Citation: Almazloum v. The Dominion of Canada General Insurance Company, 2026 ONLAT 24-008450/AABS

Licence Appeal Tribunal File Number: 24-008450/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:

Siham Almazloum

Applicant

and

The Dominion of Canada General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kathleen Wells

APPEARANCES:

For the Applicant:

Bianca Crocetti, Paralegal

For the Respondent:

Dominique George, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Siham Almazloum, the applicant, was involved in an automobile accident on February 13, 2020, 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, the Dominion of Canada General Insurance Company, 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 a non-earner benefit of $185.00 per week from March 13, 2020, and ongoing?

3. Is the applicant entitled to the services proposed by SekSek Chiropractic Professional Corporation, as follows:

i. $219.75 ($1,317.00 less $1,097.25 approved) for chiropractic services, in a treatment plan/OCF-18 ("treatment plan") submitted June 2, 2022?

ii. $2,844.01 for chiropractic services, in a treatment plan submitted June 16, 2022?

iii. $2,505.25 for physiotherapy services, in a treatment plan submitted August 1, 2022?

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

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

3Issue # 2 in the Case Conference Report and Order (CCRO) sets out the start date of the non-earner benefit (NEB) as March 13, 2020, which is prior to the date of the accident. I have corrected the date to March 13, 2022 to reflect the date set out in the application.

RESULT

4I find that:

1. The applicant's injuries are predominantly minor and the applicant is subject to the MIG and its $3,500.00 funding limit.

2. The applicant is not entitled to an NEB.

3. As I have found that the applicant is subject to the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.

4. As no payments are owing, no interest is due.

5. The applicant is not entitled to an award.

6. The application is dismissed.

ANALYSIS

Applicability of the Minor Injury Guideline ("MIG")

5I find that the applicant's injuries are predominantly minor, and the applicant remains subject to the MIG and its $3,500.00 funding limit.

6Section 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."

7An 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.

8The applicant submits that she should be removed from the MIG because her injuries are not minor, she suffers from pre-existing chronic pain which has been exacerbated by her accident-related injuries, and she has psychological symptoms as a result of her accident-related injuries.

9The respondent argues that the applicant has not met her burden to prove that her accident-related injuries warrant her removal from the MIG.

Pre-existing condition

10I find that the applicant has not established on a balance of probabilities that she has a pre-existing condition that warrants her removal from the MIG.

11The applicant submits that she suffered from chronic pain in her back and knees which was worsened by the accident. The respondent submits that the applicant has not met her onus to prove that she meets the two-part test under s.18(2) to warrant removal from the MIG.

12The clinical notes and records ("CNRs") of the applicant's family doctor, Dr. Ahmed Chaker, reveal that he noted chronic pain in her back on February 1, 2022 and knees on February 8, 2022, within the two weeks before the accident. However, the applicant has not directed me to any evidence from a treating physician or medical assessor that her pre-existing conditions would preclude her recovery from her accident-related injuries if she remains within the MIG to meet the second part of the test as set out in s. 18(2).

13Further, as the respondent notes, in his June 30, 2022 s.44 insurer's examination ("IE") report, dated June 30, 2022 and subsequent paper review, dated September 1, 2022, Dr. Saad Naaman, physiatrist, opined that the applicant's pre-existing conditions would not prevent her from reaching maximum medical improvement from her accident-related injuries.

14For these reasons, I find that the applicant has not met her onus to prove on a balance of probabilities that she suffers from a pre-existing condition that warrants her removal from the MIG.

Physical Injuries

15I find that the applicant has not established on a balance of probabilities that she sustained accident-related physical injuries that warrant her removal from the MIG.

16The applicant submits that she should be removed from the MIG as a result of the severity of her accident-related injuries. The respondent argues that the applicant sustained soft-tissue injuries which fall within the MIG.

17I agree with the respondent. The evidence does not establish on a balance of probabilities that the applicant suffered physical injuries that fall outside of the MIG. The evidence reveals that the applicant was taken to the hospital by ambulance to the Windsor Regional Hospital immediately following the accident, and complained of dizziness with no loss of consciousness, pain in her left foot and swelling in her arm. The applicant left the hospital prior to being examined.

18The applicant saw Dr. Chaker on February 15, 2022, two days later, complaining of lower back pain, neck pain, and left wrist pain with slight swelling. Dr. Chaker diagnosed the applicant with post-traumatic pain, counselled her with respect to pain management, and referred the applicant for an x-ray of her neck and an ultrasound of her left wrist. The neck x-ray revealed degenerative changes to the applicant's cervical spine, and the wrist ultrasound returned a normal study. Dr. Chaker diagnosed the applicant with tendonitis in her left elbow on May 24, 2022.

19The OCF-3, dated June 2, 2022, was prepared by Shreya Shaw, physiotherapist, of Hands on Health Wellness Centre, lists her injuries as: whiplash associated disorder, chronic post-traumatic headache, injury of tendon of the rotator cuff of shoulder, sprain and strain of lumbar spin, sprain and strain of medial collateral ligament, and cervicalgia. In his June 30, 2022 IE report, Dr. Naaman diagnosed the applicant with sprains and strains to the left knee, and cervical and lumbar spine as well as the chest wall, all of which fall within the definition of minor injury set out in Section 3(1) of the Schedule.

20As the applicant has not directed me to evidence that the applicant was diagnosed with physical injuries that fall outside of the MIG, I find that the applicant has not met her onus to prove on a balance of probabilities that her accident-related physical injuries warrant her removal from the MIG.

Psychological Impairment

21I find that the applicant has not established on a balance of probabilities that the applicant has a psychological impairment as a result of the accident.

22The applicant submits that she suffers from anxiety and was prescribed anti-depressants after the accident. The respondent argues that while there are limited complaints of anxiety directly after the accident, the applicant was not referred to a psychologist.

23Dr. Chaker's CNRs reveal two mentions of anxiety in the three and one-half months following the accident. The applicant complained of anxiety on February 15, 2022, and Dr. Chaker noted that the applicant has a history of anxiety on May 24, 2022 and provided anxiety management counseling to the applicant. However, there are no further references to psychological symptoms in Dr. Chaker's CNRs, or any referrals to a psychologist. The applicant's medication summaries reveal that the applicant had been prescribed Bupropion by Dr. Chaker beginning before the accident, and the applicant has not directed me to evidence that the applicant reported psychological symptoms related to the accident to other health care providers, or that she sought or received psychological treatment as a result of her accident-related injuries.

24For these reasons, I find that the applicant has not met her onus to prove on a balance of probabilities that she has an accident-related psychological impairment to warrant removal from the MIG.

Chronic Pain

25I find that the applicant has not established on a balance of probabilities that she suffers from accident-related chronic pain with functional impairment to warrant her removal from the MIG.

26The applicant submits that she suffers from chronic pain in her left arm, elbow wrist hand, and neck, in addition to worsening chronic pain to her lower back and knees as a result of the accident.

27The respondent argues that the applicant has not met her onus to prove that she suffers from chronic pain with functional impairment as a result of the accident, because her complaints of pain have been intermittent, and she has not been diagnosed with chronic pain as a result of the accident.

28While I accept that the applicant has experienced ongoing pain since the accident, I am not persuaded that the applicant suffers from chronic pain with functional impairment as a result of her accident-related injuries.

29Dr. Chaker's CNRs reveal that the applicant complained of back, wrist and neck pain on February 15, 2022, two days after the accident. Between March 1, 2022 and June 22, 2022, the applicant complained of neck and left elbow pain, and numbness and swelling in her left arm on five occasions. On March 1, 2022, Dr. Chaker noted that had "known chronic neck pain with radiating pain to both arms," and that the applicant had experienced severe flare-ups since the accident. The applicant first reported an exacerbation in her knee pain on July 13, 2022, five months after the accident.

30As the respondent notes, the applicant did not complain of musculoskeletal pain again for over a year, when she complained of knee pain on August 2, 2023, which I find indicates periodic, rather than chronic, pain.

31With respect to functional impairment, the applicant has not made submissions or directed me to medical or other evidence to support the applicant's report of functional limitations to Patricia Morland, occupational therapist, at her April 21, 2022 IE At Home Assessment. At the IE, the applicant reported that prior to the accident, she was independent in her self-care and performed substantial household responsibilities, including cooking and cleaning, and enjoyed visiting with friends and socializing, none of which she was able to do after the accident. However, in her July 15, 2022 IE report, Ms. Morland opined that the limitations described by the applicant were not consistent with the limitations she observed during the assessment.

32The applicant has not made submissions or directed me to any evidence with respect to any functional impairment after the April 21, 2022 IE, which was conducted fewer than 10 weeks after the accident.

33For these reasons, I find that the applicant has not met her onus to prove that she has chronic pain with functional impairment as a result of the accident that warrants her removal from the MIG.

34The applicant remains within the MIG.

Non-Earner Benefit ("NEB")

35I find that the applicant has not established on a balance of probabilities that she is entitled to an NEB.

36Section 12(1) 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, which, generally, focuses on a comparison of the applicant's pre- and post-accident activities.

37The applicant submits that she is entitled to an NEB from March 13, 2022 and ongoing because she suffered a complete inability to carry on a normal life due to her accident-related injuries.

38The respondent submits that the applicant has not met her onus to prove that she is entitled to an NEB, because she has not submitted evidence in support of her claim. The respondent further argues that Ms. Morland opined that the applicant's reported limitations were inconsistent with the applicant's observed function in her July 15 ,2022 IE report and Dr. Naaman opined that the applicant had not sustained an impairment that prevents her from engaging in substantially all of the activities she engaged in before the accident in his June 30, 2022 IE report.

39As the applicant has not made submissions or directed me to medical or other evidence with respect to her pre- and post- accident activities and function, I find that the applicant has not met her burden to prove on a balance of probabilities that she is entitled to an NEB.

40As I have found that the applicant remains subject to the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.

Interest

41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are owing, no interest is due.

Award

42The 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.

43As the applicant has not made any submissions with respect to an award, I find that the applicant has not met her onus to prove on a balance of probabilities that she is entitled to an award.

ORDER

44I find that:

1. The applicant is subject to the MIG and its $3,500.00 funding limit.

2. The applicant is not entitled to an NEB.

3. As I have found that the applicant is subject to the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.

4. As no payments are owing, no interest is due.

5. The applicant is not entitled to an award.

6. The application is dismissed.