Licence Appeal Tribunal File Number: 24-007174/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:
Ajmal Arash Ghassemi
Applicant
and
Definity Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Parinita Yadar, Counsel
For the Respondent:
Monika Korona, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Ajmal Arash Ghassemi, the applicant, was involved in an automobile accident on July 26, 2019, 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, Definity 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? Note: The parties agree the MIG limits have been exhausted.
Is the applicant entitled to $1,328.00 for chiropractic services, proposed by Dr. Nooman Nayeri in a treatment plan (“OCF-18”) submitted September 13, 2022, and denied September 26, 2022?
Is the applicant entitled to $550.00 for psychological services, proposed by Dr. Nooman Nayeri in an OCF-18 submitted July 25, 2024, and denied August 1, 2024?
Is the applicant entitled to $620.00 for chiropractic services proposed by Dr. Nayeri Professional Corp. in an OCF-18 submitted July 25, 2024, and denied August 1, 2024?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant sustained a minor injury within the definition of the MIG and is therefore subject to treatment within the MIG limit. He is not entitled to the OCF-18s in dispute, interest or an award.
ANALYSIS
The applicant’s accident-related impairments fit within the MIG.
4Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor in accordance with the MIG. 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.”
5An insured person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG. The applicant bears the onus of proving on balance of probabilities that his accident-related impairments fall outside of the MIG.
6The applicant argues that he should be removed from the MIG because he suffers from chronic pain as a result of the accident. In support of his position, he relies on the clinical notes and records (“CNRs”) of Dr. Bahrami, family doctor and Dr. Nayeri, chiropractor at his treating clinic. He also submits that the insurer examination (“IE”) reports support that he has ongoing functional limitations as a result of the accident.
7The respondent argues that the applicant’s accident-related impairments fall within the definition of a minor injury. It submits that the applicant has not met his onus in proving that he should be removed from the MIG as a result of chronic pain. Further, it maintains that its IE reports do not support the applicant’s argument that he has any functional limitations as a result of any accident-related impairments. It relies on the physiatry IE reports of Dr. Czok dated February 14, 2020 and Dr. Baker dated December 14, 2020 who both diagnosed the applicant with soft-tissue injuries. It also relies on the functional evaluation assessment IE report of Dr. Ikonomakis, chiropractor dated December 14, 2020.
Chronic Pain
8I find that the applicant is not removed from the MIG due to chronic pain for the following reasons.
9First, I am not persuaded that the CNRs of Dr. Bahrami support the applicant’s position that he suffers from chronic pain as a result of the accident. The CNRs establish that between August 6, 2019 and December 4, 2019, the applicant attended his family doctors four times where he complained of low back pain. The doctor prescribed naproxen. The applicant attended his family doctors seven times in 2020 where back pain is mentioned once. I find there is a significant gap in the family doctor’s CNRs where the accident is not mentioned. Further, there are no functional limitations noted in these records.
10Second, I find the CNRs of Dr. Nayeri unhelpful in establishing that the applicant suffers from chronic pain. For the most part the notes are not legible. While they support that applicant complained of ongoing back pain there are no functional limitations noted in these records. Overall, I find the CNRs of Dr. Nayeri support that the applicant attended the clinic for treatment.
11Third, the applicant submits that he meets the criteria for chronic pain as set out in the Tribunal’s decision in Nguyen v. Allstate Canada, 2021, CanLII 30276 (ON LAT) (“Nguyen”). In this case, the adjudicator was persuaded that chronic pain should be assessed against six criteria described in the American Medical Association (AMA) Guides, which state that at least three of the following should be met for a diagnosis:
(1) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
(2) Excessive dependence on health care providers, spouse, or family.
(3) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.
(4) Withdrawal from social milieu, including work, recreation, or other social contracts.
(5) 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.
(6) Development of psychosocial sequelae after the initial incident, including anxiety, fear, avoidance, depression, or nonorganic illness behaviors.
12The applicant submits that he meets three out of the above six criteria in that he has used prescription drugs beyond the recommended duration because both Dr. Bahrami and Dr. Nayeri prescribed naproxen. Further, Dr. Ikonomakis’ IE report supports that he has functional limitations because the report states that the applicant was limited to doing administrative tasks at work post-accident.
13Of significance, the applicant only cites two out of the six criteria from the AMA Guides in his submissions. However, I find that the evidence does not support that he meets the two criteria identified. I find the fact that he was prescribed naproxen on a few occasions post-accident does not support that he has used prescription medication beyond the recommended duration or has abused or become dependent on prescription drugs. In addition, I find that the applicant’s submissions mischaracterized the findings in the IE report of Dr. Ikonomakis because the report states that the applicant reported that he has been on modified work doing administrative tasks post-accident. However, it was not Dr. Ikonomakis that rendered this opinion. The doctor determined that the applicant’s functional capabilities were in the medium to heavy range. Dr. Ikonomakis also opined that the applicant did not give full effort in carrying out some of the functional tasks during this assessment. I also note that the applicant reported to all of the IE assessors that he was independent with personal care and was able to carry out his housekeeping and home maintenance tasks. I find that the IE reports do not support that the applicant has any functional limitations as a result of the accident.
14Finally, I find the IE reports of Dr. Czok and Dr. Baker support that the applicant sustained a minor injury. Both doctors conducted physical examinations which were normal and diagnosed the applicant with soft tissue injuries. I accept their opinion because it is consistent with the medical evidence before me.
15I conclude that the applicant has not proven on a balance of probabilities that he suffers from chronic pain as a result of the accident which would take him out of the MIG.
16Since the MIG limits have been exhausted the applicant is not entitled to the OCF-18s in dispute.
The applicant is not entitled to interest.
17Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since I have determined that no benefits are overdue the applicant is not entitled to interest.
The applicant is not entitled to an award.
18The 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. The applicant’s submissions did not address the award issue. In light of my decision in this matter, the applicant is not entitled to an award because I have not determined that any benefits were unreasonably withheld.
ORDER
19For the above noted reasons, I make the following order:
The applicant sustained a minor injury. He is not entitled to the OCF-18s in dispute, interest or an award.
The application is dismissed.
Released: January 8, 2026
__________________________
Rebecca Hines
Adjudicator