Licence Appeal Tribunal File Number: 23-013212/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:
Abraham Zachariah
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR:
Kathleen Wells
APPEARANCES:
For the Applicant:
Bianca Pirrotta-Iaccino, Paralegal
For the Respondent:
Theomarcus Giannou, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Abraham Zachariah, the applicant, was involved in an automobile accident on September 21, 2021 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, Belair Insurance Company Inc., 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 (“MIG”) limit?
Is the applicant entitled to the assessments/treatment plans proposed by Alma Rehab Inc., as follows:
i. $3,157.39 for Chiropractic Services, in a treatment plan dated January 31, 2022?
ii. $2,825.37 for Chiropractic Services, in a treatment plan dated April 5, 2022?
iii. $2,580.54 for Chiropractic Services, in a treatment plan dated June 13, 2022?
Is the applicant entitled to $2,350.00 for a Chronic Pain Assessment, proposed by Ontario Independent Assessment Centres Inc. in a treatment plan dated November 2, 2022?
Is the applicant entitled to interest on any overdue payment of benefits?
3The applicant withdrew the following issues set out in the Case Conference Report and Order (“CCRO”): $1,995.33 for a psychological assessment (CCRO issue 2.i). and $1,950.00 for a cognitive assessment (CCRO issue 4).
RESULT
4I find that:
The applicant has predominantly minor injuries and is subject to the MIG and its $3,500.00 funding limit.
As the applicant is subject to the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.
As no payments are owing, no interest is due.
The application is dismissed.
ANALYSIS
Applicability of the MIG
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 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.
7The applicant submits that he should be removed from the MIG because he is experiencing chronic pain as a result of the accident. The respondent counters that the applicant has not met his onus to prove that he has chronic pain with functional impairment
Chronic Pain
8I find that the applicant has not established that he suffers from chronic pain with functional impairment.
9The applicant submits that he has experienced ongoing pain from his soft tissue injuries to his neck, back, and shoulder as a result of the accident, and has “consistently” complained to his family doctors, who have continued to prescribe pain medication and physiotherapy to treat his accident-related injuries. The applicant relies on the Disability Certificate (“OCF-3”) of Dr. Abdairahim Abed, chiropractor, dated September 29, 2021 and the clinical notes and records (CNRs) of his family physicians Dr. Gary Mann and Dr. Haroon Syed.
10The respondent argues that the applicant has not met his onus to prove that he suffers from chronic pain with functional impairment, and that he does not meet three of the six criteria in the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition (“AMA Guides”) to support a chronic pain diagnosis. The respondent relies on the s.44 report of Dr. Seung-Jun Lee, physician, dated March 16, 2022, and his subsequent paper review dated, July 14, 2022, as well as the treatment confirmation (OCF-24) of Dr. Roger Singh, chiropractor, dated December 15, 2021.
11I accept that the applicant has experienced ongoing pain since the accident, however, I find that the evidence does not establish on a balance of probabilities that se has chronic pain with functional impairment as a result of the accident.
12I find that the evidence reveals that the applicant complained of pain to his family doctors on six occasions in the thirteen months following the accident, which I find indicates periodic rather than chronic pain. As the respondent notes, the applicant described his back, neck and shoulder pain as intermittent to Dr. Lee at his s. 44 examination in March 2022.Dr. Lee noted that the applicant reported some pain in his shoulders and back during the examination, and recommended Tylenol to treat the applicant’s pain. The applicant has not directed me to any complaints of pain to his doctor subsequent to his October 25, 2022 appointment with Dr, Syed.
13The respondent submits that the applicant does not meet three of the six criteria of the AMA Guides, While the AMA Guides are not referenced in the Schedule and I am not bound by them, the Tribunal has determined that they provide a helpful tool in evaluating chronic pain. The AMA Guides state that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:
Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
Excessive dependence on health care providers, spouse, or family.
Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.
Withdrawal from social milieu, including work, recreation, or other social contracts.
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.
Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.
14The applicant argues that he meets criteria number 1, 2, and 5.
15The applicant submits that he has used prescription drugs beyond the recommended duration. The evidence reveals that in addition to over-the-counter pain medication, the applicant was prescribed Flexiril by Dr. Mann between September 2021 and April 2022, and again on October 25, 2022, by Dr. Syed, however, the applicant has not directed me to any evidence that his prescriptions exceeded the recommended duration.
16Further, the applicant has not directed me to any evidence of excessive dependence on his health care providers or family to establish that the applicant meets criteria number 2.
17Finally, as the applicant returned to work after the accident, and has not provided any submissions or evidence with respect to the applicant’s family or recreational needs, I find that the applicant has not established on a balance of probabilities that he meets criteria number 5.
18Therefore, I find that the applicant has not met three of the six criteria of the AMA Guides.
19I further find that the applicant has not established on a balance of probabilities that he suffers from functional impairment as a result of his accident-related injuries. The applicant submits that he has functional impairment because he returned to work on modified duties after the accident. However, as the respondent notes, in his OCF-24, Dr. Singh reported that the applicant was able to perform his full duties at work on December 15, 2021, less than three months after the accident. Further, the applicant informed Dr. Lee at his s. 44 examination that he was independent with his personal care, and continued to do his pre-accident household chores including, cooking, and laundry.
20For the reasons above, I find that the applicant has not met his onus to prove on a balance of probabilities that he has chronic pain with functional impairment that warrants his removal from the MIG.
21Therefore, the applicant remains within the MIG.
22As the applicant remains within the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.
Interest
23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are owing, no interest is due.
ORDER
24I find that:
The applicant has predominantly minor injuries and is subject to the MIG and its $3,500.00 funding limit.
As the applicant is subject to the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.
As no payments are owing, no interest is due.
The application is dismissed.
Released: October 2, 2025
Kathleen Wells
Adjudicator