Algaredi v. Aviva General Insurance Company, 2025 CanLII 49178

Citation: Algaredi v. Aviva General Insurane Company, 2025 ONLAT 23-003146/AABS

Licence Appeal Tribunal File Number: 23-003146/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:

Linda Algaredi

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Justin Mariani, Paralegal

For the Respondent: Evan Argentino, Counsel

HEARD: By way of written submissions

OVERVIEW

1Linda Algaredi (“the Applicant”) was involved in an automobile accident on July 17, 2020, and sought benefits from Aviva Insurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The Respondent characterized the Applicant’s injuries as falling within the “minor injury” definition as outlined in section 3 of the Schedule and denied funding for the treatment and assessment plans in dispute.

3The Applicant disagrees with these decisions by the Respondent and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

4The 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 (“the MIG”) and the $3,500.00 funding limit for a minor injury?

ii. Is the Applicant entitled to income replacement benefits (“IRBs”) in the amount of $400.00 per week for the period from July 24, 2020 to-date and ongoing?

iii. Is the Applicant entitled to a medical benefit in the amount of $3,933.71 for chiropractic services, proposed by Oakville Physio Aquatic Centre in a treatment plan dated February 21, 2021?

iv. Is the applicant entitled to medical benefits for assessments proposed by Premier Medical Health Centre, as follows:

a. $2,200.00 for a Chronic Pain Assessment, in a treatment plan dated August 12, 2021; and

b. $2,200.00 for a Psychological Assessment, in a treatment plan dated August 26, 2021?

v. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?

vi. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

5The Applicant withdrew her claim for IRBs prior to the hearing.

6The Applicant sustained a minor injury as a result of the accident.

7The Applicant is entitled to the treatment and assessment plans in dispute, plus interest, because the Respondent failed to comply with section 38(8) of the Schedule.

8No award is payable.

BACKGROUND

9The Applicant was the driver of a vehicle which was struck from behind while slowing at a suburban intersection. The impact of the collision caused the vehicle the Applicant was driving to hit the vehicle in front of it. The Applicant sought no medical attention at the scene of the accident, nor in the months immediately following the accident.

10Since the accident, the Applicant claims that she developed ongoing neck, back, and shoulder pain. The Applicant submits that she has developed chronic pain and psychological impairments and should not be subject to the MIG.

ANALYSIS

11The Applicant submits that her medical evidence, specifically the clinical notes and records (“CNRs”) from Dr. Rizk, and the reports by Dr. L. Steiner, psychologist, and Dr. T. Getahun, orthopaedic surgeon, demonstrate that she sustained injuries that are not included in the definition of a minor injury, as outlined in section 3 of the Schedule.

12The Applicant also submits that the explanation of benefits (“EoBs”) used by the Respondent to deny the benefits in dispute fail to comply with the Schedule. As a result, the Applicant submits that the insurer examination (“IE”) reports procured from the non-compliant EoBs must be struck from the evidentiary record in accordance with Taksali v. Aviva Insurance Company, 2024 CanLII 128 (ON LAT) (“Taksali”).

13The Respondent submits that the Applicant has not met her burden of proof to support a finding that she sustained an injury that is not included in the minor injury definition. Further, it disagrees with the Applicant’s position on the EoBs and submits that it provided sufficient notice in them and made extensive good faith efforts to accommodate the Applicant.

Minor Injury Guideline (“MIG”)

14The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

15The onus is on the Applicant to demonstrate that she sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.

16For the following reasons, I find that the Applicant sustained a minor injury and is subject to the MIG. However, as I will explain further, the Applicant is entitled to the treatment and assessment plans in dispute because the Respondent failed to issue EoBs that comply with the Schedule.

The Applicant sustained a predominantly minor injury

17The Applicant’s medical documents indicate that she sustained a minor injury.

18The Applicant never reported the accident, or accident-related injuries to Dr. Rizk for the period from the date of the accident until May 18, 2021, a period of over ten months. During that time, the Applicant had at least six in-person or telephone appointments with her family health team, and never mentioned the accident or her accident-related issues. On May 18, 2021, the Applicant had a telephone consultation with Dr. Rizk and the CNRs from that encounter refer to diabetes in pregnancy, her prior C-section, and that the Applicant complained of headaches and back pain that was attributed to the subject accident. Dr. Rizk made no diagnoses and made no recommendation for treatment or medication.

19Dr. Rizk’s CNR’s do not indicate that the Applicant has a chronic pain condition as a result of the accident. The Applicant made complaints of neck and back pain in appointments before and after the birth of her child. These appointments were often via telephone and none of them caused Dr. Rizk to prescribe medication or refer the Applicant to any specialists due to accident-related injuries. The CNRs are absent of any complaints or suggestion of an ongoing functional impairment due to pain.

20Dr. Rizk’s CNRs do not indicate that the Applicant sustained a psychological injury as a result of the accident. During the week following the birth of her child, the Applicant complained of anxiety and depression. Those complaints were more than a year following the subject accident and were attributed to her pregnancy and post-partum mood fluctuations. Regardless, the complaints appear to be subclinical as they never led to any referral or recommendation for treatment or medication. Further, Dr. Rizk’s CNRs made no further reference to psychological symptoms in any of the entries thereafter.

21The IE reports are consistent with Dr. Rizk’s CNRs and conclude that the Applicant sustained a minor injury. Dr. H. Khan, physician, assessed the Applicant and issued a report, dated September 24, 2021, concluding that the Applicant sustained a minor injury. Dr. Khan noted that the Applicant’s complaints were of intermittent neck, back and shoulder pain, but that she remained able to engage in light cleaning, preparing small meals, grocery shopping with the help of her husband, and is independent with her selfcare. Dr. Khan noted that the Applicant exhibited full range of motion throughout her body had an overall unremarkable clinical examination. These findings are consistent with the information in Dr. Rizk’s CNRs.

22The psychological IE found that the Applicant did not suffer a psychological injury as a result of the accident. Z. Ladak, psychologist, assessed the Applicant, reviewed her medical records, and issued an IE report, dated January 17, 2024. Psychologist Ladak found that the Applicant is coping well and has not sustained a clinically significant psychological impairment and concluded that she does not meet the criteria for a formal diagnosis in relation to the subject accident.

23I give no weight to the assessment reports of Dr. T. Getahun, physician, dated October 27, 2021 and Dr. L. Steiner, psychologist, dated December 6, 2021. These assessments were conducted virtually or by telephone and never included an in-person examination, or an examination with the assistance of another healthcare professional, and neither included a review of Dr. Rizk’s CNRs. Both reports rely on inaccurate self-reporting by the Applicant. For example, both reports state that the Applicant followed up with her family physician – one specifically states that she followed up within “a week or so” of the accident, yet the records show that the Applicant never met with her family physician for an accident-related complaint for nearly 10 months following the accident.

24Dr. Steiner’s report is anomalous with the balance of the Applicant’s medical records. Dr. Steiner reported that psychometric testing performed by the Applicant indicated severe depression and moderate anxiety, yet none of these symptoms appear in Dr. Rizk’s CNRs outside of one post-partum incident. If the Applicant suffered from severe depression and moderate anxiety, Dr. Rizk’s CNRs would indicate so in the numerous visits following the accident. The fact that the CNRs do not include such indication suggests that the Applicant did not sustain a psychological impairment as a result of the accident.

25The conclusions in the report by Dr. Getahun are inconsistent with the findings on examination. Dr. Getahun diagnosed the Applicant with radicular symptomology in her neck and back, but the examination and self-reports do not include any complaints related to radicular symptoms. Further, Dr. Getahun found that the Applicant was unable to return to work as an administrative assistant due to the accident and gave no consideration to the fact that she gave birth to a child in July 2021. Overall, these issues with Dr. Getahun’s report cause me to discount it entirely and prefer the CNRs of Dr. Rizk when assessing the extent of the Applicant’s injuries.

26Contrary to Dr. Getahun’s conclusion, I find that the Applicant does not meet the criteria for a chronic pain condition as outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment (the “AMA Guides”). While it is not part of the Schedule, the Tribunal has generally accepted the AMA Guides when assessing whether a person suffers from a chronic pain condition. To meet the criteria, the person must demonstrate that they likely meet three of the following six criteria: withdrawal from social milieu (including work, recreation, or other social contracts); use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription dugs or other substances; development of psycho-social sequalae after the initial incident; excessive dependence on healthcare providers, spouse, or family; secondary physical deconditioning due to disuse; and a failure to restore pre- injury function after a period of disability.

27The Applicant continued with her interior design post-secondary school program and has not demonstrated a withdrawal from social milieu due to pain. She has not been prescribed and does not take any prescription medication as a result of the accident. The Applicant has not developed any accident-related psycho- social sequalae, and the CNRs before me give no indication that the Applicant is dependent on healthcare providers or family. No healthcare professional, when examining the Applicant in person, ever found any physical deconditioning. Lastly, there is no indication that the Applicant’s function was impacted by the accident, thus there could be no failure to restore function after a period of disability.

28In totality, I find that the Applicant sustained a minor injury as a result of the accident and is therefore subject to the MIG.

The EoBs fail to comply with the Schedule

29Despite being subject to the MIG and the $3,500.00 funding limit for a minor injury, I find that the Applicant is entitled to the treatment plans in dispute because the Respondent failed to comply with section 38 of the Schedule.

30Section 38(8) of the Schedule provides that the Respondent must reply to a treatment and assessment plan within 10-busines days of receipt of that plan and provide all the medical and other reasons why it refuses to pay the benefit. Section 38(9) of the Schedule provides that the Respondent must also advise the Applicant if it believes that the MIG applies.

31Pursuant to section 38(11)1 of the Schedule, the Respondents failure to comply with section 38(8) and 38(9) preclude it from taking the position that the Applicant sustained an impairment to which the MIG applies, and it must pay for all goods and services incurred during the period starting on the 10th business day and ending on the day a compliant notice is provided.

32The EoB dated March 2, 2021 does not comply with the Schedule. This EoB was issued in response to the treatment plan dated February 8, 2021, in the amount of $3,933.71. The EoB is not compliant because it does not refer to the MIG, as required by section 38(9) of the Schedule. Consequently, pursuant to section 38(11) of the Schedule, the Respondent is prohibited from taking the position that the Applicant has an impairment for which the MIG applies, and it must pay for all the goods and services listed in the plan that were incurred by the Applicant during the period of non-compliance.

33The IE notice dated August 20, 2021, does not remedy the deficient notice in the March 2, 2021 EoB. The August 20, 2021 EoB refers to the February 8, 2021 treatment plan, and also includes the chronic pain assessment plan, dated August 12, 2021. The EoB states that the Applicant’s injuries appear to be treatable within the MIG and that she is pre-approved for $2,200.00 in treatment under the MIG and that she may incur this immediately. The August 20, 2021 letter also notes that the diagnoses in the February 8, 2021 treatment plan are subject to the MIG because there are no neurological signs or fracture. The notice then provides the Applicant with the relevant details of the IE, such as the time, location, and that her attendance is required.

34The August 20, 2021 notice does not remedy the deficient notices because it does not give a medical reason for the denials. I note that the notice refers to the MIG, and that the Applicant’s injuries appear to be treatable within the MIG. However, the EoB includes no reference to what the Applicant’s injuries are, what a minor injury entails, and there is no reference to soft-tissue injuries in the EoB. Thus, I conclude that the EoB does not comply with section 38(8) of the Schedule, and section 38(11) is engaged for the treatment plan, dated February 8, 2021 and the chronic pain assessment plan, dated August 12, 2021.

35I acknowledge that the IE notice, dated August 30, 2021, is not compliant with the Schedule because it includes no medical reason for the examination. The IE notice states that, based on the information available, the Applicant’s injuries could be treated within the MIG. The IE notice is deficient because it does not refer to the injuries outlined in the information available. Caselaw provides that the IE notice must have sufficient information for which an insured person can make a decision whether to attend the IE in order to claim the benefit. However, I disagree with the remedy provided by Taksali, and find the proper remedy to this issue is that the Applicant is not required to attend the IE. The improper IE notice and remedy becomes moot once the Applicant attended the IE.

36The EoB following the IE, dated September 28, 2021 is not a compliant notice. The EoB does not refer to the MIG. It encloses the IE report and notes that Dr. Khan found the Feb 8, 2021 treatment plan and the July 12, 2021 chronic pain assessment plans to be not reasonable and necessary. This notice fails to comply with section 38(8) of the Schedule because there is no medical reason for the denial in the letter and it is left for the Applicant to determine so upon reading the IE report.

37The Respondent did not provide a compliant denial related to the psychological assessment plan, dated July 28, 2021, before it was incurred. The Respondent directs me to the IE notice, dated August 30, 2021, to demonstrate compliance with section 38(8) of the Schedule. Yet, as previously explained, the IE notice included no medical reason for the assessment. I agree that the Respondent provided a compliant EoB, dated February 15, 2024, because that EoB referred to the Applicant’s complaints, her injuries, the results of the psychological IE, provided a clear an unequivocal denial of the plan, and referred to the MIG. However, the psychological assessment was incurred on October 20, 2021 and a report was issued December 6, 2021 – well before the February 15, 2024 letter. Accordingly, I find that the Applicant is entitled to the cost of the psychological assessment plan, plus interest pursuant to section 51 of the Schedule.

Interest

38Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having determined that the Applicant is entitled to the treatment and assessment plans in dispute, it follows that she is also entitled to interest pursuant to section 51 of the Schedule.

Award

39The Applicant sought an award under section 10 of Regulation 664. Under section 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.

40The Applicant claims entitlement to an award of 50% of the amounts withheld due to the pattern of delivering and relying upon deficient denial notices. The Respondent submits that it complied with the Schedule and that being wrong does not constitute unreasonableness.

41I find no award payable. Indeed, the Respondent’s EoBs and IE notices were mostly non-compliant with the Schedule, as discussed above. However, failing to include medical and other reasons for a denial of benefits is insufficient to base an award on. When factoring the delayed claim by the Applicant and the lack of medical records provided, it was entirely reasonably for the Respondent to seek IEs.

CONCLUSION AND ORDER

42The Applicant withdrew her claim for IRBs prior to the hearing.

43The Applicant sustained a minor injury as a result of the accident.

44The Applicant is entitled to the treatment and assessment plans in dispute, plus interest.

45No award is payable.