Citation: Ghiasl v. Pafco Insurance Company, 2026 ONLAT 24-012265/AABS

Licence Appeal Tribunal File Number: 24-012265/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:

Mohamad Ghiasl

Applicant

and

Pafco Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Clayton Allen, Counsel

For the Respondent:

Kristen Slaney, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Mohamad Ghiasl, the applicant, was involved in an automobile accident on January 13, 2023, 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, Pafco 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:

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 limit?

ii. Is the applicant entitled to $1,900.48 for chiropractic services, proposed by VCare Physiotherapy and Rehab, in a treatment plan submitted on August 30, 2024?

iii. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by CanMed Evaluations Inc., in a treatment plan submitted on October 15, 2024?

iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicant’s accident-related injuries are predominantly minor and he is therefore subject to treatment within the $3,500.00 limit of the MIG.

4I find that the applicant is not entitled to the treatment plans in dispute, interest or an award.

PROCEDURAL ISSUE

5The applicant submits in his reply submissions that the respondent’s submissions contravene the Case Conference Report and Order (“CCRO”) and ought to be deemed inadmissible.

6The applicant argues that the CCRO limits the respondent’s submissions to ten pages in length and states that the Hearing Adjudicator may choose not to consider submissions which exceed the page limit. The applicant argues that the respondent’s submissions exceed the page limit, and he will suffer non-compensable prejudice if the respondent’s submissions are deemed admissible.

7The CCRO sets out that the hearing adjudicator may choose not to consider submissions which exceed the page limits and this is subject to my discretion. Pursuant to s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, it is within my discretion to strike any submissions in excess of the ten-page limit set out in the CCRO. Subject to my discretion, I choose to consider all of the respondent’s submissions.

8I find that while the CCRO orders that the parties’ submissions are to be ten pages in length, the respondent’s submissions are ten and a half pages in length. I find that the last page of the respondent’s submissions sets out the conclusion and relief sought and no substantive arguments are made. I therefore find that while the respondent exceeded the page limits by half of a page, there is no prejudice to the applicant because there is no new evidence or submissions provided on this last page.

9Therefore, based on the reasons outlined above, I deny the applicant’s request and find the respondent’s submissions admissible.

ANALYSIS

Minor Injury Guideline (“MIG”)

10I find that the applicant’s accident-related injuries are predominantly minor and he is therefore subject to treatment within the $3,500.00 limit of the MIG.

11Section 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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

12An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical recovery if they are kept within the confines of the MIG. In all cases, the burden of proof lies with the applicant.

13In this matter, the applicant submits he has a pre-existing impairment that was exacerbated by the subject accident. He further submits that he should be removed from the MIG based on his physical injuries which have become chronic.

a. The applicant is not removed from the MIG on the basis of a pre-existing condition

14I do not find that the applicant has a pre-existing medical condition that prevents maximal medical recovery if he is kept within the MIG.

15The standard for excluding an impairment on the basis of a pre-existing condition is well defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

16The applicant submits that his pre-existing back pain was exacerbated in the subject accident and has prevented maximal recovery within the MIG. He relies upon the Clinical Notes and Records (“CNRs”) of Dr. Mariam Bibi and the Chronic Pain Assessment report of Dr. Grigory Karmy, dated March 28, 2025.

17The respondent relies upon the Tribunal decision in Hartman-Stolk v. Co-Operators General Insurance Company, 2017 CanLII 152822 (ON LAT) (“Hartman-Stolk”), where the Tribunal considered a three-part test to determine if an insured should be removed from the MIG. The questions include if there was a pre-existing medical condition that was documented by a health practitioner before the accident; if that condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG; and how this pre-existing injury will prevent maximal recovery from the minor injury if subjected to the limits of the MIG.

18The respondent submits that the applicant has not met the three-part test in Hartman-Stolk. It notes that there are few pre-existing CNRs which note back pain, which indicates that the condition was not severe. It argues that there is no indication in the records that his pain got worse as a result of the accident and the applicant has not demonstrated how his pre-existing back pain will prevent maximal medical recovery if he remains in the MIG.

19While I accept the applicant’s evidence that he suffered back pain in 2021, I find that the applicant has not met his onus of providing evidence from a health practitioner that a pre-existing medical condition will prevent him from achieving maximal medical recovery if he is subject to the MIG limits. The applicant has not directed the Tribunal to sufficient medical evidence to support that his pre-existing back complaints would affect his recovery from the subject accident as required by s. 18(2) of the Schedule.

20I find that the applicant has directed the Tribunal to two CNRs from Dr. Bibi. On May 18, 2024, he reported a backache and on June 22, 2024, he complained of a backache radiating to both legs and some numbness in his legs. I find upon review of these CNRs that there is no mention of the applicant being involved in the subject accident. In addition, the two CNRs only note the applicant’s self-reports of pain and there is no assessment or comments made by Dr. Bibi. I further find that there is no mention of the applicant’s pre-existing back complaints or how they would affect the applicant’s post-accident recovery. Upon review of the pre-accident CNRs provided, I find that the only mention of any back pain is on September 10, 2021, when the applicant reported complaints of acute lower back pain. Dr. Bibi found that the left spine range of motion was full but associated with pain. He diagnosed the applicant with acute lumbosacral strain. I find that the applicant has not pointed the Tribunal to any other pre-accident CNRs which note complaints of back pain.

21Upon review of the report of Dr. Karmy, he notes that the applicant reported, “a remote history of lower back pain but denied having any ongoing pain at the time of the subject accident”. He refers to the CNR of Dr. Bibi, dated September 10, 2021, where the applicant complained of “acute lower back pain.” He notes that there is no additional mention of lower back pain until after the subject accident, indicating that it was a transient episode. Dr. Karmy concludes that the applicant’s back pain relapsed after the subject accident and due to his pre-existing condition, he cannot achieve maximum medical recovery if treated within the MIG cap.

22I do not give weight to the opinion of Dr. Karmy that the applicant’s pre-existing back pain will prevent him from achieving maximum medical recovery if treated within the MIG. Dr. Karmy refers to one CNR that notes pre-existing acute back pain in 2021, which he specifically notes was a transient episode. I do not find that there is sufficient evidence to support that this one episode and report of back pain is sufficient to support Dr. Karmy’s opinion that he should be removed from the MIG based on his pre-existing back pain.

23I agree with the respondent that the applicant has not provided sufficient evidence to support that his pre-existing back pain noted in one CNR in 2021 is sufficient to remove him from the MIG. I find that the applicant has not directed the Tribunal to sufficient evidence to demonstrate how his pre-existing back pain will prevent maximal medical recovery if he remains in the MIG.

24For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that he suffers from a pre-existing medical condition that would prevent maximal medical recovery if he is subject to the MIG and therefore he is not removed from the MIG on this basis.

b. The applicant is not removed from the MIG based on a chronic pain condition

25I do not find that the applicant suffers from a chronic pain condition as a result of the accident that would warrant removal from the MIG.

26Chronic pain conditions are not included in the minor injury definition. In order to establish that the applicant has a chronic pain condition, he must demonstrate that his pain causes a functional impairment which adversely affects his well-being. The Tribunal has found the criteria for a chronic pain condition outlined by the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”) to be a useful interpretive tool.

27The applicant submits that the medical evidence supports that he suffers from chronic pain as a result of the accident and therefore he is not subject to the MIG. The applicant submits that he has suffered from severe pain in his back, neck and knees since the accident which has had a significant impact on his functionality and well-being. He submits that he no longer participates in recreational activities such as exercising and he no longer socializes with his friends and family as he used to before the accident.

28The applicant submits that he has been continuously reporting his accident-related injuries to his family doctor particularly regarding his severe back pain and knee pain, limited range of motion and inability to perform activities of daily living. He relies upon the MRI of the Lumbar Spine report, dated November 25, 2024, which indicates degenerative disc disease. He further relies upon the report of Dr. Karmy which diagnoses him with chronic pain and concludes his chronic pain has become a major interference in his daily activities.

29The applicant further submits that he meets four of six of the criteria through the AMA Guides. He has been reliant and dependent on Tylenol 3 for his physical impairments in order to function on a day-to-day basis; he is dependent on health care providers, spouse or family based on Dr. Bibi’s CNRs and the fact he is unable to perform his activities of daily living and housekeeping tasks on his own; he has withdrawn from social and recreational activities; and he is unable to return to his pre-accident level of functioning.

30The respondent submits that the applicant has not demonstrated that his physical injuries as a result of the accident rise to the level of chronic pain or that he is experiencing a functional impairment as a result of the subject accident. The respondent submits that there are no CNRs indicating that the applicant has suffered a functional impairment or disability as a result of chronic pain. It argues that while Dr. Karmy concluded that the applicant suffers chronic pain, there are no CNRs to support this. In addition, while Dr. Karmy asserts that the applicant suffers a functional impairment, his report indicates that the applicant has continued to work and complete his self-care activities independently. In addition, while Dr. Karmy notes sleeping issues as part of the applicant’s difficulties, the records of Dr. Bibi indicate that sleeping issues existed in relation to his other mental health issues, which were not noted to be related to the subject accident.

31The respondent further submits that more weight should be given to the CNRs of a general practitioner, as he/she has more complete information regarding the applicant’s health. (See: Patterson v. Wawanesa Insurance, 2025 CanLII 49197 (ONLAT)). The respondent submits that the CNRs of Dr. Bibi note that the applicant was seen post-accident on May 18, 2024 and June 22, 2024 for a back ache and on one occasion with the aching radiating to both legs. The respondent argues that there is no suggestion on how these complaints were handled, nor if the complaints were related to the subject accident. The respondent further submits that it is not possible for the results of the MRI of the lumbar spine to be directly attributed to the subject accident as the MRI was performed over a year and a half post-accident and it is impossible to know what could have caused this degenerative condition.

32I find that the applicant has not met his evidentiary onus to prove, on a balance of probabilities, that he suffers from chronic pain.

33I give significant weight to the CNRs of Dr. Bibi, relied upon by both parties. I do not agree with the applicant’s submission that Dr. Bibi’s CNRs note continuous reports of back pain and knee pain, limited range of motion and an inability to perform his activities of daily living. I find that there is no mention of the applicant being involved in the subject accident within these records. The applicant’s first post-accident visit was on June 5, 2023 where he was seen for a fungal infection on his feet. I find that the only CNRs that discuss any physical complaints are dated May 18, 2024 and June 22, 2024 where there is no mention of the subject accident. While both records note the applicant’s subjective complaints of a backache, there is no opinion or assessment made by Dr. Bibi about these complaints or his recommendations. Therefore, I do not find that these records support the applicant’s ongoing pain complaints or functional limitations as a result of the accident.

34I further find that while the applicant attended Etobicoke General Hospital on May 20, 2024 for right flank pain, there is no suggestion in the records that this pain was accident related. The applicant reported pain for a week. He had a CT scan for renal colic which was negative for any stones. I further agree with the respondent, that while the MRI dated November 25, 2024 notes degenerative disc disease, the applicant has not directed the Tribunal to any medical evidence to support that this diagnosis is accident-related. His reply submission that the results of the MRI were either caused by the accident or are a pre-existing medical condition that was aggravated by the accident is not sufficient evidence of the cause.

35I do not give weight to the report of Dr. Karmy. I find that while he reviewed the CNRs of Dr. Bibi, Brampton Civic Hospital and Cortellucci Hospital, no reference was made to these records in his report to support the diagnoses made. I find that while he diagnoses the applicant with chronic headaches, chronic mechanical neck pain, chronic mechanical lower back pain and chronic mechanical bilateral knee pain, his findings upon examination are not consistent with these diagnoses. On examination he found that range of movement of the cervical spine, shoulder joints, lumbar spine and knee joints were full and within normal limits. He noted some pain on cervical rotation and lateral flexion, back extension and squatting. He has not indicated how these findings support a diagnosis of chronic pain. In addition, while the applicant self-reported problems with sitting and standing, no assessment was performed of these issues.

36In terms of functional limitations, I note the applicant reported to Dr. Karmy that following the accident he continued to work full time at his physically demanding job as a Field Service Supervisor for door and window repairs. A list of his physical duties was provided. The applicant reported that he was independent in his personal care tasks. While the applicant reported that he was unable to fully participate in his pre-accident recreational activities, no specifics of what these activities are is indicated. In addition, while the applicant reported he is unable to perform his pre-accident housekeeping duties, Dr. Karmy does not comment on the functional limitations experienced by the applicant except to note his self-reported limitations. I find that there is no specific analysis as to which activities the applicant cannot perform. I therefore do not find that the applicant has proved on a balance of probabilities that his ongoing pain was of a significant level or was accompanied by some functional impairment or disability.

37In terms of the AMA Guides, I do not accept that the applicant meets 4 out of 6 of the criteria. While the applicant may have ongoing pain, I do not find that his pain causes the type of functional impairment that would warrant removal from the MIG. While the applicant reports to Dr. Karmy that he takes Tylenol 3, there are no prescription records or CNRs to support this. The applicant is not dependent on health care providers as he does not regularly visit with healthcare providers as indicated in the CNRs. Thus, I find that he is not dependent on them. None of the medical information before me suggests that the applicant is deconditioned due to disuse. I do not agree with the applicant’s submissions that he consistently reached out for help and guidance following the accident. While he claims to suffer functional limitations with performing his pre-accident housekeeping duties, he continued to work post-accident in his physically demanding employment. No particulars were provided with respect to his social and recreational activities that he claims were affected by the accident. There is no evidence he has withdrawn from social milieu and there is no indication of any psychological issues as a result of the accident.

38For the reasons outlined above, I find on a balance of probabilities that the applicant does not suffer from a chronic pain condition as a result of the accident and therefore he is not removed from the MIG on this basis.

Entitlement to the Treatment Plans in Dispute

39The applicant submits that the MIG limit is not exhausted and that $1,206.27 remains. The respondent submits that the applicant is not entitled to either treatment plan in dispute because the applicant has not demonstrated that they are reasonable and necessary.

40Since I have determined that the applicant’s impairments fit within the MIG, he is not entitled to the two treatment plans in dispute because they both seek treatment outside of the MIG. However, he is entitled to treatment up to the MIG limit, so it is unnecessary for me to address whether the treatment plans in dispute are reasonable and necessary.

Interest

41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits owing, the applicant is not entitled to interest.

Award

42The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

43The applicant did not make specific submissions with respect to this issue except to state that the respondent is liable to pay an award because it unreasonably withheld or delayed payments to the applicant.

44As I have found that the respondent did not unreasonably withhold or delay payment of any benefit, no award is warranted.

ORDER

45For the reasons outlined above, I find:

i. The applicant’s accident-related injuries are predominantly minor and he is therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to the treatment plans in dispute;

iii. The applicant is not entitled to interest;

iv. The respondent is not required to pay an award; and

v. The application is dismissed.