Citation: Abdrabuh v. Aviva General Insurance Company, 2026 ONLAT 24-014148/AABS

Licence Appeal Tribunal File Number: 24-014148/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:

Feras Abdrabuh

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jeff Chatterton

APPEARANCES:

For the Applicant:

Kameliya Stancheva, Paralegal

For the Respondent:

Nabila Majidzadeh, Counsel

HEARD: In Writing

OVERVIEW

1Feras Abdrabuh, the applicant, was involved in an automobile accident on July 26, 2023, 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, Insurer, 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 the treatment proposed by Mavis Eglinton Physiotherapy in treatment plans/OCF-18’s (‘plan’), as follows: i. $1,193.03 for physiotherapy services, in a plan submitted on November 28, 2023; and ii. $4,186.95 for physiotherapy services, in a plan submitted on November 2, 2024?
3. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant’s injuries are predominantly minor as defined by the Schedule, and the applicant is held to the Minor Injury Guideline.

4As the applicant is being held to the MIG, it is not necessary to review the disputed treatment plans to determine if they are reasonable and necessary.

5Neither interest nor an award are payable.

ANALYSIS

Are the applicant’s injuries predominantly minor?

6The applicant’s injuries are predominantly minor, and the applicant is being held to the Minor Injury Guideline with a $3,500 treatment limit.

7Section 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.”

8An 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.

9Although it is unclear from the applicant’s submissions, the applicant appears to submit that he should be removed from the MIG on the basis of chronic pain with a functional limitation. To support this argument, the applicant relies on the clinical notes and records of his family physician, Dr. Nasser Zabib.

10The respondent argues that the applicant has suffered from whiplash and sprain/strain type injuries, which would fall under the MIG. To support its position that the applicant’s injuries are predominantly minor, the respondent relies on a s.44 Insurers Examination (IE) conducted by GP Dr. Hashmat Khan on April 4, 2024.

11I give more weight to the respondent’s evidence. I have reviewed the clinical notes and records provided by the applicant. I was able to determine a single visit to his family doctor, and a handwritten note which is ineligible approximately two months after the accident. However, although the onus to establish entitlement belongs to the applicant, I was not given further Clinical Notes and Records from his family physician after this date, nor was I led to further evidence indicating that the family physician has referred the applicant to other health professionals.

12In fact, I note that the decoded OHIP summary provided by the applicant makes a reference to ‘medical reassessment’ on January 15, 2024 by a Dr. Alled. However, the clinical notes and records for this particular assessment or visit were not provided to me, and therefore I do not give this evidence any weight.

13Conversely, I note that the IE by Dr. Khan diagnoses the applicant with sprain and strain type injuries, and opines that the applicant has already achieved maximal medical recovery. It should be noted that sprain and strain type injuries would be captured within the MIG.

14Furthermore, the legal test for chronic pain to be removed from the MIG requires evidence of a functional impairment related to the chronic pain condition.” I have not been led to objective medical evidence from the applicant which refers to a functional limitation.

15While the arguments were not clear, I also note that the claim of a pre-existing condition would not remove the applicant from the MIG, as I have not been led to objective medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG.

16For these reasons, I find the applicant has not, on the balance of probabilities, met his onus to demonstrate he should be removed from the MIG.

17As the applicant is being held to the MIG, it is not necessary to review the treatment plans to determine if they are reasonable and necessary.

Interest

18Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.

Award

19The 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. The applicant claims the insurance company is acting unreasonably.

20As I have found that the applicant is being held to the MIG, I do not find the respondent has acted unreasonably or that the conduct delayed the payment of any benefits, therefore an award is not payable.

ORDER

21The application is dismissed.

i. The applicant is being held to the MIG.

ii. As the applicant is held to the MIG, it is not necessary to review the treatment plans in dispute to determine if they are reasonable or necessary.

iii. Neither interest nor an award are payable.