and extension resulting in whiplash. The diagnosis was persistent headaches secondary to whiplash. The Addendum report dated November 26, 2024, confirmed that the conclusions remained unchanged.
91I find that the applicant has established that the treatment plan for a neurological assessment is reasonable and necessary. I find that the medical documentation shows the applicant’s ongoing complaints of headaches which is a reasonable ground to warrant further investigation into his post-accident pain complaints and difficulties. Additionally, I find the goals of the assessment to be reasonable. The assessment is to determine if there are any neurological abnormalities that affect function and activities of daily living and to provide a diagnosis and recommendations for his recovery.
92I further find that Dr. Nikneshan in his IE report finds that from a neurological standpoint the applicant suffers from persistent headaches secondary to trauma to his neck. He further notes that currently the headaches appear to be suboptimally managed and recommends medication. He then concludes that the treatment plan for a neurological assessment is not reasonable and necessary because the applicant’s headaches can be managed by the plan he outlined in his report. I find that Dr. Nikneshan’s findings that the applicant does suffer neurologically from headaches and needs ongoing medication, supports that a neurological assessment is reasonable and necessary to further assess the applicant’s complaints and make a diagnosis of the applicant’s condition. The fact that Dr. Nikneshan is making recommendations for an EMG nerve conduction study and medication, supports that there are reasonable grounds to warrant further investigation.
93For the reasons outlined above, I find that the applicant has proven on a balance of probabilities that the treatment plan for a neurological assessment is reasonable and necessary.
Interest
94Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is entitled to the treatment plans in dispute, interest is payable on any overdue benefits.
Award
95The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
96The applicant submits that an award under s. 10 is warranted as the respondent unreasonably withheld or delayed payment of accident benefits which the applicant is entitled. He further argues that the respondent’s failure to properly investigate and its continued denial of treatment without a specialist review amounts to an unreasonable withholding of benefits.
97The respondent submits that it has complied with the provisions of the Schedule. It has had timely communications with the applicant and has made its decisions reasonably based on the information provided. There has been no unreasonable withholding of benefits and therefore an award is not warranted.
98I find that despite finding that the applicant is removed from the MIG and that he is entitled to the majority of the treatment plans in dispute, no award is warranted in this matter. I find that the applicant has not directed me to specific evidence that the respondent disregarded compelling evidence which resulted in the respondent unreasonably withholding or delaying payment of any benefits. I find that the respondent was entitled to rely on its expert reports and to follow the recommendations in these reports. I find that, despite giving less weight to some of these reports in reaching my decision, the respondent’s reliance on these reports does not meet the standard of unreasonable conduct necessary to justify an award.
99For the reasons outlined above, I find that no award is payable.
ORDER
100For the reasons outlined above, I find:
i. The applicant is removed from the MIG as his injuries are not predominantly minor as defined in s. 3 of the Schedule;
ii. The applicant is not entitled to the balance of the treatment plan for chiropractic services, submitted November 2, 2023;
iii. The applicant is entitled to the treatment plans for chiropractic services, submitted December 28, 2023 and July 18, 2024, plus interest;
iv. The applicant is entitled to the treatment plans for a psychological assessment, submitted November 21, 2023, psychological services, submitted July 9, 2024, chronic pain assessment, submitted May 14, 2024, and Neurological Assessment, submitted August 21, 2024, plus interest;
v. The applicant is not entitled to an award.
Released: May 12, 2026
Melanie Malach
Adjudicator