Joseph Drysdelle v. Aviva General Insurance, 2025 CanLII 72404

Licence Appeal Tribunal

Citation: Drysdelle v. Aviva General Insurance, 2025 ONLAT 23-008374/AABS

Licence Appeal Tribunal File Number: 23-008374/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 Drysdelle Applicant

and

Aviva General Insurance Respondent

DECISION

ADJUDICATOR: Kathleen Wells

APPEARANCES:

For the Applicant: Zoe Meditskos, Paralegal

For the Respondent: Anthony M Naples, Counsel

HEARD: By way of written submissions

OVERVIEW

1Joseph Drysdelle, the applicant, was involved in an automobile accident on October 10, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (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 preliminary issue in dispute is:

1. Is the applicant barred from proceeding to a hearing for the following benefit: $2,081.00 for chiropractic services, proposed by Active Mobility Rehab in a treatment plan/OCF-18 (“treatment plan”) submitted July 7, 2023, because the applicant failed to attend an insurer’s examination under s. 44 of the Schedule.

3The substantive issues in dispute are:

1. 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?
2. Is the applicant entitled to $2,081.00 for chiropractic services, proposed by Active Mobility Rehab in a treatment plan/OCF-18 (“treatment plan”) submitted July 7, 2023, and denied July 19, 2023?
3. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4On the preliminary issue, I find that the applicant is not barred from proceeding to a hearing.

5On the substantive issues, I find that:

1. The applicant sustained a predominantly minor injury as a result of the accident. He remains subject to the MIG and its $3,500.00 limit.
2. As the applicant is in the MIG, it is not necessary to determine whether the disputed treatment plan is reasonable and necessary as a result of the accident.
3. The applicant is not entitled to an award.
4. As no payments are owing, no interest is due.
5. The application is dismissed.

ANALYSIS

Preliminary Issue

6I find that the applicant is not barred from proceeding with his claims.

7Section 44 provides that an insurer may require an insured person to be examined at an insurer’s examination (“IE”) to assess entitlement to a benefit under the Schedule, but not more than is reasonably necessary. A proper notice under s. 44(5) must state the medical and any other reasons for the examination; whether the insured’s attendance is required at the IE; the name, title and designation of the assessor conducting the IE; and the date, time and location of the assessment. The insurer shall make reasonable efforts to schedule the IE for a day, time and location that are convenient for the insured.

8Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied with its request for attendance.

9The respondent argues that the applicant did not attend an insurer’s examination on August 17, 2023. The applicant submits that he contacted the insurer to reschedule the examination, but did not provide any evidence to support this submission.

10The applicant also argues that the notice of examination (NOE) is not compliant with s.44(5) of the Schedule because the respondent did not provide adequate medical reasons in the NOE and used “boilerplate” and “vague“ language instead.

11The applicant relies on T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373, in which Executive Chair Lamoureux held:

an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires.

12I agree. In the present case, the NOE provides the following medical reason:

After receiving on July 7, 2023 a Treatment and Assessment Plan (OCF- 18) dated July 4, 2023 from Active Mobility Rehab in the amount of $2,081.00 and upon review of the documentation on file, it appears as though there has been no compelling or updated medical evidence to support the need for treatment beyond the Minor Injury Guideline as a direct result of injuries sustained in the motor vehicle accident. As such, Aviva defers to a Section 44 Independent Medical Examination for a professional medical opinion.

13I find that the NOE does not specifically identify the applicant’s condition, referring only to “injuries sustained in the motor vehicle accident,” and requesting updated clinical notes and records, without any detail of the applicant’s condition. I find the wording of the notice is vague and lacks the required detail. Therefore, I find that the NOE is not compliant with s.44(5) of the Schedule.

14As I have found that the notice did not comply with s. 44(5) of the Schedule, the applicant is not barred from proceeding with his claims pursuant to s. 55(1)2.

Substantive Issues

Applicability of the MIG

15I find that the applicant has not met his onus to prove on a balance of probabilities that his accident-related impairments warrant removal from the MIG.

16Section 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.”

17An 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.

18The applicant argues that he should be removed from the MIG because he suffers from chronic pain as a result of the accident.

Chronic Pain

19I find that the applicant has not established that he suffers from chronic pain with functional impairment as a result of the accident to warrant his removal from the MIG.

20The applicant submits that he suffers from chronic pain as a result of his accident-related soft tissue injuries. The applicant relies on the clinical notes and records (CNRs) of Golden Mile Medical Centre and Walk-in Clinic, the CNRs of Active Mobility Rehab Centre, and the CNRs of Dr. Vida Abbasiranjbar of Apollo Applied Research, Inc.

21The respondent argues that the applicant has not met his onus to prove that he suffers from chronic pain with functional impairment, or that his complaints of pain are a result of the accident. The respondent relies on the s. 44 report of Dr. Bob Karabatsos, orthopedic surgeon, dated March 24, 2016.

22The applicant was sent for X-ray imaging on October 15, 2015, five days after the accident. The imaging revealed normal studies of his thoracic and lumbar spine and mild degenerative changes to his cervical spine and right hand, with “no acute abnormalities,” which I find is consistent with Dr. Karabatsos’ diagnosis of soft tissue injuries to the applicant’s cervical and lumbar spine as set out in the March 24, 2016 s. 44 report.

23I find that the evidence reveals that the applicant complained of back and neck pain to his treatment providers in the 5 months following the accident. The CNRs of Active Mobility Rehab Centre reveal that the applicant complained of back and neck pain to his treatment providers between November 2015 and February 2016. He also complained of pain at his s. 44 examination on March 10, 2016. Further, the evidence reveals that the applicant was prescribed medical marijuana for his accident-related pain on February 8, 2016, by Dr. Abbasiranjbar.

24I agree with the respondent that the applicant has not demonstrated that his subsequent pain complaints are related to the accident, because the evidence reveals that in addition to the applicant’s above noted degenerative spine condition, the applicant had two work-related back injuries in the three years following the accident. The applicant did not complain to his treatment providers of pain again until November 17, 2016 and November 21, 2016, which was subsequent to a back injury the applicant sustained at work on October 14, 2016, and reported to Dr. Abbasiranjbar at his December 15, 2016 appointment.

25Additionally, the CNRs of the Golden Mile Medical Centre and Walk-in Clinic reveal that the applicant was treated for back and neck injuries he sustained installing a fireplace on July 11, 2018, when the applicant fell down five steps and the 100 pound fireplace fell on the applicant’s back and neck. Therefore, I find that the evidence does not establish that the back pain that the applicant experienced since October 14, 2016 is from the motor vehicle accident rather than the workplace injuries.

26The applicant argues that he met three of the six criteria of the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition (“AMA Guides”) prior to the above noted workplace accidents.

27While the AMA Guides are not referenced in the Schedule and I am not bound by them, the Tribunal has determined that they provide a helpful tool in evaluating chronic pain. The AMA Guides state that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:

1. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
2. Excessive dependence on health care providers, spouse, or family.
3. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.
4. Withdrawal from social milieu, including work, recreation, or other social contracts.
5. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.
6. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.

28The applicant submits that he meets criteria 1, 2, and 6 of the AMA Guides.

29The applicant submits that he used cannabis beyond the “initial recommended duration” of 120 days prescribed by Dr. Abbasiranjbar in February 2016, and this supports that they meet criteria 1. I disagree. Dr. Abbasiranjbar’s CNRs reveal that the applicant did not return for his follow-up appointment until December 15, 2016, because he had temporarily moved out of the area, His prescription was then extended twice for a total of eighteen months, which I find undermines the applicant’s submission.

30I also find that the applicant has not established that he has an excessive dependence on health care providers or family members. The applicant submits that he has received physiotherapy and chiropractic care and had medical assessments with respect to his accident-related pain but has not explained how this constitutes an excessive dependence on health care providers. Further, the applicant has not directed me to any evidence of reliance on family members.

31Finally, while Dr. Abbasiranjbar’s CNRs reveal that the applicant reported on a questionnaire that he was using marijuana to treat pain and depression on December 15, 2016, the applicant has not provided any detail or directed me to medical or other evidence in support of his submissions that he experiences psychological symptoms. Therefore, I find the applicant’s self-report is insufficient basis to support a finding of that the applicant has developed psychosocial sequelae as a result of his pain.

32Therefore, I find that the applicant has not established that he meets three of the six criteria of the AMA Guides.

33The applicant has not directed me to any further medical or other evidence with respect to the applicant’s function. Therefore, I find insufficient basis for a finding that the applicant has a functional impairment as a result of his accident-related pain.

34For the reasons above, I find that the applicant has not met his onus to prove on a balance of probabilities that he suffers from chronic pain with functional impairment. Therefore, the applicant remains within the MIG.

35As I found that the applicant remains within the MIG, it is not necessary to consider the treatment plan in dispute.

Interest

36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are owing, no interest is due.

Award

37The 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. As the applicant has not established that any payments were withheld or delayed, the applicant is not entitled to an award.

ORDER

38I find that:

1. The applicant sustained a predominantly minor injury as a result of the accident. He remains subject to the MIG and its $3,500.00 limit.
2. As the applicant is in the MIG, it is not necessary to determine whether the disputed treatment plan is reasonable and necessary as a result of the accident.
3. The applicant is not entitled to an award.
4. As no payments are owing, no interest is due.
5. The application is dismissed.