Licence Appeal Tribunal File Number: 24-011548/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:
Mahmoud Al Darabseh
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Jeton Memeti, Paralegal
For the Respondent:
Michelle Moraes, Paralegal
HEARD:
By way of written submissions
OVERVIEW
1Mahmoud Al Darabseh, the applicant, was involved in an automobile accident on June 21, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal –Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
- Is the applicant entitled to the treatments proposed by Good Health Rehab as follows:
i. $3,691.25 for physiotherapy services in a treatment plan/OCF-18 (“plan”) dated December 30, 2022; and
ii. $3,522.00 for chiropractic services in a plan dated May 3, 2023?
- Is the applicant entitled to the treatments and assessments proposed by Mississauga Rehab & Sports Injury Clinic as follows:
i. $2,270.00 for a psychological assessment in a plan dated December 9, 2022;
ii. $4,215.13 for psychological treatment in a plan dated March 16, 2023;
iii. $2,700.70 for an orthopaedic assessment in a plan dated April 28, 2023; and
iv. $16,113.73 for physiotherapy services in a plan dated June 9, 2023?
- Is the applicant entitled to the assessments proposed by All Health Medical Centre as follows:
i. $2,200.00 for a functional abilities evaluation in a plan dated September 29, 2024; and
ii. $2,350.00 for a functional cognitive assessment in a plan dated September 26, 2024?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent entitled to costs in the amount of $1,000.00?
3In the Motion Order dated August 15, 2025, issue vi, above, was added.
4By way of email dated March 10, 2026, addressed to the Tribunal and to the respondent, the applicant withdrew the following issues that were set out in the Case Conference Report and Order dated February 4, 2025 (“CCRO”): issue 1 (whether his injuries are 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), as well as issue 4(i) (his entitlement to a social worker assessment in a plan dated September 25, 2024).
RESULT
5The applicant is entitled to the plans for a psychological assessment and psychological treatment.
6The applicant is not entitled to the remaining plans in dispute.
7The respondent is not liable to pay an award.
8The applicant is entitled to interest pursuant to s. 51 of the Schedule.
9The respondent is not entitled to costs.
PROCEDURAL ISSUES
Dismissal of the application
10The respondent seeks an order that the application be dismissed in its entirety because the applicant failed to comply with deadlines and orders in the CCRO and because of the applicant’s “non-compliance pursuant to s. 55” of the Schedule.
11I find that the respondent’s request to dismiss the entirety of the application amounts to a preliminary issue, which is not listed as an issue in dispute, and was not added as an issue in the Motion Order dated August 15, 2025. I decline to allow the respondent to add this issue because I find that it would be procedurally unfair to the applicant to allow the respondent to raise this potentially dispositive argument in its responding submissions.
Adverse inference
12In the alternative, the respondent asks the Tribunal to make an adverse inference for failure to comply with the production requests in the CCRO.
13The respondent submits that, as of September 5, 2025, the applicant “has failed to satisfy the productions requests by the final document exchange deadline of 60 Calendar days after the case conference, held on January 30, 2025.”
14I find the respondent’s submissions to be unclear. The respondent does not specify which “productions requests” it is referring to, nor does it refer me to any letters in this regard. In the overview of its submissions, the respondent indicates that the applicant’s pre-accident medical history is mostly unknown, the applicant has failed to provide the requested clinical notes and records (“CNRs”), and that the respondent only received the applicant's CNRs when the applicant's written submissions were served on August 21, 2025 (which is prior to the September 5, 2025 date cited by the respondent).
15Paragraph 10 of the CCRO indicates that the parties agreed that they shall exchange certain documents by no later than thirty calendar days from the case conference. Paragraph 10(i) sets out:
The applicant shall provide the respondent with:
(a) OHIP summary 2 years prior to the date of the accident to the date of the Case Conference (“CC”); and
(b) Dr. Ali, clinical notes and records, 2 years prior to the date of the accident to the date of the CC.
16Paragraph 11 of the CCRO indicates that the parties made no requests for production orders.
17Further, paragraph 12 indicates:
By no later than 60 calendar days from the case conference, both parties shall exchange all other documents and things not previously exchanged that they intend to rely on as evidence at the hearing.
18The respondent further submits that the applicant has not complied with his documentary disclosure obligations to produce the requisite documentary evidence to permit a full evidentiary record and to allow the respondent to make a full answer and defence.
19In reply, the applicant does not make submissions on the issue of an adverse inference.
20I find that on August 21, 2025, the applicant produced Dr. Ali’s CNRs (from June 29, 2021, to October 1, 2024) with his submissions, and that they are supportive of the applicant’s position that he suffered from an accident-related psychological condition. Further, I note that the Dr. Ali’s CNRs include a letter from the applicant’s representative dated January 13, 2023, requesting CNRs beginning from June 21, 2019. In addition, upon my review of the case management system, I note that the applicant served some of Dr. Ali’s CNRs (along with the Case Conference Summary) to the respondent on January 20, 2025.
21Pursuant to the CCRO, the respondent’s submissions were due fourteen calendar days prior to the written hearing, i.e. on September 5, 2025. Accordingly, the respondent had fourteen days to consider Dr. Ali’s CNRs that it received on August 21, 2025, prior to serving and filing its submissions. In any event, the respondent does not identify the adverse inference it seeks the Tribunal to draw. I find that the respondent’s submissions in this regard are too vague to grant the remedy sought.
22For these reasons, I decline to draw an adverse inference.
ANALYSIS
23To receive payment for a treatment and assessment plan under s. 15 and s. 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.
The applicant is not entitled to the plan dated December 30, 2022 for physiotherapy services in the amount of $3,691.25
24The applicant has not met his onus to prove on a balance or probabilities that the plan for physiotherapy services dated December 30, 2022 is reasonable and necessary.
25The plan was proposed by Yashaswini Deepak Bajaj, physiotherapist. The plan proposes completion of the OCF-18 and assessment and thirty-five one-hour sessions of physiotherapy ($3,491.25) over a period of 18 weeks. The goals of the plan are pain reduction, increased range of motion, increase in strength, and to return to activities of normal living.
26The applicant refers to the following evidence of accident-related physical injuries that are contemporaneous with this plan:
i. An OCF-3 dated July 11, 2022, Dr. Gayathiri Gangadharan, chiropractor, listed the applicant’s accident-related injuries as sprain and strain of the lumbar spine and pelvis, thoracic spine, cervical spine, shoulder joint, ribs and sternum, whiplash-associated disorder with neck pain and musculoskeletal signs, and headaches.
ii. On October 22, 2022, the applicant reported to Dr. Ali that at the time of the accident he had a headache and tingling in the back of the head and neck, and pain in the neck, shoulders and back. He also reported that he was still feeling neck and lower back pain, as well as tingling and numbness in both feet. Dr. Ali assessed the applicant with accident-related neck, shoulder, and lower back strain and sprain and noted: “was and still going to Physiotherapy.” Dr. Ali discussed management of the applicant’s pain complaints and noted that the applicant would continue with physiotherapy and Tylenol. Dr. Ali also prescribed Naprosyn and Baclofen.
iii. In a second OCF-3 dated April 19, 2023, Dr. Gangadharan lists the following accident-related injuries: sprain and strain of other and unspecified parts of the lumbar spine and pelvis, WAD II with complaint of neck pain and musculoskeletal signs, headache, sprain and strain of the shoulder joint, the thoracic spine/cervical spine, and the ribs and sternum.
iv. On May 3, 2023, the applicant saw Dr. Ali regarding accident-related psychological injuries and a refill for his prescriptions. Dr. Ali advised the applicant to continue with rehabilitation and physiotherapy.
27The applicant also refers to CNRs from February 10, March 7, April 11, May 1, July 10, and September 21, 2024. As these CNRs are not contemporaneous with the disputed plan dated December 30, 2022, I place no weight on them for the purpose of assessing this plan.
28The applicant generally submits that all treatment recommendations in dispute in this application are made by regulated health professionals using valid criteria and evidence-based practice, something the respondent dismisses without providing any compelling counterevidence.
29The applicant submits that the plan for physiotherapy services dated December 30, 2022 is reasonable and necessary because he continues to experience significant functional limitation, impaired activities of daily living, and chronic pain unresponsive to initial interventions. The applicant further submits that the respondent’s denial relied exclusively on MIG rationale and lacks supporting medical opinion, representing a failure to engage with the actual impairment and functional evidence. I note that the applicant did not argue entitlement to the plan based on s. 38(11) of the Schedule.
30The applicant also argues that Dr. Darrell Justice Ogilvie-Harris, orthopaedic surgeon “and other treating practitioners” specifically endorse this plan as medically necessary. The applicant does not direct me to evidence from the “other treating practitioners,” nor does he name them.
31I have reviewed Dr. Ogilvie-Harris’ May 17, 2023 s. 25 report that was prepared based on an orthopaedic assessment conducted on May 11, 2023. The purpose of the assessment was to determine the applicant’s musculoskeletal injuries and any chronic pain arising. Dr. Ogilvie-Harris concluded that the applicant sustained accident-related soft tissue injuries to his neck and back and diagnosed him with chronic pain syndrome. Dr. Ogilvie-Harris opined:
i. The appropriate treatment is a multi-modal multidisciplinary rehabilitation, including pharmacological management for pain, interventional pain management such as trigger point injections and facet blocks.
ii. Modalities such as acupuncture, chiropractic, and massage therapy can reduce pain and improve function.
iii. From a physical point of view, the applicant requires strengthening of the spine and extremities.
iv. The applicant would need core stability and non-impact cardiovascular and respiratory conditioning, which would have to be carefully supervised and progressive without aggravating his symptoms and to ensure compliance.
32Although Dr. Ogilvie-Harris lists the disputed plan dated December 30, 2022 in the amount of $3,691.25 under “Medical / Rehab Reports” in the Medical Brief Index of the report, I find that Dr. Ogilvie-Harris does not “specifically endorse this plan as medically necessary,” as the applicant submits. Other than listing the plan as a reference, Dr. Ogilvie-Harris does not discuss the disputed plan in his report at all.
33I note that the applicant first reported accident-related injuries to Dr. Ali on October 22, 2022, four months after the accident, when he advised Dr. Ali that he had been attending for physiotherapy treatments. During the applicant’s next appointment with Dr. Ali on January 3, 2023, the applicant reported sleep issues but did not discuss any accident-related physical complaints. During the next appointment with Dr. Ali on May 3, 2023, although Dr. Ali’s CNRs indicate that the applicant should “continue Rehab and Physio,” there is no indication that the applicant reported any physical injuries during this visit.
34I am not persuaded that Dr. Ali’s CNRs support the reasonableness and necessity of the disputed plan for the following reasons. Based on the comments that were made in the plan at Part 9b), I find that this was not the first plan for physiotherapy treatment. The plan is dated December 30, 2022. The applicant did not report physical accident-related complaints to Dr. Ali on January 3 or May 3, 2023.
35Further, the applicant does not direct me to evidence with respect to how the goals of the disputed plan would be met to a reasonable degree and that the overall costs of achieving them are reasonable. In particular, the applicant does not direct me to evidence in support of the need for thirty-five sessions of physiotherapy.
36For these reasons, I find that the applicant has not met his onus to demonstrate on a balance or probabilities that the plan for physiotherapy services dated December 30, 2022 is reasonable and necessary.
The applicant is not entitled to the plan dated May 3, 2023 for chiropractic services in the amount of $3,522.00
37The applicant has not met his onus to prove on a balance or probabilities that the plan for chiropractic services is reasonable and necessary.
38The applicant did not put this disputed plan into evidence. I issued an order dated April 21, 2026, requesting that the applicant file the missing plan by April 23, 2026. In the order, I indicated that “failing to file the document by this deadline could result in the document not being included in the hearing evidence” (emphasis in original). As of April 27, 2026, the applicant had not filed the plan with the Tribunal.
39The applicant submits that the disputed plan is reasonable and necessary because he continues to experience significant functional limitation, impaired activities of daily living, and chronic pain unresponsive to initial interventions.
40The applicant also submits that the goals of the plan are “pain reduction, strengthening, return to normal functioning, and resumption of pre-injury activities,” however, as indicated above, the applicant does not direct me to the plan. As a result, I do not know what services or items are proposed in the plan.
41In addition, the applicant submits that Dr. Ogilvie-Harris “and other treating practitioners” specifically endorse this plan as medically necessary. Again, the applicant does not direct me to these “other treating practitioners.” Further, I note that the disputed plan dated May 3, 2023 for chiropractic services in the amount of $3,522.00 is not mentioned anywhere in Dr. Ogilvie-Harris’ report, nor is it listed in the Medical Brief Index of the report.
42I also note that the applicant’s submissions do not address how the goals of the plan would be met to a reasonable degree and how the overall costs of achieving the goals are reasonable.
43For these reasons, I find that the applicant has not met his onus to demonstrate on a balance or probabilities that the plan for chiropractic services is reasonable and necessary.
The applicant is entitled to the plan dated March 16, 2023 for psychological treatment in the amount of $4,215.13
44The applicant has met his onus to prove on a balance or probabilities that the plan for psychological treatment is reasonable and necessary.
45The plan was proposed by Anna Kozina, psychologist, and Laiba Imran, psychotherapist. The plan proposes the completion of the OCF-18, twelve 1.5-hour sessions of individual psychotherapy, testing and scoring, treatment planning, a progress report, and a treatment manual. The goals of the plan are pain reduction, to return to activities of normal living, and to return to pre-accident level of psychological functioning. In Part 9b), there is an indication that this is not a subsequent plan. The estimated duration of the plan is twelve weeks.
46The applicant refers to the following evidence of accident-related psychological injuries.
47From the CNRs of Dr. Salah-Eddin Ali, physician:
i. On October 22, 2022, the applicant reported that, since the accident, he suffered from insomnia, when he slept, he did not wake up easily, his wife told him that he grinds his teeth and “keeps jumping” in his sleep, and that he kept worrying that he would be hit by another car. Dr. Ali assessed him with “post MVA situational anxiety,” prescribed Lorazepam, and booked him for a mental health evaluation.
ii. On October 23, 2022, Dr. Ali conducted two psychometric tests and diagnosed the applicant with moderate anxiety and major depression, mild. Dr. Ali recommended antidepressants or psychotherapy for treatment.
iii. On January 3, 2023, the applicant reported sleep issues, including being unable to fall asleep, waking easily, and not being able to return to sleep. Dr. Ali assessed the applicant with insomnia and prescribed Zopiclone.
iv. On May 3, 2023, the applicant saw Dr. Ali for a refill on medication and the applicant was assessed with “Post MVA stress and anxiety” and PTSD. The applicant advised Dr. Ali that he had appointment with a psychiatrist on May 11, 2023.
v. On May 1, 2024, the applicant reported that he was still having insomnia. Dr. Ali assessed the applicant with “Post MVA adjustment disorder.”
vi. On May 10, 2024, the applicant reported having difficulty sleeping and feeling extra anxious when driving or in a car. Dr. Ali assessed the applicant with insomnia and adjustment disorder. Dr. Ali discussed psychotherapy and counselling with the applicant and prescribed Lorazepam.
48The applicant also relies on the s. 25 psychological assessment conducted by Laiba Imran, registered psychotherapist, and Anna Kozina, M.A. C.Psych., on January 28, 2023. The applicant reported depression, anxiety, frustration, irritability, sleep difficulties, and vehicular anxiety because of the accident. After a clinical interview, six psychometric tests were administered, one of which contained a validity scale indicating that the applicant answered questions in a straightforward fashion. Based on the assessment, the applicant was diagnosed with adjustment disorder with mixed anxiety and depressed mood, and specific phobia, situational type (driving and travelling as a passenger). Twelve sessions of cognitive-behavioural psychotherapy were recommended.
49The applicant submits that the plan is justified by the evidence of enduring pain, phobic symptoms, and ongoing impairment. The applicant also argues that his need for psychological treatment is underscored by demonstrated accident-related symptoms, including withdrawal from social life and a negative impact on his family relationships (both of which I note were reported during the s. 25 assessment), persistent phobia, and clinically significant depression.
50The respondent relies on the s. 44 psychological assessment conducted by Mehdi Lotfalizadeh, psychologist, on February 24, 2023. Mr. Lotfalizadeh reviewed the medical file provided to him, interviewed the applicant, conducted four psychological tests, and prepared a report dated March 8, 2023. Although the results of three of the tests showed the presence of psychological and emotional problems, Mr. Lotfalizadeh interpreted the results of these tests as invalid due to the high score obtained by the applicant on the Structured Inventory of Malingered Symptomatology. Accordingly, Mr. Lotfalizadeh concluded that the applicant did not suffer from a diagnosable accident-related psychological disorder and that his injuries met the criteria of a minor injury as described in the MIG. I note that the medical file reviewed by Mr. Lotfalizadeh for this assessment consisted of an OCF-1, an OCF-3, and three OCF-18s.
51On April 27, 2023, after reviewing additional documents (i.e., his own March 8, 2023 s. 44 assessment report, the February 26, 2023 s. 25 assessment report prepared by Laiba Imran and Anna Kozina, and Dr. Bansal’s March 2, 2023 s. 44 assessment report) Mr. Lotfalizadeh prepared an addendum paper review which was prefaced with: “I do not take any responsibility of any decisions made as a result of my report as the claimant is not seen in person and my opinion may change based on availability of any new information.” Mr. Lotfalizadeh concluded that, based on his February 24, 2023 assessment and a review of the additional documents provided, he “would stay with” his original opinion. Mr. Lotfalizadeh did not provide reasons. Mr. Lotfalizadeh opined that the applicant’s “psychological symptoms/findings are not sufficient enough to require formal treatment or assessment interventions.”
52I place more weight on the s. 25 report, because the diagnoses attributed to the applicant of adjustment disorder with mixed anxiety and depressed mood, and specific phobia, situational type (driving and travelling as a passenger) are consistent with the accident-related diagnoses made by Dr. Ali, i.e., moderate anxiety, major depression (mild), situational anxiety post MVA, post MVA stress and anxiety, PTSD, post MVA adjustment disorder, and insomnia. I find that Dr. Ali, who saw the applicant several times in relation to his accident-related symptoms (as opposed to the s. 25 and s. 44 assessors, who assessed the applicant after one interview) is in a better position to assess the applicant’s psychological injuries related to the accident.
53I am persuaded by Dr. Ali’s CNRs, as well as the s. 25 report, that the applicant has significant accident-related psychological injuries, i.e. diagnoses of adjustment disorder with mixed anxiety and depressed mood, specific phobia, situational type (driving and travelling as a passenger), moderate anxiety, major depression (mild), situational anxiety post MVA, post MVA stress and anxiety, PTSD, post MVA adjustment disorder, and insomnia. The applicant reported accident-related psychological symptoms to Dr. Ali between October 22, 2022 and May 10, 2024, including reports on January 3 and May 3, 2023, which I find are contemporaneous with the disputed plan dated March 16, 2023. Further, Dr. Ali prescribed medications to the applicant to address these symptoms, i.e. Lorazepam (October 22, 2022, and May 10, 2024), and Zopiclone (January 3, 2023).
54Based on this evidence, I am persuaded by the recommendation in the s. 25 report for twelve sessions of cognitive-behavioural oriented psychotherapy, with a view to improve the applicant’s awareness and understanding of the links between accident-related negative mood states, pain, and somatic symptoms.
55I am also persuaded that the proposed treatment manual is reasonable and necessary. Given the duration of the proposed treatment, Laiba Imran and Anna Kozina, suggested that the applicant use a treatment manual titled “Recovering from the trauma of your car accident,” which they indicated would provide a comprehensive structure for treatment, accompanied by user-friendly assessment and change-tracking measures, and would provide the applicant with tools to successfully deal with trauma and depression.
56I have considered the above evidence, including the well-documented seriousness of the applicant’s accident-related psychological injuries, as well as the fact that what is in dispute is an initial plan for psychological treatment. Based on all the evidence, I find that the goals of the disputed plan can reasonably be achieved and that the overall costs of doing so is reasonable.
57For these reasons, I find that the applicant has met his onus to demonstrate on a balance or probabilities that the plan for psychological treatment is reasonable and necessary.
The applicant is not entitled to the plan dated June 9, 2023 for physiotherapy services in the amount of $16,113.73
58The applicant has not met his onus to prove on a balance or probabilities that the plan for physiotherapy services in the amount of $16,113.73 is reasonable and necessary.
59The plan was proposed by Premala Pujari, physiotherapist. The injuries listed in the plan are sprain and strain of cervical spine, lumbar spine, shoulder joint, and headache. The plan proposes the completion of the OCF-18, thirty-two 1.5-hour sessions of chronic pain treatment (thirty-two sessions each of manual therapy, “IFC, TENS, Microcurrent,” stretching exercises, laser therapy, and ultra sound) for a total of $4,788.16, eight sessions of patient education, fourteen 1.5-hour sessions of individual psychotherapy for a total of $3,141.88, two progress reports, fourteen social worker counselling sessions for a total of $2,940.00, electrodes, ice/heat pack, fifteen sessions of massage therapy, and transportation (thirty-two times for a total of $1,920.00). The goals of the plan are pain reduction, increased range of motion, increase in strength, increase in endurance, and to return to activities of normal living.
60The applicant submits that the plan is justified by the evidence of enduring pain, phobic symptoms, and ongoing impairment. The applicant also argues that denials by the respondent invariably rely on the rejected MIG position, ignoring the evidentiary basis for ongoing, multidisciplinary and psychological care. In addition, the applicant submits that the respondent’s denial of this plan is formulaic and uniformly applies the disputed MIG rationale, without assessing the needs or functional limitations that persisted over a year post-accident. I note that the applicant did not argue entitlement to the plan based on s. 38(11) of the Schedule.
61The applicant further submits that this comprehensive multidisciplinary plan for chronic pain is well-supported in both clinical opinion and current guidance on best practices for persistent post-accident pain, encompassing physiotherapy, assistive devices, and psychotherapy.
62I note that, in his general submissions, the applicant refers to Dr. Ali’s CNRs from February 10, March 7, April 11, May 1, July 10, and September 21, 2024. I place no weight on these CNRs for the purpose of assessing the reasonableness and necessity of the disputed plan dated June 9, 2023 for physiotherapy services because I find the CNRs are not contemporaneous with the plan.
63The onus is on the applicant to prove, on a balance of probabilities that the plan is reasonable and necessary. I find the applicant’s submissions in this regard to be vague and unspecific. Further, the applicant does not direct me evidence with respect to how the goals of the plan would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
64The applicant made arguments in reply, in response to the respondent’s submissions. Since I have not considered the respondent’s submissions in my finding that the applicant has not met his onus, I find that it would not be procedurally fair to consider the applicant’s reply arguments.
65For these reasons, I find that the applicant has not met his onus to demonstrate on a balance or probabilities that the plan for physiotherapy services in the amount of $16,113.73 is reasonable and necessary.
Assessments
66In determining whether an assessment is reasonable and necessary, it must be borne in mind that assessments, by their nature, are investigative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their investigative nature, the applicant still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary. To do so, the applicant must point to objective evidence that there are grounds to believe the applicant has the condition for which they seek the assessment.
The applicant is entitled to the plan dated December 9, 2022 for a psychological assessment
67The applicant has met his onus to prove on a balance or probabilities that the plan for a psychological assessment is reasonable and necessary.
68The plan was proposed by Shankari Sivarajasingam, occupational therapist. The plan proposes completion of the OCF-18, a psychological assessment, and “psych screening.” The goals of the plan are pain reduction, to return to activities of normal living, and to return to pre-accident level of psychological functioning.
69The applicant submits that the plan is justified by the evidence of enduring pain, phobic symptoms, and ongoing impairment.
70The respondent relies on the March 8, 2023 s. 44 assessment report prepared by Mr. Lotfalizadeh, where he concluded that the plan for a psychological assessment is not reasonable and necessary. Mr. Lotfalizadeh opined that the applicant’s “psychological symptoms/findings are not sufficient enough to require formal treatment or assessment interventions.”
71I note that on October 22, 2022, after conducting psychometric tests, Dr. Ali diagnosed the applicant with moderate anxiety and major depression, mild, and situational anxiety post MVA. Further, on the same date, Dr. Ali noted that the applicant would be booked for a mental health evaluation. In addition, on January 3, 2023, based on the applicant’s reported sleep issues, Dr. Ali assessed the applicant with insomnia. I find that these CNRs are contemporaneous with the disputed plan dated December 9, 2022.
72Given the substantial evidence before me of accident-related psychological injuries and my finding that the applicant has met his onus to prove on a balance or probabilities that the plan for psychological treatment is reasonable and necessary, I find that there are grounds on which to believe that a psychological condition exists that would warrant further investigation by way of a psychological assessment. I also find that the above-referenced goals of the plan for a psychological assessment would be met to a reasonable degree and the overall costs of achieving them are reasonable.
73For these reasons, I find that the applicant has met his onus to demonstrate on a balance or probabilities that the plan for a psychological assessment is reasonable and necessary.
The applicant is not entitled to the plan dated April 28, 2023 for an orthopaedic assessment
74The applicant has not met his onus to prove on a balance or probabilities that the plan for an orthopaedic assessment is reasonable and necessary.
75The plan was proposed by Dr. Ogilvie-Harris. The plan proposes completion of the OCF-18, an “Ortho/Chronic Pain Assessment,” file review, report formulation and writing, and translation services. The goals of the plan are pain reduction, increased range of motion, increase in strength, to return to activities of normal living, and to identify impairments and help achieve maximum recovery.
76The applicant submits that the plan is justified by the evidence of enduring pain, phobic symptoms, and ongoing impairment. The applicant submits that this plan was denied based on the opinion of a non-specialist, “which cannot substitute the expertise of an orthopaedic surgeon in assessing the necessity of proposed interventions.” The applicant further argues that the respondent’s denial was formulaic and uniformly applied the MIG rationale, without assessing his needs or functional limitations that persisted over a year post-accident.
77I find that the applicant’s submissions with respect to the reasonableness and necessity of the plan for an orthopaedic assessment are vague and unspecific. The applicant does not identify how the goals of treatment would be met to a reasonable degree and how the overall costs of achieving them are reasonable. Further, I find that the applicant does not make submissions with respect to what condition might exist that would warrant further investigation by way of an assessment.
78I am not persuaded by Dr. Ogilvie-Harris’ s. 25 report dated May 17, 2023, which was prepared after Dr. Ogilvie-Harris proposed the disputed plan dated April 28, 2023. In the absence of specific argument with respect to why the plan is reasonable and necessary, and in light of the fact that I have not been directed to evidence contemporaneous with the plan that establishes there were grounds to believe the applicant had a condition that warranted further investigation by way of an assessment, I find that he has not met his onus.
79For these reasons, I find that the applicant has not met his onus to demonstrate on a balance or probabilities that the plan for an orthopaedic assessment is reasonable and necessary.
The applicant is not entitled to the plan for a functional abilities evaluation or the plan for a functional cognitive assessment
80The applicant has not met his onus to prove on a balance or probabilities that the plan for a functional abilities evaluation or the plan for a functional cognitive assessment is reasonable and necessary.
81The plan for a functional abilities evaluation was proposed by Dr. Mikhail Shteynberg, chiropractor. The plan proposes a functional abilities evaluation, report formulation and writing, and preparation of the OCF-18. The goals of the plan are pain reduction, increased range of motion, increase in strength, and to return to activities of normal living.
82The plan for a functional cognitive assessment was proposed by Arvind Kumar Gupta, occupational therapist. The plan proposes a functional cognitive assessment, preparation of the OCF-18, and interpretation (Arabic). The goals of the plan are increase in strength, to return to activities of normal living, and to return to pre-accident work activities.
83The applicant submits that the assessments are consistent with his ongoing disability and are intended to facilitate maximal medical recovery and a safe return to pre-accident activities. The applicant further submits that both assessments have the same goals, which are to aid in his recovery, to return to his pre-accident state, and achieve maximal recovery.
84The applicant does not direct me to evidence to support the reasonableness and necessity of the plans. Further, the applicant does not direct me evidence with respect to how the goals of either of the plans would be met to a reasonable degree and how the overall costs of achieving them are reasonable.
85For these reasons, I find that the applicant has not met his onus to demonstrate on a balance or probabilities that the plan for a functional abilities evaluation or the plan for a functional cognitive assessment is reasonable and necessary.
Interest
86Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
87The applicant seeks 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. To attract an award, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.
88The applicant submits that the respondent’s blanket denials, absence of meaningful written reasons (contrary to s. 38(8) of the Schedule), and refusal to consider evolving impairment evidence constitute unreasonable delay and “violation of benefit administration duties.” The applicant further submits that the respondent’s denials “are procedurally and substantively defective and that a special award is appropriate to deter unfair benefit administration.”
89The respondent points out that the applicant did not provide particulars of the award claim within thirty days after receipt of the adjuster log notes, in accordance with the CCRO. In the applicant’s reply submissions, he does not provide any explanation in this regard.
90On reply, the applicant does make additional (unrelated) submissions with respect to his entitlement to an award, which I find are improper reply. It is well settled that the purpose of reply is for the party bearing the onus in the dispute to respond to any issues that were raised in the other party's submissions which could not have been reasonably raised in initial submissions. Reply is not an opportunity for the party to raise issues that should have been raised in initial submissions.
91I have considered the applicant’s original submissions for an award; however, I decline to consider the award submissions made by the applicant in reply because I find that this would result in procedural unfairness to the respondent, especially having regard to the fact that the applicant did not provide particulars in advance to the respondent.
92As indicated above, to attract an award under Reg. 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. I find the applicant’s submissions on the issue of an award to be vague. The applicant does not direct me to any specific examples of conduct on the part of the respondent that is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.
93Further, as indicated above, the applicant did not argue entitlement to the disputed plans based on s. 38(11) of the Schedule. Although, in his request for an award, the applicant refers to the “respondent’s blanket denials” and “absence of meaningful written reasons” contrary to s. 38(8) and submits that the respondent’s denials are “procedurally and substantively defective,” he does not make submissions addressing specifically how the respondent’s denials were lacking.
94For these reasons, I find on a balance of probabilities that the applicant is not entitled to an award under Reg. 664.
Costs
95For the following reasons, I find that the applicant is not liable to pay costs to the respondent.
96Rule 19.1 of the Licence Appeal Tribunal Rules, 2023 (the “Rules”) permits a party to request an order for costs where the requesting party believes that the other party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.
97Rule 19.5 of the Rules outlines the relevant factors which should be considered by the Tribunal when determining whether to order costs and the amount of costs to be awarded. The factors include the seriousness of the misconduct, whether the conduct was in breach of 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 other parties, and the potential impact an order for costs would have on individuals accessing the Tribunal system. Rule 19.6 allows for a maximum of $1,000.00 for each full day of attendance at a motion, case conference or hearing.
98I find that cost awards under Rule 19 are to maintain civility and order during proceedings, to deter conduct that threatens the orderly and civil resolution of an application, and to ensure that the Tribunal’s process and the other participants are respected.
99The respondent seeks $1,000.00 in costs “for a violation of procedural fairness.” Rule 19.4 of the Rules sets out that a “submission on costs shall set out the reasons for the request and the particulars of the other party’s conduct that are alleged to be unreasonable, frivolous, vexatious, or in bad faith.” I find that the respondent does not make specific submissions on the issue of costs, nor does it address how the applicant has acted unreasonably, frivolously, vexatiously, or in bad faith.
100For these reasons, I find on a balance of probabilities that the respondent is not entitled to costs.
ORDER
101For the above reasons, I find:
i. The applicant is entitled to the plans for a psychological assessment and psychological treatment.
ii. The applicant is not entitled to the remaining plans in dispute.
iii. The applicant is entitled to interest pursuant to s. 51 of the Schedule.
iv. The respondent is not liable to pay an award.
v. The respondent is not entitled to costs.
Released: May 28, 2026
__________________________
Laura Goulet
Adjudicator