Abuabdo v. Allstate Insurance Company of Canada, 2025 CanLII 23489

Citation: Abuabdo v. Allstate Insurance Company of Canada, 2025 ONLAT 23-007976/AABS

Licence Appeal Tribunal File Number: 23-007976/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:

Fayiz Abuabdo

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Tami Cogan

APPEARANCES:

For the Applicant: Bianca Crocetti, Paralegal

For the Respondent: Simran Walia, Counsel

HEARD: By way of Written Submissions

OVERVIEW

1Fayiz Abuabdo, the applicant, was involved in an automobile accident on April 1, 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.

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? Note: At the time of the case conference, $1,975.00 of the limit had been exhausted.

ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from April 29, 2022, and ongoing?

iii. Is the applicant entitled to $2,210.55 for physiotherapy services, proposed by Mavis Eglinton Physiotherapy, in a treatment plan/OCF-18 dated November 3, 2022?

iv. Is the applicant entitled to $1,602.04 for physiotherapy services, proposed by Mavis Eglinton Physiotherapy, in a treatment plan/OCF-18 dated November 3, 2022?

v. Is the applicant entitled to $2,926.08 for physiotherapy services, proposed by Mavis Eglinton Physiotherapy, in a treatment plan/OCF-18 dated March 28, 2023?

vi. Is the applicant entitled to $2,300.00 for a total body assessment, proposed by Ontario Independent Assessment Centre, in a treatment plan/OCF-18 dated May 19, 2022?

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

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

RESULT

3The 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 limit.

4The applicant is not entitled to a non-earner benefit of $185.00 per week from April 29, 2022, and ongoing.

5The applicant is not entitled to the disputed treatment plans.

6The respondent is not liable to pay an award under s. 10 of Reg. 664.

7The applicant is not entitled to interest.

ANALYSIS

Minor Injury Guideline (“MIG”)

8I 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 MIG limit for the following reasons.

9The 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 s. 3(1) of the Schedule 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.” Under s. 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

10The onus is on the applicant to demonstrate that he sustained an injury that is not included in the minor injury definition or that he has a pre-existing health condition that would preclude him from reaching maximal recovery if subject to the MIG and the $3,500.00 funding limit on treatment.

11It is the applicant’s position that his injuries do not fall within the MIG. He relies on the OCF-3 disability certificate completed by Allya Salayeva, chiropractor, dated April 11, 2022, and the clinical notes and records of his family physician, Dr. Ban Rassam, as well as the records from Alma Rehab and Mavis Physiotherapy.

12I find that the medical notes and records evidence injuries that are defined as minor injuries by the MIG. The notes of the family physician, Dr. Rassam, dated April 10, 2022, 9 days after the accident, indicate that the applicant’s injuries are headaches, flash backs, neck pain, insomnia, right eye twitching, shoulder pain and back pain. The applicant was prescribed 20 Naproxen tablets and 10 Amitriptyline tablets with no repeats on the prescription. Dr. Rassam does not make any referrals or recommendations for treatment. I find the OCF-3 supports soft tissue injuries that are defined as minor injuries by the MIG. I also find that the reference to headache syndrome, nightmares, and anxiety disorder listed on the OCF-3 are outside the scope of practice for a chiropractor. Furthermore, the applicant has not led evidence that corroborates these symptoms or diagnoses on the OCF-3 and therefore I give little weight to the impairments identified in this document.

13Then, on May 4, 2022, the applicant received a prescription renewal from Dr. Rassam for Rosuvastatin which was originally prescribed on January 20, 2022, over three months prior to the accident. I find this prescription is not supportive of a pre-existing condition because there are no medical records to explain the purpose of the prescription.

14The applicant was then seen by Dr. Rassam for an injury unrelated to the accident on May 6, 9, and 11, 2022. I find the evidence shows the applicant was not seen by Dr. Rassam again until January 26, 2023, at which time the applicant reported headache and back pain “after MVA”. Dr. Rassam’s objective finding was “back: unremarkable”, and his diagnosis was mechanical back pain. The applicant was prescribed Tylenol 500mg and Arthrotec 75mg, with no repeats and no treatment recommendations or referrals were made. I find these records support that the applicant’s injuries were predominantly minor and do not fall outside the MIG.

15The applicant submits that the medical evidence supports he suffers from chronic pain and should be taken out of the MIG.

16I find that the applicant has not led sufficient evidence to support that he suffers from chronic pain with functional limitations that would remove him from the MIG. I find that pain alone does not equate to chronic pain and the applicant has not led evidence of a chronic pain diagnosis. Also, a notation on a treatment plan of some physical limitations due to the applicant’s soft tissue injuries does not rise to the level of functional impairment recognized by the Tribunal to warrant removal from the MIG. The treatment plan dated May 19, 2022 completed by Daria Lioubimova, registered nurse, which recommends a physiatry assessment due to pain, is unsupported by the family doctor’s records, and again, the family doctor has not made a diagnosis of chronic pain and has not referred the applicant to any specialist.

17The applicant has not led evidence that he has suffered from a psychological condition that would remove him from the MIG.

18I find that the applicant has not led evidence to support his claim that his accident-related injuries fall outside of the MIG.

19I find the applicant remains subject to the MIG limits because he has not proven on a balance of probabilities that his injuries are not predominantly minor as defined in s. 3 of the Schedule.

20The treatment and assessment plans in dispute propose treatment that falls outside the MIG. Thus, the applicant’s entitlement to them is contingent on a finding that his injuries are not included in the “minor injury” definition.

21I have found that the applicant’s injuries are predominately minor, and treatment is subject to the MIG limits. For this reason, the applicant is not entitled to the treatment and assessment plans in dispute.

22The applicant submits that the treatment plans should be granted because the denials of benefits were merely boiler plate responses that provided the opinion of the adjuster rather than medical reasons.

23I have reviewed the treatment plans and the letters of explanation of benefits (“EOB”) submitted into evidence and I do not agree with the applicant. I find that the additional comments on the attached page of each EOB provide clear reasons for the denial, which include reference to the Insurer’s Examination conducted on October 13, 2022 by Dr. Michael Devlin, and his opinion that the applicant’s injuries are predominately minor as defined by the Schedule, as well as a lack of supporting and compelling medical evidence. For the May 19, 2022 treatment plan denied on June 1, 2022, the respondent clearly identifies s. 47(2) of the Schedule as the reason for not being approved. For these reasons I find the denials were properly articulated.

24I find the applicant has not proven on a balance of probabilities that he is entitled to the treatment plans in dispute.

Non-Earner Benefit (“NEB”)

25I find the applicant is not entitled to NEB for the following reasons.

26Section 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. Section 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.”

27The test for an NEB is set out in the Court of Appeal decision of Heath v. Economical Mutual Insurance Company 2009 ONCA 391 (“Heath”), which generally focuses on a comparison of the applicant’s pre- and post-accident activities.

28The applicant’s position is that he sustained injuries as a result of the accident that have caused him the inability to partake in his hobbies or social life as he did before the accident.

29I find the applicant has not led sufficient evidence of any impairment in his activities of daily living, nor has he provided evidence of his pre- or post-accident activities upon which a comparison can be made in accordance with the principles from Heath. I do note that the treatment plans in dispute check-the-box that his injuries affect his ability to carry out his activities of normal life, and list physical limitations. However, I find that there are no explanations as to which activities of normal life are adversely affected or to what degree that would allow me to conduct an analysis into whether he suffered a complete inability to carry on a normal life as a result of the accident.

30I find that it is not enough to make an assertion for entitlement. The applicant bears the onus of proof to demonstrate entitlement to the NEB.

31I find the applicant has not proven on a balance of probabilities that he is entitled to the NEB.

Interest

32As there is no overdue payment of benefits, the applicant is not entitled to interest pursuant to section 51 of the Schedule.

Award

33The respondent is not liable to pay an award under s. 10 of Regulation 664.

34Under s. 10 of Regulation 664, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. An award should be proportionate and considerate of the blameworthiness of the insurer, the vulnerability of the insured and the advantage wrongfully gained by the insurer from its misconduct. The Tribunal has found unreasonable behaviour by an insurer to be behaviour that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

35The applicant submits an award is owing pursuant to s.10 of Regulation 664 because the respondent denied the applicant’s benefits and did not follow the requirements of the Schedule.

36I have reviewed the letters of explanation for the denial of benefits. I find that, based on the medical information provided to the respondent, all medical and other reasons for the denials were provided in accordance with the Schedule.

37The applicant has not met the burden of proof to support the respondent has acted in a manner meriting an award. No award is payable.

ORDER

38For the reasons above, I find:

i. The applicant’s injuries remain subject to the MIG limits.

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

iii. The applicant is not entitled to an NEB.

iv. The applicant is not entitled to a s.10 award.

v. No interest is payable.

vi. The application is dismissed.