Citation: Giovanni v. Aviva General Insurance Company, 2025 ONLAT 24-004115/AABS

Licence Appeal Tribunal File Number: 24-004115/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:

Shai Giovanni

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lisa Holland

APPEARANCES:

For the Applicant:

Patrick D'Aloisio, Counsel

For the Respondent:

Tresa Zacharia, Counsel

Cara L. Boddy, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Shai Giovanni, the applicant, was involved in an automobile accident on February 14, 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 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 $2,204.10 for physiotherapy services, proposed by PhysioFlex Canada Inc. in a treatment plan/OCF-18 (“plan”) dated June 29, 2022?

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

RESULT

3The applicant has not demonstrated on a balance of probabilities that her accident-related impairments warrant removal from the MIG.

4As the MIG limits have been exhausted, it is not necessary to consider whether the treatment plan for physiotherapy services is reasonable and necessary.

5As no benefits are owing, no interest is payable.

ANALYSIS

The applicant has not demonstrated that she suffers from accident-related injuries that warrant removal from the MIG

6I find that the applicant has not demonstrated that she suffers from accident-related chronic pain with functional impairments, nor has she demonstrated that she suffers from accident-related psychological impairments. She has not demonstrated that she sustained impairments which warrant removal from 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 in accordance with the MIG. 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’s submissions are predominantly based on a discussion of pain-based symptomatology, which may support removal from the MIG if established by the applicant. However, I find the applicant has not demonstrated that her accident-related injuries and impairments require treatment beyond the MIG for the following reasons.

10The applicant seeks removal from the MIG on the basis of her chronic pain. However, to support her assertion that she suffers from chronic pain, the applicant did not provide substantive submissions on the six criteria under the American Medical Association, Guides to the Evaluation of Permanent Impairment (6th Edition, 2008, pp. 23-24) (“AMA Guides”).

11The applicant relies on the Disability Certificate (“OCF-3”) dated June 8, 2022, completed by Mamta Kansara, physiotherapist, of PhysioFlex Canada Inc.; and the clinical notes and records (“CNRs”) of various physicians at the Etobicoke Urgent Care Centre, including Dr. Alan Kruger, Dr. Ijaz Chaudhry, Dr. Atiq Uz Zaman, Dr. Muriel Lily and Dr. Isa Mohammed. The OCF-3 list the applicant’s injuries as strain and sprain type injuries to the neck, shoulder and back, headaches, dizziness, sleep disorder, scoliosis, cervical radiculopathy, other chronic pain, and trochanteric bursitis. The OCF-3 also indicates that the applicant has unrelated multiple neoplasia syndrome.

12In response, the respondent submits that the applicant’s injuries are soft tissue in nature and fall within the definition of minor injury under the Schedule. The respondent relies on the OCF-3, the s.44 Insurer Examination (“IE”) report of Dr. Pankaj Bansal, general practitioner, as well as the CNRs of the walk-in clinic.

13The applicant points to the CNRs of a walk-in clinic which I find do not mention chronic pain with functional impairments after the accident. Although the applicant exhibited pain symptoms of neck pain, numbness to the upper extremities, and back and hip pain, her doctors diagnosed soft tissue injuries, and diagnostic testing described scoliosis, and degenerative changes and bursitis in both hips. In entry dated March 16, 2022, Dr. Chaudhry indicates the applicant has stress-related sleep difficulties, but no depression. In entry dated May 24, 2022, Dr. Isa Mohammed indicates the applicant’s left hip pain is not related to an injury.

14The applicant did not point or direct me to other medical evidence with regard to her claimed chronic pain symptoms. I assign limited weight to the OCF-3 dated June 8, 2022, as it was completed by Mamta Kansara, a physiotherapist with no chronic pain expertise, however, the applicant’s reported pain symptoms are mentioned.

15The applicant submits that Dr. Bansal did not consider the applicant’s self reports of pain complaints, nor did he consider her need for further treatment.

16The respondent submits that the applicant has not provided medical documentation in support of a claim for chronic pain with functional impairment, or psychological impairment to warrant removal from the MIG, and I agree. The respondent relies on the IE report dated November 24, 2022, by Dr. Bansal, in which Dr. Bansal indicates that the applicant has full range of motion in her neck, shoulders and back, with no functional limitations in her activities of daily living, or vocational activities. The respondent submits that Dr. Bansal concludes that the applicant’s uncomplicated soft tissue injuries are resolving.

17The respondent points to the CNRs of Dr. Asim Hoca, family physician where on August 15, 2022, Dr. Hoca diagnosed unrelated insomnia and depressed mood due to a new job and distance from her son.

18I am not persuaded that the medical evidence shows that the applicant sustained any accident-related impairments beyond uncomplicated soft tissue injuries with no residual functional impairment. I assign limited weight to the OCF-3, which was completed by a physiotherapist who does not have chronic pain expertise. In addition, the applicant does not point or direct me to any CNRs of her treating physicians which mention any complaints of chronic pain with functional limitations as a result of the accident. The applicant does not mention any functional restrictions, and she continues to perform a physically demanding job.

19I find that the applicant has not discharged her onus of establishing entitlement to treatment outside the MIG, as the medical evidence does not support the existence of a psychological diagnosis or mental impairment arising from the accident. I find that the psychological symptoms, as mentioned by Dr. Hoca do not appear to be related to the accident, and therefore do not give rise to a psychological impairment to warrant removal from the MIG.

20I find that the applicant has not proven on the balance of probabilities that she suffers from accident-related chronic pain with functional impairments, or psychological impairment warranting removal from the MIG. The evidence suggests that the applicant’s psychological symptoms are not related to the accident. In addition, several of the applicant’s symptoms have resolved including full range of motion and reduced pain complaints.

21Overall, I find that the applicant has not met her onus of establishing entitlement to treatment beyond the MIG in the absence of any medical evidence in support of chronic pain with functional impairments, or psychological impairment.

The applicant is not entitled to the disputed treatment plan

22Since I have found that the applicant’s accident-related injuries do not remove her from the MIG, it is not necessary for me to consider whether the plan for physiotherapy services is reasonable and necessary.

Interest

23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no benefits owing or delayed, no interest is payable.

ORDER

24For the reasons set out above, I find that:

i. The applicant has not demonstrated on a balance of probabilities that her accident-related impairments warrant removal from the MIG.

ii. As the MIG limits have been exhausted, it is not necessary to consider whether the disputed plan for physiotherapy services is reasonable and necessary.

iii. As there are no benefits owing or delayed, the applicant is not entitled to interest.

iv. The application is dismissed.