Citation: Tabvuma v. Allstate Insurance, 2025 ONLAT 23-009275/AABS
Licence Appeal Tribunal File Number: 23-009275/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:
Tsitsi Tabvuma
Applicant
and
Allstate Insurance
Respondent
DECISION
ADJUDICATOR: Matthew Frontini
APPEARANCES:
For the Applicant: Nicholas Whelan, Paralegal
For the Respondent: Loretta De Thomasis, Counsel
HEARD: By way of written submissions
OVERVIEW
1Tsitsi 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, 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 an income replacement benefit in the amount of $400.00 per week from August 21, 2021, to November 14, 2021?
ii. Is the applicant entitled to $2,460.00 for a neurological assessment, proposed by 101 Assessments in an OCF-18/treatment plan (“treatment plan”) dated February 24, 2022?
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 established entitlement to any of the disputed benefits, an award, or interest.
ANALYSIS
The applicant is not entitled to an Income Replacement Benefit (IRB)
4The applicant has not established that she is entitled to an income replacement benefit for the period of August 21, 2021, to November 14, 2021. The applicant did not comply with the procedural requirements of the Schedule necessary to be eligible for an IRB for this period.
5To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. This is the test IRB entitlement. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test for an IRB.
6Even if an applicant meets the IRB Test, they must also have complied with procedural requirements of the Schedule to claim these benefits. Section 36(2) of the Schedule requires an applicant to submit a completed disability certificate (an “OCF-3”) together with their application for a specified benefit, such as an IRB to the insurer. Section 36(3) provides that an applicant is not entitled to a specified benefit for any period before the OFC-3 was submitted to the insurer.
7In this case, while the applicant’s OCF-3 was dated September 16, 2021, it was not until November 19, 2021, that it was submitted to the respondent by Paul Trentadue of Rouge Valley Physiotherapy. In subsequent correspondence, Mr. Trentadue advised the respondent that the OCF-3 was assumed to have been submitted earlier and that this mistaken assumption was the result of a clerical error by Rouge Valley Physiotherapy.
8Regardless of the reason, I find that the uncontested evidence is that the OCF-3 was not submitted to the Respondent until November 19, 2021. This submission date is after the period for which the applicant is seeking entitlement to an IRB, namely, August 21, 2021, to November 14, 2021. Accordingly, pursuant to the section 36(3), the applicant is not eligible for an IRB for the period sought before the OCF-3 was submitted.
9Given this threshold finding on the applicant’s lack of eligibility for an IRB for the period sought, I do not need to address the parties’ submissions on whether the applicant meets the pre-104 IRB test for the requisite level of disability or on the deductibility of EI benefits from the applicant’s gross income as it relates to the calculation of the quantum of an IRB.
The applicant is not entitled to $2,460.00 for a neurological assessment, proposed by 101 Assessments in a plan dated February 24, 2022
10I find that the applicant has not established on a balance of probabilities that she is entitled to the disputed treatment plan for a neurological assessment.
11To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. In considering the reasonableness and necessity of treatment plans for assessments, the Tribunal has consistently held that the test is not whether the person has a condition, but whether there is enough evidence to support that an investigation into the condition is warranted.
12The applicant relies on the disputed treatment plan itself and the clinical notes and records of her family doctor Dr. Eilliot Cantor, in support of the reasonableness and necessity of the disputed treatment plan. In particular, the applicant’s submissions focus on headaches and a sensation of pain that moves from her ear to her forehead causing her to feel like she is moving forward while stopped.
13I have reviewed the evidence relied upon by the applicant and find that it does not establish on a balance of probabilities that an investigation into the condition is warranted. Most of Dr. Cantor’s notes refer to muscular complaints. On April 19, 2022, Dr. Cantor even notes that the applicant’s “symptoms seem muscular.” The headaches and sensation that the applicant’s submissions focus on were reported on November 15, 2021. The applicant reported that the sensation of moving “[n]ever happened before” and the applicant did not report this sensation again.
14Other than the disputed treatment plan itself, the applicant has not identified any evidence where any medical practitioner has suggested that a neurological investigation is warranted. Based on the applicant’s submissions and the evidence before me, I find that the applicant has not established on a balance of probabilities that she is entitled to the disputed treatment plan for a neurological assessment.
Interest
15As I have found that the applicant is not entitled to an IRB or the disputed treatment plan, she is not entitled to interest in respect of either the IRB or the disputed treatment plan.
Award
16I find that the applicant has not established that she is entitled to an award.
17The 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.
18The applicant’s written submissions do not point to any specific facts or make any specific arguments as to why an award is warranted in this application. Furthermore, I have found that the applicant is not entitled to any of the disputed benefits. I find that the applicant has not established that she is entitled to an award.
ORDER
19I find that:
i. The applicant is not entitled to an income replacement benefit in the amount of $400.00 per week from August 21, 2021, to November 14, 2021;
ii. The applicant is not entitled to $2,460.00 for a neurological assessment, proposed by 101 Assessments in a plan dated February 24, 2022;
iii. 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;
iv. The applicant is not entitled to interest on any overdue payment of benefits; and
v. This application is dismissed.
Released: April 9, 2025
Matthew Frontini
Adjudicator