Citation: Shamoon v. Allstate Insurance Company of Canada, 2025 ONLAT 23-014177/AABS

Licence Appeal Tribunal File Number: 23-014177/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:

Salvana Shamoon

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Estella Muyinda

APPEARANCES:

For the Applicant:

Bianca Marinescu, Counsel

For the Respondent:

Emily Siu, Counsel

HEARD:

By way of written hearing

OVERVIEW

1Salvana Shamoon, the applicant, was involved in an automobile accident on August 15, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The 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

3The 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 (“MIG”)? The MIG limits have been exhausted.

ii. Is the applicant entitled to $1,920.52 for psychological services, proposed by Inline Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) dated November 11, 2021?

iii. Is the applicant entitled to $4,217.71 for physiotherapy services, proposed by Inline Rehabilitation Centre in a treatment plan dated December 23, 2021?

iv. Is the applicant entitled to $2,519.00 for psychological services, proposed by Inline Rehabilitation Centre in a treatment plan dated February 10, 2022?

v. Is the applicant entitled to $3,421.65 for physiotherapy services, proposed by Inline Rehabilitation Centre in a treatment plan dated May 26, 2022?

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

RESULT

4The applicant has not met her burden in establishing that her accident-related injuries warrant removal from the MIG.

5As the applicant is in the MIG, it is not necessary to determine if the treatment plans in dispute are reasonable and necessary.

6The applicant is not entitled to interest.

7The application is dismissed.

ANALYSIS

Applicant’s Injuries do not fall outside the MIG.

8I find that the applicant has not met her burden in establishing that her accident-related injuries fall outside the definition of a “minor injury,” as set out in s. 3(1) of the Schedule. Specifically, she has not demonstrated that she sustained psychological injuries because of the accident.

9Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”

10An 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), that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if they are kept within the MIG confines. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

11In all cases, the burden of proof in establishing removal from the MIG lies with the applicant.

12The applicant submits that she should be removed from the MIG since because of the accident, she suffers from physical, mental, and psychological functions, and functionally disabling pain, limited range of motion, driving anxiety, and insomnia.

13The respondent disagrees and submits that the applicant should remain in the MIG as she has failed to show on a balance of probabilities that her injuries fall outside of the MIG.

14The applicant relies on Dr. Tony Diab’s (chiropractor) notes found in the disability certificate (OCF-3) dated July 29, 2021, wherein he states that the applicant has the following injuries, sprain and strain of the cervical spine, the thoracic spine, the lumbar spine, and disorder of initiating and maintaining sleep (insomnia), Malaise and fatigue.

15The applicant submits that Dr. Diab diagnosed her with insomnia, concluding that she suffered a complete inability to continue with her normal life, and the ability to perform the pre-collision housekeeping and home maintenance tasks.

16The respondent asserts that as a chiropractor, Dr. Diab is not qualified to diagnose sleep disorders and malaise. I agree with the respondent that without qualifying certification, it is beyond the scope of Dr. Diab to diagnose a sleep disorder. On that basis, I find that Dr. Diab’s reference to the applicant as having a sleep disorder is beyond his scope and will bear no weight.

17Further, the applicant relies on a s.25 assessor, Dr. Valery Kleiman’s (psychologist), report dated November 25, 2021. She was interviewed and assessed by Ms. Sabrina Simmons, (clinical psychological associate) under the supervision of Dr. Kleiman. The report is signed by Dr. Kleiman and Ms. Simmons. The applicant was diagnosed with the DSM-5 criteria of specific phobia (passenger related), and she took the recommended eight sessions of psychotherapy, over a period of 1-2 months. She reported improvement in her driving and passenger anxiety but continued to struggle with her mood.

18The respondent relies on the insurer examination (IE) report of Dr. Ida Jacqueline Cavaliere (physiatrist) dated April 1, 2022, and of Dr. Douglas Saunders (psychologist) dated May 30, 2022.

19The respondent submits that Dr. Cavaliere opined that from a physical perspective, there was no compelling evidence of a pre-existing medical condition that would prevent the applicant from achieving maximal recovery and thus, the injuries sustained by the applicant fell in the MIG.

20The respondent submits that Dr. Saunders’ assessment was to determine whether the applicant should be removed from the MIG because she had a psychological injury resulting from the accident. In his report, Dr. Saunders states that the applicant denied having sleep deprivation and indicated that the applicant reported that she slept 7-8 hours. He opined that the findings of his evaluation indicated that the applicant’ psychological symptoms are not sufficient to require formal treatment or assessment and that from a psychological perspective, the applicant does not present with an accident-related psychological condition that achieved a diagnosis threshold as per DSM.

21In its submissions the respondent raises the “but for” test asserting that the applicant has not shown that the accident is a necessary cause of her condition. I am satisfied by the applicant’s submissions and evidence that she was involved in the accident based on her attendance at the hospital immediately after the accident and the treatment notes from health practitioners including Online Rehabilitation Centre, from July 5, 2021, to February 10, 2022, and treatment plans from Dr. Kevin Bar (chiropractor) dated December 23, 2021, and May 26, 2022.

22Further, the respondent has not disputed Dr. Kleiman’s assessment report, wherein he recorded the applicant’s account of the accident and injuries, or Dr. Kleiman’s assertion that the applicant’s injuries were a result of the accident.

23I find that the applicant has led sufficient evidence that her accident-related injuries were caused by the accident.

24The applicant submitted Dr. Saunders’ (IE) report in her evidence, which documents that she visited her family physician two days following the accident. The applicant admits that she did not inform her family physician of any psychological symptoms during her visits. She relies on the decision in Elbahja v Wawanesa Mutual Insurance Company 2023 CanLii 116485 (ON LAT) (Elbahja) which affirms that not reporting psychological symptoms to a family physician or a section 44 assessor does not, in itself, indicate that a medical professional did not conduct an appropriate assessment or make a proper diagnosis. I agree with the reasoning in Elbahja on that point.

25However, the difference here is that the applicant submitted clinical notes and records from Inline Rehabilitation Centre which make no reference to any psychological injury. Furthermore, the applicant did not submit clinical notes and records from her family physician that would indicate a psychological injury. As such, I find that the applicant has provided no corroborating evidence to substantiate her assertion of a psychological injury.

26Additionally, the applicant relies on Dr. Kleiman’s diagnosis of specific phobia (passenger related) to assert that she falls outside of the MIG. The applicant contends that Dr. Kleiman’s diagnosis of specific phobia should be afforded more weight than Dr. Saunders report as Dr. Saunders neither performed any relevant testing nor assessed the applicant for specific phobia.

27The respondent relies on Dr. Saunders (IE) psychological assessment in which he opined that the applicant’s psychological symptoms were insufficient to require treatment or assessment. Additionally, the respondent relies on Dr. Cavaliere’s physiatry assessment wherein he opined that the applicant would achieve maximum recovery within the MIG.

28Upon review of the applicant’s submission, I note that there is no corroborating evidence from treating physicians to substantiate Dr. Kleiman’s diagnosis of specific phobia (passenger related). Therefore, I am not persuaded by the applicant’s submissions or the limited evidence. I find that the respondent’s assertion that the applicant does not suffer from a psychological condition is corroborated by the reports of Dr. Cavaliere and Dr. Saunders.

29Accordingly, I find that the applicant has not demonstrated that she suffers from a psychological injury because of the accident, therefore she remains in the MIG.

30The applicant submitted that she suffered from functionally disabling pain as a result of the accident. However, she has not indicated that she should be removed from the MIG because of a chronic pain.

31In addition, the applicant has not submitted persuasive documentary evidence to substantiate her assertion of chronic pain resulting from the accident. She has submitted no records from her family physician or treating professionals that demonstrate that she suffers from chronic pain attributable to the accident. Furthermore, the applicant stated that she relied on over the counter medication, such as Tylenol or Advil on an as needed basis and did not use any prescribed topical or oral pain medication to alleviate the chronic pain. Based on the foregoing, I find that the applicant has not established on a balance of probabilities that she suffers from chronic pain.

32As I have found the applicant’s injuries fall within the MIG, I do not need to determine if the disputed treatment plans are reasonable and necessary.

Interest

33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits have been found to be owing, interest is not applicable.

ORDER

34The applicant sustained a minor injury as a result of the accident. She is subject to the MIG and the $3,500.00 funding limit for a minor injury.

35The applicant is not entitled to any of the treatment plans in dispute.

36The applicant is not entitled to interest pursuant to s. 51 of the Schedule.

37The application is dismissed.