Citation: Habash v. Allstate Insurance Company of Canada, 2026 ONLAT 24-015711/AABS

Licence Appeal Tribunal File Number: 24-015711/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:

Amer Habash

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Mark Edwards, Paralegal

For the Respondent:

Kristen Slaney, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Amer Habash, the applicant, was involved in an automobile accident on June 28, 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 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 the services and assessment proposed by Seksek Chiropractic Professional Corporation, as follows:

i. $1,317.50 for physiotherapy services, in a treatment plan dated October 13, 2022;

ii. $3,019.75 for physiotherapy services, in a treatment plan dated January 18, 2023; and

iii. $1,995.33 for the cost of a psychological assessment, in a treatment plan dated October 4, 2022?

3. Is the applicant entitled to the assessment and services proposed by Excel Medical Diagnostics, as follows:

i. $3,420.50 for the cost of a chronic pain assessment, in a treatment plan dated May 3, 2024; and

ii. $14,029.19 for interdisciplinary pain management services, in a treatment plan dated May 17, 2024?

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?

RESULT

3The applicant’s accident-related impairments are predominantly minor, and he is therefore subject to treatment within the $3,500.00 limit of the MIG.

4The applicant is not entitled to the treatment plans in dispute, an award or interest.

5The application is dismissed.

ANALYSIS

Minor Injury Guideline

6Section 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.”

7An 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 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. The applicant submits that he should be removed from the MIG due to his physical injuries, chronic pain and psychological disorders.

Physical injuries and chronic pain

8I find that the applicant has not established that he sustained non-minor physical injuries, or chronic pain as a result of the accident.

9With respect to physical injuries, the applicant reported to the respondent’s s. 44 assessor that he attended a walk-in clinic the day after the accident, and was diagnosed with soft-tissue injuries. The OCF-3 dated July 30, 2022, relied upon by the applicant, lists his injuries as being: WAD-2, contusion of the knee, cervicalgia, low back and thoracic spine pain, tension headaches and strain and sprain of the lumbar spine. I find that these impairments fall within the definition of a “minor injury”. The respondent conducted a s. 44 orthopedic assessment by Dr. Stevens, dated November 22, 2023. Dr. Stevens found that the applicant had sustained only soft tissue injuries of the neck and lower back.

10The applicant has not directed me to any other supporting medical evidence to establish that he sustained a physical injury that would remove him from the MIG. The clinical notes and records (“CNRs”) of his family doctor Dr. Ishan and the Hamilton General Fracture clinic, reveal other injuries in the years post-accident, such as a finger fracture or bicep tendon rupture. However, the applicant does not direct me to any evidence that these conditions were caused by the accident. Accordingly, I find that the applicant has not met his onus to prove that he should be removed from the MIG on physical grounds.

11The applicant further argues that he should be removed from the MIG on the basis of chronic pain. He relies on the chronic pain report of Dr. Igor Wilderman dated April 15, 2024. Dr. Wilderman diagnosed the applicant with chronic pain syndrome, mechanical lower back pain, lumbago, depression, anxiety and PTSD, being aggravation of a pre-existing condition.

12The respondent disputes that the applicant has developed chronic pain as a result of the accident. It argues that Dr. Wilderman’s chronic pain assessment was conducted almost two years after the accident, but that the medical record during the intervening two years does not support any chronic pain diagnosis. The respondent further relies on Dr. Stevens’ addendum report dated July 29, 2024. Dr. Stevens considered the applicant’s s. 25 chronic pain report and disputed Dr. Wilderman’s diagnoses on the basis that it was not consistent with Dr. Stevens’ physical examination of the applicant, and the reviewed physiotherapy reports.

13I find that the applicant has not established that he suffers from chronic pain as a result of the accident. The applicant relies almost exclusively on his s. 25 chronic pain report. However, I agree with the respondent that the medical record does not support a chronic pain diagnosis. The applicant attended at his family doctor’s office and to hospital clinics in the years post-accident. However, the applicant has not directed me to evidence that he reported ongoing pain as a result of the accident, in the two years leading up to Dr. Wilderman’s assessment. Rather, the applicant had multiple appointments relating to non-accident related conditions, such as his finger fracture or bicep tendon rupture. However, the applicant has not provided any evidence to link these conditions to the accident. The applicant further does not direct me to any chronic pain diagnosis by his family doctor. Accordingly, I find that the applicant’s s. 25 chronic pain report is not supported by the objective medical record.

14The applicant has also not led sufficient evidence of functional impairment due to pain. The applicant points to his reports to Dr. Wilderman that post-accident he relied on his wife for household tasks, that he stopped going to the gym and playing soccer, and that he was unable to resume his food delivery job post-accident. However, the applicant also reported to the respondent’s assessor that he returned to full-time work post-accident without any restrictions. Dr. Stevens found that the applicant was able to substantially perform all of his pre-accident activities of normal life. The applicant has not directed me to any corroborating evidence of functional impairment due to pain in the family doctor or hospital clinic records. Accordingly, I find that the applicant has not met his onus to prove that he suffers from chronic pain as a result of the accident.

Psychological condition

15I find that the applicant has not established that he should be removed from the MIG on psychological grounds.

16The applicant relies on the pre-screening report of Dr. Allan Shapiro dated October 4, 2022. Dr. Shapiro provided a preliminary diagnosis of adjustment disorder with depressive mood, PTSD, and psychological factors stemming from musculoskeletal pain. The applicant also references the chronic pain report of Dr. Wilderman. In addition to the chronic pain diagnosis, Dr. Wilderman diagnosed the applicant with depression, anxiety and PTSD, being aggravation of pre-existing conditions.

17The respondent disputes that the applicant suffers from any psychological condition as a result of the accident. It relies on its s. 44 psychological assessment report of Dr. Peter Cobrain dated January 16, 2023 and the addendum dated July 29, 2024. Dr. Cobrain found that while the applicant experienced subclinical symptoms, he did not suffer from any DSM diagnosis.

18I find that the applicant has not met his onus to prove, on a balance of probabilities, that he suffers from a psychological condition as a result of the accident.

19I place limited weight on Dr. Shapiro’s report, as Dr. Shapiro noted that he had only conducted preliminary tests that were “not definitive”, and that a comprehensive, structured interview and further psychological testing was required to render a definitive diagnosis. Further, with respect to Dr. Wilderman’s diagnoses of depression, anxiety and PTSD, Dr. Wilderman noted that these conditions were an aggravation of pre-existing conditions. However, the applicant has not directed me to any evidence, such as family doctor records, to corroborate that he suffered from pre-accident psychological conditions or that they had been aggravated as a result of the accident.

20Further, I find that the CNRs of the family physician do not support that the applicant developed psychological conditions as a result of the accident. The applicant does not direct me to any CNR entry where he reported psychological symptoms as a result of the accident. Rather, in the only entry on November 27, 2023 where psychological symptoms were noted, the symptoms were linked to his workplace, not the accident. Accordingly, I find that the medical record supports Dr. Cobrain’s finding that the applicant did not suffer from a DSM diagnosis as a result of the accident.

21As such, I find that the applicant has not established that he should be removed from the MIG on psychological grounds.

22As I have found that the applicant has not established that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plan.

Interest

23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no payments are overdue, the applicant is not entitled to interest.

Award

24The 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 did not provide any submissions on an award. I find that the applicant has not established that the payment of any benefits were unreasonably withheld or delayed. Accordingly, the respondent is not liable to pay an award.

ORDER

25The applicant’s accident-related impairments are predominantly minor, and he is therefore subject to treatment within the $3,500.00 limit of the MIG.

26The applicant is not entitled to the treatment plans in dispute, an award or interest.

27The application is dismissed.