Citation: Gill v. Aviva General Insurance, 2025 ONLAT 24-000554/AABS

Licence Appeal Tribunal File Number: 24-000554/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:

Jasdip Gill

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

John Mazzilli

APPEARANCES:

For the Applicant:

Kateryna Vlada, Counsel

For the Respondent:

Hussein Pirani, Counsel

HEARD:

By way of written submission

OVERVIEW

1Jasdip Gill, (the “applicant”), was involved in an automobile accident on July 23, 2021, 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 Aviva General Insurance (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The respondent characterized the applicant’s accident-related injuries as falling within the minor injury guideline (“MIG”) definition as outlined in section 3 of the Schedule and denied funding for the treatment and assessment plans in dispute. The applicant disagrees and submits that he ought to be removed from the MIG due to his physical and psychological injuries sustained in the accident.

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? Note: The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to $1,920.52 for a psychological assessment proposed by Inline Rehabilitation Inc. in an OCF-18/treatment plan(“plan”) dated December 29, 2021?

iii. Is the applicant entitled to $3,416.68 for psychological services proposed by Inline Rehabilitation Inc. in a plan dated August 3, 2022?

iv. Is the applicant entitled to physiotherapy services proposed by Inline Rehabilitation Inc. as follows:

a) $4,217.71 in a plan dated March 16, 2022?

b) $3,421.65 in a plan dated August 3, 2022?

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

RESULT

4The applicant remains in the MIG; therefore, an analysis of the reasonableness and necessity of the disputed treatment and assessment plans is not necessary.

5Since no benefits are owing interest is not owing.

6The application is dismissed.

ANALYSIS

Minor injury guideline (MIG)

7I find that the applicant has not established that he should be removed from the MIG.

8Section 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.”

9An 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 a functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

10The applicant submits that he should be removed from the MIG due to the severe physical and psychological injuries sustained in the accident. The applicant submits that he suffers from ongoing and debilitating pain in his neck, back and left shoulder that restricts some of his movements. He further submits that as a result of the accident he sustained significant psychological impairments, including but not limited to post traumatic stress disorder (“PTSD”), nervousness, anxiety, depressed mood, emotional distress, nightmares, sleep deprivation, weakness, fatigue, and diminished energy.

11The respondent argues that the applicant properly remains within the MIG as he has suffered uncomplicated soft tissue injuries and that the applicant’s pain complaints lacked corroborative medical evidence. It further argues that the applicant does not meet the clinical threshold for a DSM-V diagnosis and that the applicant has not suffered any accident-related psychological injuries as a result of the accident.

12For the following reasons, I find that the applicant sustained a minor injury as a result of the accident.

Physical injuries

13I find no compelling medical evidence demonstrating that the applicant has sustain physical injuries that preclude his recovery within the MIG.

14The applicant submits that he experiences ongoing debilitating pain in his neck, back and left shoulder as a result of the accident, that his pain restricts some of his movements, prevents him from partaking in some of his activities of daily living and that his physical limitations significantly impact his overall wellbeing. The applicant relies on the Clinical Notes and Records (CNRs) from his family physician, Dr. Uppal.

15The respondent argues that the applicant sustained minor injuries as a result of the accident which consist of a sprain/strain of the cervical, lumbar, and thoracic spine. The respondent argues that the applicant only visited his family physician on two occasions following the accident for accident-related complaints.

16It should be noted that the CNRs of Dr. Uppal are largely illegible, however there are two accident-related visits to Dr. Uppal on July 26 and July 27, 2021, that do not suggest that the applicant sustained injuries that cannot be treated within the MIG. At these visits, the applicant complained of lower back pain and Dr. Uppal’s treatment for these accident-related injuries was rest, ice compress and elevation, as well as Tylenol and physiotherapy.

17I was not pointed to any follow-up appointments with Dr. Uppal or any other medical expert opinion that suggests that the applicant’s sprains and strains to his cervical, lumbar, and thoracic spine are non-minor injuries, have not resolved, or that his recovery is precluded by remaining in the MIG. The onus is on the applicant to demonstrate that he sustained an injury that is not included in the MIG definition outlined in section 3 of the Schedule. I find on a balance of probabilities no compelling medical evidence demonstrating that the applicant sustained physical injuries that preclude his recovery within the MIG.

Psychological Impairment

18I find that the applicant has not sustained a psychological impairment as a result of the accident that warrants removal from the MIG.

19The applicant submits that the accident has had a profound impact on his overall well-being, manifesting as severe aggravation of symptoms in his neck, left shoulder and lower regions of his back. He submits that these physical ailments have caused various psychological impairments and that he meets the DSM-5 diagnoses of specific phobia (driving/passenger/pedestrian related) and adjustment disorder with mixed anxiety and depressed mood, in partial remission. The applicant relies on a psychological assessment report dated May 26, 2022, completed by Sabrina Simmons, MA, under the supervision of Valery Kleiman, psychologist.

20The respondent argues that there is no contemporaneous evidence of psychological complains by the applicant to his family doctor, Dr. Uppal. It argues that the applicant’s diagnosis of specific phobia driving/pedestrian/passenger by the s. 25 assessor does not align with the objective testing conducted by its s.44 assessor. The respondent argues that the applicant’s s.25 assessor Sabrina Simmons relied solely on the applicant’s self reporting and that she was not authorized to provide a psychological diagnosis as she is listed as a psychometrist and not a psychologist.

21In this case I prefer the evidence tendered by Dr. Lee over that of Sabrina Simmons and Dr. Kleiman because, Dr. Lee’s evidence is corroborated by the applicant himself. Namely the applicant reported to Dr. Lee that while he does have some residual vehicular cautiousness, he does not personally believe that he requires psychological treatment. The applicant’s self report to Dr. Lee further supports Dr. Lee’s opinion based on a one hour and fifteen-minute assessment which included psychometric testing that the applicant does not suffer from a DSM-5 diagnosis, and that the applicant’s cautiousness with driving when at a red light can be addressed within the confines of the MIG.

22I further note that the applicant’s s.25 assessor’s diagnosis does not align with the DSM-5 diagnostic criteria for adjustment disorder with mixed anxiety and depressed mood. The s. 25 subjective testing results show that the applicant’s depression, anxiety, and stress scale (“DASS”) is indicative of normal levels of depression, anxiety, and stress and that his patient health questionnaire 9 (“PHQ-9”) score indicates a level of “none” to a “minimal” level of depression.

23In addition, while Dr. Kleiman cosigned the assessment report along with Sabrina Simmons there is no indication that Dr. Kleiman participated in the applicant’s clinical video conference interview, psychological testing, the interpretation of the results or which assessor provided the psychological diagnosis.

24This is further complicated by the applicant’s submission that “according to Ms. Simmons, considering all of the applicant’s symptoms the applicant diagnostically meets the criteria for the DSM-5 diagnosis of specific phobia driving/passenger/pedestrian related”. I cannot accept Ms. Simmons’s diagnosis of DSM-5 as she is not qualified to provide a psychological diagnosis.

25The applicant continues to work as a truck driver/delivery person 40 to 55 hours a week, he is independent in his activities of daily living, he has not reported any mood disruptions, he continues his leisure and recreational activities, and he further reported to Dr. Lee that he is not impaired from driving in the sense that he continues to travel as required, such as to work, to physical therapy and to the gym. This does not support Ms. Simmons clinical diagnosis of DSM-5 of specific phobia driving/passenger/pedestrian related.

26I find on a balance of probabilities that the applicant has not sustained a psychological impairment as a result of the accident that warrants removal from the MIG.

The OCF-18’s in dispute

27The applicant remains in the MIG, so an analysis of the reasonableness and necessity of the disputed treatment and assessment plans is not required.

Interest

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, interest is not owing.

ORDER

29It is ordered that:

i. The applicant remains in the MIG.

ii. As the applicant is in the MIG, it is not necessary to consider whether the treatment plans or the assessment in dispute is reasonable and necessary.

iii. Since no benefits are owing, interest is not payable.

iv. The application is dismissed.