Licence Appeal Tribunal File Number: 24-004385/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:
Karim Sindy
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
VICE-CHAIR: Robert Maich
APPEARANCES:
For the Applicant: Nidhi Vinayak, Counsel
For the Respondent: Victoria C Little, Counsel
HEARD: In Writing
OVERVIEW
1Karin Sindy, the applicant, was involved in an automobile accident on December 24, 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.
2The accident of December 24, 2022 occurred on Highway 8 near County Road 140 in West Perth, Ontario. The vehicles involved were travelling eastbound on a closed highway. The applicant’s vehicle slowed due to poor visibility conditions and was struck by the vehicle following behind it. The applicant was taken to Stratford General Hospital where he was treated and released the same day.
ISSUES
3The 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 an income replacement benefit in the amount of $400.00 per week from January 1, 2023 to date and ongoing?
iii. Is the applicant entitled to $2,787.95 for an attendant care assessment, proposed by Tobias Chung and Adriana Dragoi in a treatment plan/OCF-18 (“plan”) dated November 22, 2023?
iv. Is the applicant entitled to $2,881.50 for a chronic pain assessment, proposed by Javeria Wadood, Mark Friedlander and Meditecs HM IME in a plan dated November 22, 2023?
v. Is the applicant entitled to $4,011.50 for a psychological assessment, proposed by Tobias Chung, Leon Steiner and Meditecs HM IME in a plan dated November 22, 2023?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find the applicant’s injuries are 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.
5I find the applicant is not entitled to an income replacement benefit in the amount of $400.00 per week from January 1, 2023 to date and ongoing.
6I find the treatment plan denial letters pertaining to the treatment plans described in paragraphs 3 iii, iv and v to be non-compliant with the notice provisions of s. 38 of the Schedule. Accordingly, these treatment plans are payable pursuant to s. 38(11) of the Schedule.
7I find that the respondent is not liable to pay an award under s. 10 of Reg. 664.
8I find that the applicant is entitled to interest on the overdue payment of benefits for the treatment plans in dispute.
PROCEDURAL ISSUES
9The respondent served and filed supplemental written submissions and supplemental document brief both dated June 4, 2025, two days before the written hearing date of June 6, 2025. The respondent’s submissions evidence and authorities were due 14 days prior to the hearing date as required by the case conference report and order of August 29, 2024 and released September 19, 2024; orders are effective the date of the case conference I note the supplemental materials were submitted prior to the commencement of proceedings.
10I find the respondent’s supplemental written submissions and supplemental document brief both dated June 4, 2025 to be late filed and properly subject to analysis by the Tribunal pursuant to Rule 9.3 of the Licence Appeal Tribunal Rules, 2023 (“Rules”).
11The respondent in its supplementary materials seeks to file its denial letter of May 30, 2025 providing notice to the applicant that the insurer is awaiting a s. 44 insurer examination report. The denial letter of May 30, 2025 also provides the reasons for the insurer’s denial of the treatment plans described at paragraphs 3 iii, iv and v above. The insurer’s medical reasons for the denials of the treatment plans relied upon the applicant’s physician’s notes that were known to the respondent for at least 7 to 8 months, as the case conference report and order of August 29, 2024 required its disclosure within 75 days. There is no evidence that the physician clinical notes and records were delivered outside the ordered date of disclosure. I find the respondent had the applicant’s physician’s clinical notes and records it relied upon for the denial of May 30, 2025 within its knowledge since at least October 17, 2024.
12I find the respondent’s assertion it is awaiting s. 44 assessor reports referred to in its letter of May 30, 2025 is not helpful to the issue of the reason for the non-compliance with hearing material productions, since the accident occurred December 24, 2022, the subject treatment plans were submitted to the insurer November 22, 2023, and the insurer had the medical reasons described in the denial letter of May 30, 2025 within its knowledge since at least October 17, 2024.
13I find the insurer’s decision to seek its own s. 44 medical assessments at a later date, is not a reason to admit late filed materials as the substantive medical reasons for the denial were known to the respondent at least 7 to 8 months prior to the hearing. Nor did the respondent disclose whether it sought the s. 44 medical assessment within the time frame given for responding material in the case conference order of August 29, 2024.
14I note that the respondent did not seek to admit a fresh medical report on the eve of the hearing, rather it sought to admit a denial letter issued 4 days before the hearing pertaining to medical reasons known to the insurer for 7 to 8 months prior to the hearing. I make no finding whether the denial letter of May 30, 2025 cures any potential defect of the December 2023 denial letters responding to the subject treatment plans, as it is not a question properly put before the Tribunal in this hearing.
15I find it would be prejudicial to the applicant and be a violation of procedural fairness to consider the denial letter of May 30, 2025 as the applicant would have no opportunity to tailor its submissions and address whether a potential defect of the prior denial letters dated December 6, 2023 are addressed by the May 30, 2025 denial letter.
ANALYSIS
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?
16I find applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.
17The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
18The onus is on the applicant to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.
19The applicant submitted the MIG is specifically designed to address injuries that are deemed minor, such as minor sprains or strains, which are usually expected to heal within a short time frame with minimal long-term impact. The applicant submits its medical evidence indicates that injuries are more severe and persistent including ongoing symptoms and the necessity of extensive physical therapy. Further the applicant submits the MIG is not applicable in cases where the injury causes a substantial and enduring impact on a person’s life, in the applicant's case. I note that the applicant did not direct the Tribunal to any medical evidence to support this assertion.
20The applicant also submitted that the insurer denial letters dated December 6, 2022 addressing treatment plans outlined in para. 3 iii, iv and v, are defective by omission of any medical reasons disclosed. Further, the applicant submitted that this omission has the statutory effect of removing the applicant from the MIG by operation of s. 38(8) and (11) of the Schedule.
21The respondent submitted that it is the applicant’s burden to prove his injuries are outside the MIG and the applicant has not provided any medical evidence to support removal from the MIG. The respondent submitted the Stratford General Hospital records confirm a diagnosis of soft tissue injuries to his back at p.125 of the Applicant’s Document Brief (“ADB”) and imaging of the lumbar spine notes “there is normal alignment. No fractures identified” at p.132 of the ADB. Further the respondent submitted the applicant’s physician’s notes of December 29, 2022 at p.168 of the ADB, indicated reported symptoms at that time as: “1. Left shoulder pain; 2. Tailbone pain; 3. Lumbar pain and mid bone; 4. Generalized MSK pain.”; and there are no further entries of accident-related attendances or complaints.
22The respondent submitted that applicant’s interpretation of s. 38(11) is incorrect. The respondent relies upon Chehab v TD General Insurance Company, 2024 CanLII 121083 (ONLAT) at para. [12]:
“The MIG determination and any issue regarding the possible improper denial notices are two separate matters. Each requires its own analysis.”
23I find the respondent’s submissions to be persuasive, the applicant has not presented any medical evidence to warrant his removal from the MIG. Nor has the applicant made submissions on his accident-related impairments/the grounds for removal from the MIG/ the medical evidence.
24Further, I find the operation of s. 38(11) does not remove the automatically remove the applicant from the MIG. I agree with the reasoning in Chehab v TD that the consequences of s. 38(11) mean that an insurer cannot use the MIG as a position for denying an improperly denied treatment plan; it does not mean that the applicant is removed from the MIG.
Is the applicant entitled to the treatment plans detailed at para. 3 iii, iv and v?
25I find the applicant is entitled to the treatment plans detailed at para. 3 iii, iv and v.
26The consequences of failure to provide a denial notice in accordance with s. 38(8) of the Schedule triggers the s. 38(11) requirement to pay for all goods, services and assessment described in the specified treatment plan and an effective prohibition of the insurer from taking the position the MIG applies to the specified treatment plan.
27I find the applicant incorrectly interpreted the provisions of s.38(11) to remove the applicant from the MIG entirely for a denial notice that does not comply with s. 38(8), and the respondent correctly interpreted s. 38(11) to apply to each specific denial notice as discussed above. This interpretation of s. 38(8) and s. 38(11) is well established law set out in the Divisional Court decision Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707.
28I find the denial notices of December 6, 2022 responding to the treatment plans described in para. 3 iii, iv and v, to each be non-compliant with s. 38(8) for absence of any medical reasons for the denial; the only explanation given in each denial was: “not reasonable or necessary”. I find that as of the close of submissions for this hearing on May 29, 2025 the respondent did not cure the above described defective denial notices.
29I find the applicant to be entitled to payment of the treatment plans as outlined at para. 3 iii, iv and v pursuant to s. 38(11) of the Schedule
Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from January 1, 2023 to date and ongoing?
30I find the applicant is not entitled to an income replacement benefit in the amount of $400.00 per week from January 1, 2023 to date and ongoing.
31The applicant acknowledges in his submissions that he experienced considerable difficulty in gathering the required documents in the times outlined. The applicant submitted that the delay was not due to lack of effort or intent but from the numerous sources to gather the information and his personal circumstances impacting his ability to respond promptly. Further the applicant submitted that he now has the required documents for IRB calculations and requests his file be reopened to the nature of his injuries.
32The respondent submitted that the applicant is not entitled to IRB as he is non-compliant with the requests made pursuant to s. 33 of the Schedule as well as the case conference report and order of September 19, 2024 detailing the production obligation at para. 9.
33The respondent submitted that s. 33(1)1 of the Schedule requires the applicant to respond to a request for information from an insurer in respect to a benefit within 10 business days. If the applicant fails to do so the insurer is not liable to pay the benefit by operation of s. 33(6) of the Schedule.
34The respondent summarizes the relevant events as follows: the applicant submitted an OCF-2 dated January 12, 2023 in which he indicated
that at the time of the accident, he was employed by a family member at
Queen Shawarma and Kabab. In response, the respondent issued an explanation of benefits dated March 1, 2023 advising that given the familial relationship between the applicant and his employer, additional information was required to clarify his employment status and that an accounting firm had been retained to assist. On March 2, 2023, Davis Martindale LLP wrote the applicant setting out a list of 8 items they required to be able to determine potential entitlement to IRB and followed up again on July 11, 2023 and August 11, 2023 without response. The respondent issued a further explanation of benefits dated September 17, 2023 making another request for financial documentation pursuant to s. 33. On December 3, 2024, the applicant was served with an updated report from Davis, Martindale dated December 2, 2024 concluding that the applicant’s potential entitlement to IRB could not be calculated due to insufficient documentation and again requested documentation.
35The respondent further submitted that despite the efforts to determine quantum, the applicant has not provided any evidence to suggest he meets the eligibility test for ongoing IRB as set out in sections 5 and 6 of the Schedule. The respondent also submitted that since more than 104 weeks had past since the accident, the applicant will only be entitled to ongoing IRB if he can demonstrate that he suffers a “complete inability to engage in any employment or self-employment for which he is reasonably suited by his education, training or experience”, pursuant to s. 6(2)(b) of the Schedule. However, the applicant had returned to work, as evidenced in an OCF-3 dated November 22, 2023.
36I find the applicant did not discharge his burden of proof to demonstrate entitlement to IRB and the applicant presented no medical evidence to support an entitlement to IRB.
Interest
37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies to the treatment plans detailed in para 3 iii., iv., and v of this decision.
Award
38The 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.
39The applicant submitted that the respondent's actions in delaying or withholding payments were unjustified, causing unnecessary financial hardship to the applicant. The insurer is expected to handle claims in good faith and provide timely compensation when benefits are due. By failing to do so, the respondent has not only breached its statutory duty but has also acted contrary to the consumer protection principles underlying Ontario’s accident benefits scheme.
40The respondent submitted that an award should not be ordered simply because the insurer made an incorrect decision. In order to attract a s. 10 award, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate, based on a fact specific analysis The respondent relies upon S.K. vs. Aviva Insurance Canada, 2020 CanLII 94803 (ONLAT) for the insurer not to be held to a standard of perfection, but of reasonableness. Further the respondent submitted that the insurer adjusted the applicant’s file to the best of its ability and the applicant introduced no evidence that the insurer’s conduct came within the realm of a s. 10 award.
41I find the respondent’s submissions to be persuasive. The applicant did not provide the Tribunal with any evidence that the insurer’s conduct was “excessive, imprudent, stubborn, inflexible, unyielding or immoderate”. I find the applicant did not meet his onus to establish a course of conduct by the insurer that would justify a s. 10 award.
ORDER
42The Tribunal orders as follows:
i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.
ii. The applicant is not entitled to an income replacement benefit in the amount of $400.00 per week from January 1, 2023 to date and ongoing.
iii. The applicant is entitled to $2,787.95 for an attendant care assessment, proposed in a treatment plan dated November 22, 2023.
iv. The applicant is entitled to $2,881.50 for a chronic pain assessment, proposed in a treatment plan dated November 22, 2023.
v. The applicant is entitled to $4,011.50 for a psychological assessment, proposed in a treatment plan dated November 22, 2023.
vi. The respondent is not liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant.
vii. The applicant entitled to interest on the overdue payment of benefits for items iii, iv and v above.
Released: December 29, 2025
Robert Maich
Vice-Chair