Licence Appeal Tribunal File Number: 23-013625/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:
Abdul Ferouzi
Applicant
and
Allstate Insurance
Respondent
DECISION
ADJUDICATOR:
Robert Spiegel
APPEARANCES:
For the Applicant:
Todd Reybroek, Counsel
For the Respondent:
A. Bryn Copp, Counsel
HEARD:
In Writing
OVERVIEW
1Abdul Ferouzi, was involved in an automobile accident on July 28, 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, Allstate Insurance, 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 $3,387.61 for chiropractic services proposed by Scarborough Health and Wellness, in a treatment plan/OCF-18 (“plan”) dated November 21, 2022?
iii. Is the applicant entitled to $3,094.49 for chiropractic services proposed by Scarborough Health and Wellness, in a plan dated July 19, 2023?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find, on the balance of probabilities, that the applicant has not met the onus to prove his impairments warrant removal from the MIG.
4As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
5No interest is payable.
Are the applicant’s injuries predominantly minor?
6I find that the applicant’s accident-related injuries are predominantly minor, and thus, the funding limit of the MIG applies.
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 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.”
8An 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 injury or 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. In all cases, the burden of proof lies with the applicant.
9The applicant made no submissions to establish they qualify for removal from the MIG under s. 18(2) of the Schedule.
10The applicant submits that they should be removed from the MIG due to chronic pain. To support their claim, the only evidence applicant is relying on are the Clinical Notes and Records (“CNRs”) of Dr. William Chan, their family physician, to demonstrate that the applicant meets at least three of the six criteria of the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition (“Guides”) for a diagnosis of chronic pain, listed below.
11The applicant asserts they meet four of the six criteria, namely criteria a), b), d), and e) as follows:
a. Use of prescription drugs beyond the recommended duration and/or abuse or dependence on prescription drugs or other substances;
b. Excessive dependence on health care providers, spouse, or family;
c. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;
d. Withdrawal from social milieu, including work, recreation, or other social contracts;
e. 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; and,
f. Development of psychosocial sequelae after the initial incident, including anxiety, fear, avoidance, depression, or nonorganic illness behaviors.
12The applicant states that they have relied on prescription medicine since the accident, but did not explain how they meet criterion [a]. To meet criterion [a.] the applicant must show they used prescription drugs beyond the recommended duration, or evidence of abuse or dependence on prescription drugs and other substances. Although the accident occurred on July 28, 2022, the initial prescription for pain relief was issued eight months after the accident. On March 7, 2023, a prescription was issued for twenty tablets of Baclofen and Mobicox. On August 29, 2023, almost 6 months later, the prescription was repeated. Applicant’s frequency of use of the medications, based on the prescriptions written in 2023 through January 4, 2024, and the number of tablets prescribed, was approximately one tablet every 4 days. This evidence does not support a finding that applicant is dependent on prescription drugs or is using them beyond the recommended duration. I find therefore that criterion [a.] is not met.
13The applicant asserts that they have relied “heavily” on health care providers since the accident but provided no explanation as to how this meets criterion [b.] of the Guides, the test for which is excessive dependence on health care providers, spouse or family. The applicant provided no evidence of reliance on spouse or family. I have reviewed the frequency and nature of medical visits in the CNRs and have found insufficient evidence to support a finding of excessive dependence on health care providers. The CNRs show that the applicant has been seen regularly for other common ailments including diabetes, lipomas requiring excision, and evaluation and diagnosis of other medical conditions, without reference to back pain. I note that one week after the accident, the applicant made no mention of the accident at his doctor’s visit. The applicant’s first report of lumbar tenderness was reported by the applicant at a doctor’s visit six months after the accident and Dr. Chan’s first diagnosis of lumbar sprain was at an appointment on March 7, 2023, 8 months after the accident. The next report in the CNRs of lower back pain was at a doctor’s appointment on September 19, 2023, more than 6 months later. Given these spans of time between appointments, and the scope and nature of the medical appointments, I find the applicant has not provided sufficient evidence to support a finding of excessive dependence on health care providers arising from the accident. I find therefore that criterion [b.] is not met
14The applicant submitted that they meet criterion [d.] of the Guides, without explaining how they meet the criterion, such as withdrawal from social milieu, including work, recreation, or other social contacts. The CNRs contained no such evidence to support this. The applicant’s statement that they meet criterion [d.] is not evidence. I find therefore that criterion [d.] is not met.
15The applicant submitted that they meet criterion [e.] of the Guides, being the 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. The applicant gave no explanation or evidence supporting this claim. The applicant’s statement that they meet criterion [e.] is not evidence. I find therefore that criterion [e.] is not met.
16I find that the applicant has not satisfied at least three of the criteria in the Guides supporting a diagnosis of chronic pain.
17Respondent noted that there is nothing in the CNRs recommending a referral to a pain specialist, physiatrist, neurologist, or other treatment provider, to manage the pain, or to deal with a related functional impairment. While I do not find that the absence of any referral to a specialist dispositive, it is notable in that the CNRs do not suggest follow up care is needed with a specialist for chronic pain or functional impairment. The treatment recommended by Dr. Chan was physiotherapy and exercise. No evidence was provided that the applicant has a functional impairment related to chronic pain.
18In sum, I find that the CNRs of Dr. Chan do not provide persuasive evidence that the applicant meets three out of six criteria to establish chronic pain under the Guides. Therefore, the applicant has not established on a balance of probabilities, that they have chronic pain with a functional impairment that warrants removal from the MIG.
19As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
Interest
20As no benefits are payable, the applicant is not entitled to interest.
ORDER
21The applicant has not met the onus to prove his impairments warrant removal from the MIG.
22As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
23No interest is payable.
Released: October 31, 2025
__________________________
Robert Spiegel
Adjudicator