Maria Galipo v. Aviva Insurance Company of Canada, 2025 CanLII 13543

Licence Appeal Tribunal File Number: 22-005375/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:

Maria Galipo

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Kieffer Norton

APPEARANCES:

For the Applicant: Ilan Liebner, Counsel

For the Respondent: Alicia Edwards, Counsel

HEARD: By way of written submissions

OVERVIEW

1Maria Galipo, the applicant, was involved in an automobile accident on November 13, 2019, 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 a minor injury as defined in Section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (“MIG”) and the $3,500.00 funding limit for minor injuries?

ii. Is the applicant entitled to a medical benefit in the amount of $3,560.34 for a chiropractic treatment plan, proposed by Fit for Life Wellness and Rehabilitation in a treatment plan/OCF-18 (“plan”), Submitted November 25, 2020?

iii. Is the applicant entitled to interest on any overdue payments?

iv. Is the respondent liable to pay an award under s. 10 of O. Reg. 664?

RESULT

3I find that the applicant’s injuries fall within the MIG. Therefore, the application is dismissed.

ANALYSIS

Are the applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule?

4The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

6An applicant may receive payment for treatment beyond the $3,500.00 limit under s. 18(2) if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or, if they provide evidence of an injury that is not included in the minor injury definition in s. 3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

7The burden is on the applicant to demonstrate on a balance of probabilities that their injuries fall outside of the MIG.

8The applicant submits that the treatment plans submitted on her behalf are reasonable and necessary to treat her accident-related injuries and that her injuries are not predominantly minor as defined under the Schedule and cannot be treated within the confines of the MIG. The applicant submits that they have suffered physical impairments that warrant removal from the MIG.

9In response, the respondent submits that the applicant has not met their burden to prove that they suffer from more than minor injuries or that their pre-existing conditions prevent maximal medical recovery under the MIG. The respondent also argues that the applicant’s history of accidents raises concerns about causation.

Did the applicant suffer physical injuries that warrant removal from the MIG?

10On November 19, 2019, six days following the accident, the applicant attended to see Dr. Luciano Di Loreto of Vellore Medical Centre and Walk-in clinic. Dr. Di Loreto diagnosed the applicant with Whiplash associated disorder II (WAD-II), as well as minimal tenderness in the neck and lumbar area. These injuries fall within the definition of minor injuries under the Schedule.

11Between November 22, 2019 and March 26, 2020, the applicant would follow up with Dr. Di Loreto, who opined in the walk-in notes that the applicant has WAD II, thoracic strain and lumbar strain. These injuries are also defined as minor under the Schedule and do not on their own warrant removal from the MIG.

12The respondent submits that the Vellore Medical Centre clinical notes and records show a history of complaints of cervical, thoracic and lumbar sprains and strains prior to the accident, appearing to originate from a fall on June 30, 2019, raising causation issues.

13I agree that based on the clinical notes and records from Vellore Medical Centre that the applicant was suffering from cervical, thoracic and lumbar strains prior to the November 13, 2019 accident. However, in her submissions, the applicant failed to demonstrate that these pre-existing conditions would prevent her from achieving maximal medical recovery from her accident related impairments if she remains in the MIG, as required by s. 18(2).

14In any case, on April 1, 2022, the applicant underwent x-ray and imaging at Humber Valley Imaging. The applicant did not make submissions about how these assessments relate to the subject motor vehicle accident to warrant removal from the MIG. Furthermore, these assessments occurred after the applicant sustained impairments in a different motor vehicle accident on March 26, 2022, some 30 months after the motor vehicle accident in this application. As such I cannot afford them a great deal of weight as there is no evidence before me that conclusively shows these injuries were a result of the motor vehicle accident in question.

15I find that on a balance of probabilities the applicant has failed to prove that their injuries can be defined as beyond the MIG. Furthermore, I find that the applicant has failed to show that her injuries can be attributed to the MVA in question given the evidence of a second motor vehicle accident and subsequent assessments that occurred after.

Is the applicant entitled to a medical benefit in the amount of $3,560.34 for a chiropractic treatment plan?

16Since the applicant remains within the MIG they are not entitled to a medical benefit in the amount of $3,560.34 for a chiropractic treatment plan as it proposes treatment beyond the $3,500 MIG limit. Accordingly, an analysis of whether the treatment plan is reasonable and necessary is not required.

Is the applicant entitled to interest on any overdue payments?

17There are no overdue payments therefore interest is not owing.

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

18The applicant submits that by keeping them inside the MIG the respondent prevented timely treatment for a person living with daily pain, and in doing so the respondent has failed to support their maximal medical recovery and unreasonably withheld treatment. I find the respondent was correct in keeping the applicant within the MIG. The applicant has not demonstrated how the respondent’s conduct should attract an award. Given that there are no benefits that are due or outstanding as result of the respondent’s adjustment of the file, the applicant is not entitled to an award.

ORDER

19For the reasons above:

i. The applicant remains in the MIG and is subject to its $3,500 limit on benefits.

ii. As the applicant remains within the MIG the treatment plan in dispute is not reasonable and necessary.

iii. The applicant is not entitled to interest on any over due payments.

iv. The applicant is not entitled to an award.