Licence Appeal Tribunal File Number: 24-008943/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:
Ali Mir
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Kim Mohammed-Sieudhan, Paralegal
For the Respondent:
Sabrina Lucibello, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Ali Mir, the applicant, was involved in an automobile accident on November 26, 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. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to the following physiotherapy services proposed by PhysioMed Richmond Hill – Elgin Mills (“PhysioMed”):
(a) $3,148.83 in a treatment plan/OCF-18 (“plan”) dated December 2, 2022?
(b) $3,148.83 in a plan dated February 2, 2023?
iii. Is the applicant entitled to the following services proposed by HM Medical Network Limited:
(a) $2,200.00 for a psychological assessment in a plan dated August 23, 2023?
(b) $2,595.60 for a chronic pain assessment in a plan dated November 8, 2023?
(c) $2,460.00 for a concussion assessment in a plan dated December 14, 2023?
(d) $2,652.10 for a neurological assessment in a plan dated November 13, 2023?
(e) $2,200.00 for a driving assessment in a plan dated January 5, 2024?
(f) $5,300.56 for a chronic pain management program in a plan dated January 18, 2024?
(g) $4,987.56 for psychological services in a plan dated January 5, 2024?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
vi. Is the applicant liable to pay costs to the respondent?
3In its submissions, the respondent requested costs. Accordingly, this issue was added, above.
RESULT
4The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG.
5Since the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG, it is not necessary to determine the reasonableness and necessity of the disputed treatment plans.
6The respondent is not liable to pay an award.
7The applicant is not entitled to interest.
8The applicant is not liable to pay costs to the respondent.
9The application is dismissed.
PROCEDURAL ISSUE
10The respondent submits that the applicant should not be able to rely on any clinical notes and records (“CNRs”) that were not produced within the timelines set out in the Case Conference Report and Order dated November 14, 2024 (“CCRO”).
11The respondent submits that the following evidence was produced with the applicant’s submissions, and contrary to the CCRO: the CNRs of the applicant’s family physician, Dr. Mohammadreza Davoudpour, from November 2024 to February 2025, and a January 16, 2024 consultation note from Dr. Kasra Haghighat, physician and member of the Canadian Academy of Pain Management. The respondent submits that the applicant only produced Dr. Davoudpour’s CNRs up to August 20, 2024 in accordance with the CCRO, and that he ought not to be permitted to rely on any of the CNRs after this date. The respondent further argues that the applicant did not produce any of Dr. Haghighat’s CNRs other than the consultation note produced in his submissions.
12The applicant submits that he just recently received Dr. Davoudpour’s updated CNRs, and Dr. Haghighat’s consultation note, and that these CNRs were produced along with the applicant’s submissions on June 4, 2025, thirty days before the hearing. The applicant argues that there is no prejudice to the respondent because it could have easily reviewed these records within that timeframe, however, not allowing the applicant to rely on these records would cause prejudice to the applicant.
13Rule 9.3 of the Licence Appeal Tribunal Rules, 2023, (“Rules”) provides that if a party fails to comply with an order with respect to production of documents, that party may not rely on the document as evidence without the permission of the Tribunal. I have considered the factors enumerated in Rule 9.3, with particular regard to the reasons for non-compliance, prejudice caused by the admission or exclusion of the evidence, and the relevance to an issue in dispute.
14I am satisfied that Dr. Davoudpour’s CNRs, as well as Dr. Haghighat’s consultation note, are relevant to the issues in dispute because they address the applicant’s medical issues. Without any evidence to the contrary, I accept the applicant’s submission that the reason for the late production of the records is because they were recently received. I have also weighed the potential prejudice to the applicant of excluding the documents, compared to the prejudice to the respondent of including them. The respondent does not make submissions with respect to any prejudice it would suffer by the admission of the CNRs. I have also considered that, as ordered in the CCRO, the respondent’s submissions were due fourteen days prior to the scheduled hearing therefore I find that it had sixteen days to review the CNRs prior to submitting its response. I find that this was sufficient time to review the CNRs.
15For these reasons, I am denying the respondent’s request to exclude Dr. Davoudpour’s CNRs from November 2024 to February 2025, and the January 16, 2024 consultation note from Dr. Haghighat.
ANALYSIS
Applicability of the MIG
16Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
17An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. Jurisprudence has further established that concussions are not part of the definition of minor injury. In all cases, the burden of proof lies with the applicant.
18The applicant submits that he should be removed from the MIG due to chronic pain, a concussion, and a psychological condition.
The applicant does not have chronic pain that would remove him from the MIG
19The applicant has not met his onus to prove on a balance of probabilities that he has chronic pain with functional impairment because of the accident that would remove him from the MIG.
20The applicant relies on the following medical evidence of accident-related injuries:
i. Emergency report dated November 27, 2022 indicating that he reported pain in his head, neck, shoulder, chest, and throughout the left side of his body.
ii. An OCF-3 dated December 1, 2022 prepared by Samira Kelayeh, physiotherapist, who provided the following diagnoses: whiplash associated disorder (WAD2), headaches, sprain and strain of the lumbar spine, injury of muscle and tendon at neck level, and radiculopathy in the cervical region.
iii. Dr. Davoudpour’s CNRs dated February 21, 2023 indicate that the applicant reported losing consciousness, dizziness, headaches, neck pain, and back pain. Dr. Davoudpour diagnosed the applicant with a concussion and advised that he follow up in one week.
iv. PhysioMed CNRs from December 8, 2022, to June 5, 2023 indicate the applicant reported pain in his upper back and neck regularly.
v. Dr. Haghighat’s report dated January 16, 2024 indicates that the applicant was assessed with chronic headache with some cervicogenic and atypical migraine component, but mostly occipital neuralgia. Dr. Haghighat indicates that the applicant also had chronic neck pain with significant myofascial component with benign cervical spine MRI.
vi. Dr. Davoudpour’s CNRs dated June 25, 2024 indicate that the applicant reported that his headaches were constant and excruciating, and were getting worse in the past eight months.
vii. Dr. Davoudpour’s CNRs dated November 12, 2024 indicate that the applicant reported having headaches after the accident, and that they affected his personal and professional life. The applicant reported that it was not easy for him behind his screen, and he could not drive for long distances. Dr. Davoudpour’s further notes: “[O]therwise, he has been recovered from other injuries and aches and pains.” Dr. Davoudpour assessed the applicant with headache, not yet diagnosed, and referred him to a second neurologist and a pain clinic.
21The applicant relies on the reconsideration decision of 17-000835 v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT), where the Tribunal held that chronic pain is ongoing pain lasting more than three to six months, and which adversely affects the individual’s wellbeing. I am not bound by other decisions of the Tribunal, and I respectfully disagree with the reasoning in this decision. I find that, to be removed from the MIG, the applicant must demonstrate, on a balance of probabilities, that his accident-related chronic pain caused functional impairment.
22The applicant relies on a s. 25 chronic pain assessment completed on November 24, 2023 by Dr. Igor Portnoi, physician and member of the Canadian Association of Chronic Pain, where the applicant reported neck pain multiple times a day, upper back pain, and left arm pain. Dr. Portnoi reviewed medical records and conducted several tests, including the Pain Disability Index (“PDI”), which measures the degree in which chronic pain has disrupted the applicant’s life. The applicant’s score indicated that his level of disruption by chronic pain was “severe” across seven categories including: family/home responsibilities, recreational functions, social activity, occupational functions, sexual function/behaviour, self-care functions, and life support functions.
23The applicant submits that the assessment confirms his self-reporting that he was employed at the time of the accident but was only allowed five days off from work and has difficulties with his work tasks due to pain, concentration, and memory issues. The applicant further submits that he was specific in his description of his pain, his restrictions and limitations, which lends credibility to his self-reporting.
24Dr. Portnoi diagnosed the applicant with, among other things, chronic pain syndrome (“CPS”). In determining whether the applicant met the threshold for a CPS diagnosis, Dr. Portnoi applied the six criteria listed in the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, (“Guides”), and found that he met the following four criteria:
i. Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain. Dr. Portnoi found that the applicant’s physical activity had been dramatically reduced since the accident, that he avoided activity due to pain and had experienced significant physical deconditioning.
ii. Withdrawal from social milieu, including work, recreation, or other social contracts. Dr. Portnoi found that the applicant had been more isolated, reporting that he had not been socially or physically active since the accident.
iii. Failure to restore pre-injury function after a period of disability such that the physical capacity is insufficient to pursue work, family, or recreational needs. Dr. Portnoi found that the applicant had been unable to pursue family and recreational needs as he did before the accident because he had difficulty continuing to work and completing tasks for his family.
iv. Development of psychosocial sequelae after the initial incident including anxiety, fear avoidance, depression, or nonorganic illness behaviors. Dr. Portnoi found that the assessment indicated that the applicant had features of major depression, generalized anxiety disorder, PTSD, and automobile related phobia, however diagnoses should be made by a psychologist or psychiatrist.
25I am not persuaded by Dr. Portnoi’s diagnosis of CPS, and I am not satisfied that the applicant suffers from accident-related chronic pain with functional impairment that would remove him from the MIG, for the following reasons. I find that the applicant’s score on the PDI and Dr. Portnoi’s findings with respect to the criteria listed in the Guides are not consistent with the applicant’s reporting to his other treatment providers and assessors, as follows:
i. The applicant did not report accident-related injuries to his family physician Dr. Davoudpour until February 21, 2023, almost three months after the accident.
ii. Despite Dr. Davoudpour’s advice on February 21, 2023 that the applicant follow up in one week, the applicant did not return to see Dr. Davoudpour until June 25, 2024, over one year and four months later.
iii. The applicant did not report any functional impairment to Dr. Davoudpour until November 12, 2024, almost two years after the accident, where he reported that, because of his headaches, it was “not easy for him behind his screen” and that he could not drive long distances.
iv. No functional impairment is noted in the PhysioMed CNRs between February 11, 2023 and June 5, 2023.
v. The applicant reported to Dr. Douglas Saunders, psychologist, during a September 28, 2023 s. 44 assessment, that he was independent for all personal activities of daily living and that he occasionally socialized with family and friends, such as going out for a meal.
vi. The applicant reported to Dr. Todd Levy, physician, during a December 7, 2023 s. 44 assessment, that he returned to working full time hours with regular duties within five days of the accident at a college, and that his job involved driving to six campuses across the Greater Toronto Area.
vii. The applicant reported to Dr. Levy that he has not returned to his pre-accident activities of playing soccer, basketball, or electronic gaming, due to loss of interest.
viii. The applicant reported to Dr. Levy that he was independent with personal care activities, and independently performing the dishwashing, cleaning, laundry, grocery shopping, home maintenance, grass cutting, and shovelling duties.
ix. The applicant reported to Dr. Saunders, during a May 1, 2024 s. 44 assessment, being independent for all of his personal activities of daily living, and occasionally socializing with family and friends, dining out, or playing basketball.
26Further, I find that the applicant’s reporting to Dr. Portnoi of the level of severity of his pain is not consistent with his reporting to his treatment provider, PhysioMed. The applicant reported to Dr. Portnoi on November 24, 2023, that he suffered from neck pain multiple times a day (7-8/10 in severity), and “sharp, tense and aching” upper back pain (7/10). The PhysioMed CNRs reveal that the applicant reported having “some pain and tightness in the neck and upper back” on February 11, March 1, March 6, and March 11, 2023. On March 18, 2023, the applicant reported that his neck was feeling very stiff. On May 1, 2023, he reported feeling less pain in his neck. On June 3, 2023, he reported still having neck pain, but it was feeling a lot better overall, and on June 5, 2023, he reported feeling tension on his upper back and neck.
27For these reasons, I find that the applicant has not met his onus to demonstrate on a balance of probabilities that he has chronic pain with functional impairment because of the accident that would remove him from the MIG.
The applicant has not demonstrated that he sustained an accident-related concussion
28The applicant has not met his onus to prove on a balance of probabilities that he sustained a concussion because of the accident that would remove him from the MIG.
29The applicant relies on Dr. Davoudpour’s diagnosis of concussion on February 21, 2023.
30Given that Dr. Davoudpour cited loss of consciousness, headaches, dizziness, and neck pain, I infer that Dr. Davoudpour considered the applicant’s loss of consciousness as a basis for the concussion diagnosis. I find that the applicant reported a loss of consciousness during the accident for the first time to Dr. Davoudpour on February 21, 2023. At the hospital on November 27, 2022, the day after the accident, the applicant did not report a loss of consciousness. Further, I note that the hospital CNRs indicate that Munira Hooda, registered nurse, indicated that the applicant’s Glasgow Coma Score was fifteen, which does not support the applicant’s later reporting that he lost consciousness. In addition, I note that on September 28, 2023, and again on May 1, 2024, during Dr. Saunders’ assessment, the applicant denied a loss of consciousness during the accident.
31The applicant admits that he has a pre-accident history of occipital headaches related to another accident in 2010, and I find that he has consistently reported his headaches were exacerbated by the accident. (The applicant does not provide submissions or compelling medical evidence under s. 18(2) stating that the condition precludes recovery if he is kept within the MIG.) Other than headaches, the applicant does not direct me to any other concussion-related symptoms that he reported to his treatment providers. I note that in Dr. Davoudpour’s CNRs dated June 25, 2024, on the applicant’s next visit after February 21, 2023, there is a notation that he complained of headaches, however he denied visual changes or having dizziness.
32I find that the evidence does not support that the applicant has an accident-related concussion. I am not satisfied that the applicant sustained a concussion based solely on Dr. Davoudpour’s diagnosis, almost three months after the accident, which I find is based on the applicant’s report that he lost consciousness during the accident, which is inconsistent with hospital CNRs.
33For these reasons, I find that the applicant has not met his onus to demonstrate on a balance of probabilities that he sustained a concussion because of the accident that would remove him from the MIG.
The applicant does not have a psychological condition that would remove him from the MIG
34The applicant has not met his onus to prove on a balance of probabilities that he has a psychological condition because of the accident that would remove him from the MIG.
35The applicant relies on the s. 25 psychological assessment conducted by Dr. Julie Gosselin, psychologist, on November 18, 2023. The following psychological evaluations were administered: the Automobile Anxiety Inventory, the PCL-5, the Beck Anxiety Inventory, the Beck Depression Inventory, the Outcome Questionnaire, the World Health Organization Disability Assessment Schedule, the Multidimensional Pain Inventory, and the Symptom Checklist 90-R. The report indicates that the applicant’s “symptoms are consistent with” major depressive disorder, mild single episode, and that there “is additional evidence for” specific phobia, automobile fear.
36I place little weight on the s. 25 psychological assessment report for the following reasons. Psychotherapists are not authorized to diagnose mental health conditions. I note that the psychological assessment report indicates that the assessment was completed by Viktoria Tolmatshov, psychotherapist, and supervised by Dr. Gosselin. There is a notation in the report in the “Clinical Observations” section that the applicant attended his appointment via videoconference; however, there is no indication that Dr. Gosselin was present. Although the report is signed by both Viktoria Tolmatshov and Dr. Gosselin, there is no indication with respect to who provided the opinions in the report. I note that there are no specific diagnoses in the report, which uses the words “symptoms are consistent with” and there is “evidence for,” in relation to potential diagnoses. I also find that there is no indication in the report that any of the psychological evaluations contain validity testing measures.
37Further, I find that the conclusions in the psychological assessment report are not consistent with the applicant’s reporting to other assessors, as follows:
i. The author of the report finds that the applicant’s symptoms and difficulties continue to interfere with necessary responsibilities and functioning related to his daily living and his own self care. The applicant reported to Dr. Saunders on September 28, 2023 that he was independent for all personal activities of daily living, and he reported to Dr. Levy on December 7, 2023 that he was independent with personal care activities.
ii. The author of the report finds that the applicant suffers a substantial inability to carry out his pre-accident housekeeping tasks. The applicant reported to Dr. Levy that he was independently performing the dishwashing, cleaning, laundry, grocery shopping, home maintenance, grass cutting, and shovelling duties.
iii. The author of the report finds that the applicant suffers a substantial inability to carry on the essential tasks of his pre-accident employment. The applicant reported to Dr. Levy that he returned to working full time hours with regular duties within five days of the accident at a college, and that his job involved driving to six campuses across the Greater Toronto Area.
38The applicant also refers to Dr. Portnoi’s November 24, 2023 s. 25 assessment, where Dr. Portnoi concluded that the assessment indicated that the applicant had features of major depression, generalized anxiety disorder, PTSD, and automobile related phobia.
39I am not persuaded by Dr. Portnoi’s opinion because it appears from the report that the findings are based on the applicant’s self reporting during the assessment and two psychological evaluations, i.e., the PSS-I 5 (useful for the assessment of PTSD), as well the PDI, neither of which appear to include validity testing measures. In my view, this is significant given the inconsistencies in the evidence of the applicant’s reporting of psychological symptoms. I note that none of the medical records referred to by Dr. Portnoi in the report refer to any psychological complaints. Further, the applicant does not direct me to any psychological complaints he made to his family doctor, any indications that he was referred for psychological treatment (other than by s. 25 assessors) or evidence that he is taking any prescription medication related to any psychological symptoms. I agree with the respondent’s submission that the applicant’s family doctor or other treating practitioners would be in the best position to initially document any psychological effects from the accident.
40The respondent refers me to Dr. Saunders’ psychological assessments that were conducted on September 28, 2023, and May 1, 2024. Based on the applicant’s responses during clinical interviews on both dates as well as psychological testing, in conjunction with a review of the applicant’s medical records, Dr. Saunders concluded that the applicant displayed only a mild level of accident-related psychological symptoms.
41I place more weight on Dr. Saunders’ assessments because he conducted three psychological tests, the Personality Assessment Inventory, the DSM-V Depression Adult Scale, and the Multi-Dimensional Anxiety Questionnaire, the first two of which contain validity testing measures. Further, I find that the results of Dr. Saunders’ assessments are consistent with the applicant’s lack of reporting of psychological symptoms to any treatment providers.
42For these reasons, I find that the applicant has not met his onus to demonstrate on a balance of probabilities that he has a psychological condition because of the accident that would remove him from the MIG.
43For the reasons set out above, I find that the applicant’s injuries are predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the MIG funding limit.
44As the applicant is in the MIG, it is unnecessary to consider the reasonableness and necessity of the treatment plans in dispute.
Interest
45Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.
Award
46The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Since no benefits were unreasonably withheld or delayed, the applicant is not entitled to an award.
The applicant is not liable to pay costs to the respondent
47For the following reasons, I find that the applicant is not liable to pay costs to the respondent.
48Rule 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.
49Rule 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, which 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.
50The respondent seeks costs in this proceeding, submitting that considering the clear lack of evidentiary support for his position, the applicant’s dispute before this Tribunal amounts to an unreasonable and frivolous claim.
51I find that the respondent does not point to any behaviour on the part of the applicant that is unreasonable or frivolous, other than the fact that he brought an application, which he is entitled to do.
52I 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. They are not to compensate parties for suffering an inconvenience or for the cost of their involvement in a proceeding where the applicant is exercising his statutory rights.
53For these reasons, I find on a balance of probabilities that the respondent is not entitled to costs.
ORDER
54For the above reasons, I find:
i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG.
ii. Since the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG, it is not necessary to determine the reasonableness and necessity of the disputed treatment plans.
iii. The applicant is not entitled to interest.
iv. The respondent is not liable to pay an award.
v. The applicant is not liable to pay costs to the respondent.
vi. The application is dismissed.
Released: February 2, 2026
Laura Goulet
Adjudicator