Monico v. Aviva Insurance Company of Canada, 2025 CanLII 119940

Citation: Monico v. Aviva Insurance Company of Canada, 2025 ONLAT 24-000448/AABS

Licence Appeal Tribunal File Number: 24-000448/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:

Alvaro Monico

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Aric Bhargava

APPEARANCES:

For the Applicant: Hermia Leung, Paralegal

For the Respondent: Sadaf Shahzad, Counsel

HEARD: By way of written submissions

OVERVIEW

1Alvaro Monico, the applicant, was involved in an automobile accident on February 5, 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, Aviva 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:

i. Are the applicant’s injuries predominantly minor as defined in section 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 a non-earner benefit of $185.00 per week from March 5, 2022, to February 4, 2024?

iii. Is the applicant entitled to the treatment proposed by Mackenzie Medical Rehabilitation Centre in treatment plans/OCF-18s (“plan”), as follows:

(a) $3,795.50 for chiropractic services, in a plan submitted on February 28, 2022;

(b) $2,023.03 for chiropractic services, in a plan submitted on June 22, 2022; and

(c) $1,525.84 for chiropractic services, in a plan submitted on August 3, 2022?

iv. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Prime Health Care Inc., in a plan submitted on July 11, 2023?

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

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

RESULT

3The applicant is subject to the MIG.

4The applicant is not entitled to a non-earner benefit.

5As the applicant is in the MIG, it is not necessary for me to consider if any of the disputed treatment plans are reasonable and necessary.

6The applicant is not entitled to interest.

7The respondent is not liable to pay an award.

ANALYSIS

Application of the Minor Injury Guideline

8I find the applicant’s injuries are predominantly minor injuries subject to treatment within the MIG.

9Section 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.”

10The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2), that he has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if he is kept within 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.

11The applicant submits he requires treatment outside of the MIG because he has a pre-existing condition that prevents maximal recovery, as well as chronic pain, and psychological impairments as a result of the accident.

12The respondent submits the applicant’s pre-existing injury does not prevent him from achieving maximal recovery, his injuries are predominantly minor, he does not have chronic pain, and his psychological symptoms fall below the DSM-5 diagnostic threshold.

Does the applicant have chronic pain with functional impairment?

13I find the applicant does not have chronic pain with a functional impairment that would remove him from the MIG.

14The applicant submits he has developed chronic lower back, left wrist, left knee and shoulder pain as a result of the accident, and relies on the clinical notes and records (“CNRs”) of Mr. Saad Khan, psychotherapist, and Dr. Michael Cianfrone, family physician.

15The CNRs of Dr. Cianfrone show the applicant visited his family doctor four times following the accident, from the date of the accident on February 5, 2022 to April 25, 2025 regarding his accident-related pain in his lower back, left wrist, knee and shoulder pain. Three of the visits were in February 2022 and the fourth visit was in March 2022. The doctor notes one complaint of back pain in the dorso-lumbar region with tenderness and that his injuries are consistent with muscle strain. The applicant was referred for an ultrasound and MRI of his left knee that confirmed there was no evidence of a tear. The applicant did not direct me to evidence of a functional impairment.

16I assign little weight to Mr. Khan’s pre-screen interview report dated July 8, 2023, some 17 months after the accident because it is a “psychology pre-screen report” with no objective measures included in the assessment and no evidence of a functional impairment. In my view, it is out of scope for Mr. Khan to assess the applicant’s physical injuries. In any event, the pre-screen report is not supportive of the applicant’s claim. There is no medical evidence of significance indicating that the applicant complained of accident-related pain between March 2022 and July 2023. I find the medical evidence indicates that the applicant has pain consistent with sprain and strain injuries resulting from the accident.

17The respondent submits the applicant has not provided a diagnosis of accident-related chronic pain or any related functional impairment.

18I find on a balance of probabilities that the applicant does not have chronic pain with a functional impairment that occurred as a result of the accident, or that he should be removed from the MIG on this basis.

Does the applicant have pre-existing conditions that prevent maximal recovery?

19I find the applicant has not met his onus in demonstrating his pre-existing conditions warrant removal from the MIG.

20I find the first part of the test in section 18(2) is met. The applicant has a documented pre-existing injury in his left wrist. This is evidenced by the report dated April 5, 2019, prepared by Dr. Herb von Schroeder, orthopaedic surgeon.

21I find, however, that the second part of the test has not been met. The applicant has not provided compelling medical evidence that will prevent the insured person from achieving maximal recovery from the minor injury.

22The applicant argues his pre-existing left wrist injury was aggravated due to the accident and that prevents him from recovering fully. He relies on the WSIB Hand & Wrist Speciality Clinic Follow Up Report prepared by Dr. Herb von Schroeder, orthopaedic surgeon, dated April 5, 2019, the CNRs of Dr. Cianfrone, and the CNRs of Prime Health Care Inc., specifically the psychology pre-screen report completed by Mr. Khan, noted above.

23The respondent submits the applicant has not provided medical evidence from any treating physician that his left wrist injury prevents him from achieving maximum medical recovery.

24Dr. von Schroeder’s report notes the applicant suffered a work-related left wrist injury on August 29, 2017 and he will have ongoing issues in the ulnar of the left wrist. However, Dr. Schroeder notes the applicant “is at maximum medical recovery without surgery and will require ongoing management.” The applicant did not direct me to compelling evidence that the applicant cannot achieve maximal recovery if subject to the MIG.

25Therefore, I find on a balance of probabilities that the applicant has not met his burden to prove his pre-existing condition will prevent him from achieving maximal recovery under the MIG.

Does the applicant have an accident-related psychological impairment?

26I find that the applicant has not met his burden to prove that he suffers from a psychological impairment that would warrant removal from the MIG.

27The applicant summarized his accident-related psychological impairments as sleep disruption, low energy, depression, irritability, tension, social withdrawal, concentration and memory issues, and anxiety. The applicant relies on the CNRs of Dr. Cianfrone.

28The respondent’s submission is silent on this matter.

29The CNRs of Dr. Cianfrone note on July 22, 2022, the applicant has “situational crisis/depression” and note that this is due to the situation with his ex-wife. Dr. Cianfrone’s notes indicate this was a separate diagnosis from his accident-related injuries. The applicant has not directed me to evidence that the depression diagnosis or his psychological symptoms are related to the accident.

30I find Dr. Cianfrone’s CNRs are not supportive of the applicant’s claim and the diagnosis of depression and psychological symptomology are not due to the accident.

31I find on a balance of probabilities that the applicant has not met his burden to establish that he has a psychological impairment as a result of the accident.

Is the applicant entitled to a non-earner benefit?

32I find the applicant has not met his burden to demonstrate he is entitled to a non-earner benefit (“NEB”) for the period in dispute.

33Section 12(1) of the Schedule provides that an insurer shall pay a 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) of the Schedule defines a complete inability to carry on a normal life as “an impairment that continuously prevents the person from engaging 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 (“Heath”), which generally focusses on a comparison of the applicant’s pre- and post-accident activities.

34The applicant submits that he has suffered a complete inability to carry on a normal life due to his accident-related injuries. He submits that his pre-accident activities include his work, performing household chores, participation in sports and outdoor activities. The applicant relies on the CNRs of Dr. Cianfrone, and the OCF-3/Disability Certificate prepared by Dr. Ayden Banibashar, chiropractor, of Mackenzie Medical Rehabilitation Centre.

35The respondent submits that the applicant does not suffer a complete inability to carry on a normal life and relies on the multidisciplinary section 44 insurer’s examination prepared by Dr. Gilbert Yee, orthopaedic surgeon, Ms. Faye Perreras, occupational therapist, and Mr. Peter Salerno, psychologist.

36The OCF-3 dated February 22, 2022, notes the applicant’s complaints are sprain and strain of joints, thoracic spine, sacroiliac joint, shoulder joint, left elbow, left wrist, hip, left knee, sleep disorders, and anxiety. In Part 6 Disability Tests and Information, Dr. Banibashar indicated the applicant is substantially unable to perform essential tasks of his employment and he can return to work on modified hours and duties. Dr. Banibashar notes the applicant “returned to work … but has pain with repetitive tasks, sustaining postures, overhead activities, bending, lifting and carrying.” Dr. Banibashar indicated the applicant suffers a complete inability to carry on a normal life with an anticipated duration of 9 – 12 weeks.

37I find the CNRs of Dr. Cianfrone do not support the applicant’s claim that he suffers a complete inability to carry on a normal life because his injuries were noted as muscle strain and both Dr. Banibashar and Dr. Cianfrone note the applicant continues to work. In my view, the applicant has not demonstrated a complete inability to carry on a normal life.

38I assign weight to Dr. Yee, Ms. Perreras, and Mr. Salerno’s section 44 multidisciplinary report dated November 16, 2022 because the report provides a comparison of the applicant’s pre- and post-accident activities that notes the applicant is independent in his personal care tasks and returned to his activities of daily living. Dr. Yee notes the applicant’s injuries are minor in nature and he “does not suffer from a complete inability to carry on a normal life as a result of the motor vehicle accident.” Ms. Perreras notes the applicant continued working “on modified duties which include no heavy lifting and no bending.”

39I find the applicant has not demonstrated on a balance of probabilities that he has suffered a complete inability to carry on with a normal life. Therefore, I find the applicant has not met his burden of proving he is entitled to a non-earner benefit for the period in dispute.

Are the treatment plans reasonable and necessary?

40Having found that the applicant is subject to the MIG, I do not need to consider whether the treatment plans in dispute are reasonable and necessary.

Interest

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

Award

42The applicant sought an award under section 10 of Reg. 664. Under section 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 onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

43The applicant submits the respondent was unreasonable in its denial of the benefits and withholding treatment outside of the MIG. The applicant submits the respondent failed to comply with section 38(8) of the Schedule, however, the applicant did not direct me to evidence in support of this.

44The respondent submits that it reasonably reviewed all evidence, conducted insurer’s examinations, and clearly articulated reasons for their denial throughout the process.

45I find an award is not appropriate and the respondent’s actions do not constitute unreasonable withholding of benefits. As a result, no award is payable.

ORDER

46The applicant is subject to the MIG.

47The applicant is not entitled to non-earner benefits.

48As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

49As there are no overdue benefits, the applicant is not entitled to interest.

50The applicant is not entitled to an award under section 10 of Reg. 664 because no payments were unreasonably withheld.

51The application is dismissed.