Elfatih v. Allstate Insurance Company of Canada, 2025 CanLII 42701

Elfatih v. Allstate Insurance Company of Canada, 2025 CanLII 42701

Citation: Elfatih v. Allstate Insurance Company of Canada, 2025 ONLAT 23-007887/AABS

Licence Appeal Tribunal File Number: 23-007887/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:

Osman Elfatih

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Nidhi Vinayak, Counsel

For the Respondent:

Andrew Rodrigues, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Osman Elfatih, (the “applicant”), was involved in an automobile accident on December 26, 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 Allstate Insurance Company of Canada (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from January 26, 2023, to date and ongoing?
2. 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?
3. Is the applicant entitled to $2,522.60 for physiotherapy services, proposed by Mavis Eglinton Physiotherapy in a treatment plan/OCF-18 (“OCF-18”) submitted on May 2, 2023, and denied on May 3, 2023?
4. Is the applicant entitled to a repayment of $85.00 relating to his payment of a completion of a Minor Injury Treatment Discharge Report (“OCF-24”), submitted on March 7, 2023 and denied on March 10, 2023?
5. Is the applicant entitled to interest on any overdue payment of benefits?
6. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3I find that:

i. The applicant is not entitled to NEBs, nor interest. ii. The applicant’s accident-related injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG. iii. The applicant is not entitled to the OCF-18 in dispute nor interest. iv. The applicant is not entitled to a repayment in the amount of $85.00 for the completion of an OCF-24 form. v. The respondent is not liable to pay an award. vi. The application is dismissed.

ANALYSIS

NEB

4I find that the applicant has not satisfied his onus to prove that he suffers from a complete inability to carry on a normal life.

5Section 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.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 at para. 50, which focuses on a comparison of the applicant’s pre-and post-accident activities.

6The applicant argues that the impairments to his neck, shoulders, back, gluteal muscles, hamstrings, spinal vertebrae, and rotator cuff caused instability and restrictions with sitting, bending, and driving. He further relies upon his Application for Accident Benefits (“OCF-1”) to establish that he was attending school at the time of the accident at Metro College and that his injuries prevented him from working following the accident.

7The respondent argues that the applicant is not entitled to NEB because he advised s. 44 assessors, Dr. Ato Sekyi Otu, orthopaedic surgeon, and Dr. Jason Bacchiochi, psychologist, that he had no changes to his driving abilities following the accident, no issues with his personal care tasks, and returned to employment and schooling.

8The applicant has not provided submissions of his pre-accident activities of daily living, or more crucially, demonstrated how his engagement in these activities has changed as a result of the accident. Moreover, in his submissions, the applicant did not identify the activities he values or provide evidence of the frequency and time commitments of his pre-accident activities as required by Heath. In the absence of this information, it is difficult to compare his pre- and post-accident capabilities with respect to the activities he ordinarily engaged in or valued. This alone makes it challenging for the applicant to meet his burden of proof.

9I find that the OCF-1 holds little evidentiary value when assessing the applicant’s entitlement to NEB because it does not establish that the applicant was continuously prevented from completing his schooling and employment tasks. Rather, the OCF-1 indicates that the applicant was attending Metro College at the time of the accident, but there was no indication of whether he was continuously prevented from completing his schooling tasks as a result of his accident-related impairments. Likewise, the OCF-1 shows that the applicant missed time from work from December 27, 2022 to January 2, 2023. Even if I were to accept that the applicant missing a total of seven days of work met the NEB test, s. 12(3)(a) is clear that the insurer is not required to pay NEB for the first four weeks following the accident.

10The evidence shows that following the accident, the applicant has returned to the majority of his daily activities including his full and part time job, schooling, and personal care tasks. Indeed, the applicant reported to Dr. Sekyi-Otu on June 7, 2023, that following the accident he returned to both his full time and part time jobs, as well as schooling, and had no issues with his personal care tasks. In a similar vein, on September 18, 2023, the applicant reported to Dr. Bacchiochi that following the accident he returned to both of his occupations, and schooling, and that his pain did not prevent him from doing any specific activities. The applicant reported no limitations with driving to Dr. Bacchiochi and instead noted that both his occupations were delivery related, therefore driving was required.

11The applicant reported to his family physician, Dr. FV Akinsete on January 3, 2023, that he had slight pain when driving for some distance and after sitting for a while. The applicant also reported to Dr. Sekyi-Otu on June 7, 2023, that he stopped school from January 2023 to end of April 2023, and that he had limitations with driving and sitting because after 60 minutes, he would experience pain and numbness in his foot.

12Significantly, the applicant did not advise why he stopped schooling from January 2023 to end of April 2023, nor have I been provided with a copy of his schooling records. I am alive to the fact that the applicant has reported limitations with his sitting and driving to Dr. Sekyi-Otu and Dr. Akinsete. However, a reduced ability to complete pre-accident tasks is insufficient to meet the test for NEBs. The test for entitlement to NEBs is stricter and requires the applicant to demonstrate a complete inability to continuously engage in substantially all of his pre-accident activities. Further, where pain is the primary factor preventing an applicant from engaging in pre-accident activities, Heath requires the applicant to show that the pain practically prevents them from engaging in those activities. The applicant provided no submissions on how his pain practically prevents him from engaging in his driving or sitting tasks. Rather, the applicant reported to Dr. Bacchiochi that he had no driving limitations and that his pain did not prevent him from doing any specific activities.

13The applicant has not referred me to any evidence to establish that he has instability and limitations with his bending as argued. It is well-settled that submissions are not evidence.

14I place little weight on the Disability Certificate (“OCF-3”) completed by Dr. Krupa Suratwala, physiotherapist, dated June 8, 2023. Although the OCF-3 identifies that the applicant suffers a complete inability to live a normal life, I note that an OCF-3 alone does not establish whether an applicant has sustained a complete inability to carry on a normal life. It is a form used to apply for a specified benefit and is not a comprehensive assessment of injuries sustained in an accident.

15In short, where the applicant has not addressed the guiding principles for NEB as outlined in Heath, returned to the majority of his daily activities, and both the OCF-1 and OCF-3 hold little evidentiary value, it follows that he has fallen well short of establishing entitlement to NEB.

The Minor Injury Guideline

16Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is 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.”

17An insured person 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) of the Schedule, that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury 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.

18In all cases, the burden of proof lies with the applicant.

19The applicant submits that he should be removed from the MIG for the following five grounds:

i. The applicant summarized the clinical notes and records of his family physician, Dr. Akinsete, where a number of pre-existing conditions were documented. I infer from these submissions that the applicant is seeking removal from the MIG on the basis of pre-existing conditions under s. 18(2) of the Schedule; ii. He sustained a fracture of the L1 vertebra; iii. He has ongoing pain with functional limitations; iv. He has psychological injuries; and v. He should be removed from the MIG by virtue of s. 38(11) of the Schedule.

20To counter, the respondent argues that the MIG applies to the applicant’s injuries.

The applicant does not have a pre-existing condition that will prevent maximal recovery within the MIG

21I find that the applicant has not established that he should be removed from the MIG on the basis of his pre-existing conditions.

22In his submissions, the applicant summarized Dr. Akinsete’s clinical notes and records (“CNRs”) of March 8, 2019, March 25, 2019, and February 12, 2021, to support he has pre-existing left knee pain, fractured left patella, arthrosis in his left knee, mild patellofemoral compartment osteoarthritis in his left knee, Osgood-Schlatter disease in his left knee, and hypertension. As a result, he argues that his pre-existing conditions will impact his recovery.

23The presence of pre-existing conditions alone is not sufficient to remove the applicant from the MIG. The applicant bears the onus and must adduce evidence to demonstrate not only that the pre-existing condition exists but also that it prevents him from achieving maximal recovery within the MIG.

24Section 18(2) requires compelling evidence of a pre-existing condition documented before the accident, which the applicant has presented, as the CNRs of Dr. Akinsete dated March 8, 2019, April 3, 2019, May 13, 2019, and February 26, 2022 establish that he had pre-existing left knee pain, fractured left patella, arthrosis in the left knee, osteoarthritis in the left knee and Osgood-Schlatter disease, hip pain, and hypertension. However, the last part of s. 18(2) is where I find the applicant fails. There is no compelling evidence from any medical practitioner that his pre-existing conditions will prevent him from achieving maximal recovery from the minor injury if he is limited to the $3,500 monetary limit. I am alive to the applicant’s position that the CNR of December 4, 2023, indicates that he collapsed in the sauna due to postural hypotension. However, Dr. Akinsete did not opine that his pre-existing condition will prevent maximal medical recovery if he was kept within the MIG limit, which is the test he has to meet under s. 18(2), and he has not done so.

25As a result, I find that the applicant has not shown on a balance of probabilities that he has a pre-existing injury in accordance with s. 18(2) to be removed from the MIG.

The applicant has not established he sustained a fracture in his L1 vertebra

26I find that the applicant has fallen well short of establishing he fractured his L1 vertebra as a result of the accident. Indeed, the applicant relies solely on the OCF-18, dated May 2, 2023 to support that he was diagnosed with a fractured L1 vertebra. First, I place very little weight on this diagnosis by Dr. Suratwala because she provided no explanation on how she arrived at this diagnosis, no diagnostic imaging was attached or reviewed, and her diagnosis is not corroborated by the CNRs of Dr. Akinsete. Second, Dr. Akinsete did not diagnose the applicant with a fractured L1 vertebra in any of the post-accident CNRs, and the x-ray of the lumbar spine on December 30, 2022 revealed no fracture. Finally, Dr. Sekyi-Otu found no evidence of a fracture involving the lumbar spine. Thus, I find that the applicant has not established on a balance of probabilities that he sustained a fracture in his L1 vertebra.

The applicant has not established chronic pain warranting removal from the MIG

27I find that the applicant has not met his burden to prove that he has a chronic pain condition with a functional impairment, that would warrant removal from the MIG.

28The applicant argues that he sustained serious and permanent injuries to his neck, shoulders, back, gluteal muscles, hamstrings, spinal vertebrae, and the rotator cuff, which has resulted in functional impairments. To this end, he relies upon the CNRs of Dr. Akinsete, and Mavis Eglinton Physiotherapy Clinic.

29The respondent argues that the applicant has not established that he has chronic pain with a functional impairment and relies upon the s. 44 reports of Dr. Sekyi-Otu and Dr. Bacchiochi.

30A diagnosis of chronic pain or chronic pain syndrome is not required for removal from the MIG treatment limits. However, in the absence of a diagnosis, the applicant must demonstrate, on a balance of probabilities, that he suffers from accident-related pain that causes functional impairment. In this matter, I have not been provided with medical evidence to indicate the applicant’s related impairments have resulted in chronic pain with a functional impairment.

31First, the medical evidence of the applicant’s family physician, Dr. Akinsete does not establish pain of the duration, severity and functionally disabling extent necessary to remove him from the MIG where his last accident-related visit was on January 18, 2023, where he reported his left knee and back pain were better. Subsequently, the applicant met with Dr. Akinsete on May 29, 2023, June 7, 2023, August 4, 2023, December 4, 2023, February 15, 2024, and February 17, 2024, yet he did not report ongoing pain from the accident, nor any ongoing functional impairment. Dr. Akinsete also did not refer the applicant to a pain specialist.

32Second, I place minimal weight on the CNRs of Mavis Eglinton Physiotherapy Clinic because while the applicant reports symptoms of pain throughout these records, there is nothing that shows how these symptoms negatively impacted his function or his activities of daily living. It is well accepted law that pain alone in the absence of impairment in function is not sufficient to support removal from the MIG.

33Finally, the applicant has reported to Dr. Sekyi-Otu and Dr. Bacchiochi that he returned to both his full-time, and part time occupations, schooling, and personal care tasks. I acknowledge that the applicant reported to Dr. Sekyi-Otu and Dr. Bacchiochi that he missed schooling from January 2023 to end of April 2023, and that he had limitations with sitting and driving due to pain and numbness in his foot. However, the applicant returned to both his occupations, which as he reported to Dr. Bacchicohi largely required completing driving tasks. Further, the applicant has reported no issues with his personal care tasks and reported to Dr. Bacchiochi that his pain did not prevent him from doing any specific activities. Therefore, given the applicant’s described level of function, he has not demonstrated that his overall functionality has been impacted by his ongoing pain.

34In brief, where the applicant last reported accident-related pain to Dr. Akinsete on January 18, 2023, the CNRs of Mavis Eglinton Physiotherapy do not establish that his symptoms negatively impacted his function or his activities of daily living, and he has returned to the majority of his daily activities, I have insufficient evidence to find that he should be removed from the MIG on the basis of chronic pain.

The applicant has not established that he has psychological impairments

35I find that the applicant has fallen short of meeting his onus to establish that he has psychological impairments. Notably, while the applicant argues he has a psychological impairment, he has tendered no evidence to support such a proposition. In any event, there are no psychological complaints noted in Dr. Akinsete’s CNRs, and Dr. Bacchiochi concluded that the applicant was not presenting with any significant accident-related psychological symptoms that warrant a DSM-5-TR diagnosis. The applicant has not produced a medical opinion to refute Dr. Bacchiochi’s findings. As a result, I find that the applicant has not established he should be removed from the MIG on the basis of a psychological impairment.

Section 38(11)

36The applicant argues that his injuries should not fall within the MIG as the respondent was non-compliant with s. 38(8). As such, he submits that the Tribunal must apply the consequences of s. 38(11), which includes removing the applicant from the MIG.

37Sections 38(8) and (11) set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person of the medical and all of the other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan within ten business days. Pursuant to s. 38(11), if an insurer fails to comply with any of these requirements, it is prohibited from taking the position that the MIG applies and must pay for any incurred treatment and expenses until such time that it gives notice that complies with s. 38(8) of the Schedule.

38Regardless of whether the respondent’s denial letter was compliant or not, the jurisprudence is clear that s. 38(11) does not impose a permanent prohibition on an insurer with regard to a MIG determination. While the parties did not refer me to this decision by the Divisional Court, I am bound by it, see: Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 (“Zheng”).

39In Zheng, the Divisional Court held that s. 38 refers to the specific treatment plan in question, and s. 38(11) does not impose a permanent prohibition on an insurer with regard to a MIG determination. An improper denial therefore does not result in the applicant being removed from the MIG entirely. I accordingly do not accept the applicant’s argument. I will, however, address the issue of s. 38(8) with respect to the individual OCF-18 below.

40As I have found the applicant to remain within the MIG, I find that it is not required to review the OCF-18 in dispute to determine if it is reasonable and necessary.

41However, the applicant submits that the respondent’s denial contravened s. 38(8) of the Schedule. I will now address whether the OCF-18 in dispute is payable by virtue of s. 38(11).

The respondent was compliant with s. 38(8) of the Schedule

42I find that the respondent’s denial letter, dated May 3, 2023, was compliant with s. 38(8), and therefore the consequences under s. 38(11) are not triggered with respect to the OCF-18 for physiotherapy services.

43The applicant argues that the denial letter, dated May 3, 2023 does not include any meaningful discussion about his injuries or symptoms or their bearing on the proposed treatment.

44The respondent provided no submissions with respect to s. 38(8).

45In its May 3, 2023, denial letter the respondent provided the following reasons for denying the OCF-18 for physiotherapy services:

Upon reviewing your clinical notes and medical records from your family doctor, your doctor has diagnosed you with soft tissue injuries to your neck and back which are considered as minor injury as per the Minor Injury Guideline.

Minor injury is defined as a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae in the Statutory Accident Benefits Schedule (SABS).

In order to assist us in determining if your injuries can be treated within the $3,500.00 Minor Injury limit under your Medical and Rehabilitation Benefits and whether the goods and services proposed on this OCF-18 is reasonable and necessary, we are sending you to an insurer's examination as outlined in Sections 38(10) and Section 44(1) of the Statutory Accident Benefit Schedule (SABS)…

46I find that this denial letter complies with s. 38(8) because it provided medical reasons and all of the other reasons for the denial. Indeed, the respondent identified that it reviewed the CNRs of the applicant’s family physician, where he was diagnosed with soft tissue injuries to his neck and back which are classified as minor injuries, provided a definition of the MIG, and that as a result an insurer’s examination was required to determine if the OCF-18 was reasonable and necessary. I find that the reasons cited by the respondent were clear and sufficient to allow an unsophisticated person to make an informed decision as to whether to dispute the decision. Also, the reasons provided satisfy the requirement, well-established in the jurisprudent, that an insurer provide reasons capable of giving a claimant a principled rationale, based fairly on the claimant’s file, to which an insured person can respond.

47In short, the applicant has not established that the respondent’s denial letter was non-compliant with s. 38(8), and therefore the consequences under s. 38(11) are not triggered.

The applicant is not entitled to $85.00 for an OCF-24

48I find that the applicant has not met his onus to establish that the OCF-24 is payable.

49The applicant argues that he submitted an OCF-21 seeking repayment for completion of the OCF-24 and that the respondent denied it without providing any specific explanation regarding the alleged insufficiencies or inaccuracies.

50In response, the respondent argues that the denial letter, dated March 10, 2023 was clear that the OCF-21 was being denied because the applicant did not submit a copy of the OCF-24.

51The applicant is not entitled to the costs outlined in the OCF-21 because he has not produced a copy of the OCF-24. I acknowledge that the Minor Injury Guideline, Superintendent’s Guideline No. 01/14 is clear that an OCF-24 is payable in the amount of $85.00, however, page 11 is clear that both the OCF-24 and OCF-21 have to be submitted to the insurer. Here, as outlined in the denial letter, dated March 10, 2023, the respondent was unable to consider payment for the OCF-21 because the supporting information (OCF-24) was not included. The respondent further asked the applicant to fax a copy of the OCF-24 so payment could be considered. To date of the hearing submissions, the applicant has neither produced the OCF-24 to the respondent or at this hearing. As a result, I find that the applicant is not entitled to $85.00 for an OCF-24.

Interest is not payable

52Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having determined that no benefits are payable, it follows that no interest is payable.

The respondent is not liable to pay an Award

53The applicant sought an award under section 10 of Reg. 664. Under section 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.

54Having concluded that the applicant is not entitled to any benefits, it follows that no benefits were unreasonably withheld or delayed and thus, no award is payable.

ORDER

55For the reasons outlined above, I find that:

i. The applicant is not entitled to NEBs, nor interest. ii. The applicant’s accident-related injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG. iii. The applicant is not entitled to the OCF-18 in dispute nor interest. iv. The applicant is not entitled to a repayment in the amount of $85.00 for the completion of an OCF-24 form. v. The respondent is not liable to pay an award. vi. The application is dismissed.