Licence Appeal Tribunal File Number: 23-008105/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:
Onofrio Lopreiato
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jeff Chatterton
APPEARANCES:
For the Applicant:
Egidio Stagnitta, Paralegal
For the Respondent:
Alicia Edwards, Paralegal
HEARD:
In Writing
OVERVIEW
1Onofrio Lopreiato, the applicant, was involved in an automobile accident on March 30, 2021, 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, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
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? Note: The parties agree the MIG limits have been exhausted.
Is the applicant entitled to $1,995.50 for Physiotherapy Services, proposed by Hartwell Health Corp. in a treatment plan/OCF-18 (“plan”) dated July 28, 2021?
Is the applicant entitled to $2,594.00 for Physiotherapy Services, proposed by Hartwell Health Corp. in a treatment plan dated October 22, 2021?
Is the applicant entitled to the assessments proposed by Prime Health Care Inc., as follows:
i. $2,000.00 for a Chronic Pain Assessment, in a treatment plan dated September 18, 2021; and
ii. $2,200.00 for a Psychological Assessment, in a treatment plan dated September 15, 2021?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3Based on the totality of the evidence before me, I find:
i. the applicant sustained predominately minor injuries as defined in the Schedule and, thus, he is subject to treatment within the MIG;
ii. as a result of having found the applicant’s injuries to be within the MIG and the MIG limits being exhausted, there is no need to determine the reasonableness and necessity of the treatment plans in dispute; and
iii. the applicant is not entitled to interest or an award.
ANALYSIS
Applicability of the Minor Injury Guideline
4Section 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.” An 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. In all cases, the burden of proof lies with the applicant.
5The applicant submits that due to his injuries and pre-existing medical conditions, documented by his healthcare provider, Dr. Lorne Sokol, prior to the subject accident, he cannot be treated within the MIG as the accident exacerbated multiple health issues, and this also prevents him from being able to effectively recover if he were to be confined to the MIG.
6Furthermore, the applicant submits that his chronic and continuing nature of his health conditions warrants his removal from the monetary limit of the MIG.
7I will first turn to discuss whether the applicant has chronic pain to remove him from the MIG and then I will move on to discuss whether he has a pre-existing injury and whether that is sufficient to remove him from the MIG.
Chronic pain
8I find on a balance of probabilities that the applicant does not suffer from chronic pain warranting removal from the MIG for the following reasons.
9The applicant states that he suffers from chronic pain. Chronic pain is a condition that is not captured by the Minor Injury Guideline. However, the existence of pain itself does not meet the threshold to remove the applicant from the MIG. The test says the applicant must suffer from chronic pain with a functional impairment.
10I find that the applicant has provided ample evidence of the fact they have reported the existence of pain to Dr. Sokol but that these complaints do not indicate that the applicant has chronic pain. I find that Dr. Sokol has not referred the applicant to any specialists for treatment or for any diagnostic testing with respect to his complaints. Furthermore, the applicant has not pointed me to a diagnosis of chronic pain or chronic pain syndrome by any of the applicant’s treating practitioners.
11In my view, a reference or conclusory statements about chronic pain falls short of establishing a medical condition that would warrant the applicant to be removed from the MIG on the basis of chronic pain.
12The applicant has also not pointed me to evidence of a functional impairment.
13As a result of the above, I find that the applicant has not persuaded me on a balance of probabilities that he suffers from chronic pain that warrants removal from the MIG.
14I will now turn to discuss whether the applicant has a pre-existing injury that warrants removal from the MIG.
Pre-Existing injuries
15I find that the applicant has not satisfied his onus to establish he has a pre-existing condition that warrants removal from the MIG, for the following reasons.
16The applicant has outlined a number of health conditions and concerns, including cancer, Hodgkin disease, chronic pain disorder and ongoing pain in his shoulder, lower back, hips and right leg. The applicant submits that his Family Physician, Lorne Sokol, noted the existence of his conditions prior to the accident. However, documentation of a pre-existing injury or condition alone is not sufficient to remove an applicant from the MIG. It must be accompanied by compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG.
17The applicant did not point me to compelling medical evidence stating that the applicant will not achieve maximal recovery under the MIG. The applicant did provide an OCF-3, dated February 7, 2022, where Dr. Sokol ticked “Yes” to “Does the applicant suffer a substantial inability to perform the housekeeping and home maintenance services that he/she normally performed before the accident?” and ticked “No” to “Did the applicant have any disease, condition or injury that affected his ability to perform the activities listed (above.)”
18However, these statements do not reference the MIG, and in my opinion, check marking “Yes” or “No” on an OCF-3 is not sufficient and compelling evidence that the applicant’s pre-existing injuries will prevent maximal recovery from the minor injury.
19Therefore, I find that the applicant has not satisfied his onus to persuade me on a balance of probabilities and he should be removed from the MIG on the basis of a pre-existing condition.
20As I have found the applicant is in the MIG, it is not necessary to consider if the treatment plans are reasonable and necessary.
Interest
21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.
Award
22The 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 are payable, there is no basis for an award. Accordingly, no award is payable.
ORDER
23The applicant’s injuries are minor in nature, and subject to the Minor Injury Guideline.
24As the applicant is subject to the MIG, it is not necessary to consider if treatment plans in dispute are reasonable and necessary.
25The applicant is not entitled to interest or an award.
Released: April 14, 2025
__________________________
Jeff Chatterton
Adjudicator