Licence Appeal Tribunal File Number: 24-000761/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:
Jerry Oseghale
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR:
Georgina Blanas
APPEARANCES:
For the Applicant:
John Chui, Counsel
For the Respondent:
Marcus Rozsa, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Jerry Oseghale, the applicant, was involved in an automobile accident on November 12, 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, Economical 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:
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 limit (“MIG”)?
Is the applicant entitled to the physiotherapy services proposed by Complete Rehab Centre, as follows:
i. $271.75 in a treatment plan/OCF-18 (“plan”) submitted August 8, 2023, denied August 21, 2023;
ii. $1,864.47 in a plan submitted August 9, 2023, denied August 24, 2023; and
iii. $1,328.10 in a plan submitted November 24, 2023, denied December 8, 2023?
Is the applicant entitled to $2,680.00 for an orthopaedic assessment, proposed by Complete Rehab Centre in a plan submitted October 30, 2023, denied November 9, 2023?
Is the applicant entitled to $2,530.00 a psychological assessment, proposed by Complete Rehab Centre in a plan submitted October 27, 2023, denied November 9, 2023?
Is the applicant entitled to $3,610.50 for psychological services, proposed by Complete Rehab Centre in a plan submitted January 4, 2024, denied January 17, 2024?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has demonstrated that removal from the MIG is warranted.
4The treatment plans for physiotherapy services, an orthopaedic assessment, a psychological assessment and psychological services are reasonable and necessary.
5Interest is payable on any overdue payment of benefits.
ANALYSIS
Does the Minor Injury Guideline apply?
6I find the applicant is not subject to the MIG on the basis that I find that the applicant has met his onus and has provided sufficient evidence to support the claim that his injuries are not minor. The applicant is granted removal from the MIG.
7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominately 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 sequalae to such an injury. An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. The Tribunal has also determined that chronic pain with a functional impairment or a psychological impairment warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
8The applicant submits that he should be removed from the MIG on two grounds; namely, that he sustained a psychological impairment and that he suffers from chronic pain syndrome, as a result of the accident.
Removal from the MIG based on a psychological impairment
9The applicant argues that he sustained a psychological impairment as a result of the accident. He reported post traumatic distress and depressed low mood to his treating physician Dr. Ikhimhiagie Asekombe, Dr. Rahim Jessa, Chiropractor and section 25 psychological assessment by Psychotherapist, Nicole Pressuti, supervised by Dr. Jacqueline Brunshaw, Psychologist.
10The respondent disagrees that the applicant should be removed from the MIG. The respondent states that the applicant has not shown that he has a psychological impairment to fall outside the MIG. The respondent relies on two psychological examinations by Dr. Medhi Lotfalizadeh, a psychologist, conducted on December 11, 2023, and an amended report on June 26, 2024, with a second examination by Dr. Ricardo Harris, psychologist on October 7, 2024. Both psychologists, in their examinations showed extremely high scores, to which they both suggested that the applicant may have been overstating his symptoms. Both concluded that the applicant did not meet the criteria for any recognized psychological impairment diagnosis because of the results of the raw test data and symptom amplification, making the testing results unreliable. The respondent submits that its assessors’ examinations should be preferred over the applicant’s assessment by Ms. Nicole Presutti, who is a psychotherapist supervised by a psychologist.
11The applicant submits that his psychological impairments have lasted for a prolonged period of time and were recorded by Dr. Ikhimhiagie Asekombe, his treating family physician, Dr. Rahim Jessa, Chiropractor the issuer of the Disability Certificate (OCF-3), and Ms. Nicole Presutti, psychotherapist in her section 25 examination. Dr. Asekombe’s clinical notes and records (“CNRs”) show that the applicant’s psychological symptoms began after the accident and were documented as part of the accident related injury impairments. Dr. Asekombe regularly recorded psychological symptoms for more than a year post-accident: November 30, 2022; with stress, dizziness and reduced movement of the shoulder, January 27, 2023; headaches, trouble sleeping, very low mood, chronic back pain, February 10, 2023; depressed mood, slowed thinking and movement, difficulty focussing, diagnosed with post traumatic distress syndrome, showing a pattern of ongoing psychological impairments.
12On November 18, 2022, Dr. Rahim Jessa, shortly after the accident noted in the Disability Certificate: sleep issues, stress, headaches, multiple tissue injuries. The applicant also relies on the psychological assessment of Ms. Nicole Presutti, conducted on November 29, 2023, reporting: depressed mood, anxiety, phobia related to driving, panic symptoms, low motivation, sleep disturbance, and emotional distress connected to the accident for which treatment was recommended. Ms. Presutti’s diagnosis in the s. 25 Psychological Assessment concludes that the applicant meets the DSM-5 criteria: adjustment disorder with mixed anxiety and depressed mood, and specific phobia, situational type vehicular, moderate to severe. The applicant submits that the medical records show consistent psychological impairments as a result of the accident.
13I find the applicant has met his burden of proof to establish accident related psychological impairments. His psychological symptoms were recorded immediately after the accident by Dr. Rahim Jessa on November 18, 2022, and continued to be reported to his family physician, Dr. Ikhimhiaghe Asekombe, throughout 2022 and 2023. Dr. Asekombe later diagnosed post traumatic distress syndrome on November 10, 2023, and Ms. Nicole Presutti’s section 25 psychological assessment (under Psychologist supervision) also, diagnosed DSM-5 criteria. The applicant also took steps to address these symptoms by attending follow-up medical appointments, accepting a psychiatric referral and participating in the section 25 assessment which recommended psychotherapy.
14I place less weight on the section 44 psychological assessments by Dr. Mehdi Lotfalizadeh, Psychologist, December 11, 2023, and Dr. Ricardo J. Harris, Psychologist, October 7, 2024, as both primarily focused on psychometric validity testing. The applicant scored high on the Structured Inventory of Malingered Symptomatology (SIMS) and in Dr. Harris’s assessment multiple scales on the Structured Interview of Reported Symptoms-3 (SIRS-S). Both psychologists concluded that the applicant’s self reported symptoms were unreliable for diagnostic purposes and that no psychological disorder could be identified under DSM-5 criteria. Because their conclusions were based largely on concerns about the symptom validity and were therefore not reliable to diagnose or rule out a psychological disorder, I place less weight on their opinions whether the applicant sustained a psychological impairment as a result of the accident. I also do not accept the respondent’s submission that the section 25 assessment should be given little weight because it was completed by a psychotherapist, as it is consistent with the applicant’s post accident reporting and was conducted under the supervision of a registered psychologist. The assessment included a comprehensive clinical interview, DSM-5 analysis and diagnosis. I find that the contemporaneous evidence and ongoing clinical notes and records of Dr. Jessa, Dr. Asekombe, Ms. Presutti, Psychotherapist and supervising psychologist Dr. Brunshaw consistently supports that the applicant developed accident related psychological impairments and I am satisfied on a balance of probabilities that these impairments were a result of the motor vehicle accident.
15Accordingly, I find the applicant is removed from the MIG due to a psychological impairment. I find that the applicant has a psychological impairment as a result of the accident that cannot be addressed under the $3,500.00 funding limit of the MIG.
Removal from the MIG based on chronic pain
16The applicant submits that should be removed from the MIG on two grounds, the second of which is chronic pain. I find no need to analyze removal from the MIG due to chronic pain, as I have already found that the applicant should be removed from the MIG due to psychological impairment.
17To 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.
Are the physiotherapy treatment plans reasonable and necessary?
18I find that the applicant is entitled to the physiotherapy services proposed by Complete Rehab Centre, as follows:
i. $271.75 in a treatment plan submitted August 8, 2023;
ii. $1,864.47 in a plan submitted August 9, 2023; and
iii. $1,328.10 in a plan submitted November 24, 2023.
19I find that these plans are reasonable and necessary to address the applicant’s ongoing physical impairments, as a result of the accident.
20The applicant submits that he regularly visited his family physician Dr. Asekombe, reporting ongoing pain and stiffness in the neck, back, shoulder, limited movement, functional limitations, and right ankle for more than a year after the date of the accident. During these visits, Dr. Asekombe diagnosed accident-related musculoskeletal impairments, including decreased range of motion of the shoulder on November 30, 2022, and diagnosed chronic back pain and insomnia on January 27, 2024. The applicant relies on his family physician’s CNRs on multiple dates, supporting the need for rehabilitation treatment: November 30, 2022, recommendation for physiotherapy, due to noted stress, restricted shoulder movement, and continuation of physiotherapy. February 13, 2023, recommendation of rehabilitative care, back pain and stiffness, and recommended therapy for musculoskeletal impairments treated by physiotherapy. December 5, 2023, recommendation for physiotherapy for right ankle, shoulder, back, and waist pain. I find that both the right ankle pain and waist pain are accident related as the right ankle pain was first reported on November 18th, 2022, following the accident, and the waist pain was documented on December 5, 2023, as a continuation of the applicant’s ongoing lower back symptoms that began after the accident.
21The three treatment plans for physiotherapy help to align with restoring mobility, flexibility and strength, reducing chronic musculoskeletal pain, improving tolerance for daily activities, stabilizing posture and functional movement, and addressing stiffness and reduced range of motion.
22The respondent argues that further physiotherapy is not necessary. It relies on Dr. Mohamed Lamine, General Practitioner’s, section 44 exam on December 19, 2023, and the addendum on June 26, 2024, and Dr. Ahamd Belfon’s, physiatry, musculoskeletal examiner, section 44 exam on August 28, 2024, both of whom found that the applicant’s injuries were minor injuries and soft tissue sprains. They found that the applicant had reached maximum medical recovery from these injuries. On this basis they did not recommend further physiotherapy stating that additional treatment would not provide meaningful functional improvement.
23I prefer the applicant’s submissions and evidence because it is consistent with and supported by his treating physician for more than a year. His family doctor recommended physiotherapy three separate times, and these repeated recommendations show an ongoing medical need for additional rehabilitation. The applicant continued to report neck, back, and shoulder pain, reduced movement and difficulty with daily activities for more than a year post accident. The physiotherapy treatment is directed to the issues that applicant was experiencing, with therapy to address strengthening, functional conditioning for treating musculoskeletal pain and reduced mobility. The respondent’s section 44 examiners, Dr. Lamine and Dr. Belfon, found mostly normal movement, but the applicant’s treating physician Dr. Asekombe diagnosed and recorded the applicant’s functional limitations over a longer term which I prefer. I therefore find that the applicant is entitled to all three physiotherapy plans submitted on August 8, 2023, August 9, 2023, and November 24, 2023.
Is the orthopaedic assessment reasonable and necessary?
24The applicant is entitled to $2,680.00 for an orthopaedic assessment, proposed by Complete Rehab Centre in a plan submitted October 30, 2023.
25The stated goal of the OCF-18 for an orthopaedic assessment was to clarify the applicant’s symptoms and injury to assist with clinical information as the physical symptoms have continued more than one year after the accident.
26The applicant relies on his treating physician Dr. Asekombe’s CNRs, who documented on November 30, 2022, neck, shoulder, back pain, and restricted movement, January 27, 2023; chronic back pain, shoulder pain, headaches, February 13, 2023: persistent pain requiring rehabilitation, December 5, 2023: continuing shoulder pain, neck stiffness, back pain and right ankle issues. The applicant argues that an orthopaedic assessment is necessary as the ongoing impairments are affecting his mobility. The OCF-18 proposing the orthopaedic assessment was completed by Dr. Rahim Jessa, Chiropractor at Compete Rehab Centre, who recommended the assessment to clarify the applicant’s ongoing impairments to determine whether alternative treatment is appropriate because of the functional impact. Dr. Jessa recommending an orthopaedic assessment is necessary to determine whether additional or different treatment is needed as the impairments are affecting mobility and as a result have persisted for more than a year.
27The respondent submits that an orthopaedic assessment is not needed, and the respondent relies on Dr. Lamine’s s. 44 examination on December 18, 2023, and Dr. Belfon’s s. 44 examination on August 28, 2024, to argue that the applicant’s injuries are minor, there are no structural issues, only soft tissue sprains, and no serious functional limitations. It further argues that the applicant’s reported symptoms they did not find anything abnormal on examination that would require the clinical need for an orthopaedic assessment.
28I find that the treating physician has documented repeated musculoskeletal symptoms for more than one year, including their impact on the applicant’s day to day functioning. Dr. Asekombe noted reduced movement in the shoulder and neck, ongoing pain and stiffness in the back and neck, and right ankle symptoms that affected the applicant’s mobility all of which are, functional limitations. I agree with the applicant’s evidence on this issue because it is based on contemporaneous clinical records over multiple visits, that these ongoing symptoms require further assessment, that are consistent with Dr. Asekombe’s diagnosis and recording of the impairments. Additionally, treating providers Dr. Resa and Dr. Rahim Jessa, Chiropractor, in their OCF-18s, recorded continuing musculoskeletal limitations, seek further diagnosis, as a result of the impairments from the motor vehicle accident. Dr. Lamine and Dr. Belfon in their examinations do not address the applicant’s functional complaints, the treating doctors’ observations or the duration of the symptoms. I find that the orthopaedic assessment proposed on October 30, 2023, in the amount of $2,680.00 is reasonable and necessary as the assessment will provide further investigation into the applicant’s symptoms and propose treatment for the applicant’s ongoing pain.
Are the psychological assessment and psychological services reasonable and necessary?
29The applicant is entitled to $2,530.00 for a psychological assessment proposed by Complete Rehab Centre in a plan submitted October 27, 2023; and to $3,610.50 for psychological services, proposed by Complete Rehab Centre in a plan submitted January 4, 2024, as there was a psychological impairment as a result of the accident that required assessment and psychological services that were reasonable and necessary.
30The applicant submits that he developed severe psychological impairments as a result of the accident and that after the accident, these impairments continued for more that a year. This is supported by Dr. Asekombe’s clinical notes and records from 2022 to early 2024 recording ongoing complaints, culminating in a diagnosis of post-traumatic distress syndrome. I find this evidence persuasive because it is repeated over time and is consistent with the applicant’s overall post accident reporting.
31On November 18, 2022, the Disability Certificate noted psychological symptoms, including sleep disturbance, stress and headaches. The applicant submitted a Psychological Assessment, on November 23, 2025, by Ms. Nicole Presutti (supervised by Psychologist Dr. Jacqueline Brunshaw), where the assessor diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood with phobia related to driving, including nightmares, loss of interest, irritability, low motivation, difficulty concentrating, social withdrawal, severe sleep problems. Ms. Presutti concluded the applicant met Diagnostic and Statistical Manual of Mental Disorders (“DSM”-5) criteria as a result of the accident. The report recommended psychological treatment.
32The respondent submits that the applicant does not have psychological impairments and relies on the examinations of Dr. Lotfalizadeh and Dr. Harris, who found that the applicant may have exaggerated his psychological impairments, and that no DSM-5 psychological diagnosis could be confirmed The respondent submits that the applicant is not entitled to a psychological assessment and is not entitled to psychological services.
33I prefer the evidence from the applicant’s treating service providers to be more persuasive. Psychological symptoms were identified in a Disability Certificate completed by Dr. Jessa, shortly after the accident. These align with the CNRs of the applicant’s treating physician, Dr. Asekombe in 2022, 2023, and early 2024 with a diagnosis of post traumatic distress syndrome. These records are further corroborated by the psychological assessment completed on November 29, 2023, by Ms. Presutti, a psychotherapist, under the supervision of a psychologist. This assessment included an interview and clinical observation and DSM-5 diagnostic analysis and diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood and specific phobia to driving. I find that the evidence submitted by the applicant establishes psychological impairments as a result of the accident and demonstrates the need for the assessment and services for treatment.
34The applicant’s submissions are supported by corroborating evidence from his family doctor Dr. Asekombe, and the clinical finding and DSM-5 diagnoses found in Ms. Presutti’s psychological assessment. The recommended psychological services, with 14 sessions of psychotherapy would address the applicant’s psychological impairment. The goals of the plans are to assess the applicant’s accident related psychological symptoms, confirm diagnosis, and implement treatment aimed at reducing the symptoms and improving sleep and coping strategies, and supporting functional recovery. Dr. Jessa, Dr. Asekombe and Ms. Presutti, psychotherapist, under Dr. Brunshaw’s supervision, provided corroborating evidence of both a psychological impairment requiring an assessment, and that the psychological services are reasonable and necessary for the applicant’s recovery. I find that the applicant entitled to $2,530.00 for a psychological assessment, proposed in a plan submitted October 27, 2023; and to $3,610.50 for psychological services, proposed in a plan submitted January 4, 2024.
Interest
35The applicant is entitled to interest on any overdue benefits in accordance with section 51 of the Schedule.
ORDER
36For the reasons outlined above I find:
i. The applicant is removed from the MIG;
ii. The applicant is entitled to the orthopaedic assessment;
iii. The applicant is entitled to the physiotherapy services;
iv. The applicant is entitled to a psychological assessment;
v. The applicant is entitled to psychological services; and
vi. The applicant is entitled to interest.
Released: January 30, 2026
__________________________
Georgina Blanas
Adjudicator