Lewis v. Aviva Insurance Company of Canada, 2025 CanLII 135582

Citation: Lewis v. Aviva Insurance Company of Canada, 2025 CanLII 135582

Licence Appeal Tribunal File Number: 24-002260/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:

Alexandra Lewis

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Laura Goulet

APPEARANCES:

For the Applicant: Hermia Leung, Paralegal

For the Respondent: Natalie Spinelli, Paralegal

HEARD: By way of written submissions

OVERVIEW

1Alexandra Lewis, the applicant, was involved in an automobile accident on December 21, 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 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 chiropractic services proposed by Physiomed Dixie as follows:

1. $3,315.50 in a treatment plan/OCF-18 (“plan”) dated February 21, 2023?
2. $1,553.72 in a plan dated March 7, 2023?
3. $1,553.72 in a plan dated June 30, 2023?

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

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

RESULT

3The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG.

4Since the applicant has not demonstrated that her accident-related impairments warrant removal from the MIG, it is not necessary to determine the reasonableness and necessity of the disputed treatment plans.

5The respondent is not liable to pay an award.

6The applicant is not entitled to interest.

ANALYSIS

Applicability of the MIG

7Section 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.”

8An 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 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.

9The applicant submits that she has a pre-existing condition, aggravated by the accident, that prevents her from recovery, that she has developed chronic pain due to her accident-related injuries, and that she has depression and anxiety symptoms because of the accident.

10The parties agree that the MIG limit has been exhausted.

The applicant does not suffer from chronic pain that would remove her from the MIG

11The applicant has not met her onus of proving on a balance of probabilities that she suffers from chronic pain with functional impairment as a result of the accident.

12The applicant relies on the following medical evidence of accident-related injuries:

i. The applicant attended at the hospital on December 21, 2022, reporting midback pain, neck pain, and left arm pain because of the accident. Upon exam, it was noted that she had mild tenderness parasites C-spine left sided, and some mild tenderness towards T12-L1 region. She was diagnosed with soft tissue injuries. The applicant declined Tylenol and no medications were prescribed. She was advised to rest her arm, apply ice, to take over the counter analgesics as needed, and to follow up with her family physician within the week.

ii. The applicant attended to see her family physician, Dr. Marilyn Kieffer, on January 9, 2023, and reported neck and back pain, a sore left arm, anxiety, being frightened to drive, that she kept reliving the scene and that she could not sleep. Dr. Kieffer diagnosed the applicant with back strain, referred her for physiotherapy, suggested that she get counselling, and prescribed Ketorolac and Cipralex.

iii. When the applicant began attending for treatment at Physiomed Dixie on January 18, 2023, she complained of pain in her mid and upper back, shoulders, and neck, frequent headaches and migraines. From January 18, 2023 to March 30, 2023, she attended approximately fourteen physiotherapy treatment sessions.

iv. On March 21, 2023, Dr. Kaleem Shaikh, chiropractor, completed a Disability Certificate (OCF-3), listing the applicant’s accident-related injuries as follows: sprain and strain of the lumbar spine and sacroiliac joint, dislocation, sprain, and strain and joints and ligaments of the thorax and the knee, lumbago with sciatica, radiculopathy of the lumbar region, injury of muscle and tendon at neck level, other headache syndromes, disorders of vestibular function, and Temporomandibular joint (TMJ) disorders.

v. On April 17, 2023, during a s. 44 Insurer Examination (“IE”) assessment conducted by Dr. Jamie Rusen, orthopaedic surgeon, the applicant reported ongoing neck and upper back pain because of the accident, rated at a 6 to 7 out of 10 in intensity.

vi. On March 14, 2024, Dr. Grigory Karmy, chronic pain physician, conducted a chronic pain assessment during which the applicant reported chronic neck and upper back pain rated at 7 to 9 out of 10, chronic headaches, lower back pain rated at 7 to 9 out of 10, sleep disturbances due to pain, significant cognitive and memory issues, depression and anxiety symptoms due to chronic pain, intrusive thoughts, and anxiety as a passenger and pedestrian. As a result of pain, she also reported that she had been experiencing difficulties with deep cleaning, bathtub cleaning, doing laundry, and shopping for groceries, and that she had stopped going out with her friends and attending family and social gatherings due to constant pain. In his report dated May 10, 2024, Dr. Karmy diagnosed the applicant with the following accident-related injuries: persistent symptoms following Traumatic Brain Injury (“TBI”), chronic post-traumatic headache, chronic mechanical neck, upper back, and lower back pain, sacroiliac joint dysfunction, myofascial pain syndrome, chronic pain syndrome, sleep disorder, possible mood disorder with symptoms of driving, passenger and pedestrian anxiety.

13The applicant relies on the decision of 17-000835 v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT) at para 23, where the Tribunal held that chronic pain is ongoing or recurrent pain lasting beyond the usual course of acute illness or injury or more than 3 to 6 months, and which adversely affects the individual’s well-being.

14I am not bound by other decisions of the Tribunal. I do not agree that pain which persists three to six months “which adversely affects the individual’s well-being” is sufficient to establish chronic pain. As I have noted above, the Tribunal has determined chronic pain may warrant removal from the MIG, if it causes functional impairment. In my view, the applicant must also demonstrate on a balance of probabilities that they have functional impairment because of the chronic pain.

15The applicant submits that her pain has not dissipated two years after the accident, and that that her pain has caused her functional impairments with her household tasks, as reported to Dr. Karmy.

16I place very little weight on Dr. Karmy’s report for the following reasons:

i. Dr. Karmy makes several diagnoses, none of which were made by the applicant’s family doctor, or any other physician. I note that at the hospital, the applicant was diagnosed with soft tissue injuries only, and that the applicant’s family physician, Dr. Kieffer, diagnosed her with back strain.

ii. Dr. Karmy diagnoses a TBI, presumably based on the applicant’s self reporting that she hit her head during the accident, she believed that she lost consciousness briefly, and that she was dizzy, shocked, and nauseated immediately after the collision. Although Dr. Karmy indicated that he reviewed the clinical notes and records (“CNRs”) from the hospital and from Dr. Kieffer, as well as Dr. Rusen’s IE report, Dr. Karmy did not comment on the fact that the applicant did not report a loss of consciousness, dizziness, or nausea at the hospital on the day of the accident, to Dr. Kieffer on January 9, 2023, or to Dr. Rusen on April 17, 2023.

iii. The applicant did not refer me to any CNRs from Dr. Kieffer after January 9, 2023. Accordingly, I find that the evidence does not show that the applicant made any accident-related pain complaints to her family doctor after January 9, 2023. Given that the applicant has only directed me to evidence that she attends for physiotherapy as a result of the accident, I am not persuaded by Dr. Karmy’s opinion that the applicant has become dependent on multiple health care providers with respect to her chronic pain management.

iv. Dr. Karmy’s report indicates that the applicant reported that she hit her “right” forearm during the accident and she currently had intermittent numbness and tingling in the “right” elbow, forearm and wrist regions.

v. Even though Dr. Karmy correctly notes that the applicant reported being unable to move her “left” arm due to pain at the hospital, that she reported a sore “left” arm to Dr. Kieffer on January 9, 2023, and Dr. Karmy reviewed x-rays that were taken of the “left” arm, Dr. Karmy indicates that the applicant has developed chronic neuropathic/radicular “right” upper limb pain. The respondent submits that this injury was not previously reported and could not have been sustained in the accident.

vi. Even though the medical evidence only supports accident-related complaints of pain to the applicant’s left arm, Dr. Karmy opines that her accident-related injuries impact her ability to perform repetitive “right” upper limb movements and pushing and pulling with her “right” hand.

vii. Dr. Karmy’s diagnosis on May 10, 2024 of a possible mood disorder is not corroborated by the medical records. I find that, prior to her meeting with Dr. Karmy, the applicant reported accident-related psychological symptoms on only one occasion, i.e., to Dr. Kieffer on January 9, 2023. The applicant does not direct me to any other reports of psychological symptoms between January 9, 2023, and Dr. Karmy’s assessment on March 14, 2024, nor does Dr. Karmy’s report reference any.

viii. Given the fact that the applicant only reported psychological symptoms on one occasion after the accident and prior to the assessment, and that Dr. Karmy did not conduct any psychometric testing, I am not persuaded by his opinion that the applicant experiences clinically significant anxiety and depressive symptoms with some post-traumatic features, because of the accident.

17I am not satisfied on a balance of probabilities that the applicant has a functional impairment due to chronic pain. In contrast to her reports to Dr. Karmy, the applicant reported to Dr. Rusen on April 17, 2023 that she was able to cook, wash dishes by hand, mop, sweep, vacuum, do laundry, deep cleaning, and grocery shop. She reported that her daughter helped her with tasks that involve repetitive bending. The applicant also reported that she was independent with respect to completing all personal tasks including showering, grooming, dressing/undressing, feeding and toileting.

18In addition, considering the applicant’s inconsistency in reporting her functional abilities with respect to household tasks to Dr. Karmy and Dr. Rusen, I am not persuaded by Dr. Karmy’s opinion that the applicant has been suffering from physical deconditioning since the accident.

19Further, although the applicant reported to Dr. Karmy that she could no longer do her previous job at a car dealership because of the physical demands of the job, she did secure a less physically demanding job as an office administrator. The applicant reported that she has to fight through her pain during the workday. Nevertheless, I note that there is no indication that the applicant works less than full time hours.

20For these reasons, I find that the applicant has not met her onus of demonstrating on a balance of probabilities that she suffers from chronic pain with functional impairment because of the accident.

The applicant’s pre-existing injury does not warrant removal from the MIG

21The applicant has not met her onus of proving on a balance of probabilities that she has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if she is kept within the MIG.

22The applicant submits that she sustained a herniated disc due to a slip and fall injury in 2014. She further submits that the medical evidence demonstrates that she was diagnosed with a herniated disc for which she required an L5-S1 microdiscectomy, which was aggravated by the accident, preventing her from achieving maximal recovery within the MIG.

23The applicant does not direct me to any documented pre-accident evidence with respect to the microdiscectomy or the slip and fall. The applicant relies on her reporting of the surgery to Dr. Karmy, Dr. Rusen and to Dr. Shaikh, who completed the OCF-3. Further, I find that the applicant’s reporting in this regard has been inconsistent. The OCF-3 dated March 21, 2023 indicates that the applicant had the surgery on April 9, 2019. On April 17, 2023, she reported to Dr. Rusen that she had a slip and fall injury in 2014 and surgery in 2015. On March 14, 2024, she reported to Dr. Karmy that she had the surgery after a slip and fall accident in 2017.

24Under the first part of the test in s. 18(2) of the Schedule, the applicant must have a “documented” pre-existing condition. I find that the applicant has not put into evidence any medical records with respect to the slip and fall or the subsequent surgery, and therefore she has not provided any documented proof of a pre-existing injury.

25For these reasons, I find that the applicant has not met her onus of demonstrating on a balance of probabilities that her pre-existing injury warrants removal from the MIG.

The applicant does not have a psychological condition that warrants removal from the MIG

26The applicant has not met her onus of proving on a balance of probabilities that she has a psychological condition that warrants removal from the MIG.

27The applicant submits that she should be removed from the MIG because she has depression and anxiety symptoms because of the accident.

28On January 9, 2023, the applicant reported the following accident-related symptoms to Dr. Kieffer: anxiety, being frightened to drive, that she kept reliving the scene and could not sleep.

29The applicant also reports the following accident-related symptoms to Dr. Karmy on March 14, 2024: sleep disturbances due to nightmares, difficulty focusing and sustaining attention, memory issues, anxiety, frustration, irritability, intrusive thoughts and memories of the accident, as well as driving, passenger and pedestrian anxiety. Dr. Karmy diagnosed the applicant with a sleep disorder, and a possible mood disorder with symptoms of driving, passenger and pedestrian anxiety.

30As indicated above, Karmy’s diagnoses are not corroborated by the medical records. The applicant reported accident-related psychological symptoms to her family doctor on January 9, 2023. The applicant does not direct me to any other reports of psychological symptoms between January 9, 2023, and Dr. Karmy’s assessment on March 14, 2024, over one year and two months later.

31Based on the evidence before me, I am not persuaded on a balance of probabilities that the applicant suffers from a psychological condition because of the accident.

32For these reasons, I find that the applicant has not met her onus of demonstrating on a balance of probabilities that she has a psychological condition that warrants removal from the MIG.

33For the reasons set out above, I find that the applicant’s injuries are predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the MIG funding limit.

34As the applicant is in the MIG, it is unnecessary to consider the reasonableness and necessity of the treatment plans in dispute.

Interest

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.

Award

36The applicant sought an award under s. 10 of Reg. 664. Under s. 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. Since no benefits were unreasonably withheld or delayed, the applicant is not entitled to an award.

ORDER

37For the above reasons, I find:

i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG.

ii. Since the applicant has not demonstrated that her accident-related impairments warrant removal from the MIG, it is not necessary to determine the reasonableness and necessity of the disputed treatment plans.

iii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule.

iv. The respondent is not liable to pay an award.