Citation: Dhanraj v. Aviva General Insurance Company, 2025 ONLAT 24-002145/AABS
Licence Appeal Tribunal File Number: 24-002145/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:
Sooman Dhanraj
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Amar Mohammed
APPEARANCES:
For the Applicant:
Faisal Afridi, Counsel
For the Respondent:
Simran Walia, Counsel
HEARD:
By Way Of Written Submissions
OVERVIEW
1Sooman Dhanraj, the applicant, was involved in an automobile accident on October 29, 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 General 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 $1,895.30 for other goods and services, proposed by Unison Medical Assessments in a treatment plan/OCF-18 (“plan”) dated November 26, 2021?
iii. Is the applicant entitled to $2,776.90 for physiotherapy services, proposed by O/A Airport Rehab in a plan dated April 2, 2022?
iv. Is the applicant entitled to $1,796.00 for occupational therapy services proposed by Unison Medical Assessments in a plan dated March 23, 2022?
v. Is the applicant entitled to $2,160.51 for psychological services proposed by Unison Medical Assessments in a plan dated March 25, 2022?
vi. Is the applicant entitled to $2,044.88 for other assistive devices proposed by Unison Medical Assessments in a plan dated February 16, 2022?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
3The following issue was withdrawn by the applicant in his initial submissions:
i. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
4I find that the applicant’s injuries are subject to the MIG limit. Since the applicant is subject to the MIG limit, it is not necessary to assess whether the various plans in dispute are reasonable and necessary. The applicant is not entitled to interest.
ANALYSIS
The applicant’s injuries are subject to the MIG limit.
5I find that the applicant’s injuries are subject to the MIG limit.
6Section 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.”
7An 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 functional impairment, or a psychological condition, may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
8The applicant argues that he should be removed from the MIG on the basis of chronic pain, and a psychological condition. The respondent argues the applicant has not met his burden on the test for removal from the MIG.
Chronic Pain
9I find that the applicant has not established that he suffers from chronic pain with a functional impairment that warrants removal from the MIG.
10The applicant argues that his continued pain indicates a chronic injury which places him outside of the MIG. In support, the applicant refers to the clinical notes and records of his family doctor. Upon review, I find that the most recent entry I am referred to is dated January 2, 2022, which notes the applicant returning to work the next day, and a pain complaint in his lower neck. The applicant was also prescribed medication.
11The applicant submits that his pain complaints continued seven months post-accident according to the respondent’s assessor. I note that I am not referred to a tab and page number to support these submissions as required by the Case Conference Report and Order. In any case, even if I was to accept that the applicant made pain complaints on January 2, 2022, two months post-accident, and then also made them to an assessor approximately seven months post-accident, this is not sufficient to establish chronic pain with a functional impairment that may warrant removal from the MIG. I find that the applicant has not been diagnosed with chronic pain.
12The Tribunal has held that the six criteria in The American Medical Association’s, Guides to the Evaluation of Permanent Impairment, 6th Edition (“AMA Guides”) are a helpful tool in the assessment of chronic pain. While the AMA Guides criteria for chronic pain are not incorporated into the Schedule, the Tribunal has consistently considered them a useful interpretive tool for assessing claims of chronic pain in accident benefits disputes in the absence of a diagnosis of chronic pain.
13Meeting at least three of the following six criteria may support a claim of chronic pain in the context of removal from the MIG. These six criteria are:
i. use of prescription drugs beyond the