Citation: Applicant v. Aviva Insurance Company, 2025 ONLAT 23-007854/AABS

Licence Appeal Tribunal File Number: 23-007854/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:

Applicant (A minor by their litigation guardian, T.M.)

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jeff Chatterton

APPEARANCES:

For the Applicant:

Erin Neal, Counsel

For the Respondent:

Geoffrey Keating, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1The applicant, was involved in an automobile accident on October 1, 2020, 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:

a. 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 limit and in the Minor Injury Guideline (“MIG”)?

b. Is the applicant entitled to medical benefit in the amount of $755.00 for physiotherapy services submitted on an invoice (OCF-6) submitted June 16, 2022?

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

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

3Issues two and four as listed in the Case Conference Report and Order have been withdrawn by the applicant.

RESULT

4I find, on the balance of probabilities, that the applicant has not met the onus to prove that her impairments warrant removal from the MIG.

5The parties agree that, as of the filing of the application, the MIG limits have not been exhausted. However, no treatment plans have been submitted to the Tribunal for further adjudication. As the MIG limits have not been exhausted, the applicant is eligible for further and ongoing treatment up to the MIG limits.

6I also find, on the balance of probabilities, that the applicant is not entitled to $755.00, as submitted on an OCF-6 for physiotherapy services.

ANALYSIS

Minor Injury Guideline

7Section 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.”

8An 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 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.

9The applicant submitted that she should be removed from the MIG because she sustained a concussion in the accident. The applicant also argues that she has a pre-existing condition which prevents maximal recovery under the MIG. Specifically, the applicant argued that she has potential, pre-existing spinal injuries, including a possible case of incidental spina bifada occulta, as well as a pre-existing history of concussions, which, together with an accident-caused concussion, has led to or contributed to ongoing post-concussion syndrome.

10In order to support her claim, the applicant submitted evidence regarding concussions suffered after the accident in a report by the Therapist, RMT, created December 6, 2021.

11The respondent relies on a s. 44 examination by Dr. E.S. (report dated January 13, 2022), showing that the injuries suffered by the applicant are predominantly sprain and strain injuries, and therefore still subject to the MIG.

12When examining the issue of a pre-existing condition, it is important to remember that the existence of a pre-existing condition alone is not enough to warrant removal from the MIG. Under s. 18(2), the applicant must also provide compelling evidence that shows the pre-existing condition will preclude her from attaining maximal medical recovery from their minor injuries under the MIG.

13When it comes to the issue of potential spinal injuries, I note the applicant has provided medical evidence indicating potential injuries and a potential case of incidental spinal bifada occulta. However, the applicant has not pointed me towards supporting medical evidence that shows this condition will preclude recovery of her minor injuries under the MIG.

14Regarding the concussion diagnosis, I am not convinced by The Therapist diagnosis for two reasons. To begin, K.P is a registered massage therapist, and he is not medically qualified to diagnose concussions or post-concussion syndrome. Further, K.P notes indicate that he advised the applicant to see a doctor for a diagnosis and referral for treatment. It is unclear whether this follow up took place.

15The applicant also submitted an OCF-3 from Raju Gupta, physiotherapist, which indicated a potential concussion. I am not convinced by this evidence for similar reasons, as a physiotherapist is not qualified to diagnose a concussion.

16The applicant has not led me to other supporting medical evidence from a doctor indicating that the applicant has suffered a concussion, or that she is suffering from post-concussion syndrome, or that either of those conditions would preclude maximal recovery under the MIG, as required for removal from the MIG under s. 18(2).

17For these reasons, I find, on a balance of probabilities, that the applicant has not met the onus to prove that her impairments merit removal from the MIG. The MIG limits, as noted earlier, are not exhausted and the applicant is eligible for further treatment up to the $3,500 provided under the MIG.

OCF-6 for Physiotherapy Services

18The applicant bears the onus of establishing on a balance of probabilities that the services claimed on an OCF-6 are payable.

19I find the applicant has not established on a balance of probabilities that the OCF-6 for physiotherapy is payable.

20The applicant submits that the respondent’s denial, issued June 20, 2022, was improper, since it does not provide a medical reason for the denial. Section 38(8) of the Schedule states: “Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.”

21The respondent relies on the precedent established by Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78, which states that a denial letter must state “medical and other reasons.” Further, Varriano states that the word “and” is conjunctive, meaning an insurer can issue a denial, stating a medical and/or another reason, however that insurer is not obligated to provide both a medical and another reason if no medical reason exists.

22I have reviewed the denial letter. It was dated within 10 days of receipt and stated: “Reasons for our decision: We have no record of receiving a Treatment Plan (OCF 18) and or approving the physiotherapy sessions, as such we are unable to consider reimbursement for the expenses claimed.”

23As there is a reason indicated, and the reason complies with s. 38(2) of the Schedule, I find that the notice has been issued in accordance with the Schedule.

24For these reasons, I find, on the balance of probabilities, that the applicant has not proven that the OCF-6 is payable because she has not demonstrated that she meets any of the exceptions outlined in s. 38(2) for payment of this expense.

Interest

25Interest 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

26The 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. Since I find that the respondent has not withheld or delayed any payment to the applicant, no award is payable.

ORDER

27For the above reasons, I find:

a. The applicant remains subject to the MIG.

b. The applicant is not entitled to payment of the OCF-6 dated June 16, 2022.

c. The applicant is not entitled to interest or an award.

d. The application is dismissed.