Citation: Singh v Aviva General Insurance, 2025 ONLAT 23-001380/AABS

Licence Appeal Tribunal File Number: 23-001380/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:

Preaunca Singh

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Amanda Marshall

APPEARANCES:

For the Applicant:

Jennifer Ilton, Counsel

For the Respondent:

Melanie Sousa, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Preaunca Singh, the applicant, was involved in an automobile accident on January 15, 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 Aviva General Insurance, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from March 9, 2021 to ongoing?

2. 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.

3. Is the applicant entitled to $2,962.02 for physiotherapy services proposed by We Care Rehab Clinic in a treatment plan/OCF-18 (“plan”) dated October 30, 2021?

4. Is the applicant entitled to the plans proposed by Focus Physiotherapy Inc. as follows:

(i) $174.69 ($1,212.46 less $1,037.77 approved) for physiotherapy services dated November 22, 2021; and

(ii) $243.38 ($1,281.15 less $1,037.77 approved) for physiotherapy services dated May 19, 2021; and

(iii) $1,547.75 for physiotherapy services dated August 26, 2021?

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

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

3On April 4, 2024, the applicant submitted a letter to the Tribunal and copied the respondent stating that the applicant is withdrawing the request for an award under s. 10 of Regulation 664. Issue number 5 above has been withdrawn and no decision will be rendered.

4The applicant, in her submissions of June 7, 2024, claims entitlement to IRB from March 9, 2021 to March 21, 2021 and not May 20, 2021 to date and ongoing as stated in issue number 1 above. The respondent submission on the IRB issue is based on the applicant’s updated period. Therefore, the IRB entitlement issue will be reviewed for the time period of March 9, 2021 to March 21, 2021.

RESULT

5The applicant is not entitled to an income replacement benefit from March 9, 2021 to March 21, 2021.

6The applicant is removed from the MIG as she met her burden and demonstrated, on a balance of probabilities, that her injuries fall outside of the definition of a minor injury.

7The applicant is not entitled to the physiotherapy treatment plans.

8Given there are no benefits owed, the applicant is not entitled to interest.

ANALYSIS

Is the applicant entitled to payment for an IRB from March 9, 2021 to March 21, 2021?

9I find the applicant is not entitled to receive payment for IRB covering the time period of March 9, 2021 to March 21, 2021.

10To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

11Pursuant to s. 7 (3) of the Schedule, the respondent may deduct from the amount of an IRB payable to an insured person, 70 per cent of any gross employment income received by the insured person as a result of being employed after the accident and during the period in which they are eligible to receive an IRB.

12The applicant submits that during the period of March 9, 2021 to March 21, 2021 she was substantially unable to perform the essential tasks of her employment and had not yet returned to work and therefore, is entitled to receive an IRB.

13The respondent does not dispute that the applicable test of entitlement is the substantial inability test, however, it states that the test of entitlement is irrelevant as the applicant earned income during the disputed period which reduces her weekly IRB entitlement to zero.

14Upon review of the applicant’s employment records including paystubs, I note that the applicant returned to modified duties on March 2, 2021, and continued working modified duties until March 21, 2021, at which time she returned to full duties.

15The records indicate that she was paid $1,838.50 (gross) on March 26, 2021, for the period of March 8 to March 21, 2021, which works out to $919.25 per week. At 70%, the amount is $643.48 per week.

16The respondent may deduct $643.48 from the applicant’s weekly IRB entitlement of $400.00 per week. I find the applicant is entitled to zero for the disputed period as she made more than $400.00 per week.

Does the Minor Injury Guideline apply?

17I find the applicant has proven on a balance of probabilities that she suffered from a concussion as a result of the accident, and that she should be removed from the MIG.

18Section 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.”

19An 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 from any accident-related minor injury if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment may warrant removal from the MIG. Jurisprudence has established that concussions are not part of the definition of a minor injury. In all cases, the burden of proof lies with the applicant.

20The applicant submits that her injuries from the accident should be treated outside the MIG as she sustained a closed head injury, post-accident concussion syndrome, myofascial pain syndrome of the cervical and lumbar spine, and post-traumatic fibromyalgia. She relies on the clinical notes and records of her family physician, Dr. Avtar Dhanoa, two reports of Dr. Wayne Potashner, rheumatologist, and two Disability Certificates completed by Richard Chiu, physiotherapist.

21The respondent submits that the applicant sustained minor soft tissue injuries which do not warrant removal from the MIG. The respondent submits that the applicant did not sustain a concussion, suffer from post-concussive syndrome, nor does she suffer from chronic pain/post-traumatic fibromyalgia as a result of the accident. The respondent relies on the musculoskeletal assessment of Dr. Pankaj Bansal, physician.

Did the applicant sustain a concussion as a result of the accident?

22I find the applicant’s suffered a concussion as a result of the accident and, therefore, should be removed from the MIG.

23The applicant attended at her family doctor, Dr. Dhanoa, on January 18, 2021, three days post-accident. The applicant complained of neck, back and chest pain.

24On January 21, 2021, the applicant contacted her family doctor again complaining of increased neck and upper back stiffness and a headache with vomiting. Dr. Dhanoa discussed closed head injury symptoms and advised her to attend the hospital if her symptoms increase.

25Then on February 8, 2021, the applicant attended with Dr. Dhana again. Dr. Dhanoa’s notes that it has been less than one month since the applicant’s motor vehicle accident and the applicant is still complaining of headaches with dizziness, fatigue, some insomnia, loss of concentration and memory, and has noise sensitivity. He recommends the applicant attend concussion-based physiotherapy.

26The doctor’s records indicate that by February 23, 2021, the applicant’s headaches have improved, and she would like to go back to work.

27The respondent does not dispute that the applicant had concussion type symptoms but suggests that they were due to a non-accident-related illness and not as a result of the motor vehicle accident.

28It also argues that the applicant was never formally diagnosed with a closed head injury, was never referred to a neurologist, and the family doctor’s records do not demonstrate the applicant’s continued concussion type symptoms beyond February 2021.

29I am not persuaded by the respondent’s submissions. I am unable to locate anything in Dr. Dhanoa’s records suggesting that the applicant’s concussion symptoms were from anything other than the accident. The applicant visited with her family doctor four times from the date of loss to February 23, 2021 due to an progression of her symptoms. While Dr. Dhanoa’s notes do not specifically say the applicant has a concussion, the discussion about a closed head injury, the notations about the symptoms the applicant is experiencing, along with the recommendation to attend for concussion-based physiotherapy, suggest that the applicant suffered from a concussion.

30Regarding the respondent’s concern that the applicant was never referred to a neurologist, it is not necessary for the applicant to be referred to a neurologist to confirm concussion symptoms. In Ontario, a physician, a nurse practitioner, or a neuropsychologist can diagnosis a concussion. Dr. Dhanoa is a physician and as such, is qualified to diagnose concussions.

31I agree with the respondent that the applicant’s concussion type symptoms do not continue past February 2021. However, just because her symptoms resolved by the end of February 2021 does not mean that the applicant did not suffer from a concussion as a result of the subject accident. I find that the applicant did sustain a concussion as documented by her family physician as a result of the accident, and as concussions are not considered a minor injury, removal from the MIG is warranted.

32Having found that the applicant sustained a concussion as a result of the accident, it is unnecessary to address the other exclusion criteria (e.g. chronic pain) that she is claiming.

Are the physiotherapy treatment plans reasonable and necessary?

33I find the applicant is not entitled to the physiotherapy treatment plan amounts of $174.69, $243.28, and $1,547.75 through Focus Physiotherapy nor the treatment plan for $2,962.02 through We Care Rehab Clinic.

34The applicant bears the burden of demonstrating that on a balance of probabilities the treatment plans are reasonable and necessary as a result of the accident. The applicant needs to identify the goals of the treatment, how the goals would be met to a reasonable degree, and the overall costs of achieving them are reasonable.

35The applicant submits she should be entitled to the treatment plans as she was wrongfully placed into the MIG.

36The applicant does not comment on the treatment goals, how they would be met to a reasonable degree, nor that the overall costs of achieving the goals are reasonable. As such, I find the applicant has not met her burden of demonstrating that the disputed physiotherapy treatment plans are reasonable and necessary.

Is the applicant entitled to interest?

37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

38As no benefits are payable, no interest is payable.

ORDER

39For the reasons above, I find that:

i. The applicant is not entitled to receive payment of an income replacement benefit from March 9, 2021 to March 21, 2021.

ii. The applicant injuries warrant removal from the MIG.

iii. The applicant is not entitled to the physiotherapy treatment plans in dispute.

iv. As none of the benefits in dispute are owing, the applicant is not entitled to interest.