Citation: Foster-Francois v. Allstate Insurance Company of Canada, 2026 ONLAT 24-012192/AABS

Licence Appeal Tribunal File Number: 24-012192/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:

Mariana Foster-Francois

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Amanda Marshall

APPEARANCES:

For the Applicant:

Jeremy Magence, Counsel

For the Respondent:

Karina Dziuba, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Mariana Foster-Francois, the applicant, was involved in an automobile accident on August 16, 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 the treatment plans in dispute by the respondent, Allstate Insurance Company of Canada, because the respondent determined that her accident-related impairments fell under the Minor Injury Guideline (“MIG”). The applicant disagreed 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 MIG limit? Note: The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to $2,656.96 for physiotherapy services, proposed by Pro Life Wellness Center Inc. (“Pro Life”) in a treatment plan/OCF-18 (“plan”) dated January 20, 2023?

iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Pro Life in a treatment plan dated January 27, 2023?

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

RESULT

3The applicant’s injuries are minor and subject to treatment within the $3,500.00 MIG limit. She is not entitled to the treatment plans in dispute, or interest.

ANALYSIS

Applicability of the Minor Injury Guideline

4I find that the applicant has not demonstrated on a balance of probabilities that she suffers from accident-related injuries that warrants removal from the MIG.

5Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are capped at $3,500.00 if the insured person sustains impairments that are predominantly a minor injury 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.”

6In order to be removed from the MIG, an insured person must 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 supported by compelling medical evidence stating that the condition precludes recovery if they are kept within the MIG limits. The Tribunal has also determined that concussion or concussion syndrome, chronic pain with functional impairment, or a psychological condition may be grounds for removal from the MIG. In all cases, the burden of proof lies with the applicant.

7The applicant argues that she should be removed from the MIG based on the following:

i. A pre-existing psychological condition;

ii. A pre-existing condition, that of her age, which impacts her ability to heal, if kept within the MIG; and

iii. A psychological impairment directly related to the accident.

8She relies on the clinical notes and records (“CNRs”) of her family doctor, Dr. Hoda Rizkalla, the Disability Certificate (OCF-3) of Dr. Stacey Nolan of Pro Life along with the CNRs from the clinic, and the treatment plan for a psychological assessment with an attached report by psychologist, Dr. Konstantinos Papazoglou.

9The respondent contends that there is no evidence of a documented pre-existing psychological condition that would preclude recovery within the MIG limit, nor is there evidence that the applicant suffered a psychological impairment as a result of the accident.

Pre-existing condition

10I find that the applicant does not have a pre-existing condition that would preclude recovery if kept within the MIG limits.

11A pre-existing condition will not automatically exclude a person’s impairment from the MIG. Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. To do so, the applicant must provide compelling evidence meeting the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500.00 on treatment costs under the MIG.

Pre-existing psychological condition

12I find that the medical evidence relied upon by the applicant does not satisfy her onus to establish the existence of a pre‑existing psychological condition warranting removal from the MIG.

13The applicant submits that she had a pre‑accident history of anxiety, which she argues is relevant to Dr. Papazoglou’s post‑accident diagnosis of Adjustment Disorder with mixed anxiety and depressed mood.

14A review of the family physician’s records pre-accident shows on December 29, 2021, the applicant reported feeling nervous when checking her blood pressure at home. On January 19, 2022, the records reference a long-standing history of white‑coat syndrome related to her blood pressure.

15I find that Dr. Papazoglou’s pre‑screening report contradicts the applicant’s position that she has a pre-existing psychological condition. His report notes that the applicant did not have a history of cognitive difficulties, anxiety, or other mental health issues. As a result of this internal inconsistency of the applicant’s evidence, I place reduced weight on her assertion that she had a pre-existing psychological condition.

16Based on the totality of the evidence, I find that the applicant has not established that she has a pre‑existing psychological condition that would justify removal from the MIG.

The applicant’s age

17I find that the applicant’s age is not a pre‑existing condition that warrants removal from the MIG.

18The applicant submits that, at 68 years old at the time of the accident, her recovery would be prolonged if kept within the MIG. She relies on Syrovy v. Aviva Insurance Company, 2021 CanLII 2051 (ON LAT), where the adjudicator approved a physiotherapy treatment plan under s. 38(8), and, in the alternative, on the basis of the applicant’s age, duration of symptoms, and ongoing documented pain.

19Having reviewed the applicant’s medical records and the case provided, I make the following findings:

i. A pre‑existing condition must be a documented medical impairment identified by a health practitioner prior to the accident that would limit maximal recovery if the applicant remained within the MIG. Although the medical records reference the applicant’s age, no healthcare provider has indicated that her age has affected, or would affect, her recovery if she is kept within the MIG. On the contrary, progress reports from Pro Life show that she was responding to treatment and improving.

ii. Second, the circumstances in Syrovy v. Aviva are distinguishable. Mr. Syrovy was not being treated within the MIG, and the decision provides no information about his injuries, his age at the time of the accident, or his age when seeking entitlement to the physiotherapy treatment plan.

iii. Third, as an adjudicator, I am not bound by previous LAT decisions.

20Accordingly, I find that the applicant’s position, that her age constitutes a pre‑existing condition impacting her ability to heal, is not supported by the medical evidence. Therefore, I do not find that she should be removed from the MIG due to her age.

Psychological impairment

21I find that the applicant has not demonstrated on a balance of probabilities that she has an accident-related psychological impairment to warrant removal from the MIG.

22To be removed from the MIG due to psychological impairments, the applicant must show that she has a psychological impairment and not just post-accident psychological sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.

23The applicant relies on her family doctor’s records noting stress related to the accident and flashbacks affecting her sleep. She also refers to Dr. Papazoglou’s psychological pre-screening report, which diagnoses an adjustment disorder with mixed anxiety and depressed mood attributed to the accident.

24The evidence does not establish that the applicant has a psychological condition warranting removal from the MIG. The applicant first saw her family doctor post‑accident on August 17, 2022, and was diagnosed with WAD II injuries. No psychological concerns were noted. Throughout the remainder of 2022 and into 2023, she attended multiple appointments with her doctor for issues unrelated to the accident. An accident-related entry on December 13, 2022, mentions intermittent neck pain but no psychological complaints. The first notation referencing that the applicant is concerned about feeling stressed and emotional since the accident with flashbacks which are affecting her sleep, appears on April 1, 2023, without further comment, assessment, or referral from her physician.

25I assign limited weight to Dr. Papazoglou’s psychological pre‑screening report. There is no indication that he reviewed the applicant’s medical records, and the information obtained was gathered solely by telephone with no reference to the duration of the interview. The report is based entirely on the applicant’s self‑reporting, with no objective testing performed.

26Further, the applicant has not provided any corroborating psychological evidence from a regulated health care professional who reviewed her medical history. The absence of contemporaneous psychological complaints in the family doctor’s records, combined with the lack of any referral for psychological treatment, undermines the reliability of the post‑accident psychological diagnosis relied upon. In the absence of objective or clinically supported findings demonstrating a sustained psychological impairment, the applicant has not met the evidentiary threshold required for her removal from the MIG.

27Considering the totality of the evidence, I find that the applicant has not established on a balance of probabilities that she suffers from a psychological impairment that would prevent maximal recovery under the MIG. The medical records do not document a pre‑existing or accident‑related psychological condition warranting removal from the MIG, and the psychological opinion submitted lacks sufficient clinical foundation. Accordingly, the applicant remains within the MIG.

28As I have found the applicant is in the MIG, it is not necessary to consider if the treatment plans are reasonable and necessary.

Interest

29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is payable.

ORDER

30For the above reasons, I find:

i. The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. Therefore, she is subject to the treatment limits of the MIG.

ii. As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans are reasonable and necessary.

iii. The applicant is not entitled to interest.