Citation: Mustafa v. Allstate Canada, 2026 ONLAT 23-011224/AABS

Licence Appeal Tribunal File Number: 23-011224/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:

Mazhar Mustafa

Applicant

and

Allstate Canada

Respondent

DECISION

ADJUDICATOR:

Amar Mohammed

APPEARANCES:

For the Applicant:

Alexei Antonov, Counsel

For the Respondent:

Aleah H. Thomas, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Mazhar Mustafa, the applicant, was involved in an automobile accident on September 21, 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, Allstate Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2This application proceeded to a written hearing on the preliminary and substantive issues in dispute. The preliminary issue was whether the applicant is statute-barred from proceeding to a hearing for the benefits in this claim because he failed to attend an insurer’s examination in June 2022 under s. 44 of the Schedule. On January 30, 2026, I issued a decision (Mustafa v Allstate Canada, 2026 CanLII 8153 (ON LAT)) in which I exercised my discretion under s. 55(2) of the Schedule to grant the applicant permission to pursue this application on certain conditions. I stayed the hearing pending the respondent rescheduling and the applicant attending at an insurer’s psychological examination.

3The Tribunal was not made aware of the applicant’s attendance at the insurer’s psychological examination prior to the January 30, 2026 decision. As contemplated by the decision, the parties have now filed their submissions and evidence for the substantive issues. The parties submit that the applicant attended a rescheduled s. 44 psychological examination over two appointments, beginning on June 20, 2024 and concluding on January 9, 2025. The respondent has filed the resulting IE Psychology Report by Dr. Mohammad Nikkhou, clinical neuropsychologist, dated January 20, 2025.

4Since the applicant attended the examination, and there is a resulting report dated January 20, 2025, I find that the preliminary issue is no longer in dispute. Accordingly, I will proceed to hear the substantive issues.

ISSUES

5The 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 $2,960.00 for physiotherapy services, proposed by Physiomed in a treatment plan/OCF-18 (“plan”) dated November 4, 2021?

iii. Is the applicant entitled to $3,697.14 for psychological services, proposed by Downsview Healthcare Inc. in a plan dated September 27, 2022?

iv. Is the applicant entitled to $2,465.32 for a Driving Rehabilitation Assessment, proposed by Downsview Healthcare Inc. in a plan dated January 20, 2023?

v. Is the applicant entitled to the plans proposing assessments by Downsview Healthcare Inc., as follows:

i. $2,486.00 for a Psychological Assessment, dated March 10, 2022;

ii. $2,486.00 for a Neurological Assessment, dated May 13, 2022;

iii. $2,486.00 for a Chronic Pain Assessment, dated July 8, 2022?

6Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

7Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

8The applicant’s injuries are not predominantly minor as defined in s. 3 of the Schedule and are not subject to the $3,500.00 MIG limit.

9The applicant is entitled to the plan proposing $2,486.00 for a psychological assessment.

10The applicant is entitled to the plan proposing $2,486.00 for a chronic pain assessment.

11The applicant is partially entitled to the plan proposing psychological services, in the amount of $1,326.28, plus applicable tax.

12The applicant is entitled to interest pursuant to s. 51 of the Schedule.

13The applicant is not entitled to the remaining plans in dispute.

14The respondent is not liable to pay an award under s. 10 of Reg. 664.

ANALYSIS

MIG

15The applicant’s injuries are not predominantly minor as defined in s. 3 of the Schedule and therefore are not subject to treatment within the $3,500.00 MIG limit.

16Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

17An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment, or a psychological condition, may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

18The applicant argues that his injuries and impairments warrant removal from the MIG on the basis of a psychological condition, and due to chronic pain. The respondent argues the applicant has not been diagnosed with chronic pain or chronic pain syndrome and that his psychological symptoms are, at most, sequalae of a minor injury.

Psychological Condition

19I find that the applicant has a psychological condition warranting removal from the MIG.

20The applicant relies on Dr. Jacqueline Brunshaw’s s. 25 psychological report dated May 10, 2022 indicating two accident-related diagnoses: i. Adjustment Disorder with Anxiety and ii. Specific Phobia, Situational Type (Vehicular: driver, passenger, pedestrian, riding a scooter), Moderate level of severity. Dr. Brunshaw directly addressed the application of the MIG, opining that the applicant “is experiencing significant psychological and emotional symptoms as a result of his MVA that fall outside of the Minor Injury Guideline, and that warrant appropriate evidence-based treatment.” Further, the OCF-3, dated November 9, 2021, authored by Dr. Nilav Bhowmik, chiropractor, notes behavioural concerns including nonorganic sleep disorder, nervousness, and emotional shock and stress.

21I put weight on Dr. Brunshaw’s report because it is a comprehensive report completed by a psychologist with specialized expertise in diagnosing psychological conditions. The report provides me with an independent objective opinion without advocating for the applicant. I have also considered that the applicant’s reporting to Dr. Brunshaw and to Dr. Nikkhou is largely consistent, and their differing conclusions stem from Dr. Nikkhou’s interpretation of validity tests, reviewed in more detail below.

22The respondent argues that the applicant does not suffer from any accident-related psychological impairment or condition beyond sequalae of a minor injury covered by the MIG. The respondent relies on Dr. Mohammad Nikkhou’s s. 44 report dated January 20, 2025, arguing that it addresses applicability of the MIG.

23I find that Dr. Nikkhou’s report does not directly address applicability of the MIG. The final of eight referral questions Dr. Nikkhou addressed in the report begins by asking whether the applicant’s symptoms require formal treatment or assessment. Dr. Nikkhou opined that they did not, due to the applicant’s performance on validity testing. Therefore, Dr. Nikkhou did not address the rest of this referral question as to whether the applicant can be treated or assessed within the $400.00 available for supplementary services under the MIG. All of the referral questions were answered on the basis of Dr. Nikkhou’s opinion that the applicant’s reporting was invalid and unreliable, therefore, there is no need for formal treatment or assessment.

24Dr. Nikkhou opines that “it is certainly reasonable to conclude that the subject MVA has been a source of emotional distress for [the applicant], and thus, it is acknowledged that psychopathological symptoms may still be present.” At the same time, he opines that the assessment indicates “poor performance on the embedded validity scales of two comprehensive objective psychopathological tests (i.e., MMPI-3 and MCMI-III) resulting in invalid profiles.” On this point, Dr. Nikkhou elaborates, stating that:

….due to possible effects of linguistic and cultural factors on the validity of psychometric test results, the current psychometric test results and the reported symptomatology by the claimant should be interpreted with extreme caution as the possibility of symptom magnification and inconsistent responding cannot be ruled out in this case.

25Considering that the applicant immigrated to Canada in 2016, I am persuaded that the applicant’s symptom reporting cannot be completely disregarded in the face of linguistic and cultural influences and concerns on the applicant’s performance on the validity scales, as acknowledged by Dr. Nikkhou, and argued by the applicant. I assign less weight to Dr. Nikkhou’s report because of its outright dismissal of the applicant’s symptoms, despite recognizing the concerns of possible linguistic and cultural factors affecting the validity test results. These concerns were not accounted for in the report and are merely mentioned as being present.

26The respondent also argues that the applicant does not suffer from a psychological condition warranting removal from the MIG because he did not report any depressive or irritability symptoms to Dr. Nikkhou, or any panic attacks, nightmares, memory issues, or concentration issues. Further, the respondent argues that since the applicant did not show any emotional distress when speaking about the subject accident to Dr. Nikkhou, he does not have a psychological condition. I find that this argument focuses on what the applicant did not report rather than considering what he did report.

27I find that Dr. Nikkhou’s report and Dr. Brunshaw’s report are largely consistent as to the applicant’s reporting. Dr. Nikkhou’s assessment acknowledges that the applicant reported fear of being hit by a car as a pedestrian. While in 2022, the applicant reported getting a new scooter, despite reporting being nervous to Dr. Brunshaw, by the time of the assessment with Dr. Nikkhou it is noted that he no longer rides his scooter due to his fear of being hit again. The applicant also reported to Dr. Nikkhou that he views his condition as arising out of “not fully recoverable injuries” and continues to feel pain in his lower back and in both thighs. Dr. Nikkhou notes that the applicant is concerned about his physical pain and limitations and its effect on his daily life and the possibility of his condition getting worse. The applicant also reported losing between 1 and 2 hours of sleep each night since the accident and has lost weight.

28In the context of withdrawal from socialization, the respondent’s position is that the applicant self-reported to assessors that he did not engage in social activities pre-accident therefore there is no evidence that he has become more socially withdrawn as a result of the accident. I find that this is a mischaracterization of the applicant’s statements to assessors. The applicant reported details of his pre- and post-accident social and leisure activities to both Dr. Brunshaw and to Dr. Nikkhou. The applicant also reported withdrawal due to physical pain, limitations, and fear of reinjury.

29In reaching my conclusion that the applicant has a psychological condition that warrants removal from the MIG, I have considered that the respondent argues that the applicant has not produced any independent medical evidence, despite s. 33 requests for “clinical notes and records of the applicant’s family physician and walk-in clinics, hospital records and diagnostic imaging, and decoded OHIP records”. I do not find that this disturbs my finding because I note that Dr. Brunshaw states that the applicant does not have a family physician and he did not go to a walk-in clinic after the accident, and that he has not seen a physician since the MVA. The applicant also submits that he had incurred treatment and assessments at two clinics in the amount of $5,703.25 and $2,435.00 respectively, but that he otherwise prioritizes his employment due to his financial situation and does not have many opportunities to take time off from work for medical appointments. The applicant submits, that he produced all medical records at his disposal and has attended s. 44 insurer examinations. I accept this submission.

30In sum, I find that the applicant has an accident-related psychological condition. For the reasons above, I put more weight on the opinion of Dr. Brunshaw and put less weight on Dr. Nikkhou’s conclusion. Accordingly, I find on a balance of probabilities, that the applicant has a psychological condition warranting removal from the MIG.

31As the applicant has been removed from the MIG on the basis of a psychological condition, I do not need to consider his arguments for removal on the basis of chronic pain.

$2,486.00 for a Psychological Assessment, dated March 10, 2022

32I find that the applicant is entitled to the plan proposing a psychological assessment.

33To 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.

34The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds to suggest that some condition exists that warrants investigation by way of an assessment.

35The plan proposing this assessment indicates that it is proposing $2,000.00 for a psychological assessment, and $200.00 for completion of the OCF-18, both are proposed as procedures and subject to applicable tax. I find that this is line with both s. 25(5) of the Schedule and the Superintendent’s Guideline No. 03/14. The goals identified in the plan include evaluating the applicant’s psychological and emotional state, post-accident, and returning to activities of daily living.

36For the reasons I have provided in the context of finding that the applicant has a psychological condition warranting removal from the MIG, I find that this assessment is reasonable and necessary.

37For the reasons above, on a balance of probabilities, the applicant is entitled to this plan.

$2,486.00 for a Chronic Pain Assessment, dated July 8, 2022

38I find that the applicant is entitled to the plan proposing a chronic pain assessment.

39The respondent refers me to a Physical Medicine and Rehabilitation Specialist Assessment Report by Dr. Alborz Oshidari, M.D., F.R.C.P.(C), dated September 27, 2024. Dr. Oshidari noted upon questioning the applicant, “the only concern is an intermittent, aching pain across the back. The pain radiates from the posterior aspect of the thigh to the knee and not below the knee. There is no numbness or tingling in the leg. There is some weakness in the right leg.” Dr. Oshidari opined that the applicant suffered a sprain/strain. Dr. Oshidari did not opine on chronic pain or the applicant experiencing accident-related pain in September 2024, for an accident that occurred more than three years earlier.

40Dr. Brunshaw notes that the applicant reported not taking any medication post-accident, except Tylenol, on an as needed basis. However, in administering the Pain Catastrophizing Scale, the applicant’s scores were in the elevated range for Rumination, Magnification, and Helplessness. These scores suggest that he may fixate on his pain and its negative consequences, may magnify his pain and think of the worst-case scenarios, and he may feel that he has no control over his pain and that there is little he can do to cope with it. Further, in administering the Pain Self-Efficacy Questionnaire, the applicant’s score fell within the average range relative to a comparative chronic pain population. This score suggests that his self-efficacy beliefs are consistent with the average chronic pain population in terms of his level of confidence in being able to engage in various tasks and activities (such as activities of daily living, socializing, working, and achieving goals) despite being in pain. The applicant’s reporting to Dr. Nikkhou regarding his experience of pain, his views and beliefs about his pain, and withdrawal from social and leisure activities due partly to pain, suggests that an investigation is warranted.

41I find that the evidence of the s. 25 and s. 44 assessors indicates sufficient particulars about the pain including, the extended length of time that has passed, the specific location of the pain, the specific withdrawal from social and leisure activities at least partly due to pain, and particulars about the applicant’s experience and belief regarding his pain from a psychological perspective. Accordingly, I find that the preponderance of the evidence suggests that he has an accident-related pain condition that warrants investigation by way of a chronic pain assessment.

42For the reasons above, on a balance of probabilities, the applicant is entitled to this plan.

$2,486.00 for a Neurological Assessment, dated May 13, 2022

43I find that the applicant is not entitled to the plan proposing a neurological assessment.

44The applicant did not provide any grounds to suggest that he has an accident-related condition that warrants investigation by way of a neurological assessment. The applicant’s submissions relating to this assessment are identical to his submissions regarding the chronic pain assessment addressed above. The applicant argues that suffering from chronic pain and physical impairments warrants this investigation. I find that simply referring to chronic pain and physical impairments is not sufficient to warrant this specific type of assessment.

45For the reasons above, on a balance of probabilities, the applicant is not entitled to this plan.

$2,465.32 for a Driving Rehabilitation Assessment

46I find that the applicant is not entitled to the plan proposing a driving rehabilitation assessment.

47The applicant argues that as a result of Specific phobia (Driver, passenger, pedestrian, scooter rider) as well as adjustment disorder with anxiety, it is reasonable and necessary to receive treatment and to commute as a driver and pedestrian without posing a threat to himself and to the public in general. The applicant also did not address this specific treatment plan as it does not propose treatment, as argued, but rather proposes a further assessment. Since the applicant did not address the proposed assessment, he has not established that it is reasonable and necessary.

48For the reasons above, on a balance of probabilities, the applicant is not entitled to this plan.

$2,960.00 for physiotherapy services

49I find that the applicant is not entitled to the plan proposing $2,960.00 for physiotherapy services.

50The applicant’s arguments relating to this plan are a repetition of his submissions relating to the neurological assessment and chronic pain assessment. The applicant has not addressed the proposed $2,960.00 of physiotherapy services and led evidence as to the plan being reasonable and necessary.

51For the reasons above, on a balance of probabilities, the applicant is not entitled to this plan.

$3,697.14 for psychological services

52I find that the applicant is partially entitled to this plan, namely in the amount of $1,326.28, plus applicable tax.

53The plan proposes psychological services by Gajan Santhireswaran, or a number of other psychotherapists, at an hourly rate of $149.61. The plan is certified by Dr. Brunshaw. The plan proposed 12 sessions of 1.5 hours in length for a total of $2,693.04, 1 psychotherapy progress report procedure for a total of $428.00, and completion of the OCF-18 for $200.00, plus applicable tax. The plan’s goals are to help the applicant manage his emotions and return to activities of daily living, based on recommendations from Dr. Brunshaw’s assessment. Dr. Brunshaw had recommended 12 counselling sessions and a psychotherapy progress report (as needed) to determine if further treatment is needed.

54The applicant argues that the treatment plan is reasonable and necessary to address his accident-related psychological symptoms confirmed by Dr. Brunshaw’s report and diagnosis and because the costs are compliant with industry standards.

55The rate of $149.61 is the Professional Services Guideline (“Guideline”) rate for services provided by a psychologist or psychological associate. The applicant did not address why 1.5-hour sessions at a rate of $149.61 are reasonable and necessary except for general submissions. The proposed treatment provider is a psychotherapist, an unregulated provider under the Guideline rather than a psychologist or psychological associate. I find the rate of $58.19 appropriate for a psychotherapist, as it is the approved rate for unregulated providers, which includes psychometrists, and rehabilitation, family, and vocational counsellors.

56The respondent argues that at most, it appears that the applicant might have experienced some psychological symptoms/sequalae. It submits that there is no independent evidence to support that he sustained an ongoing psychological impairment of a significant enough magnitude to warrant further investigation or referrals. The respondent’s denial notice stated the plan was denied because the applicant was subject to the MIG and there was no compelling evidence of a psychological condition. Further, that the respondent will maintain this position unless a psychological s. 44 assessment shows otherwise.

57For reasons reviewed previously, I give more weight to the s. 25 psychological assessment report and accept the applicant’s consistent reporting of symptoms to the s. 44 psychological assessor. Further, since the applicant is no longer subject to the MIG, this reason for denial no longer applies.

58Based on the above, Dr. Brunshaw’s recommendations and partial approval of this plan are reasonable and necessary. I find that the applicant is entitled to 12 sessions, 1 hour in length, at a rate of $58.19 applicable to the various psychotherapists listed in the plan that may provide these sessions. Accordingly, the proposed cost of $2,693.04 is reduced to $698.28 for 12 psychotherapy sessions. Therefore, the applicant’s total entitlement to this plan is $1,326.28, plus applicable tax.

59For the reasons above, on a balance of probabilities, the applicant is partially entitled to this plan.

Interest

60The applicant is entitled to interest, which applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

Award

61The 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.

62The applicant makes general submissions as to when an award may be warranted. The principal specific argument from the applicant is that the respondent relied primarily on the opinions of its s. 44 assessors and did not consider new information as it became available and accordingly did not reconsider its prior decisions.

63I find that the applicant’s arguments are not supported by the evidentiary record before me. The applicant has not referred me to medical evidence that became available after the s. 44 assessments that the applicant argues the respondent did not consider. Nor is the applicant’s submission that the respondent closed its mind to an abundance of other medical evidence supported by any reference to medical evidence led by the applicant. I find that the respondent’s conduct in assessing whether the applicant’s injuries warrant removal from the MIG, which was the predominant reason for denying the benefits in dispute, was not unreasonable. Accordingly, the applicant has not established that the respondent’s conduct amounted to an unreasonable withholding or delay in the payment of benefits.

64For the reasons above, on a balance of probabilities, the respondent is not liable to pay an award.

ORDER

65For the reasons above, I make the following orders:

i. The applicant’s injuries are not predominantly minor as defined in s. 3 of the Schedule and are not subject to the $3,500.00 MIG limit.

ii. The applicant is entitled to the plan proposing $2,486.00 for a psychological assessment.

iii. The applicant is entitled to the plan $2,486.00 for a chronic pain assessment.

iv. The applicant is partially entitled to the plan proposing psychological services, in the amount of $1,326.28, plus applicable tax.

v. The applicant is entitled to interest pursuant to s. 51 of the Schedule.

vi. The applicant is not entitled to the remaining plans in dispute.

vii. The respondent is not liable to pay an award under s. 10 of Reg. 664.