Ling v. Aviva General Insurance, 2025 CanLII 61171

Citation: Ling v. Aviva General Insurance, 2025 ONLAT 23-011489/AABS

Licence Appeal Tribunal File Number: 23-011489/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:

David Ling

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Nikisha Evans

APPEARANCES:

For the Applicant: Warren Rigby, Counsel

For the Respondent: Thulasi Kandia, Counsel

HEARD: In Writing

OVERVIEW

1David Ling, the applicant, was involved in an automobile accident on September 14, 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 minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (MIG) limit?

ii. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by Chinguacousy Physiotherapy and Foot Clinic in a treatment plan/OCF-18 (“plan”) dated June 29, 2023?

iii. Is the respondent liable to pay an award under s. 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 grant the application in part, namely:

i. The applicant has demonstrated he should be removed from the MIG.

ii. The applicant is entitled to $2,460.00 for a chronic pain assessment dated June 29, 2023.

iii. The respondent is not liable to pay an award under s.10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant.

iv. The applicant is entitled to interest on any overdue payment of benefits, in accordance with s.51 of the Schedule.

PROCEDURAL ISSUE

Excluding photographs of the applicant

4The respondent’s request for an order to exclude the photographs of the applicant labelled as “TAB 1” included in the applicant’s written hearing submissions is granted.

5In its submissions, the respondent requested that the Tribunal exclude TAB 1 for failure to comply with the Case Conference Report and Order (“CCRO”) dated March 15, 2024. The CCRO sets out the production timelines for parties to exchange documents as: 30 days for the initial production, 60 days for all other documents and things not previously shared that both parties will rely on as evidence at the hearing and 90 days for additional documents or things responsive to documents or things that have already been exchanged or produced that they intend to rely on as evidence at the hearing. The applicant did not file the photographs until October 1, 2024.

6The respondent submits that the photographs were not produced prior to receiving the applicant’s written submissions for this hearing. The respondent argues that the untimely disclosure of the evidence prejudiced the respondent’s ability to assess the evidence. The respondent further submits that the photographs were dated September 14 and 17, 2021 and were therefore available to the applicant at the time of the initial production deadline. Consequently, the respondent requests that the photographs not be admitted because it was not disclosed in compliance with the CCRO for this matter. The respondent relies on Rule 9.3 of the Licence Appeal Tribunal Rules, and V.G. v. Aviva Insurance Canada, 2019 CanLII 22214 (ON LAT), Davoodabadi v. Certas Direct Insurance Company, 2021 CanLII 111157 (ONLAT) 7, and Darteh v. Wawanesa Insurance, 2022 CanLII 57400 (ON LAT).

7The applicant did not seek consent from the Tribunal to consider the late-submitted evidence for the hearing. Further, the applicant did not make any submissions in response to the motion to exclude the applicant’s photos.

8I agree that the applicant failed to comply with the CCRO by submitting the photographs in this manner. Rule 9.3 presumptively prohibits a party who contravenes Rule 9 from relying on noncompliant disclosure, subject to the Tribunal’s consent. In reviewing the factors set out in Rule 9.3, I agree that the dates of the photographs mean that the applicant could have disclosed them well before October 1, 2024. The applicant does not provide a reason for their noncompliance. The late disclosure is prejudicial to the respondent as the applicant’s actions prevented the respondent from adequately making submissions regarding the photographic evidence. The respondent clearly opposes the photographs’ admission. On the other hand, I do not see the relevance of the photographs. The applicant submitted the Toronto General hospital report which wrote the details of the accident and the injuries the applicant received as a result of the accident. I do not see where excluding the photographs would prejudice the applicant. For these reasons, I grant the respondent’s request to exclude the photographs in TAB 1 of the applicant’s submissions.

ANALYSIS

Minor Injury Guideline

The applicant is removed from the MIG

9I find that the applicant has met his onus to prove that his accident-related impairments warrant removal from the MIG.

10Section 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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

11An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical 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.

12In this matter, the applicant submits that he should be removed from the MIG because he sustained chronic pain with functional impairments, as result of the accident.

The applicant has established that he suffers chronic pain warranting removal from the MIG

13I find that the applicant has established on a balance of probabilities that he suffers from chronic pain with a functional impairment warranting a removal from the MIG.

14The applicant submits that he has chronic pain with functional impairments. He primarily relies on clinical notes and records of Dr. Gaurav Mehra, family physician, which documents his ongoing complaints post-accident and on OCF-3 by Dr. Ali Kheredmand, chiropractor, dated February 10, 2022. He also relies upon the Chronic Pain Assessment prepared by Dr. Grigory Karmy, Chronic Pain Physician, dated August 24, 2023. Dr. Karmy diagnosed the applicant with chronic pain and noted objective findings of functional limitations. He recommended that the applicant be involved in a multidisciplinary, active exercise program, with adjunctive passive modalities. Dr. Karmy further recommended physiotherapy, acupuncture, massage therapy, chiropractic adjustments and spinal decompression. He also opines that the applicant will benefit from a psychological assessment followed by sessions of psychological treatments.

15The respondent submits that the applicant has not met his burden to prove his injuries fall outside of the MIG. The respondent submits the applicant’s failure to attend his family physician from March 4, 2022, to March 14, 2023, confirms that the applicant does not require treatment. The respondent further relied upon s. 44 examination reports by Dr. Rusen, Orthopaedic Surgeon, dated July 26, 2023, and Dr. Tu, General Practitioner, dated August 10, 2023, and August 24, 2023. Both doctors concluded that the applicant had sustained soft tissue injuries which keeps the applicant in the MIG.

16Further, the respondent argued that Dr. Karmy is not qualified to diagnosed chronic pain because he has not done a residency or received board certified designation in any specialty. However, the respondent did not give notice to challenge the applicant’s expert as per Rule 10.4. Further, pursuant to Rule 10.1 an expert witness is a person who is qualified to provide professional, scientific, or technical information and opinion based on special knowledge acquired through education, training, or experience. The applicant submitted Dr. Karmy’s report which stated he has over 10 years experience in chronic pain assessments and a signed statement from the expert, in the Tribunal’s required form pursuant to Rule 10.2. For these reasons, I placed little weight on the respondent’s submissions regarding Dr. Karmy’s qualification.

17I am persuaded by the applicant’s submissions that he suffers from chronic pain with a functional impairment. In reaching my conclusion, I have placed significant weight on the CNRs of Dr. Mehra, which reflected the applicant’s complaint of pain which was recorded beyond three months post-motor vehicle accident. Dr. Mehra recorded in his CNRs that the applicant was attending a chiropractor to help with the pain and to qualify for modified work approval. The applicant further submitted that he was receiving physiotherapy, chiropractic and massages through his work extended benefits program, Green Shield Canada. I find these CNRs support the conclusions made by Dr. Karmy in his pain assessment report which concluded that the applicant suffered from chronic pain with functional impairments. Dr. Karmy reviewed all the family doctor’s clinical notes and updated documentation, physically examined the applicant, and provided a summary of these records. He also reviewed the OCF-3 Dr. Ali Kheradmand in which Dr. Kheradmand recorded the applicant was unable to substantially perform the essential tasks for his employment. Dr. Karmy provided a detailed description of the applicant’s functional impairments.

18Also, the applicant further relies on Dr. Karmy’s report that stated the pain-based limitations serve as significant functional impairment. Dr. Karmy’s report listed the following functional impairments:

a. An inability to return to completing the Applicant’s pre-accident housekeeping and home maintenance duties that require pushing/pulling, heavy lifting/carrying, reaching overhead and repetitive arm movements, including cooking, cleaning, vacuuming, doing laundry, shopping, and taking out the garbage.

b. An inability to return to pre-accident recreational activities, including rock climbing and mountain biking, as well as travelling and commuting on a regular bicycle.

c. An inability to complete his pre-accident self-care and personal activities in the same manner as it takes him longer to complete these tasks; and

d. An inability to complete his pre-accident employment tasks in the same manner and fashion. The Applicant works in a physically demanding role as a Commercial HVAC Installer, and faces daily challenges with tasks involving reaching overhead, pulling, or pushing objects, heavy lifting, and the use of his dominant left upper limb.

19Based on the evidence and submissions before me, I find that the applicant has established on a balance of probabilities that he suffers from chronic pain with a functional impairment as a result of the accident warranting a removal from the MIG.

OCF-18 dated June 29, 2023, for a chronic pain assessment is reasonable and necessary

20To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable. The applicant argues that the medical evidence establishes that he suffered from functional restrictions after the accident impairing his ability to perform activities of daily living. He further submits that the chronic pain assessment report by Dr. Karmy claims multidisciplinary rehabilitation therapy, including an active exercise program, adjunctive passive modalities, and management of his psychological problems will allow him to reach his goals “in alleviating the pain and optimizing his day-to-day functioning to improve his quality of life.”

21The respondent relied on Dr. Tu’s report to claim the applicant does not suffer from chronic pain. Further, the respondent submitted that OCF-18 by Narwinder Kaur, physiotherapist, for the chronic pain assessment, is not reasonable and necessary as the injuries are within the MIG.

22The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

23I find that the applicant has met his onus to prove that the proposed chronic pain assessment is reasonable and necessary. The applicant relied upon the report of Dr. Karmy regarding the applicant’s functional impairments impacting his activities of daily living. Dr. Karmy recommended a multidisciplinary rehabilitation therapy, exercise program, adjunctive passive modalities, and management of his psychological problems. I find that the evidence submitted by the applicant establishes that he has suffered from pain more than three months, that has impacted his daily living activities because of the MVA. I find that the chronic pain assessment is reasonable and necessary.

Interest

24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

Award

25The applicant sought an award under s. 10 of Regulation 664. He submits that the respondent unreasonably withheld or denied the payment of the OCF-18. 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.

26I do not find that the applicant has established a basis for an award. Although the applicant argues that the respondent improperly held him within the MIG, it did so on the basis of its insurer’s examinations. While I ultimately determined that the applicant sustained non-minor injures, I do not find the respondent’s reliance on its IE assessments to meet the high threshold for an award.

ORDER

27For the foregoing reasons I find that:

i. The applicant that the applicant has demonstrated he should be removed from the MIG.

ii. The applicant is entitled to $2,460.00 for a chronic pain assessment dated June 29, 2023.

iii. The respondent is not liable to pay an award under s.10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant.

iv. The applicant is entitled to interest on any overdue payment of benefits, in accordance with s.51 of the Schedule.