Licence Appeal Tribunal File Number: 23-006198/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:
Joseph Prince Herman Savirian
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Roderick Walker
APPEARANCES:
For the Applicant: Manisa Kafai, Counsel
For the Respondent: M. Jennifer Cosentino, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Joseph Prince Herman Savirian, the applicant, was involved in an automobile accident on May 26, 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, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issue(s) in dispute is/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 limit? Note: The parties agree the MIG limits have not been exhausted and the amount remaining within the MIG limits is $202.25.
ii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from June 23, 2022, to date and ongoing?
iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Scarborough Physiotherapy & Rehabilitation Clinic in a plan submitted on September 23, 2022?
iv. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Scarborough Physiotherapy & Rehabilitation Clinic in a plan submitted on February 28, 2023?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
PRELIMINARY ISSUE:
3The respondent in his submission raised a preliminary issue requesting an order for the tribunal to omit tab 19 of the applicants brief in respect to submissions about the special award alleglying the applicant added an additional eight pages of submissions that are not true particulars of an award under section 10 of Reg. 664. The respondent cites the case 17-001941 v The Personal Insurance Company, 2017 BCSC 66 Canlii 148399(ON LAT) at para 26, page 29. in where it was held that “particulars.”are details, explanations, or clarifications of matters, such as the grounds for a party’s case, the remedy or decision the party is seeking, pieces of evidence, or the facts upon which the party relies. The applicant is silent on this issue. I find that I agree with the respondent that this does not meet the definition of “particulars” but tab 19 in the applicant’s document brief consists additional 8 pages of submissions of case law , arguments and the issues in dispute and arguments about the MIG. I find these submissions go beyond just supporting the applicant’s special award claim. For these reasons, I order that tab 19 in the applicant’s brief will not be admitted as evidence in this case.
RESULT
4The applicant’s injuries are minor and can be treated within the MIG. No treatments plans are payable. The respondent is not liable to pay an award. No interest is payable.
ANALYSIS
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 limit?
5I find that the applicants’ injuries are predominantly minor and as a result he can be treated within the MIG.
6Section 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.
7The applicant relies on multiple visits to his family doctor and the CNR’s of Dr. Victor Figurado, G.P. The applicant states that has undergone extensive medical treatment and evaluation from which confirm that his injuries identifies myofascial pain in the neck, left shoulder, and back, as well as aggravated pain in the right knee. The applicant also states that he had pre-existing right knee pain that was aggravated following the accident. Dr. Figurado indicated increased pain,leading Dr. Figurado to refer him for diagnostic imaging of the right knee.
8The applicant submits that the imaging revealed moderate suprapatellar joint effusion and medial and lateral meniscal degeneration due to underlying osteoarthritis changes. The applicant underwent a cervical spine X-ray due to persistent neck pain following the accident. The X-ray revealed several levels of cervical stenosis from C3 to C6, with more pronounced stenosis on the left side. He has sought medical treatment and evaluation from various sources, including physiotherapy and chiropractic treatment.
9The applicant submits that he should be excluded from the MIG on the following basis:
a) Severity of Injuries: The applicant submits that the medical documentation reveals a persistent and severe nature of the applicant's injuries, which extend far beyond the scope of minor injuries typically associated with the MIG.
b) Ongoing Pain and Limitations: The applicant's consistent complaints of back pain, right knee pain, neck and shoulder pain even after extensive medical treatment and therapy, demonstrate the chronic nature of his injuries.
C) Pre-Existing Conditions: With pre-existing right knee pain, the accident significantly aggravated his condition.
10The respondent relies on s.44 assessors Dr. Lori Feigelson, Physiatrist, Dr. Douglas Saunders, Psychologist, and Ms. Anghela Sivananthan, Occupational Theraipist and their report dated December 9, 2022. The respondent states that the applicant’s submissions fail to show how or why he should be removed from the MIG.
11The respondent states that there are no specific references to any entries in Dr. Figurado’s CNR’s that would support his position on MIG. The respondent also submits that in regard to his pre-existing knee pain, the applicant’s submissions do not explain how the pre-existing pain would prevent him from achieving maximum medical recovery if subject to the MIG. The respondent cited a case of MA v Co-operators General Insurance Company, 2020 CanLII 69919 (ON LAT), at para 13, that the tribunal held that a pre-existing condition will not automatically exclude a person’s impairment from the MIG. It must be documented by a health practitioner before the accident and must be shown to prevent maximal recovery within the cap imposed by the MIG.
12I find that the applicant has not demonstrated that his injuries are not minor in this matter . In the CNR’s of Dr. Victor Figurado ,I find that there is no entry of a chronic pain diagnosis of the neck, back pain, right knee pain, and shoulder pain. Also there is no entry from the family doctor that the applicant is suffering from a psychological injury related to the accident. In respect to his right knee pain that the applicant submits that it was a pre-existing injury, I find that there is no further medical evidence from the applicant that would persuade me to conclude that that applicant had a pre-existing injury that would remove him from the MIG. In the applicant’s submissions, I do not find how the pre-existing pain would prevent him from achieving maximum medical recovery if subject to the MIG. While I support the applicant’s goals for a complete recovery, I find there is no contemporaneous medical evidence in the areas of chronic pain, psychological pain or a pre-existing injury before me that would warrant a removal from the MIG on these basis.
13For the above reasons above, and on a balance of probabilities, the applicant has not met his onus and therefore remains in the MIG.
14Since I determined that the applicant is remaining in the MIG, there is no need for me to give analysis to existing treatment plans in dispute.
Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from June 23, 2022, to date and ongoing?
15I find the applicant is not entitled to NEB.
16Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
17The applicant relies on the applicant filed an OCF-3 Disability Certificate, dated August 10, 2022, prepared by Ketankumar Trivedi, Physiotherapist, indicated that the applicant suffered a complete inability to carry on a normal life and a substantial inability to perform the housekeeping and home maintenance services he normally performed before the accident, supporting his entitlement to the benefit.
18The Applicant submits that he is eligible for a NEB as result of sustaining impairments that continuously prevent him from engaging in all of the activities in which he engaged before the accident.
19I find that the applicant has not met the principles in Heath to support an NEB. The applicant doesn’t state in his submission to me about how his life now that he has a complete inability to carry on a normal life. Also, there is no evidence from the applicant about his pre- post-accident activities and how this impacts his life going forward. Dr. Feigelson in the IE asked him whether there were any activities that the applicant was unable to do at the time of her assessment that he was engaged in before the accident. The applicant only indicated that he would not be able to move furniture. However, when asked how often, he would move furniture, he responded “not often”.I find also similarly to his report to Dr. Feigelson, the applicant told Dr. Saunders that before the accident, he did not perform any housekeeping chores, except for occasional grocery shopping, and was independent in all his personal ADLs. At the time of his assessment, he said that he continued not doing any household chores and was independent in his personal ADLs.
20The evidence states that the applicant has not provided the tribunal with supported evidence to the principles in Heath and therefore for these reasons, and on a balance of probabilities , the applicant has not met his onus for a NEB.
Interest
21The applicant is not entitled to any interest because no benefits are payable.
Award
22The respondent is not liable to pay an award.
ORDER
23I find on the totality of the evidence THAT:
i. The applicant’s injuries are predominately minor and is subject to the MIG. The applicant is entitled to $202.25, the amount remaining in the MIG.
ii. The applicant is not entitled to any of the treatment plans.
iii. The applicant is not entitled to any interest because no benefits are payable.
iv. The respondent is not liable to pay an award.
v. The application is dismissed.
Released: May 8, 2025
Roderick Walker
Adjudicator