Thushara Francis v. Aviva Insurance Company of Canada, 2025 CanLII 15968

Citation: Francis v. Aviva Insurance Company of Canada, 2025 ONLAT 23-000114/AABS

Licence Appeal Tribunal File Number: 23-000114/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:

Thushara Francis

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Robert Rock

APPEARANCES:

For the Applicant: Jono Schneider, Counsel

For the Respondent: Jonathan White, Counsel

HEARD: By Way of Written submissions

OVERVIEW

1Thushara Francis, the applicant, was involved in an automobile accident on June 3, 2020, 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, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

[2] The issues in dispute are: i. Are the applicant’s injuries predominantly a minor injury as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 funding limit and the Minor Injury Guideline (“MIG”)? ii. Is the applicant entitled to $200.00 for the production of an OCF-3 proposed by Aqua Wellness submitted June 3, 2020? iii. Is the applicant entitled to a medical benefit in the amount of $44.72 ($1,299.72, less $1,255.00 approved) for physiotherapy services, in a treatment plan proposed by Aqua Wellness Centre Ltd submitted August 7, 2020? iv. Is the applicant entitled to a medical benefit in the amount of $3,833.75 for physiotherapy services, in a treatment plan proposed by Aqua Wellness Centre Ltd submitted August 28, 2020? v. Is the applicant entitled to a medical benefit in the amount of $3,238.75 for physiotherapy services, in a treatment plan proposed by Aqua Wellness Centre Ltd submitted January 5, 2021? vi. Is the applicant entitled to a medical benefit in the amount of $2,740.00 for physiotherapy services, in a treatment plan proposed by Aqua Wellness Centre Ltd submitted May 18, 2021? vii. Is the applicant entitled to a medical benefit in the amount of $2,590.00 for physiotherapy services, in a treatment plan proposed by Aqua Wellness Centre Ltd submitted July 2, 2021? viii. Is the applicant entitled to a medical benefit in the amount of $2,470.00 for physiotherapy services, in a treatment plan proposed by Aqua Wellness Centre Ltd submitted October 26, 2021? ix. Is the applicant entitled to a medical benefit in the amount of $2,470.00 for physiotherapy services, in a treatment plan proposed by Aqua Wellness Centre Ltd submitted March 29, 2022? x. Is the applicant entitled to a medical benefit in the amount of $2,486.00 for an orthopedic surgeon assessment proposed by Allied-Med Trauma Evaluations Inc., dated January 8, 2023? xi. Is the applicant entitled to a medical benefit in the amount of $2,290.00 for physiotherapy services, in a treatment plan proposed by Aqua Wellness Center Ltd., submitted Feb. 15, 2023? xii. Is the respondent liable to pay the applicant an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant? xiii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicant’s injuries are minor and subject to the MIG.

4As the applicant remains within the MIG limit, I find I do not have to conduct the reasonable and necessary analysis for the disputed treatment plans.

5As there are no overdue benefit payments, no interest is owing.

6As no benefits were unreasonably withheld or delayed, no award is owing.

ANALYSIS

The Minor Injury Guideline (“MIG”)

7Section 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 minor injuries. 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 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.

9The burden is on the applicant to demonstrate, on a balance of probabilities, that her injuries fall outside of the MIG.

10In this instance, the applicant submits that she should be removed from due to a pre-existing condition that precludes her recovery if she were kept in the MIG and chronic pain with a functional impairment.

11The respondent argues that the applicant has not met the burden of proof that she suffers from a pre-existing condition that would preclude her recovery if she were kept in the MIG or chronic pain with a functional impairment.

a) The applicant does not suffer from a pre-existing condition that warrants removal from the MIG

12I find that the applicant has not proven on a balance of probabilities that she suffers from a pre-existing condition that would preclude her recovery in MIG.

13The applicant submits that she suffered from a pre-existing condition of back pain from mild scoliosis, prior to the subject motor vehicle accident. The applicant relies on her affidavit, the clinical notes, and records (CNRs) of her family doctor, Dr. Jamal, and the OCF-3 completed by Dr. Priesnitz, Chiropractor, on June 9, 2020.

14I find that the affidavit from the applicant does not support a pre-existing condition. In her affidavit, the applicant notes that she attended physical therapy several times before the accident, but it was not a major issue. The affidavit does not provide compelling medical evidence to support a pre-existing condition.

15I find that the OCF-3 by Dr. Priesnitz does not support a pre-existing condition. The OCF-3 notes sprain and strain injuries that would resolve in 9-12 weeks. Additionally, no pre-existing condition was noted in the OCF-3.

16The CNRs of Dr. Jamal do not support that the applicant suffers from a pre-existing condition. The CNRs from April 2019 to June 6, 2020, when the applicant reported the accident to Dr. Jamal, do not mention reporting of pain that the applicant was experiencing with her back. While the CNRs have an entry in them that is a synopsis of the patient history that indicates chronic thoracic/lumbar mechanical pain and mild scoliosis, there are no contemporaneous entries in the CNRs that indicate that the mild scoliosis would preclude the applicant’s recovery if she were kept in the MIG. I find this would align with the applicant’s affidavit where she states that “it was not a major issue”.

17The respondent submits that the applicant has failed to provide compelling medical evidence that the applicant suffered from a pre-existing condition that would preclude her recovery if she were kept in the MIG. They rely on a musculoskeletal assessment by Dr. Bansal, GP and trained medicolegal expert completed on January 29, 2022 and a MIG paper review by Dr. Lee, GP and certified independent medical examiner, completed on July 23, 2021.

18I find that the musculoskeletal assessment by Dr. Bansal does not support that the applicant suffered from a pre-existing condition. Dr. Bansal does note that the applicant was diagnosed with mild scoliosis but does not indicate that this diagnosis would preclude the applicant’s recovery if she were kept in the MIG. Additionally, in the assessment, the applicant reported that she didn’t have low back pain prior to the subject accident.

19I find that the MIG paper review by Dr. Lee does not support the applicant’s claim of a pre-existing condition that would preclude her recovery if she were kept in the MIG. Dr. Lee concludes, based on the doctor’s previous physical examination, review of medical history and documentation that investigations showing kyphosis, scoliosis, and some degenerative changes would not prevent the applicant from achieving maximal medical recovery if she were kept in the MIG.

20I find that the applicant has not presented compelling medical evidence that she suffered from a pre-existing condition that would preclude her recovery if she were kept in the MIG. The applicant’s affidavit states that the while she had attended physiotherapy a few times prior to the subject accident, it was not a major issue. This is reinforced by the OCF-3 which does not note that the applicant suffered from a pre-existing condition, and the CNRs of Dr. Jamal which do not note any pain reporting by the applicant for over a year prior to the accident. Dr. Lee, in his review of the applicant’s medical history, concluded that the diagnosis of kyphosis, mild scoliosis, and some degenerative changes noted in the applicant’s history would not prevent the applicant achieving maximal medical recovery.

21I find that the applicant has not proven on a balance of probabilities that she suffers from a pre-existing condition that would preclude her recovery if she were kept in the MIG.

b) The applicant does not suffer from chronic pain with a functional impairment.

22I find that the applicant does not suffer from chronic pain with a functional impairment.

23The applicant submits that she suffers from chronic pain with a functional impairment. She relies on the CNRs of Dr. Jamal, her family doctor, an orthopaedic assessment by Dr. West, orthopaedic surgeon, completed on February 2, 2023, and the American Medical Association’s (AMA) 6th edition Guidelines on Chronic Pain (“Guidelines").

24I find that the CNRs of Dr. Jamal do not establish that the applicant suffers from chronic pain with a functional impairment. The CNRs note periodic reporting of pain by the applicant to Dr. Jamal, but do not indicate that Dr. Jamal made any referrals for the applicant to have this pain reporting investigated further. Dr. Jamal did not have a chance to perform a physical examination of the applicant, and the notes are solely based on the applicant’s reporting. An entry in the CNRs from March 14, 2022, notes that the applicant’s lawyer recommends that the applicant see a chronic pain facility in Vaughn. Dr Jamal notes that when he described what a chronic pain clinic does, the applicant refused the referral. The CNRs end in the summer of 2022, and I have no recent entries to assess any further pain complaints.

25I find that the orthopaedic assessment by Dr. West diagnoses the applicant with chronic pain. I placed little weight on this determination. Dr. West does not mention that the applicant had been in a subsequent accident in October 2022 in his assessment. Also, the pre and post functionality captured by Dr. West is at odds with the applicant’s own reporting through multiple other assessments she attended. I was not directed to how Dr. West concluded that the applicant suffered from chronic pain as the physical examination was unremarkable, and his document review of the applicant’s MRI and her previous examination by a pain clinic do not support the conclusion.

[26] While not part of the Schedule, the Tribunal has found the Guidelines to be a useful tool in assessing chronic pain, and I agree to apply them here. The Guidelines state that if the applicant meets three of the following six criteria, they indicates she has chronic pain: i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances. ii. Excessive dependence on health care providers, spouse, or family. iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain. iv. Withdrawal from social milieu, including work, recreation, or other social contracts. v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs. vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

[27] The applicant submits that she suffers from all six criteria. i. The applicant uses cannabis and has become reliant on it to manage pain. ii. The applicant is reliant on her parents to assist with household chores. iii. The applicant has attended physiotherapy and F-45, but still is reliant on her parents for physical support. iv. The applicant does not socialize. v. The applicant continues to be on modified duties at work. vi. The applicant submits she is concerned about her future and struggling with pain.

28The respondent submits that the applicant has not proven that she suffers from chronic pain with a functional impairment. The respondent relies on serval musculoskeletal assessments and paper reviews by Dr. Bansal, GP and trained medicolegal expert, completed between January 2022 to February 2023, MIG assessments and paper reviews by Dr. Lee, GP and certified independent medical examiner completed between April 2021 to July 2021, and a report by Dr. Khetani, MD and Pain Medicine specialist, completed in June 2022.

29I find that the musculoskeletal assessments and paper reviews by Dr. Bansal do not support that the applicant suffers from chronic pain with a functional impairment. None of the five assessments or paper reviews specifically address the question of chronic pain, but they do consistently diagnose the applicant with minor injuries as defined by MIG. The physical examinations completed by Dr. Bansal do note that applicant does not report any ongoing functional impairments. In the February 25, 2023, the applicant reports working for the Toronto District School Board, teaching gym and health. Additionally, the applicant reports being independent in her activities of daily living and self care. She currently performs at 50% capacity of her household tasks. The January 2022 assessment the applicant reports that there was not necessarily anything that she cannot do. Regarding her back pain, the applicant notes that she has good days and bad days, and that her back pain is aggravated by lifting heavy objects, like groceries, but that pain is relieved by stretching and lying down.

30I find that that MIG assessment from April 2021 completed by Dr. Lee does not support the applicant’s claim of chronic pain with a functional impairment. During this assessment the applicant reported 75% improvement since the subject accident. Additionally, the applicant reported being independent with her activities of daily living and able to complete household chores. The physical examination was unremarkable, and the conclusions of Dr. Lee was that the applicant suffered minor injuries.

31I find that the Interventional Pain & Spine Specialists of Canada report, completed by Dr. Khetani, MD and Pain Medicine specialist, does not support the applicant’s claim of chronic pain with a functional impairment. This report was created virtually and did not include a physical examination. The report found “that the applicant is experiencing signs and symptoms most consistent with lumbar disc degeneration vs myofascial pain”. No diagnosis of chronic pain was rendered in this report, and the recommendations for the applicant was low impact exercise and aquatherapy. Subsequent to this report, an MRI was completed on Dr. Khetani’s recommendation that showed no impingement of the existing nerve roots and broadly unremarkable results. Dr. Khetani followed up with the applicant to review the MRI results. Based on those results Dr. Khetani concluded that there was no reason for intervention and the applicant reported her pain was improving.

[32] The respondent also rebuts applicant’s AMA Guidelines claims as follows. i. There is no evidence submitted that shows excessive use of prescription drugs, nor is the applicant’s claim of dependency on cannabis noted in the CNRs of Dr. Jamal. ii. The applicant has not produced evidence of excessive dependence on health care professionals. iii. The applicant’s own reporting is that she works full time at three schools and has not submitted limitations, restrictions, or absences. iv. The applicant never reported any post-accident psychological issues to Dr. Jamal and there is no evidence of fear-avoidance, depression or anxiety from the accident.

33I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain with at functional impairment. I base this on a comparison of the two chronic pain assessments completed of the applicant. The assessment by Dr. Khetani based on two virtual appointments and a review of an updated MRI found there was no reason for any intervention. Additionally, throughout the multiple assessments that the applicant attended, she consistently reported being independent in her activities of daily living, and capable of or responsible for household chores and that she was working at several schools. This reporting does not support that the applicant suffers from a functional impairment.

34The applicant has not proven on a balance of probabilities that she suffers from chronic pain with a functional impairment.

35As the applicant remains within the MIG limit, I find I do not have to conduct the reasonable and necessary analysis for the disputed treatment plans.

Interest

36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefit payments, no interest is owing.

Award

37The 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. As no benefits were unreasonably withheld or delayed, no award is owing.

ORDER

[38] I find that: i. The applicant remains in the MIG. ii. As the applicant is in the MIG, I do not need to consider whether the treatment plans are reasonable and necessary. iii. The applicant is not entitled to interest. iv. The applicant is not entitled to an award. v. The application is dismissed.