Licence Appeal Tribunal File Number: 24-001660/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 Amouei
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Matthew Frontini
APPEARANCES:
For the Applicant:
Andrew Bergel, Counsel
For the Respondent:
Duha Sikander, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Ali Amouei, the applicant, was involved in an automobile accident on October 13, 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 Company of Canada, 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 treatment plans/OCF-18s (“treatment plans”) for chiropractic services proposed by Dr. Nayeri, as follows:
$1,778.00 in a plan dated February 21, 2023 and submitted on February 21, 2023;
$1,328.00 in a plan dated May 2, 2023 and submitted on May 3, 2023;
$1,328.00 in a plan dated August 4, 2023 and submitted on August 9, 2023; and
$1,328.00 in a plan dated January 12, 2024 and submitted on January 15, 2024?
iii. Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by Dr. Rod/Toronto Poly Clinic in a treatment plan dated August 2, 2023?
iv. Is the applicant entitled to $2,249.61 for a psychological assessment, proposed by Dr. Mobbayen in a treatment plan dated August 14, 2023?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the $3,500.00 limit of the MIG;
ii. As the applicant is in the MIG, it is not necessary to consider if the disputed treatment plans are reasonable and necessary;
iii. The treatment plan for chiropractic services in the amount of $1,328.00 dated August 4, 2023 is not payable pursuant to s. 38(11) of the Schedule;
iv. The treatment plan for a psychological assessment in the amount of $2,249.61, dated August 23, 2023 is payable pursuant to s. 38(11), for goods and services incurred beginning on September 5, 2023; and
v. The applicant is entitled to interest in respect of the treatment plan for a psychological assessment in accordance with s. 51 of the Schedule.
ANALYSIS
The applicant is not removed from the MIG
4The applicant is not removed from the MIG. He has not established on a balance of probabilities that he has suffered more than a minor injury because of the accident
5Section 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.”
6An 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. In all cases, the burden of proof lies with the applicant.
7The applicant claims that he is entitled be removed from the MIG because he suffers from chronic pain as a result of the accident, largely based on the diagnoses of chronic pain and Chronic Pain Syndrome made by various health care practitioners.
The applicant has not established that he suffers chronic pain warranting removal from the MIG
8I find that the applicant has not established on a balance of probabilities that he suffers from chronic pain with a functional impairment warranting removal from the MIG.
9The applicant submits that he meets the definition of chronic pain syndrome based on applying the American Medical Association Guides to Permanent Impairment American Medical Association, 6th Edition, 2008 (“AMA Guides”) because he meets three of six criteria set out in the AMA Guides, specifically: (1) withdrawal from social milieu, including work, recreation, or other social contacts, (2) 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 (3) development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours. It is important to note that none of the healthcare practitioners treating or assessing the applicant referred to the AMA Guides or these criteria. Rather, the application of the AMA Guides was based on the applicant’s submissions.
10In support of his position, the applicant relies on the diagnoses of the chronic pain by his family doctor, Dr. Javad Pieroy, and chiropractor, Dr. Hooman Nayeri. The applicant also relies on the chronic pain assessment report of Dr. Kevin Rod, physician, dated April 9, 2024. Dr. Rod’s reported referred to some specific medical records that he reviewed, while also stating that “all documents provided were reviewed”. Dr. Rod diagnosed the applicant with, among other conditions, Chronic Pain Syndrome and concluded that this diagnosis fell beyond the Schedule’s definition of minor injuries.
11The respondent submits that the applicant has not met his evidentiary burden to establish that he suffers chronic pain warranting removal from the MIG. The respondent notes that majority of evidence demonstrates that the applicant has asserted ongoing pain symptoms. The respondent notes the lack of evidence regarding functional impairment associated with the applicant’s accident-related injuries and that the conclusions drawn by Dr. Rod are based on the applicant’s self-reporting, which is not supported by corroborating evidence.
12The respondent also relies on the physiatry assessment report of Dr. Julian Mathoo, dated July 4, 2023. Dr. Mathoo’s assessment included the review of 54 documents related to the applicant’s condition, as well as a clinical interview and assessment. Dr. Mathoo concluded that the applicant suffered Whiplash Associated Disorder Type 1 with low back pain, consistent with a minor injury.
13I find that the applicant has not established on balance of probabilities that he suffers chronic pain warranting removal from the MIG. The major difficulty with the applicant’s position is a lack of compelling corroborating evidence that he suffers either functional impairments due to sustained pain or has developed psychosocial sequelae following the accident. I acknowledge that the applicant has been diagnosed with Chronic Pain Syndrome by Dr. Rod in his s. 25 assessment report. However, I place greater weight on Dr. Mathoo’s s. 44 assessment report’s conclusion that the applicant suffered a minor injury, as it consistent with the corroborating medical evidence. Furthermore, in the absence of compelling corroborating evidence of functional impairment and psychological sequalae, I am not persuaded that the applicant has established that he meets three of the six criteria in the AMA Guides for chronic pain syndrome.
14I find that the evidence does not establish that the applicant suffers a functional impairment warranting removal from the MIG. First, I note that the ADL questionnaire was completed within the time frame expect for the normal healing of minor injuries. Any functional impairments experienced by the applicant during this time would be expected as part of the clinically associated sequelae of a minor injury.
15The applicant’s submissions relating to an inability to return to his pre-accident employment duties are not sufficiently supported by evidence. The applicant reported to both s. 25 and 44 assessors, Dr. Rod and Dr. Mathoo, respectively, that his pre-accident employment comprised three jobs: (1) a business operating from his home workshop making and installing street signs, constituting between 45 – 50 hours per week; (2) an Uber Eats delivery driving, constituting between 15 – 20 hours per week; and (3) administrative work at a chiropractor’s office, including phoning clients, constituting 10 hours per week. In total, the applicant reported working between 65 – 80 hours per week prior to the accident. The applicant also reported that while he has fully resumed his work duties in relation to his sign making and installation business, he is unable to return to his Uber Eats or administrative jobs because of pain.
16I am not persuaded that these self-reports establish on a balance of probabilities that the applicant has been impaired from returning to work due to chronic pain. First, I note that there is no independent corroborating evidence with respect to these impairments to support the applicant’s self-reporting to his assessors. Even if I were to accept the statements at face value, they indicate that the applicant has fully resumed his primary employment at his sign making business, working between 45 – 50 hours per week. The applicant’s return to the employment that comprised most of his pre-accident weekly working hours is contrary to the assertion that he suffers a failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work.
17I also note that Dr. Rod’s s. 25 assessment heavily relied on self-reports of the applicant during the assessment. Dr. Rod’s report does not provide a list of the documents reviewed. Instead, the report refers to specific documents that Dr. Rod considered relevant to the assessment. While the applicant’s submissions assert that those specific documents were not the only documents that were reviewed, there is no evidence before the Tribunal regarding what other documents were reviewed by Dr. Rod. Notably, the clinical notes and records of Dr. Pieroy and Dr. Nayeri were not considered relevant by Dr. Rod and were not referenced in the documentation review section of his report.
18The applicant’s submissions on the development of psychosocial sequelae after the initial incident are also not supported by the evidence. I note that there are references to sexual dysfunction, tinnitus and decreased sleep in three visits to his family doctor, Dr. Pierovy, in October, November and December 2022. There are then no further references to such complaints in subsequent visits to Dr. Peirovy in March, June and August 2023. In March 2024, the applicant attended virtual visit at a walk-in clinic and completed a four-question screen for Post Traumatic Stress Disorder and reported ongoing anxiety and depressive symptoms from October 2022. Dr. Rod’s assessment report also lists various psychosocial sequelae The psychosocial sequelae reported in the single virtual visit in 2024, and in Dr. Rod’s report are at odds with the consistent absence of any such reports to the applicant’s family doctor or in the clinical notes and records of Dr. Nayeri from January 2023 onward. I place very little weight on Dr. Rod’s conclusions regarding any psychosocial sequelae, as they are based solely on the applicant’s self-reporting and are not independently corroborated by any medical records.
19Given my findings I above, I am not persuaded by the applicant’s submissions that he satisfies at least three of six criteria from the AMA Guides for a diagnosis of Chronic Pain Syndrome. I therefore find that the applicant has not established that he suffers chronic pain with a functional impairment warranting removal from the MIG.
20As the applicant is in the MIG, and the parties agree the MIG limits have been exhausted, it is not necessary for me to consider if the treatment plans in dispute are reasonable and necessary.
The Respondent’s Compliance with s. 38 of the Schedule
21The applicant also asserts that two of the treatment plans in dispute are payable because of the respondent’s alleged failure to comply with the notice requirements of s. 38(8) of the Schedule. As such, the applicant submits that these treatment plans are payable pursuant to s. 38(11). The relevant treatment plans are: (1) for chiropractic services in the amount of $1,328.00, dated August 4, 2023 and submitted on August 9, 2023 (the “Chiropractic Plan”); and (2) a psychological assessment in the amount of $2,249.61 dated August 14, 2023 (the “Psychological Assessment Plan”).
The Chiropractic Plan is not payable
22I find that the Chiropractic Plan is not payable pursuant to s. 38(11). The applicant has not established that the respondent contravened the notice requirements of s. 38(8) in respect of this treatment plan.
23The applicant submits that the Chiropractic Plan is payable because the respondent failed to provide a denial within 10 days of its receipt, contrary to the timeline imposed by s. 38(8). The applicant further submits that because of the respondent’s contravention of s. 38(8), s. 38(11) is engaged and the respondent is prohibited from taking the position that the MIG applies to this treatment plan and must pay for all goods, services, assessments and examinations described in the Chiropractic Plan that were incurred until the respondent gave a notice that complies with s.38(11). Finally, the applicant asserts that to date, the respondent has not provided proper notice and so must pay the full amount incurred.
24Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has a impairment to which the MIG applies.
25The applicant’s submissions as to the relevant dates are unclear and the only date they specifically reference is the date of the Chiropractic Plan. However, for the purposes of s. 38(8) and 38(11) the relevant dates are the date the insurer receives a treatment plan and the date an insurer responds to the treatment plan. The evidence shows that the Chiropractic Plan was submitted to the insurer on the Health Claims for Auto Insurance platform (“HCAI”) on August 9, 2023. The respondent submitted its denial of the Chiropractic Plan on HCAI on August 23, 2023. The time between receipt and response to the Chiropractic Plan was ten business days. The applicant’s submissions do not provide any arguments as to why the August 23, 2023 denial is not a proper notice other than allegedly being delivered late.
26The evidence demonstrates that the respondent provided its denial to the Chiropractic Plan within the statutorily required timeline and did not contravene s. 38(8). As a result, the Chiropractic Treatment plan is not payable pursuant to s. 38(11) of the Schedule.
The Psychological Assessment Plan is payable
27I find that the Psychological Assessment Plan is payable pursuant to s. 38(11). Payment is due for the services described in that treatment plan incurred beginning on the eleventh business day after it was submitted, being September 5, 2023.
28The applicant submits that this treatment plan is payable because the respondent’s denial contravened s. 38(8) by failing to provide the required medical and all other reasons for why the respondent does not consider the treatment plan to be reasonable and necessary. The applicant notes that the respondent’s explanation of benefits (“EOB”) in response to the Psychological Assessment Plan is missing a “psychological pre-screen as required by the College of Psychologist [sic] of Ontario Auto Task Force.” The EOB goes on to state that once this pre-screen is submitted, the respondent would consider the Psychological Assessment Plan and provide its position to the applicant.
29The respondent did not make any submissions in respect of the applicant’s s. 38 arguments.
30I agree with the applicant. The EOB is not a proper denial as it does not identify any goods or services that the respondent will not pay for and does not provide any medical or other reasons for why the Psychological Assessment Plan is not necessary or reasonable, as required by s. 38(8). Indeed, it does not contain either a denial or approval of any goods or services. There is no evidence that this non-compliant denial was cured by a subsequent notice of denial. As such, the mandatory consequences of s. 38(11)(2) are triggered and the Psychological Assessment Plan is payable for the goods and services incurred beginning on the eleventh business day after it was submitted.
Interest
31Interest applies on the payment of any overdue benefits in respect of the Psychological Assessment Plan pursuant to s. 51 of the Schedule.
ORDER
32I find that:
i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the $3,500.00 limit of the MIG;
ii. As the applicant is in the MIG, it is not necessary to consider if the disputed treatment plans are reasonable and necessary;
iii. The treatment plan for chiropractic services in the amount of $1,328.00 dated August 4, 2023 is not payable pursuant to s. 38(11) of the Schedule;
iv. The treatment plan for a psychological assessment in the amount of $2,249.61, dated August 23, 2023 is payable pursuant to s. 38(11), for goods and services incurred beginning on September 5, 2023;
v. The applicant is entitled to interest in respect of the treatment plan for a psychological treatment plan in accordance with s. 51 of the Schedule; and
vi. The application is dismissed.
Released: December 1, 2025
__________________________
Matthew Frontini
Adjudicator