Tabvuma v. Allstate Insurance Company of Canada, 2025 CanLII 25866

Citation: Tabvuma v. Allstate Insurance Company of Canada, 2025 ONLAT 23-009259/AABS

Licence Appeal Tribunal File Number: 23-009259/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:

Donald Tabvuma Applicant

and

Allstate Insurance Company of Canada Respondent

DECISION

ADJUDICATOR: Roderick Walker

APPEARANCES:

For the Applicant: Nicholas Whelan, Paralegal

For the Respondent: Loretta De Thomasis, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Donald Tabvuma, the applicant, was involved in an automobile accident on August 14, 2021, 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?

ii. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments in a treatment plan/OCF-18 dated November 22, 2021, and submitted November 29, 2021?

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

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

RESULT

3I find that the applicant has not suffered from an accident-related psychological or a physical impairment which would remove him from the MIG. There is no entitlement to interest or an award.

ANALYSIS

4Section 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) 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.”

5An 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), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant. The parties agree the MIG limits have not been exhausted, as there is $196.42 remaining in the MIG.

Does the applicant suffer from a physical impairment that would remove him from the MIG?

6I find the applicant relies on an OCF-3 and an OCF-18 which provides evidence of physical impairments identified as whiplash, neck pain and musculoskeletal signs, sprain and strain of shoulder joint, sprain and distrain of thoracic spine, sprain and strain of lumbar spine and headaches. However, this does not address the applicant’s position that he sustained a psychological impairment warranting an assessment that justifies removal from the MIG. I will address the OCF-3 and OCF-18 in my analysis below.

Does the applicant suffer from a psychological impairment which would remove him from the MIG?

7I find that the applicant does not suffer from an accident-related psychological impairment which would remove him from the MIG.

8The applicant submits an OCF-3 disability certificate prepared by Karen Peronilla, Physiotherapist at Roule Valley Sports Injury and Wellness. The applicant also submitted various treatment and assessment plans prepared by Dr. Konstantinos Papazoglou, Psychologist, dated November 22, 2021, that noted that the applicant suffered from the same whiplash, neck pain and musculoskeletal signs, sprain and strain of shoulder joint, sprain and distrain of thoracic spine, sprain and strain of lumbar spine and headaches. Moreover, I find that the applicant’s pain is of a physical nature and there is no evidence of any psychological injuries in the OCF-18.

9I find that the applicant’s medical records confirm he consulted with his family doctor, Dr. Elliott Cantor, only once after the accident, via a telephone consult on August 19, 2021. The applicant reported neck and back pain, as well as headaches. Dr. Cantor assessed him with a whiplash injury as a result of the accident in an over the phone consultation. I find that there is no indication the applicant ever attended personally at his office nor any indication he ever saw Dr. Cantor again post-accident, whether in person or by phone. As such, there are no reports in the contemporaneous records of Dr. Cantor with respect to any psychological or emotional complaints. I find that there is no compelling evidence which supports that he suffers from an accident-related psychological impairment.

10The applicant has not met his onus in proving on a balance of probabilities that he suffers from a psychological impairment because of the accident that would remove him from the MIG.

11For the above reasons, I find that the applicant has not demonstrated that he sustained impairments that are not captured by the definition of a minor injury under the Schedule. Therefore, he is not entitled to the disputed treatment plan or interest. The applicant is entitled to the remaining amount in the MIG for continuing treatment.

Was there a clear denial made under section 38(8) of the Schedule?

12The applicant submits that there was no clear denial of benefits under section 38(8) of the Schedule and suggests that the denial notice is not clear and there are no options given to the applicant as to the reasons why he was denied benefits. The applicant submits that not only is the treatment and assessment plan reasonable and necessary based on the injuries of the applicant, but the denial is flawed and as such the treatment plan is payable because to the respondent cannot take the position that the MIG applies. The applicant relies on the case in J.P vs. Royal Sun Alliance, J.P. vs. Royal Sun Alliance Insurance (RSA), 2020 CanLII 12753 (ON LAT)

13The respondent submits that there was a clear denial of benefits. An explanation of Benefits (“EOB”) was dated December 6, 2021, indicating that the respondent is unable to approve the above request for a psychological assessment at this time. The letter states:

Upon review of your accident benefits file along with the medical documentation we have received on file to date, there is no compelling evidence to support that you suffer from a psychological impairment because of the accident of August 14, 2021. At this time, we are requesting that Assessment Centre provide us with a copy of the diagnostic reports including, but not limited to, one (1) year pre accident clinical notes and records of your family physician, copies of specialist’s reports and any other information relied upon to determine that you have sustained a psychological impairment as a result of the motor vehicle accident. In addition, we have no compelling evidence of any pre-existing psychological issues documented by your family physician to support that you suffer from a psychological impairment that would prevent you from achieving maximum medical recovery within the MIG.

14I find that the EOB dated December 6, 2021, complies with s. 38(8). I find the EOB lists the documentation reviewed in support of its decision, as well as what information it requires from the applicant. Further, the EOB and reasons for denial include clear and sufficient reasons to allow the applicant to make an informed decision to either accept or dispute the denial. The EOB indicates the records of the applicant’s family doctor were reviewed and did not indicate any psychological issues and invited the applicant to provide additional information.

Interest

15No interest is payable because no treatment plans are payable.

Award

16The applicant is not entitled to an award because there was no unreasonable delay as there are no overdue payments.

ORDER

17On the totality of the evidence given, I find:

i. The applicant remains in the MIG. The applicant is entitled to $196.42, the amount remaining in the MIG.

ii. No interest is awarded.

iii. No award is granted.

iv. The application is dismissed.