Munawer v. Intact Insurance Company, 2026 CanLII 59500

Citation: Munawer v. Intact Insurance Company, 2026 CanLII 59500

Licence Appeal Tribunal File Number: 24-015446/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:

Bilal Munawer

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Amar Mohammed

APPEARANCES:

For the Applicant: Abdullah Yaqub, Counsel

For the Respondent: Callum Micucci, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Bilal Munawer, the applicant, was involved in an automobile accident on December 5, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to $2,203.03 for chiropractic services, proposed by Khshayar Khoshmashrab in an OCF-18/treatment plan (“plan”) submitted April 18, 2023?

ii. Is the applicant entitled to $1,525.84 for chiropractic services, proposed by Khshayar Khoshmashrab in a plan submitted June 5, 2023?

iii. Is the applicant entitled to $1,194.38 for chiropractic services, proposed by Dr. Mahsa Gordnpour in a plan submitted May 8, 2024?

iv. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Shankari Sivarajasingam in a plan submitted January 19, 2023?

v. Is the applicant entitled to $2,435.80 ($4,015.13 less $1,579.33 approved) for psychological services, proposed by Dr. Nina Belyakova in a plan submitted May 3, 2023?

vi. Is the applicant entitled to $3,566.29 for psychological services, proposed by Dr. Nina Belyakova and Alireza Jamshidi in a plan submitted September 17, 2023?

vii. Is the applicant entitled to $3,566.29 for psychological services, proposed by Dr. Nina Belyakova and Alireza Jamshidi in a plan submitted March 21, 2024?

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

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

RESULT

3The applicant is entitled to the disputed portions of the plans as set out above, and to interest under s. 51 of the Schedule.

4The respondent is liable to pay an award at 10 per cent of the psychological assessment and services ($11,768.38 × 10% = $1,176.84), with interest payable in accordance with s.10 of Reg. 664 until the award is paid, as set out below.

5The respondent is liable to pay an award at 5 per cent of the chiropractic services ($4,923.25 × 5% = $246.16), with interest payable in accordance with s.10 of Reg. 664 until the award is paid, as set out below.

PROCEDURAL ISSUES

Missing OCF-18s

6Neither party filed the treatment plans/OCF-18s (“plans”) or the denial letters in their hearing briefs despite both parties referring to them in their submissions. By Interim Order dated April 15, 2026 delivered to all parties, the Tribunal requested the applicant to file the plans in dispute. On April 16, 2026, the applicant filed the plans and denial notices in accordance with the Interim Order.

Jurisdiction to decide award

7The applicant raised the issue of award in his submissions, asserting that it required determination. The respondent argued that the issue was not properly before me. While the applicant did not include the issue of an award in his initial application or in the Case Conference Report and Order, the record demonstrates that the respondent was aware of the issue prior to the written hearing and had an opportunity to make submissions. The Tribunal has broad discretion to consider these matters in dispute, including whether an award is warranted, even if not expressly identified at the outset. Procedural fairness requires that parties have an opportunity to be heard, and here the respondent was provided that opportunity and indeed contested both jurisdiction and a substantive argument on the merits of the claim for an award. I find that fairness is not breached because the respondent had an opportunity to engage substantively with sufficient notice. Accordingly, I find that the issue of an award is properly before me, and I decline to exclude it merely because it was not listed in the initial application or case conference materials.

ANALYSIS

Chiropractic services

8I find that the plans proposing chiropractic treatment are reasonable and necessary.

9To 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.

10The parties have addressed these disputed plans together in their submissions, so I have addressed them in the same manner. The goals of the plans include pain reduction, increased strength and range of motion, a return to activities of normal living and modified work activities. The recommendations include chiropractic treatment, manual therapy, mobilization, physical therapy, massage, reassessment, among other line items.

11The applicant argues that these plans are reasonable and necessary because the services proposed provide meaningful relief, achieving goals of improving range of motion, pain reduction, increase in strength, and allowing the applicant to maintain his activities of normal living and return to work. The applicant acknowledges that the relief is temporary. He further submits that his family physician, Dr. Francois Atallah, referred him for a chronic pain assessment. Subsequently, the applicant was assessed and diagnosed with pain conditions including chronic pain syndrome in September 2023 by Dr. Nemer El-Batnigi, MD, CCFP(EM), and with accident-related chronic pain on further chronic pain assessment by Dr. Tajedin Y. Getahun, orthopaedic surgeon, in April 2025.

12The applicant argues I should prefer his evidence of consistent symptom reporting to care providers over the s. 44 insurer assessor’s opinion, which rests on a single assessment and ignores the broader context of his medical condition and evidence.

13The respondent argues the three plans are not reasonable and necessary, relying on the s.44 insurer examination report by Dr. Charanjit Sandhu, internal medicine specialist, dated June 15, 2023, and the paper review report dated July 24, 2023. It further argues the applicant has no accident‑related impairment warranting facility‑based treatment, and that he reported treatment does not provide lasting benefits.

14Further, the respondent argues that Dr. Sandhu reviewed the applicant’s medical records, obtained a history directly from the applicant, and examined him before providing the opinions in the report, so the report should be given more weight. The respondent also argues that the applicant is not credible and therefore his assessors’ opinions which take into account his self-reporting, should be disregarded.

15I find that the plans are reasonable and necessary because the applicant has consistently reported accident-related pain symptoms, including to his family doctor and to Dr. El-Batnigi as well as Dr. Getahun approximately 18 months apart. He has been diagnosed with accident-related chronic pain by Dr. Getahun. Dr. El-Batnigi notes the applicant has tried chiropractic treatment and other physical modalities and recommends nerve block injections and pharmacotherapy interventions. Dr. El-Batnigi acknowledges that the goal of these interventions is not to completely eliminate the applicant’s symptoms but do improve them by 30-40 per cent. Dr. Getahun continues to recommend physiotherapy and chiropractic interventions in a multidisciplinary supervised setting to optimize outcomes among other recommendations.

16I agree with the applicant that the s. 44 report did not consider the broader context of the applicant’s accident-related symptoms which weakens the value of the report. There is no consideration by Dr. Sandhu of the applicant’s diagnosed accident-related chronic pain condition. Further, I find that temporary relief or modest functional gains are a valid goal of treatment because the proposed services are meant to be part of multidisciplinary interventions considered by Dr. Getahun.

17While the respondent raises questions about the applicant’s credibility, in my view, the respondent has referred me to selective and minor inconsistencies in the records which do not rise to the point at which both s. 25 assessors’ opinions should be given no weight. I accept the applicant’s position that minor discrepancies are not unusual in clinical reporting and that in this instance, the overall pattern of symptoms is consistent and corroborated. Further, I find that the applicant inquiring about compensation, or ensuring his symptoms are documented, does not undermine the applicant’s credibility. I agree with the applicant that the respondent’s position on this is speculative. In addition, the evidence of the s. 25 and s. 44 psychological assessors is counter to the respondent’s position because the applicant’s psychometric testing revealed that the applicant did not attempt to distort the results on the Personality Assessment Screener, there was no exaggeration of his memory deficits, and that his Pain Patient Profile results are valid.

18For the reasons above, on a balance of probabilities, I find that the applicant is entitled to the plans proposing chiropractic treatment because they are reasonable and necessary.

Psychological services and assessment

19I find that the applicant is entitled to the disputed portions of the plans for psychological services.

20While the same legal test applies to the plans proposing psychological services as noted above, the applicant also seeks entitlement to a psychological assessment. I note that the 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.

21The treatment plans include goals of pain reduction, return to activities of normal living, return to pre-accident level of psychological functioning.

22The applicant argues that he has a pre-existing psychological condition which made him more vulnerable at the time of the accident. Further, that this is a barrier to his recovery and his symptoms were exacerbated post-accident. The applicant was diagnosed with major depressive disorder, single episode, moderate, with anxious distress, by Dr. Nina Belyakova, C. Psych, in a s. 25 psychological report dated May 25, 2023. Dr. Belyakova opined that the applicant’s impairment levels are compatible with some but not all useful functioning, noting he also has features of posttraumatic stress disorder of clinical significance warranting monitoring and treatment. The applicant also refers me to the s. 44 psychology assessment report by Dr. Rod Day, Ph.D., C.Psych, dated April 5, 2023. Dr. Day diagnosed adjustment disorder, with mixed anxiety & depressed mood and noted in his opinion the applicant is on the cusp of meeting the criteria for major depressive disorder.

23The respondent’s principal argument is that the applicant did not make psychological complaints to his family doctor and therefore all of the disputed plans proposing psychological services and assessment are not reasonable and necessary. The respondent also specifically disputes the proposed hourly rate of $149.61 for psychotherapists and accepts $58.19 per hour. The respondent also relies on its position on the applicant’s credibility in responding to all of the issues in dispute, as reviewed previously in the context of the disputed chiropractic services.

24I find that the applicant is entitled to the plans proposing psychological services and assessment as follows.

$2,200.00 for a psychological assessment submitted January 19, 2023

25The applicant is entitled to the plan proposing $2,200.00 for a psychological assessment.

26Dr. Day opined that this plan is reasonable and necessary in April 2023. The respondent did not address any reason for disregarding a shared opinion between the s. 25 and s. 44 assessors that a psychological assessment was required. I find that the evidence supports the applicant’s position that the plan is reasonable and necessary. As to the respondent’s position that the applicant’s psychological symptoms are not corroborated by the family doctor’s records, the applicant provides an explanation. I find it reasonable that the applicant sought physical health care through his family doctor and addressed mental health through Dr. Belyakova, a psychologist. I find that corroborated reporting in the family doctor’s records, in this case where s. 25 and s. 44 assessors largely agree with each other, is not strictly necessary.

27I find on a balance of probabilities that the psychological assessment is reasonable and necessary.

$2,435.80 ($4,015.13 less $1,579.33 approved) for psychological services submitted May 3, 2023

28I find that the applicant is entitled to the balance of $2,435.80 of services proposed in this plan.

29According to the s. 25 and s. 44 assessments, Dr. Belyakova recommended 12 sessions up to 2 hours in length and Dr. Day recommended 12 sessions up to 1 hour in length. Both recommended that these sessions should be followed by a reassessment as to further treatment needs.

30The respondent reduced 12 therapy sessions of 1.5 hours in length to 1 hour each, and reduced the proposed rate for Alireza Jamshidi, psychotherapist, from $149.61 per hour to $58.19 per hour. Accordingly, $698.28 was approved and $1,994.76 was denied. Further, 1.5 hours each was proposed for testing and for a preparation service at the rate of $149.61 per hour which was reduced to 1 hour at $58.19 for testing, and no approval for preparation. Accordingly, a further $166.23 and $224.42 was denied. The respondent also reduced the form completion block fee of $200.00 by Dr. Belyakova proposed as a procedure to a fee of $149.61 per hour and explained that Dr. Belyakova is required to provide reasons why the form completion took more than one hour. A further $50.39 was denied for form completion.

31The applicant did not provide submissions relating to whether 1.5 hours of preparation service is reasonable and necessary. However, the plan proposed it, and the respondent denied it on the basis that it was an administrative cost, which is the responsibility of the service provider. The plan explains this line item as treatment planning which includes ongoing progress evaluation and formal reassessment as well as a review of file material.

32On a balance of probabilities, I am not persuaded that the psychotherapist’s preparation to provide the applicant with psychotherapy sessions is appropriately classified as an administrative cost to be borne by the service provider because the respondent did not point to evidence that this is an administrative cost. Further, the service provider proposing the treatment is in a better position to estimate its reasonable need for preparation and treatment planning over the unsubstantiated opinion of the respondent which did not rely on any evidence to support its position.

33I now turn to the hourly rate applicable to a psychotherapist. The Superintendent's Guideline No. 03/14, Professional Services Guideline, (“Guideline”) establishes the maximum expenses payable by automobile insurers under the Schedule related to services provided by health care professions, or health care providers listed within the Guideline. Insurers are not prohibited from paying above any maximum amount or hourly rate established in the Guideline. It is also noted within the Guideline that services provided by health care professionals/providers, unregulated providers and other occupations not listed within the Guideline are not covered by the Guideline. For services not covered by the Guideline, the amounts payable by an insurer are to be determined by the parties involved. The Guideline further notes that automobile insurers are not liable to pay expenses for services rendered to an insured person which exceed the maximum hourly rates set out in the Guideline’s Appendix.

34The applicant refers me to J.V. v Intact Insurance Company, 2019 CanLII 76995 (ON LAT) (“J.V.”) where a psychotherapist was compensated by the respondent at the rate of $99.75 per hour because they had specialized training and were providing services equivalent to a psychologist, and the Tribunal accepted $149.61 per hour to be appropriate. Although I am not bound by Tribunal decisions, I am persuaded by the reasoning in J.V. as the facts are largely the same, and the Guideline is clear that the hourly rate cap of $58.19 does not apply to psychotherapists. I find that the registered psychotherapist in this plan performing the same controlled act of psychotherapy that psychologists and psychological associates perform should attract the same hourly rate of $149.61. I adopt the reasons of this Tribunal in J.V. at paragraphs 12-14.

35I also find that the evidence establishes that the recommended length of psychological therapy sessions is between 1 and 2 hours, based on the combined opinions of the s. 25 and s. 44 assessors. I find that this plan reasonably proposed a middle ground of 1.5 hours for each session and for testing. I find that the evidence supports that sessions of 1.5 hours in length are reasonable and necessary considering the collective opinions of the s. 25 and s. 44 assessors.

36Lastly, the respondent converted a $200.00 block fee for form completion, billed appropriately as a procedure through HCAI, into an hourly service. However, I find that the block fee is in line with the Guideline. The Guideline delineates between maximum amounts as block fees and hourly rates. The respondent did not provide a foundation for its opinion that this block fee is subject to an hourly rate and in any case, its opinion that one hour is sufficient is unsubstantiated. I find that the block fee of $200.00 is reasonable for completion of this OCF-18.

37Accordingly, I find on a balance of probabilities that the applicant is entitled to the balance of $2,435.80 of services proposed in this plan.

$3,566.29 for psychological services submitted September 17, 2023

38I find that this plan is reasonable and necessary.

39The applicant argues that he is entitled to further treatment and that the respondent has not met its obligations under the Schedule because it denied the plan on the basis of requiring a medical opinion, stating a Notice of Examination will follow, but no such notice was provided, and no such insurer examination took place. The applicant submits that upon completion of the initial 12 sessions, Dr. Belyakova delivered a psychological progress report dated September 17, 2023, after reassessing the applicant. Dr. Belyakova notes that “[s]ome of the therapy goals, as outlined in the initial treatment plan, have been accomplished. However, he continues to experience pain, sleep difficulties, chronic fatigue, and a fear of driving.” Dr. Belyakova recommends a further 10 sessions, twice per month, to balance providing regular support but with sufficient time between sessions for the applicant to gain the confidence to cope independently.

40The respondent argues that no insurer examinations are necessary because the applicant has attended 22 total sessions and that no further psychological treatment is reasonable and necessary, and further treatment would needlessly erode the applicant’s remaining limits.

41For temporal clarity, the evidence before me establishes that the applicant’s s. 25 assessment was not approved by the respondent, the plan proposing the initial 12 sessions was partly approved as reviewed above, and this plan proposing a further 10 sessions after the initial 12 sessions was denied.

42Both s. 25 and s. 44 assessors opined that the initial 12 sessions should be followed up with a reassessment to address further treatment.

43The plan proposes 10 sessions of psychotherapy, 1.5 hours in length, at a rate of $149.61 per hour. Further, 1.5 hours for testing and scoring, 1.5 hours for treatment planning, all of which is to be completed by a registered psychotherapist as noted earlier. In addition, the plan proposes the following to be completed by Dr. Belyakova; a progress report at the conclusion of these sessions as a block fee of $673.25, and a block fee of $200.00 for form completion.

44I adopt my prior reasons addressing the appropriate hourly rate for a psychotherapist on the issues before me, the length of the sessions, and that treatment planning is a reasonable and necessary aspect of this plan. I find that this specific plan is directly supported by the September 17, 2023 progress report, and by the overall context of the applicant’s condition, including the s. 44 assessment when read as a whole, and the applicant’s progress reviewed in this decision.

45I find on a balance of probabilities that this plan is reasonable and necessary.

$3,566.29 for psychological services submitted March 21, 2024

46I find that this plan is reasonable and necessary.

47The context of the dispute relating to this plan is essentially the same as the one above, it proposes a further 10 sessions of treatment, and is supported by the progress report dated March 21, 2024, by Dr. Belyakova. The report acknowledges that the applicant incurred the further 10 sessions from the second treatment plan and that he has responded well to the further sessions Dr. Belyakova notes, for example, an increase to 25 hours of work per week with a goal to increase working hours further. This plan proposes further treatment to address the applicant’s ongoing symptoms including his experience of pain, sleep difficulties, chronic fatigue, and driving anxiety. The respondent did not point to evidence that considers whether this treatment plan is reasonable and necessary. I accept the applicant’s evidence as to his progress and need for further treatment as reported by Dr. Belyakova and find that the plan is reasonable and necessary.

48For the reasons above, on a balance of probabilities, I find that the applicant is entitled to this plan because it is reasonable and necessary.

Interest

49The applicant is entitled to interest, which applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

Award

50The applicant sought, and I find he is entitled to, an award under s.10 of Reg. 664, which permits the Tribunal to grant up to 50 per cent of the total benefits payable if an insurer unreasonably withheld or delayed payment of benefits.

51In determining the type of conduct for which an award is appropriate, the adopted standard is set out in the Financial Services Commission of Ontario case: Wayne Allan Plowright v. Wellington Insurance Company, 1993 ONICDRG 66 (“Plowright”). According to Plowright, unreasonable conduct can include “excessive, imprudent, stubborn, inflexible, unyielding or immoderate” behaviour.

52The applicant argues that the respondent’s conduct was excessive, imprudent, stubborn, inflexible, unyielding, and immoderate. He submits that the repeated denials and delays went beyond a mere difference of medical opinion, amounting instead to a course of conduct that materially prejudiced his recovery. By forcing him either to privately fund care or to go without treatment, the respondent unreasonably withheld and delayed benefits, thereby meeting the statutory threshold warranting an award.

53The respondent, however, maintains that the applicant’s position is contrary to the governing legal framework. It argues that entitlement to an award cannot arise merely because treatment and assessment plans were denied, even if those plans are later found to be reasonable and necessary. An insurer is not automatically unreasonable simply because the Tribunal concludes its decision to deny benefits was wrong. In the respondent’s view, its conduct does not rise to the level of unreasonable withholding or delay required to justify an award.

54I find that each of the disputed plans included in the award calculation below was unreasonably withheld or delayed and I rely on my substantive analysis above relating to each plan. In addition, the psychological assessment denial is the most unreasonable because it was denied despite consistent medical opinion from both s.25 and s.44 assessors. The May 2023 psychological services plan was reduced without evidentiary support, and in a manner contrary to the Professional Services Guideline, by misapplying capped hourly rates to a psychotherapist not listed in the Guideline and by converting a block fee into an hourly service. The September 2023 plan was denied after the respondent failed to follow through on its own stated requirement for an insurer examination. The March 2024 plan was denied without evidence despite a progress report supporting ongoing treatment. Finally, the chiropractic services were denied based largely on misplaced credibility concerns. These findings establish that all amounts forming the basis of the award meet the statutory threshold under s.10 of Regulation 664.

Quantum

55In deciding the quantum of the award, under section 10 of Regulation 664, I have discretion to award a lump sum of up to 50 per cent of the amount to which the applicant was entitled at the time of the award together with interest on all amounts then owing to the applicant (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

56The following factors guide my analysis as to quantum: the overall length of the delay, the blameworthiness of the insurer’s conduct, the vulnerability of the insured person, the need for deterrence, and the advantage wrongly gained by the insurer from the misconduct. I find the withholding of the psychological assessment and services more aggravating than the denial of chiropractic services because the psychological assessment was consistently supported by both s.25 and s.44 assessors, was central to the applicant’s recovery, and its denial forced the applicant to either privately fund care or forego the goods and services altogether. In contrast, while the chiropractic services were also denied, the prejudice flowing from the delay in the psychological assessment was more severe and prolonged, making it the more aggravating conduct.

57With respect to the length of delay, the respondent’s denial of the psychological assessment persisted despite consistent medical opinion from both s. 25 and s. 44 assessors. This prolonged the applicant’s access to a reasonable and necessary assessment which was supported by evidence from both parties. This is an aggravating factor relating to the psychological assessment. On the factor of blameworthiness, the respondent’s reliance on speculative concerns about credibility, rather than engaging meaningfully with the medical evidence, demonstrates conduct that was stubborn and inflexible. This goes beyond a mere difference of opinion and reflects unreasonable withholding of benefits as it essentially disregarded the assessors’ opinions, as reviewed earlier, due to its position on the applicant’s credibility.

58Regarding the applicant’s vulnerability, the evidence shows that he was placed in a position where he either had to privately fund assessments and treatment or forego treatment altogether due to the various denials in dispute before me. While there is an inherent vulnerability due to the nature of accident benefits disputes before this Tribunal, the denials heightened the applicant’s vulnerability, and this underscores the prejudice caused by the respondent’s conduct. As to the factor of deterrence, insurers must be discouraged from disregarding medical evidence and from advancing speculative positions that delay access to necessary treatment. A meaningful award serves to reinforce the importance of fair, non-speculative, claims handling. Finally, the advantage wrongly gained by the respondent was its avoidance of funding treatment that was medically supported.

59Although the factors of delay, blameworthiness, vulnerability, deterrence, and wrongful advantage weigh against the respondent, I have set the award at 10 per cent for the psychological assessment and services and 5 per cent for chiropractic services because the respondent ultimately funded the chiropractic plans once entitlement was established, the monetary amounts in dispute were relatively modest, and the credibility concerns, while misplaced, were not wholly frivolous, as credibility formed one aspect of the respondent’s position. Further, the delays were confined to specific treatment plans rather than systemic or years‑long withholding. These mitigating considerations justify an award at the lower end of the scale.

60Balancing the aggravating and mitigating factors, I grant an award of 10 per cent in relation to the psychological assessment and services, amounting to $1,176.84, and 5 per cent in relation to the chiropractic services, amounting to $246.16. The total award before interest is therefore $1,423.00. The respondent is liable to pay this award as follows, expressed in an equation: the percentage of the award × (A + B + C). Where “A” is the sum of benefits unreasonably withheld or delayed, “B” is the interest on these benefits pursuant to section 51 of the Schedule, and “C” is the compound interest under s.10 of Regulation 664 calculated on all amounts then owing, including the awarded lump sum itself until the award is paid.

ORDER

61For the reasons above, I make the following orders:

i. The applicant is entitled to the disputed portions of the plans as set out above, and to interest under s. 51 of the Schedule.

ii. The respondent is liable to pay an award at 10 per cent of the psychological assessment and services ($11,768.38 × 10% = $1,176.84), with interest payable in accordance with s.10 of Reg. 664 until the award is paid, as set out above.

iii. The respondent is liable to pay an award at 5 per cent of the chiropractic services ($4,923.25 × 5% = $246.16), with interest payable in accordance with s.10 of Reg. 664 until the award is paid, as set out above.