Licence Appeal Tribunal File Number: 24-008566/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:
Raedah Abdullah-Mohd
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR: Harouna Saley Sidibé
APPEARANCES:
For the Applicant: Sam Elbassiouni, Paralegal
For the Respondent: Louise James, Counsel
HEARD: By way of written submissions
OVERVIEW
1Raedah Abdullah-Mohd, the applicant, was involved in an automobile accident on February 28, 2020, 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, Certas Home and Auto Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2A case conference was held on November 14, 2024. In the Case Conference Report and Order (“CCRO”) dated November 19, 2024, the Tribunal identified the issues in dispute, ordered the production of documents, and scheduled the matter for a four-day videoconference hearing.
3The videoconference hearing was scheduled for April 28, 2025. Prior to the hearing, the applicant filed three procedural motions, including motions to convert the hearing to a written hearing, to exclude certain insurer examination reports and witnesses, and to challenge the adequacy of several insurer examination notices pursuant to s. 44(5) of the Schedule, and to seek directions regarding the hearing format and representation.
4The Adjournment Order dated April 30, 2025, granted the applicant’s request for an adjournment following the applicant’s recent retainer of counsel and counsel’s family medical emergency.
5The Motion Order dated June 25, 2025, converted the proceeding to a written hearing. At the outset of the Motion hearing, the applicant confirmed that the income replacement benefit (“IRB”) and attendant care benefit (“ACB”) claims had been withdrawn and were no longer pursued.
6Therefore, the only remaining substantive issues are set out in the Motion Order.
ISSUES
7The issues in dispute are:
i. Is the applicant entitled to $2,500.00 for a Neurological Assessment and Electromyography Analysis, proposed by Novo Medical Services Inc. in a treatment plan/OCF-18 (“plan”) dated May 24, 2023?
ii. Is the applicant entitled to $2,200.00 for a Biopsychosocial Assessment, proposed by Novo Medical Services Inc. in a plan dated May 3, 2023?
iii. Is the applicant entitled to $4,959.75 for psychological services, proposed by Center for Psychological and Counseling Services in a plan dated April 24, 2023?
iv. Is the applicant entitled to $2,600.00 for an ENT Assessment, proposed by Novo Medical Services Inc. in a plan dated May 24, 2023?
v. Is the applicant entitled to $4,171.09 for chiropractic services, proposed by Harwood Health & Wellness in a plan dated November 27, 2022?
vi. Is the applicant entitled to $4,818.62 for chiropractic services, proposed by Harwood Health & Wellness in a plan dated April 24, 2023?
vii. Is the applicant entitled to $4,964.92 for chiropractic services, proposed by Harwood Health & Wellness in a plan dated June 3, 2024?
viii. Is the applicant entitled to $2,200.00 for a Sleep Quality Assessment, proposed by Novo Medical Services Inc. in a plan dated March 7, 2023?
ix. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
x. Is the applicant entitled to interest on any overdue payment of benefits?
8In her written submissions, the applicant withdrew the issue regarding the $2,200.00 plan dated March 7, 2023, for a social worker assessment proposed by Novo Medical Services.
RESULT
9For the reasons below, I find that:
The applicant is entitled to the following treatment and assessment plans: psychological services, neurological assessment and electromyography analysis, biopsychosocial assessment, ENT assessment, and sleep quality assessment, plus interest in accordance with s. 51 of the Schedule.
The applicant is not entitled to the chiropractic treatment plans.
The applicant is not entitled to an award.
PROCEDURAL ISSUES
10The applicant submits that the Insurer’s Examination (“IE”) reports prepared by Dr. David Direnfeld, Dr. Fathi Abuzgaya, Ms. Taline Sethian, and Ms. Loreta Stanulis-Duz should be excluded. She argues that the respondent failed to produce psychometric testing and the underlying raw data, that the notices of examination were deficient under section 44(5) of the Schedule, and that the reports are procedurally unfair and prejudicial.
11In particular, the applicant submits that the notices of examination dated February 23, 2022, March 11, 2022, and July 19, 2022, relating to post-104 IRB and ACB, do not comply with the Schedule's requirements.
12The applicant has withdrawn her claims for IRB and ACB. As a result, the issues to which many of the impugned notices and IE reports relate are no longer before the Tribunal, significantly reducing any potential prejudice stemming from the alleged deficiencies.
13In these circumstances, I decline to exclude the IE reports.
ANALYSIS
Is the applicant entitled to the disputed treatment plans?
14I find that the applicant is entitled to the psychological treatment plan, but not to the chiropractic treatment plans.
15To 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.
16Sections 38(8) and 38(11) of the Schedule set out the consequences of an insurer’s non‑compliant treatment‑plan denial. Where an insurer fails to provide adequate medical and other reasons in accordance with s. 38(8), then s. 38(11) compels the insurer to pay for the goods and services of that treatment plan relating to the period starting on the 11th business day after the treatment plan is received and ending on the day that a proper denial notice is delivered: Aviva v. Catic, 2022 ONSC 6000 at para. 18 (Div. Ct.). If a deficient denial is not cured prior to the Tribunal hearing the dispute, then it is no longer open to the insurer to cure it: Aviva v. Suarez, 2021 ONSC 6200 at para. 36 (Div. Ct.).
Psychological Services
17I find that the applicant is entitled to the psychological treatment plan due to the respondent’s noncompliant denial.
18The plan dated April 24, 2023, for $4,959.75, is signed by Mohammed Saidi, a physician, and Hidayatuliah Sherzad, a regulated psychotherapist. The plan proposes 16 psychotherapy sessions, along with service planning and documentation. Its stated goals include reducing pain, returning to pre-accident physical and psychological functioning, and returning to activities of daily living.
[19]
19The respondent denied the plan on April 28, 2023. The denial is based on a section 44 report by Dr. David Direnfeld, a psychologist, which concluded that there was insufficient evidence of an accident-related psychological impairment and therefore made no recommendation for psychological intervention.
20The applicant submits that the denial does not comply with section 38(8) of the Schedule because it fails to meaningfully engage with the medical evidence and does not identify any information regarding her current condition.
21The respondent submits that the plan is neither reasonable nor necessary, relying on Dr. Direnfeld’s opinion that the applicant has no accident-related psychological impairment and noting that the applicant did not pursue an OHIP-funded mental health referral.
22I find that the respondent’s denial does not comply with section 38(8) and therefore engages the consequences set out in section 38(11). While the denial identifies the treatment plan, its reasons remain largely conclusory and rely on generalized references to prior assessments without explaining how those findings apply to the specific services proposed. Although brief or conclusory reasons may, in some cases, be sufficient, such as where the basis for the denial is readily apparent, the explanation here does not meaningfully address the applicant’s current condition, provide service-specific justification, or engage with the clinical rationale underlying the plan. In addition, the structure and presentation of the denial are not accessible to a layperson. The repeated use of “see additional comments” without clear corresponding explanations, followed by a separate section titled “Information to help you understand the reason(s),” makes the rationale difficult to follow and undermines the clarity required under the Schedule.
23In my view, the respondent’s reliance on a general statement that there is no accident-related psychological impairment is not, in itself, inconsistent with the Schedule’s requirements, as Tribunal decisions have recognized that concise or conclusory medical reasons may be sufficient in some circumstances. However, in this case, the manner in which the conclusion is expressed and presented does not clearly show its applicability to the proposed treatment plan. The denial does not clearly link the general conclusion to the specific psychotherapy services at issue, nor does it explain how the earlier section 44 findings relate to the applicant’s reported symptoms at the time of the plan. As a result, the rationale, when read as a whole, is difficult to follow. The structure and wording do not provide a sufficiently clear explanation to allow a layperson to understand the basis for the refusal or to meaningfully assess whether to challenge it.
24Accordingly, I find that the applicant is entitled to payment for the psychological treatment plan.
Chiropractic Services
25I find that the applicant is not entitled to the chiropractic treatment plans.
26The applicant seeks approval of three chiropractic treatment plans dated November 27, 2022 ($4,171.09), April 14, 2023 ($4,818.62), and June 3, 2024 ($4,964.92). Each plan proposes multiple sessions of chiropractic therapy and mobilization, along with assessments, assistive devices, and home-use products. The stated goals are consistent across the plans and include pain reduction, improved range of motion, increased strength and flexibility, and a return to pre-accident function.
27The applicant submits that these plans are reasonable and necessary given her ongoing physical impairments and chronic pain. She relies on contemporaneous clinical records documenting persistent symptoms and treatment recommendations.
28The respondent submits that the plans are neither reasonable nor necessary, relying on Dr. Fathi Abuzgaya's section 44 orthopaedic assessment dated June 10, 2022, and a subsequent paper review, indicating that the applicant’s complaints are largely attributable to pre-existing conditions and that any accident-related impairments have resolved. It also points to findings of limited functional range of motion, lack of objective correlation, and symptom magnification.
29I accept that the applicant continues to experience pain and functional limitations. The clinical notes and records (“CNRs”) from Dr. Nazar Sharobim, the applicant’s family doctor, and other medical practitioners, such as Burham Bone and Joint Specialists, spanning January 2022 to May 2024, consistently document complaints involving the shoulders, neck, back, and knees, as well as diagnoses of adhesive capsulitis and chronic pain.
30However, the determinative issue is whether the proposed chiropractic services, in particular, are reasonable and necessary. In this regard, I find that the contemporaneous records provide limited support for chiropractic treatment as a distinct modality. The records consistently emphasize physiotherapy, exercise-based rehabilitation, injections, and general conservative management. Although there is a brief reference to chiropractic care in July 2022, it is neither sustained nor a prominent treatment recommendation.
31During the relevant period, the applicant was receiving physiotherapy, recommended by her family physician and associated with documented improvement over time, particularly in shoulder mobility. By contrast, there is no indication that any treating practitioner recommended chiropractic treatment. In these circumstances, the records do not provide a clear medical rationale for pursuing chiropractic care rather than continuing the physiotherapy and exercise program already in place to achieve the identified treatment goals.
32In addition, I place greater weight on Dr. Abuzgaya’s opinion because it is consistent with and supported by the broader medical record, including the absence of objective findings of significant impairment and the documented course of the applicant’s recovery. His conclusion that the applicant’s ongoing complaints are largely attributable to pre-existing conditions aligns with the clinical findings over time. While I do not find that the applicant has fully recovered, I accept that the medical evidence, when considered as a whole, does not establish that the proposed extent and nature of chiropractic treatment are necessary to address accident-related impairments.
33Considering the totality of the evidence, I find that the applicant has not met her burden of proving, on a balance of probabilities, that the chiropractic treatment plans are reasonable and necessary as a result of the accident.
34Accordingly, the applicant is not entitled to the chiropractic treatment plans.
Is the applicant entitled to the disputed assessment plans?
35I find that the applicant is entitled to neurological, EMG, biopsychosocial, ENT, and sleep quality assessments.
36In 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 speculative nature, the applicant still bears the onus of establishing, on the 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 suspect the applicant has the condition for which he seeks the assessment.
Neurological Assessment and Electromyography
37I find that the applicant is entitled to the neurological assessment and EMG.
38The treatment plan dated March 7, 2023, for $2,500.00, proposes an EMG and related services to investigate the source of the applicant’s ongoing pain.
39The respondent denied the plan on June 6, 2023, relying on a section 44 orthopaedic report by Dr. Abuzgaya indicating that no further formal rehabilitation was required. Further, the respondent submitted that the applicant has already been referred for an OHIP-funded neurological assessment by her family physician
40The applicant submits that the EMG is a diagnostic tool intended to guide treatment and that the respondent’s denial fails to comply with section 38(8) of the Schedule.
41The respondent submits that the assessment is duplicative, as the applicant underwent an OHIP-funded neurological consultation in March 2023 that did not identify any accident-related neurological impairment.
42I find that the respondent’s denial does not comply with section 38(8) for the reasons set out above. It offers only a generalized statement that rehabilitation is no longer required and fails to explain why a diagnostic neurological investigation is unnecessary. In addition, the structure and presentation of the denial are not accessible to a layperson. The repeated use of “see additional comments” without clear, corresponding explanations, followed by a separate section titled “Information to help you understand the reason(s)”, renders the rationale difficult to follow and undermines the clarity required under the Schedule.
43On the merits, I am satisfied that there is a sufficient basis for the proposed assessment. The applicant has ongoing complaints of pain, including reported neurological symptoms such as tingling and persistent discomfort (Dr. Vincenzo Basile, Neurological Evaluation, December 20, 2022). Although the respondent submits that similar services may be available through OHIP, the evidence shows that the applicant’s prior OHIP-funded neurological consultation in March 2023 did not include electrophysiological testing, such as an EMG. An EMG is a distinct diagnostic tool that may identify nerve dysfunction not apparent on clinical examination alone. In light of the persistence of symptoms and the absence of this form of testing, I find there is a sufficient basis to proceed with the proposed assessment.
44I am not persuaded by the respondent’s submission that the proposed services are duplicative. Although the applicant recently underwent an OHIP-funded neurological consultation, the plan at issue includes both a further neurological assessment and EMG testing. In this context, the proposed assessment is not merely repetitive; it builds on the prior consultation by incorporating additional diagnostic tools to investigate ongoing, unexplained symptoms. Accordingly, I find the proposed neurological assessment and EMG testing reasonable and necessary.
45Therefore, I find that the applicant is entitled to the neurological assessment and EMG.
Biopsychosocial Assessment
46I find that the applicant is entitled to the biopsychosocial assessment due to the respondent’s noncompliant denial.
47The plan dated May 3, 2023, for $2,200.00, proposes a biopsychosocial assessment to evaluate the applicant’s overall functioning.
48The respondent denied the plan, relying on Dr. Direnfeld’s opinion that there is no accident-related psychological impairment.
49The applicant submits that the denial is non-compliant with section 38(8) and fails to address the medical evidence.
50The respondent submits that the assessment is redundant because the applicant had access to OHIP-funded services but did not pursue them.
51On the merits, I find the assessment reasonable and necessary. The record shows that the applicant has ongoing complaints of physical pain, functional limitations, and psychological symptoms, including anxiety and possible mood disturbance (Dr. Mohammed El-Saidi, a psychiatrist, s.25 assessment). The evidence also suggests an interaction between physical and psychological factors that contribute to her overall presentation. A biopsychosocial assessment is specifically designed to evaluate these interrelated factors.
52The respondent’s reliance on a prior finding of no psychological impairment does not preclude further assessment, particularly when the longitudinal medical record documents ongoing and evolving concerns. In this regard, the family physician’s clinical notes include specific reports of accident-related symptoms beyond physical complaints, such as right-sided pain, fatigue, sleep disturbance, and anxiety, as well as broader mental health concerns (CNRs dated March 4, 2020, and January 29, 2022). These documented complaints support the presence of overlapping physical and psychological issues. Similarly, the availability of OHIP-funded services does not, on its own, render the proposed assessment unnecessary under the accident benefits framework.
53Accordingly, I find that the applicant is entitled to the biopsychosocial assessment.
ENT Assessment
54I find that the applicant is entitled to the ENT assessment due to the respondent’s noncompliant denial.
55The plan dated May 24, 2023, for $2,600.00, proposes an ENT assessment to evaluate ongoing dizziness.
56On June 6, 2023, the respondent denied the plan, relying on a section 44 orthopaedic opinion.
57The applicant submits that the denial does not comply with section 38(8) and fails to take into account her ongoing symptoms.
58The respondent submits that there is no medical evidence of accident-related ear, nose, or throat issues, and no treating practitioner has recommended such an assessment.
59I find that the denial is non-compliant with section 38(8) for the reasons set out above. It does not provide any meaningful explanation for why an ENT assessment is not required.
60On the merits, I find the assessment reasonable and necessary. The CNRs from the family doctor document dizziness, vertigo, and vestibular-type symptoms (dated March 4, 2020; August 10, 2022; and March 7, 2023). These symptoms fall within the expertise of an ENT specialist and warrant further investigation to determine their cause and appropriate management.
61The respondent’s reliance on orthopaedic opinions is misplaced in this context because those assessments do not address vestibular or ENT-related conditions.
62Accordingly, I find that the applicant is entitled to the ENT assessment.
Sleep Quality Assessment
63I find that the applicant is entitled to a sleep quality assessment.
64The plan dated March 7, 2023, for $2,200.00, proposes an assessment of sleep disturbances and their impact on the applicant’s functioning.
65The applicant submits that she has experienced persistent, significant sleep disruption since the accident, as evidenced by clinical records and physician reports.
66The respondent submits that the assessment is unnecessary because no treating physician has specifically recommended a sleep study and because such services are available through OHIP.
67I find the sleep quality assessment reasonable and necessary. The contemporaneous records consistently document sleep disturbances, including difficulty falling asleep, frequent awakenings, and reduced sleep duration (CNRs dated August 18, 2022; September 13, 2022; June 1, 2023; September 21, 2023; and May 16, 2024). These complaints are associated with pain, anxiety, and possible psychological factors. In addition, some treating physicians have raised the possibility of a sleep disorder and recommended further assessment.
68Section 47(2) applies when OHIP-funded services are available, providing that payment of a benefit is not required if it is reasonably available to the insured under another plan. However, the onus rests on the respondent to advance evidence or submissions showing that, on balance, the requested assessment was reasonably available through OHIP. In this case, the respondent submits that the applicant consulted an OHIP-funded physician, Dr. Turek, regarding menopausal symptoms such as poor sleep and fatigue, and that no treating practitioner, including Dr. Sharobim, recommended a sleep study for accident-related concerns. While this speaks to the absence of a recommendation, it does not, on its own, establish that a sleep study was reasonably available to the applicant through OHIP. Moreover, the denial does not meaningfully address the applicant’s reported symptoms or explain why the proposed assessment would not assist with diagnosis or treatment planning in the accident benefits context.
69Accordingly, on a balance of probabilities, I find that the applicant is entitled to the sleep quality assessment.
Interest
70Interest applies to the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on overdue payments for the benefits found payable in this decision.
Award
71The applicant seeks an award under section 10 of Regulation 664. Under section 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” [See, for e.g., 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT); and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration]. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.
72The applicant submits that an award is justified because the respondent failed to adjust her claim fairly and reasonably. She argues that the respondent did not meaningfully consider the medical evidence it possessed and instead relied primarily on section 44 assessments, disregarding other relevant clinical documentation. The applicant further submits that she repeatedly reported her injuries and functional limitations, yet the respondent delayed obtaining assessments and failed to reassess its position as new information became available.
73I accept that an award may be appropriate where an insurer fails to properly investigate or assess a claim in a fair and balanced manner. However, it is not enough for the applicant to establish entitlement to some benefits; there must be clear evidence of unreasonable conduct.
74In this case, although I have found that certain benefits are payable, I am not satisfied that the respondent’s conduct meets the threshold required to justify an award.
75The evidence shows that the respondent relied on insurer examinations and provided medical reasons for its denials. Although some of those denials were brief and lacked detailed analysis, they were nonetheless grounded in medical opinions obtained during the claim adjustment.
76In my view, the respondent’s conduct does not demonstrate the type of excessive or improper behaviour required to support a finding that it acted unreasonably. The shortcomings in the denials are more appropriately characterized as deficiencies in explanation rather than as excessive, imprudent, stubborn, inflexible, unyielding, or immoderate behaviour.
77Accordingly, the applicant’s request for an award is dismissed.
ORDER
78For the above reasons, it is ordered that:
i. The applicant is entitled to the following treatment and assessment plans: psychological services, neurological assessment and electromyography analysis, biopsychosocial assessment, ENT assessment, and sleep quality assessment.
ii. The applicant is entitled to interest.
iii. The applicant is not entitled to the chiropractic treatment plans.
iv. The applicant is not entitled to an award.
Released: June 5, 2026
__________________________
Harouna Saley Sidibé
Adjudicator