Abasov v. Peel Mutual Insurance Company, 2025 CanLII 1840

Citation: Abasov v. Peel Mutual Insurance Company, 2025 ONLAT 22-011747/AABS

Licence Appeal Tribunal File Number: 22-011747/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:

Ramiz Abasov

Applicant

and

Peel Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Brett Bell

APPEARANCES:

For the Applicant: Doina Marinescu, Paralegal

For the Respondent: Sonya Katrycz, Counsel

HEARD: By way of written submissions

OVERVIEW

1Ramiz Abasov, the applicant, was involved in an automobile accident on May 12, 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, Peel Mutual 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. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from May 12, 2022 to date?

ii. Is the applicant entitled to $3,749.20 for chiropractic services proposed by Safe Space Rehabilitation Centre in a treatment plan (“plan”) dated June 7, 2022?

iii. Is the applicant entitled to $3,341.12 for chiropractic services proposed by Safe Space Rehabilitation Centre in a plan dated August 16, 2022?

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

RESULT

3I find that:

i. The applicant is not entitled to NEBs for the period of May 12, 2022 to May 12, 2024;

ii. The applicant is entitled to $3,749.20 for chiropractic services proposed by Safe Space Rehabilitation Centre in a treatment plan dated June 7, 2022 and any applicable interest;

iii. The applicant is not entitled to $3,341.12 for chiropractic services proposed by Safe Space Rehabilitation Centre in a treatment plan dated August 16, 2022.

ANALYSIS

Applicant Not Entitled to Non-Earner Benefit

4I find that the applicant has failed to prove, on a balance of probabilities, that he suffers from a complete inability to carry on a normal life as a result of the accident. As a result, he is not entitled to NEBs for the period of May 12, 2022 to May 12, 2024.

5S. 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. S. 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

6“Substantially all” is not defined in the Schedule; however, the phrase has been interpreted by the Tribunal to mean “more than most, a majority, but not all activities:” 16-003195 v. State Farm Insurance Company, 2017 CanLII 99136 (ON LAT).

7It is well established that the test for NEBs is set out in the decision of Heath v. Economical Mutual Insurance Company 2009 ONCA 391 (“Heath”), wherein the Court of Appeal held that the analysis focuses on a comparison of the applicant’s pre- and post-accident activities over a reasonable period of time.

8Heath outlines several principles for the determination of entitlement to NEBs, which include:

i. There must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident;

ii. The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident, and the duration of that period will depend on the facts of the case;

iii. All of the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life;

iv. The applicant must prove that his/her accident-related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities (this means that the disability or incapacity must be uninterrupted);

v. “Engaging in” should be interpreted from a qualitative perspective, such that even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity; and,

vi. If pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can perform those activities.

9Further, the Tribunal has held that an applicant must provide evidence of the frequency and time commitments of the applicant’s pre-accident activities to compare how much less he or she is able to dedicate to the same activity post-accident to discharge his or her burden of proving that he or she is prevented from engaging in “substantially all” of the pre-accident activities in which they were ordinarily engaged: 16-003141 v. Aviva Insurance Canada, 2017 CanLII 46352 (ON LAT).

10The documents submitted by the applicant fail to support his position regarding his entitlement to NEBs. For example, the applicant submitted a Disability Certificate (“OCF-3”) dated May 12, 2022, completed by Dr. Mir-Reza Nabavi, chiropractor, that indicates that he suffers a complete inability to carry on a normal life. The applicant also submitted a Psychological Rehabilitation Screening Report dated July 4, 2022, which the applicant argues underscores the interplay between his physical injuries and psychological state. The report finds that the applicant suffers from depressed mood, anxiety, and stress, manifesting as a loss of interest in previously enjoyed activities, sleep disturbances, and vehicular anxiety.

11While the applicant places significant emphasis on the July 4, 2022 psychological screening report, it fails to offer a clear comparison of his pre- and post-accident activities, as required by Heath.

12There is little in the applicant’s written submissions to corroborate his position that accident-related injuries have left her completely unable to participate in the activities of normal life. The applicant’s medical history is described in detail, primarily focusing on the need for chiropractic services. But the applicant does not direct me to any direct medical evidence necessary to compare the applicant’s pre- and post-accident activities.

13In contrast, I assign substantial weight to the two Insurer Evaluation (“IE”) reports submitted by the respondent. In his April 18, 2023 report, Dr. Alfonse Marchie, physiatrist, noted the applicant’s comments that: “Since the motor vehicle accident, he mentions his daily activities are generally the same.” Dr. Marchie also conducted a physical examination, concluding there was no ongoing objective pathology attributable to the accident, and that the Applicant did not meet the NEB test.

14The respondent also submitted an IE report dated April 3, 2023 from Mr. Stewart Tsuji, occupational therapist. His evaluation found that the applicant continues to perform various tasks at home, run errands and go on walks. Mr. Tsuji concludes that the applicant does not suffer an inability to carry on a normal life.

15With the minimal medical evidence from the applicant I have before me, I find that he has not met his evidentiary burden and has failed to prove, on a balance of probabilities, that he suffers from a complete inability to carry on a normal life because of the accident. Therefore, he is not entitled to NEBs for the period of May 12, 2022 onwards.

Applicant is entitled to the June 7, 2022 treatment plan

16I find that the applicant has demonstrated, on a balance of probabilities, that the treatment plan dated June 7, 2022 for chiropractic services in the amount of $3,749.20 is reasonable and necessary.

17To receive payment for plans under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefits are reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

18This treatment plan completed by Mir-Reza Nabavi, chiropractor, of Safe Space Rehabilitation Centre, and recommends 16 sessions of therapy on multiple body sites, stimulation of muscles of the head and neck, and stimulation of muscles of the back over eight weeks. It also includes a documentation fee. The plan lists sprain and strain of the cervical, thoracic, lumbar spine, and shoulder and sacroiliac joints, lower back pain, tension-type headache and superficial injury of neck. The stated goals of the plan include pain reduction, increase in strength, and increase in range of motion, all to allow the applicant to return to the activities of normal living.

19Further, the applicant has provided corroborating evidence from a qualified medical practitioner that perusing chiropractic treatment was a reasonable approach to treatment. The June 20, 2022 CNR from Dr. Fariz Remtulla, General Practitioner, indicates that Dr. Remtulla was supportive of the applicant receiving chiropractic treatment, which I find validates the initial OCF-18 treatment plan.

20In their submission, the respondent states that “[t]o establish that goods and services are reasonable and necessary, an insured person will need to show that the kinds of goods and services requested will have a rehabilitative purpose, or will, at a minimum, lead to a reduction of pain.” I agree. According to a November 19, 2019 initial consult from Dr. Lew Pliamm, General Practitioner, which took place before the accident in question, Dr. Pliamm noted that previous chiropractic treatment helped decrease the applicant’s pain. This indicates that the applicant had previously responded positively to chiropractic treatment, and it is reasonable to assume he would once again achieve the goal of pain reduction through chiropractic treatment.

21Further, the Tribunal has previously ruled that an applicant must provide evidence that it is reasonable to conclude that a proposed treatment plan would be effective based on previous, similar treatment. In 16-003010 v Aviva Insurance Canada, 2017 CanLII 46346 (ON LAT), the adjudicator denied the treatment plan for chiropractic services because the applicant did not submit evidence indicating “the applicant really benefited from chiropractic treatment in the past or it assisted her with her recovery.” As noted above, that is not the case here.

22Lastly, in reviewing the CNRs from Safe Space Rehabilitation Centre, the applicant repeatedly reports he experienced some pain reduction and generally found the treatment helpful.

23Based on the medical evidence before me, the applicant has demonstrated, on a balance of probabilities, that the June 7, 2022 treatment plan is reasonable and necessary, as required by s. 15 and 16 of the Schedule.

Applicant is not entitled to the August 16, 2022 treatment plan

24I find that the applicant has failed to demonstrate, on a balance of probabilities, that the treatment plan dated August 16, 2022 for chiropractic treatment and massage therapy in the amount of $3,341.12 is reasonable and necessary.

25The burden is on the applicant to show, on a balance of probabilities, that any submitted treatment plan is reasonable and necessary, as required by s. 15 and 16 of the Schedule.

26The August 16, 2022 OCF-18 was not included in the evidence submitted by the applicant, nor were the goals of that plan and the path to achieve them articulated within the applicant’s submission. Accordingly, I cannot evaluate the treatment plan, nor whether plan itself is reasonable and necessary.

27Based on the medical evidence that is before me, the applicant has not demonstrated, on a balance of probabilities, that the applicant is not entitled to the August 16, 2022 treatment plan is reasonable and necessary.

Interest

28If applicable, interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found the applicant entitled to the June 7, 2022 treatment plan, he is entitled to interest on this plan.

ORDER

29I find that:

i. The applicant is not entitled to NEBs for the period of May 12, 2022 to May 12, 2024;

ii. The applicant is entitled to $3,749.20 for chiropractic services proposed by Safe Space Rehabilitation Centre in a treatment plan dated June 7, 2022;

iii. The applicant is not entitled to $3,341.12 for chiropractic services proposed by Safe Space Rehabilitation Centre in a treatment plan dated August 16, 2022; and

iv. The applicant is entitled to applicable interest on the June 7, 2022 treatment plan.