Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 24-003308/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:
Stephen Phillips
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Lucas Lindsay, Counsel
For the Respondent: Jordan Hochman, Counsel
HEARD: By way of written submissions
OVERVIEW
1Stephen Phillips, the applicant, was involved in an automobile accident on December 12, 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 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 s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit (“MIG”)?
ii. Is the applicant entitled to $200.00 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan dated March 24, 2022?
iii. Is the applicant entitled to $2,188.76 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan dated June 30, 2022?
iv. 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. The applicant is not entitled to the treatment plans in dispute or interest.
ANALYSIS
Minor Injury Guideline
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 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.”
5An 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.
6The applicant submits that he should be removed from the MIG, as he has developed chronic pain as a result of the accident.
Chronic pain
7I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain as a result of the accident.
8Chronic pain conditions are not included in the definition of a “minor injury”. In order to establish that the applicant has a chronic pain condition, he must demonstrate that his pain causes a functional impairment which adversely affects his well-being. Although not binding, the Tribunal has found that the criteria for a chronic pain condition outlined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”) can be a useful interpretive tool. A diagnosis of chronic pain, absent evidence of ongoing functional impairment due to pain, is insufficient to establish a non-minor injury.
9The applicant submits that on the day of the accident, he attended the hospital and was diagnosed with neck trauma, right shoulder and neck pain.