Branislav Neskovic v. Allstate Insurance Company of Canada, 2025 CanLII 52380

Licence Appeal Tribunal

Citation: Neskovic v. Allstate Insurance Company of Canada, 2025 ONLAT 23-010938/AABS

Licence Appeal Tribunal File Number: 23-010938/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:

Branislav Neskovic

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Harouna Saley Sidibé

APPEARANCES:

For the Applicant:

Doina Marinescu, Paralegal

For the Respondent:

Yalda Aziz, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Branislav Neskovic, the applicant, was involved in an automobile accident on November 24, 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:

1. 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?
2. Is the applicant entitled to $3,195.84 for chiropractic services, proposed by E Clinic United Healing in a treatment plan/OCF-18 (“plan”) dated April 11, 2022?
3. Is the applicant entitled to $3,963.64 for psychological services, proposed by E Clinic United Healing in a plan dated June 10, 2022?
4. Is the applicant entitled to $3,084.14 for chiropractic services, proposed by E Clinic United Healing in a plan dated August 10, 2022?
5. Is the applicant entitled to $2,600.00 for chiropractic services, proposed by E Clinic United Healing in a plan dated December 28, 2022?
6. Is the applicant entitled to $2,555.66 for chiropractic services, proposed by E Clinic United Healing in a plan dated March 23, 2023?
7. Is the applicant entitled to $1,920.53 for a psychological assessment, proposed by E Clinic United Healing in a plan dated April 18, 2022?
8. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3For the reasons that follow, I find that:

1. The applicant’s injuries are predominantly minor.
2. As the applicant is subject to the MIG, it is not necessary for me to consider whether the disputed treatment plans are reasonable and necessary.
3. The applicant is not entitled to any interest pursuant to s.51 of the Schedule.

PROCEDURAL ISSUES

4A case conference took place on March 8, 2024, and the Case Conference Report and Order (“CCRO”) was released to the parties on March 19, 2024. A notice for a written hearing was issued, with the hearing scheduled to begin on November 1, 2024.

5On October 15, 2024, the respondent filed a Notice of Motion requesting that the Tribunal:

i. Exclude the following Clinical Notes and Records (“CNRs”) from the applicant’s submissions dated October 2, 2024: Tab 6 (CNRs from Mississauga Medical Centre dated December 3, 2021), Tab 7(A) (CNRs from Trillium Health Partners dated November 25, 2021), and Tab 7(B) (CNRs from Trillium Health Partners dated November 26, 2021). ii. Extend the deadline for filing the respondent’s submissions.

6In its Motion Order dated October 16, 2024, the Tribunal denied the respondent’s request to exclude the documents, noting that this relief was at the discretion of the hearing adjudicator. The Tribunal granted an extension of time for the respondent to file their submissions.

7In its submissions dated October 18, 2024, the respondent requests that the Tribunal exclude medical records from Mississauga Medical Centre and Trillium Health Partners, which were submitted by the Applicant on October 2, 2024, well past the Tribunal’s disclosure deadlines established during the case conference. The respondent contends that the late submission is prejudicial, depriving them of the opportunity to respond or obtain necessary medical assessments. The respondent requests that the CNRs be excluded and that an adverse inference be drawn against the applicant for failing to produce these critical records earlier, particularly since they are being used to support claims for treatment beyond the MIG.

8For the following reasons, I deny the respondent’s request to exclude the CNRs that were disclosed late or to draw an adverse inference.

9While I acknowledge the late disclosure, I find that the respondent had the opportunity to address the late-filed evidence in its responding submissions and was granted an extension of time to do so. Moreover, to draw an adverse inference, conduct must be shown to be deliberate and significantly impair the fairness of the proceedings, going beyond mere procedural shortcomings. I did not observe this type of behaviour in this case. Additionally, even if the respondent received the CNRs within the deadline set by the CCRO, there is no certainty that sufficient time remains to obtain the necessary medical assessments before the written hearing.

10Furthermore, I find that excluding the evidence would unfairly disadvantage the applicant, especially considering its significant probative value. The CNRs offer crucial insight into the applicant’s medical condition and treatment history, which are central to the issues at hand. Their relevance and potential impact on the Tribunal’s capacity to make a fully informed decision strongly support their inclusion.

11Consequently, since I find that the delay did not prejudice the respondent’s ability to respond to the applicant’s submissions, I deny the respondent’s request on this basis.

ANALYSIS

Are the applicant’s injuries predominantly minor?

12I find that the applicant's injuries are primarily minor and therefore subject to the MIG limit.

13Section 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.

14The applicant may be removed from the MIG if she can establish that her accident-related injuries fall outside of the MIG or, under section 18(2), that she has a documented preexisting condition combined with compelling medical evidence stating that the condition precludes maximal recovery if she is kept within 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.

15The applicant argues that he should be removed from the MIG because he suffers from a combination of significant impairments. Specifically, he claims to endure ongoing physical symptoms, including chronic pain and post-concussion effects, along with psychological impairments such as anxiety, depression, and sleep disturbances.

16The applicant asserts that he suffers from a combination of physical and psychological impairments, including post-concussion symptoms, chronic pain, anxiety, depression, tinnitus, and sleep disturbances. He relies on the CNRs from Trillium Health Partners, the CNRs from Mississauga Medical Centre, and the Psychological Assessment Report of Dr. Harinder Mrahar, a psychologist, dated May 29, 2022.

17The respondent cites the evidence of Dr. Tatiana Dumitrascu outlined in a psychologist’s report from July 28, 2022, indicating that the applicant’s injuries fell within the MIG. Dr. Dumitrascu concluded that the applicant does not meet the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-5”) criteria for a psychological disorder linked to the accident and found no evidence of pre-existing conditions. Dr. Dumitrascu also noted that the diagnoses in Dr. Mrahar's report were not supported by her own examination findings.

a) Did the applicant sustain a concussion?

18I find that the applicant did not sustain a concussion that warrants removal from the MIG.

19The CNRs from Mississauga Medical Centre, dated December 3, 2021, indicated that the applicant might have a concussion and referred him to Highmark Health Clinic for diagnosis and treatment if necessary. However, the applicant did not visit the aforementioned clinic nor provide a clinical diagnosis of a concussion.

20Aside from the applicant’s self-reports, there is no compelling medical evidence presented to me that indicates the applicant sustained a concussion related to the accident. Other than the mention of a suspected concussion in the medical notes dated December 3, 2021, the applicant did not provide any explicit reference or diagnosis of a concussion.

21Therefore, I conclude that the applicant did not sustain a concussion.

b) Does the applicant have chronic pain with a functional impairment?

22I find that the applicant does not suffer from chronic pain accompanied by functional impairment that would warrant removal from the MIG. While ongoing pain is acknowledged, it alone is not sufficient to justify a departure from the MIG. There must be clear evidence that the pain leads to a functional limitation that significantly interferes with the applicant’s ability to perform daily activities or occupational tasks. In this case, such evidence has not been provided.

23The applicant relies on the CNRs from Mississauga Hospital to demonstrate that he has sustained chronic pain.

24In the CNRs of Mississauga Hospital dated November 25, 2021, the applicant was diagnosed with lower back pain, back pain, tinnitus, and a headache. On November 26, 2021, the applicant was diagnosed with a strain of the neck muscle.

25Dr. Eric Silver, a family physician, stated in his insurer’s examination report dated July 28, 2022, that during the physical examination, he found no objective evidence of an ongoing, accident-related musculoskeletal injury or impairment. He concluded that the applicant sustained uncomplicated sprain and strain injuries to his cervical spine, thoracolumbar spine, and left shoulder as a result of the accident.

26I place significant emphasis on Dr. Silver’s report because he thoroughly considered the applicant’s self-reports in reaching his conclusion. While the CNRs from Mississauga Hospital reference several diagnoses, including a neck muscle strain, they do not indicate any resulting functional impairment. This absence is critical, as the presence of a diagnosis alone, without evidence that it limits the applicant’s ability to function in daily life, is insufficient to justify removal from the MIG. Dr. Silver’s findings are consistent with this, as he did not identify any functional limitations that would support a departure from the MIG.

27As a result, I conclude that the applicant does not suffer from chronic pain. Furthermore, I determined that he did not exhibit any functional impairment. In fact, the applicant returned to his work normally four days after the accident.

c) Did the applicant sustain psychological impairments that warrant removal from the MIG?

28I find that the applicant did not sustain psychological impairments that warrant removal from the MIG.

29The report dated May 29, 2022, from Dr. Mrahar, a psychologist, concluded that the applicant has a significant psychological impairment as a direct result of the accident. Dr. Mrahar adds that the applicant seems to be experiencing some post-traumatic stress-related symptoms. The applicant would benefit from skills to accurately evaluate his anxiety and acquire techniques to manage his discomfort.

30In contrast, the insurer examination report from Dr. Dumitrascu, a psychologist, dated July 28, 2022, concluded that, considering the applicant’s presentation, self-report, and the objective data, there is no evidence of clinically significant symptomatology, and the applicant does not meet the DSM-5 criteria for a psychological disorder as a result of the accident. Dr. Dumitrascu noted that the applicant’s psychological symptoms have resolved over time.

31I give more weight to Dr. Dumitrascu’s report because it has been conducted in a multidisciplinary setting, considering both the physical and psychological state of the applicant. This provides a comprehensive overview of the applicant’s situation.

32Therefore, I find that the applicant did not demonstrate, on a balance of probabilities, that he has sustained a psychological impairment that warrants his removal from the MIG.

33Consequently, I find that the applicant's injuries are predominantly minor, and therefore, he is subject to the MIG.

Is the applicant entitled to the disputed treatment plans?

34Since I have determined that the applicant has not established that his accident-related injuries require treatment beyond the MIG limits, it is unnecessary for me to evaluate the reasonableness and necessity of the disputed treatment plans.

Interest

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no treatment plans are due, no interest is owing.

ORDER

36For the reasons outlined above, I find that:

1. The applicant’s injuries are predominantly minor.
2. As the applicant is subject to the MIG, it is not necessary for me to consider whether the disputed treatment plans are reasonable and necessary.
3. As there are no benefits owing, the applicant is not entitled to an interest pursuant to s.51 of the Schedule.

Released: June 2, 2025

Harouna Saley Sidibé

Adjudicator