Aly v. Aviva Insurance Company, 2024 CanLII 72662

Citation: Aly v. Aviva Insurance Company, 2024 ONLAT 22-003920/AABS-A

Licence Appeal Tribunal File Number: 22-003920/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:

Nourelhoda Aly

Applicant

and

Aviva Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR: Robert Rock

APPEARANCES:

For the Applicant: Ioulia Logoutova, Paralegal

For the Respondent: Yalda Aziz, Counsel

HEARD: In Writing

OVERVIEW

1Ms. Nourelhoda Aly (hereinafter referred to as the applicant), was involved in an automobile accident on December 3, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Aviva 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:

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 (“MIG”) limit?

ii. Is the applicant entitled to ~~ $2,460.00 for a mental health assessment proposed by 101 Assessments June 13, 2019, and denied November 12, 2019?~~

ii. Is the applicant entitled to $2,451.90 for chiropractic services, proposed by Aqua Wellness Centre in a treatment plan / OCF-18 dated July 23, 2023 2021?

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

RESULT

2I find that the applicant has failed to demonstrate that her accident-related impairments warrant removal from the MIG and is therefore not entitled to the two-treatment plan at issue.

ANALYSIS

The Minor Injury Guideline (“MIG”)

3The applicant has not proven on a balance of probabilities that her injuries are more than minor in nature.

4Section 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 minor injuries. 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.”

5An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.

6The burden is on the applicant to demonstrate, on a balance of probabilities, that her injuries fall outside of the MIG.

7The applicant has made no argument in relation to the question why on the balance of probabilities that her injuries warrant her being removed from MIG. The only argument put forward by the applicant to be removed from MIG was in relation to her assertion that the respondent did not comply with s. 38(8) of the Schedule.

8The respondent argues that the applicant should not be removed from the MIG as she has provided no evidence beyond the applicant’s subjective reporting that she suffers any impairment.

9I find that the applicant has not met her onus and demonstrated that on a balance of probabilities, her accident-related impairments warrant removal from the MIG.

The applicant does not suffer from an injury or condition that precludes her recovery within the MIG

10The applicant has not directed me to medical evidence that the injuries she sustained as part of the motor vehicle accident would require treatment beyond MIG limits.

11The clinical notes and records (CNRs) of Dr. Nadia Gad do not show that the motor vehicle accident was ever discussed with her. Also, I do not see any medical testing being ordered to corroborate that the treatment plans were reasonable or necessary.

12The Insurer’s Examination report completed by Dr. Riaz Moolla, on September 9, 2021, does not find that the injuries sustained in the accident by the applicant were outside of MIG. The examination included a review of all medical data to the date of the examination and an in-person examination of the applicant.

13In review of the evidence, there is no evidence provided by the applicant to the nature of her injuries being beyond those classified as minor by the Schedule. In contrast, the respondent has provided a report that diagnosis the applicants injuries as minor.

14I find that the applicant has not proven on a balance of probabilities that her injuries are more than minor.

Compliance with s. 38(8) of the Schedule.

15The applicant argues that they should be entitled to the treatment plan proposed by Aqua Wellness Centre, due to the fact that the respondent’s denial did not comply with s. 38(8) of the Schedule.

16The respondent claims that they responded to the OCF-18 on a timely basis and provided the necessary rationale as to why the treatment plan was not approved.

17Section 38(8) of the Schedule states that:

(8) Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.

18In review of the first Explanation of Benefits provided by the respondent to the applicant dated August 5, 2021, I agree with the respondent that it has complied with its responsibilities as outlined in s. 38(8) of the Schedule.

In review:

a. The responses were provided in accordance with the Schedule due to the fact that it was in the 10 day response time period, described the goods, services, assessments and examinations the insurer did not agree to pay and the medical reason as to why that will not pay.

b. A medical reason was provided: that no compelling evidence that the impairment sustained was not predominantly a minor injury.

c. Letting the applicant know that a s. 44 examination has been set up and provided the practitioner’s name, time, and place of the assessment.

19In review of the second Explanation of Benefits provided by the respondent to the applicant dated September 29, 2021. I also agree with the respondent that it has complied with its responsibilities as outlined in s. 38(8) of the Schedule.

20In review: The responses were provided in accordance with the Schedule due to the fact that it was in the 10 day response time period, described the goods, services, assessments and examinations the insurer did not agree to pay and the medical reason as to why that will not pay.

a. A medical reason was provided: that compelling evidence that the impairment sustained was predominantly a minor injury, based on the s. 44 assessment by Dr. Moolla.

21Accordingly, the applicant has not proven on a balance of probabilities that the Explanation of Benefits did not comply with s. 38(8) of the Schedule.

Conclusion

22For the reasons noted above, the applicant remains within the MIG and its $3,500.00 limit on treatment.

The Treatment Plans

23As I have found the applicant to remain within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary.

24As I have found that the applicant remains in MIG and no payments are owed, no interest is owed on overdue payments.

ORDER

25I find that:

a. The applicant has failed to demonstrate that her accident-related impairments warrant removal from the MIG. She is not entitled to the treatment plans in dispute as a result.

b. The application is dismissed.