Licence Appeal Tribunal File Number: 22-013882/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:
Franklyn Evans
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Christopher Yan
APPEARANCES:
For the Applicant:
Dean Trinetti, Counsel
For the Respondent:
Tresa Zacharia, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Franklyn Evans, the applicant, was involved in an automobile accident on August 10, 2018, 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.
2The applicant provided submissions in support of his position, and the respondent provided responding submissions. However, I did not receive any reply submissions from the applicant.
ISSUES
3The issues in dispute are:
i. Are the applicant’s injuries predominantly minor and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to $2,342.04 for physiotherapy services proposed by Binbrook Chiropractic and Physiotherapy in a treatment plan dated November 9, 2020?
iii. Is the applicant entitled to $2,888.96 for chiropractic services proposed by GMG Health and Wellness in a treatment plan dated October 13, 2022?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant’s injuries are predominantly minor and subject to treatment within the $3,500.00 limit and in the MIG.
5The applicant is not entitled to $2,342.04 for physiotherapy services proposed by Binbrook Chiropractic and Physiotherapy in a treatment plan dated November 9, 2020.
6The applicant is not entitled to $2,888.96 for chiropractic services proposed by GMG Health and Wellness in a treatment plan dated October 13, 2022.
7The applicant is not entitled to interest on any overdue payment of benefits.
ANALYSIS
Applicant’s Injuries Remain within the MIG
8Section 18(1) of the Schedule limits medical and rehabilitation benefits to $3,500.00 if the insured person sustains an impairment that is predominantly a minor injury. A "minor injury" is defined in section 3(1) of the Schedule 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."
9An 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.
10The applicant submits that his injuries should fall outside the MIG due to chronic pain and the aggravation of pre-existing conditions, including lower back pain and a left shoulder dislocation. He argues that his pre-existing conditions made him more susceptible to injury, leading to more severe effects from the accident on these areas. The applicant relies on an MRI dated November 20, 2020, showing a disc protrusion at L5-S1, as well as clinical notes from Dr. Cox documenting "significant lumbar pain" on June 22, 2020, and the need for further physiotherapy. Dr. Cox also discussed the MRI findings in a note dated November 30, 2020, and proposed a long-term management plan for the degenerative and protrusive disc disease. The applicant further referred to chiropractic treatment records from Health for Life Chiropractic, noting that he received treatment from September 2, 2020, to January 4, 2021, and found it helpful, though the associated treatment plan was denied by the respondent.
11The respondent disputes the applicant’s characterization of his injuries, submitting that his impairments are minor, soft-tissue injuries that should resolve within the MIG limits. The respondent relies on the Insurer’s Examination conducted by Dr. Zdravkovic, dated February 23, 2021, which concluded that the applicant’s injuries were consistent with soft-tissue injuries expected to resolve within the MIG limits. The respondent also highlights clinical records from Dr. Cox, dated October 18 and October 29, 2018, in which the applicant reported being "doing well" and having "no difficulty performing activities of exercise," suggesting a period of recovery inconsistent with the applicant’s claims. Furthermore, the respondent emphasizes that the applicant did not report accident-related back pain until November 21, 2019, over a year after the accident, and attributes the onset of back pain to “excessive walking at a Las Vegas convention,” rather than the accident. This reporting gap, according to the respondent, undermines the applicant’s claim that his ongoing back pain is causally related to the accident.
12With respect to the applicant’s submissions regarding pre-existing conditions, he argues that these conditions were aggravated by the accident, making him more susceptible to injury and resulting in more severe effects. He contends that this aggravation supports his need for treatment beyond the MIG and submits that the respondent’s refusal to remove him from the MIG has limited his ability to obtain appropriate treatment. However, section 18(2) of the Schedule requires compelling evidence from a health practitioner demonstrating that a pre-existing condition, documented before the accident, will prevent the insured person from achieving maximal recovery from the minor injury if subject to the MIG limits. An aggravation of a pre-existing condition may be relevant, but it is not sufficient on its own to remove the applicant from the MIG. In this case, the records do not establish that the applicant’s pre-existing conditions create such a barrier to recovery. While Dr. Cox discussed managing the degenerative changes in the lumbar spine, he did not provide an opinion linking these degenerative changes to the accident or an opinion stating that any of these pre-existing injuries would prevent maximal recovery within the MIG.
13With respect to the chronic pain arguments, the applicant contends that his pain has persisted for over five years and that this warrants removal from the MIG. He argues that this ongoing pain has required continued physical therapy and impacts his ability to function. The respondent, however, raised the American Medical Association (AMA) Guides, noting that the applicant does not have a formal diagnosis of chronic pain, nor has the applicant demonstrated that three of the six criteria apply, including evidence of functional impairment or psychosocial impacts. I find that while the Tribunal may consider these criteria, the evidence does not support the applicant’s claim of chronic pain with functional impairment.
14The applicant references difficulty in maintaining a single position without discomfort due to lower back pain and reduced range of motion in his left shoulder, which is supported by Dr. Cox’s June 22, 2020, note documenting significant lumbar pain. However, this evidence is insufficient to establish how chronic pain affects the applicant’s activities of daily living (ADLs) or other areas such as recreational behavior. There is no further detail or discussion in the applicant’s submissions to demonstrate the extent to which these difficulties impact his overall functioning.
15Conversely, the Insurer's Examination conducted by Dr. Zdravkovic addressed the applicant’s functional status, noting that the applicant reported being independent in his ADLs, self-care, and instrumental activities of daily living. As part of this report, the applicant described using heat and adjusting his car seat for comfort while driving but otherwise indicated full independence in these areas. I find this report persuasive as it provides the most specific account of the applicant’s functional abilities, whereas the applicant’s submissions and clinical notes provide only limited references to difficulties in undertaking certain actions without exploring their broader implications on the applicant’s overall functioning.
16While I acknowledge that the applicant reports ongoing pain, I agree with the respondent that subjective complaints of ongoing pain alone are insufficient to warrant removal from the MIG without corresponding evidence of functional impairment.
17For all of the reasons set out above, I find the applicant has not met the burden of proving that his injuries fall outside the MIG. He has not provided compelling evidence that his pre-existing conditions prevent maximal recovery under section 18(2) of the Schedule. While he claims chronic pain, there is no compelling evidence of functional impairment. Without compelling evidence that his pre-existing conditions significantly impair maximal recovery or that his chronic pain impairs functioning, his injuries remain subject to the MIG.
Reasonableness and Necessity of Treatment Plans
18It is my understanding based on the parties’ discussion at the case conference that the MIG limits have already been exhausted. As such, having found that the applicant has not established a basis for removal from the MIG, an analysis of the reasonableness and necessity of the disputed treatment plans is unnecessary. Furthermore, as there is no evidence of overdue benefits, no interest is payable under section 51 of the Schedule.
CONCLUSION
19The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG or that the treatment plans in dispute are payable.
Released: January 13, 2025
Christopher Yan
Adjudicator