Licence Appeal Tribunal File Number: 23-011806/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:
Subendran Velautham
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Jeff Chatterton
APPEARANCES:
For the Applicant: Jono Schneider, Counsel
For the Respondent: Tefiney E Scarlett, Paralegal
HEARD: In Writing
OVERVIEW
1Subendran Velautham, the applicant, was involved in an automobile accident on April 26, 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 General Insurance, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Are the applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (“MIG”) and subject to the $3,500.00 funding limit?
ii. Is the applicant entitled to a medical benefit in the amount of $2,193.70 for physiotherapy proposed by Body First Wellness Centre in a treatment and assessment plan/OCF-18 dated March 1, 2023?
iii. Is the respondent liable to pay an award under section 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant’s impairments remain predominantly minor, and therefore subject to the limits of the MIG.
ii. The applicant is not entitled to the treatment plan in dispute.
iii. The respondent is not liable to pay an award or interest.
ANALYSIS
Is the applicant eligible to be removed from the MIG due to a pre-existing condition?
4The applicant submits that he suffers from pre-existing chronic neck pain, which would prevent him from achieving maximum recovery if he is kept within the MIG. The applicant does not claim that he suffered non-minor injuries as a result of the accident.
5Section 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.
6An 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.
7It is important to note that the existence of a pre-existing injury does not warrant removal from the MIG merely because it exists. Rather, the applicant must prove on a balance of probabilities that the pre-existing condition will preclude recovery if they are kept within the MIG.
8The applicant submitted clinical notes and records (“CNRs”) from their family physician, Dr. Martin Rudnick, showing a history of complaints regarding neck pain, originating before the accident in question. The applicant also relied upon a note submitted by Dr. Rudnick. The applicant’s legal counsel faxed a note to Dr Rudnick where Dr. Rudnick was asked if “the patient had a pre-existing condition before the car accident which got worse because of it. Because of the pre-existing condition, even if the patient did sustain whiplash injuries, the expected recovery time would be greater.”
9In response to this note, Dr. Rudnick ticked a checkmark, signed his name and faxed the original note back to the applicant’s counsel. This was the entire extent of Dr. Rudnick’s response. I note that Dr. Rudnick did not specify the nature of the pre-existing condition.
10The applicant also submitted large quantities of CNRs from Maple Health Care, Be Well Chiropractic and Body First, including the results of a nerve conduction study indicating that the applicant was suffering from a repetitive strain injury. It was unclear if the nerve conduction study was conducted because of the injury or independent of the accident. In any event, despite the ample medical records submitted, the medical evidence pointed simply to the existence of an injury. I however, was not led to sufficient evidence that indicated that the applicant’s pre-existing injuries would require additional treatment than what the MIG could offer.
11The respondent relied on the results of an Independent Examination, conducted as per s.44 of the Schedule, by Dr. Mark D’Souza, GP. This examination was conducted on July 26, 2023.
12Dr. D’Souza conducted a physical examination and indicated that the movements made by the applicant under casual observation were markedly different than those made under close examination, suggesting that the applicant was exaggerating his injuries.
13Dr. D’Souza further noted that an earlier x-ray of the cervical neck showed no abnormalities.
14In his report, Dr. D’Souza concluded that there was no evidence of a pre-existing condition which would have prevented full recovery within the MIG. He further found that the applicant would not derive any substantial benefit from physiotherapy, since the applicant denied having received any benefit from previous therapy.
15I find Dr. D’Souza’s report to be persuasive. It was comprehensive and in my view, holds more weight than a single checkmark suggesting that the applicant will require more time to heal. The opinion that a medical condition will require additional time or treatment in order to heal must be specific to the injury or condition itself, along with the applicant’s circumstances, but Dr. Rudnick’s note simply ‘check’s off’ a generic statement, without any further explanation or specifics.
16In summary, while I accept that the applicant may have had a previous injury, I find that the applicant has not proven on a balance of probabilities that the pre-existing condition will preclude recovery if they are kept within the MIG.
17The parties have confirmed that only a nominal amount remains under the MIG limit of $3,500.00 for medical and rehabilitation benefits. As I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plan.
18I also note the applicant’s submissions that the respondent’s denial letter for the physiotherapy treatment plan in question was received one week past the 10 business day limit stipulated in s. 38(8) of the Schedule. As a result, the applicant argues that the treatment plan is payable pursuant to s. 38(11) of the Schedule.
19However, I note that the applicant did not submit any evidence that the treatment plan was incurred within the one week period of non-compliance, as per the Divisional Court’s ruling in Aviva General Insurance Company v Catic, 2022 ONSC 6000. Catic states that s. 38(11) operates to “compel an insurer who fails to provide statutory notice to pay for all items listed in the subject treatment plan, but only if they are incurred and only for the period during which any denial notice remains outstanding.”
20The applicant has not provided evidence that any costs were incurred. As such, the applicant has not established that the treatment plan is payable pursuant to s. 38(11).
Interest
21Section 51 of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule. As no benefits are overdue, the applicant is not entitled to interest.
Award
22Section 10 of Regulation 664 provides that an award may be granted if the respondent unreasonably withheld or delayed payments.
23In the matter at hand, the respondent took the position that the applicant’s injuries were subject to treatment under the MIG. I have considered the medical evidence and have come to the same conclusion. As such, there is nothing in the evidence before me to suggest that the respondent behaved in an unreasonable manner. Accordingly, the applicant’s request for an award is denied.
ORDER
24I find that:
i. The applicant’s injuries are predominantly minor, and are accordingly subject to treatment under the Minor Injury Guideline.
ii. The applicant is not entitled to $2,193.70 for a physiotherapy treatment plan.
iii. The applicant is not entitled to an award, or interest.
Released: May 27, 2025
Jeff Chatterton
Adjudicator