Adjei v. Aviva General Insurance Company, 2026 CanLII 18317

Adjei v. Aviva General Insurance Company

Citation: Adjei v. Aviva General Insurance Company, 2026 ONLAT 24-007650/AABS

Licence Appeal Tribunal File Number: 24-007650/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:

Leticia Adjei

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Roderick Walker

APPEARANCES:

For the Applicant:

Humberto Geovo, Paralegal

For the Respondent:

Justin Chan, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Leticia Adjei, the applicant, was involved in an automobile accident on March 10, 2023, 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 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:

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 $902.00 for physiotherapy services, proposed by Physiomed Tenth Line in a treatment plan/OCF-18 (“plan”) dated June 15, 2023?

iii. Is the applicant entitled to $4,959.75 for psychological services, proposed by Pinnacle Health Network & Assessments in a plan dated September 7, 2023?

iv. Is the applicant entitled to $2,187.00 for physiotherapy services, proposed by Physiomed Tenth Line in a plan dated December 5, 2023?

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

RESULT

3The applicant’s injuries are predominately minor as defined by s.3 of the Schedule and therefore the applicant is subject to treatment within the MIG.

4The applicant is not entitled to the treatment plans in dispute.

5The respondent has complied with s. 38(8) of the Schedule.

6There is no interest payable.

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 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.

9In this case the applicant seeks removal from the MIG on the basis of a chronic pain impairment and a psychological condition.

The applicant does not suffer a chronic pain impairment

10I find the applicant does not suffer a chronic pain impairment that would remove her from the MIG.

11The applicant relies on the Clinical Notes and Records (CNR’s) from the family doctor, Dr. T. Ampofo, which reveal complaints of pain in her neck and lower back. Dr. Ampofo referred the applicant for physiotherapy. The applicant also relies on a Disability Certificate, dated, March 13, 2023, prepared by Ms. Ashima Pankaj, Registered Physiotherapist, stating injuries as: neck pain, knee sprain/strain and sprain/strain of lower back. Further, the applicant relies on the disputed plans for physiotherapy services, proposed by Physiomed Tenth Line dated December 5, 2023, and June 15, 2023.

12The respondent relies on their s. 44 assessor, Dr. I. Chaudhry, M.D. and his report dated August 21, 2023, where Dr. Chaudhry diagnosed the Applicant with cervical spine strain/strain (WADII), right shoulder strain/sprain, lumbar spine strain/strain, and right knee sprain/strain in relation to the accident. Dr. Chaudhry concluded that the applicant sustained minor injuries.

13The applicant submits that she sustained the following injuries as a result of the accident: neck pain, knee sprain/strain, sprain/strain of lower back, post-traumatic headaches, dizziness, sleep difficulties, anxiety, and ongoing emotional state.

14Ms. Pankaj, Registered Physiotherapist, states in the disputed plan that the applicant had to continue working due to financial reasons, and due to her work requiring long periods of sitting in front of a computer, her symptoms were aggravated. Ms. Pankaj also noted that the applicant developed severe headaches, difficulty sleeping, trouble focusing and concentrating, and experienced constant pain in the neck, lower back, and right knee, making it hard to perform activities of daily living.

15On March 18, 2023, the applicant underwent imaging of the cervical spine, which concluded there was a mild reduction in disc height at C5-C6 with endplate osteophytes, endplate osteophytes at C4 and C7, and mild right C5-C6 neural foraminal stenosis secondary to osteophytic encroachment.

16I find the CNR's of Dr. T. Ampofo, family doctor, do not support a finding that the applicant suffers from chronic pain as a result of the accident. In CNR entries dated, March 13, 20, 24, 2023, the applicant reported pain in the neck and lower back pain. However, there is no diagnosis of chronic pain. I further note that the applicant attended her family doctor regularly, however Dr. Ampofo only diagnosed neck pain, strain and lower back pain and strain. While Dr. Ampofo referred the applicant to physiotherapy, and prescribed Tylenol # 3 immediately after the accident, the applicant does not direct me to any chronic pain diagnosis by her family doctor.

17Regarding the treatment plan prepared by Ms. Pankaj, I find no indication if any testing was preformed on the applicant or if so, how the disputed plan would benefit the applicant in maximum recovery from her physical injuries. I find that the applicant was diagnosed with are strain and sprain type injuries which are minor in nature and fall within s. 3(1) of the Schedule.

18Further, In Dr. Chaudhry’s report dated, August 21, 2023, he concluded that the applicant’s physical injuries are minor injuries as defined by Schedule. In addition to a lack of a chronic pain diagnosis, the applicant does not direct me to persistent ongoing pain reports or reports of functional limitations due to her pain. The applicant has not met her onus of proof, and on a balance of probabilities, she is not removed from the MIG on the basis of chronic pain.

The applicant does not suffer from a psychological condition that would remove her from the MIG

19I find the applicant does not suffer from a psychological condition that would warrant removal from the MIG.

20The applicant relies on the CNR’S of Dr. Ampofo and a plan for $4,959.75 for psychological services, proposed by Pinnacle Health Network & Assessments dated September 7, 2023, and the screening telephone interview by Dr. L. Steiner, Psychologist, s. 25 assessor and his report dated July 9, 2023. This report indicated that the applicant was having anxiety as well as reduced concentration. Dr. Steiner proposed a treatment plan for a psychological assessment to determine a proper diagnosis.

21The respondent relies on their s. 44 assessor, Dr. D. Saunders, Psychologist, and his report dated August 10, 2023. Dr. Saunders opined that the applicant exhibits mild symptoms that do not meet the clinical criteria for a psychological impairment diagnosis.

22The applicant submits that the clinical notes and records from Dr. Ampofo indicate that she was involved in a prior motor vehicle accident on February 3, 2020, where similar injuries to the subject accident were reported to Dr. Ampofo. These symptoms included being extremely anxious, having insomnia and interrupted sleep, and experiencing pain in her neck and lower back, and receiving physical therapy, and she was seeking psychological counselling.

23The applicant submits that during the pre-screening telephone interview with Dr. Steiner on May 23, 2024, she reported experiencing psychological distress, cognitive problems, and functional impairments, and developing fear and anxiety of being in a vehicle. She also informed Dr. Steiner of having flashbacks of the accident, intrusive thoughts of the accident, being hypervigilant and avoiding being in a vehicle whenever possible, as well as sleep initiation and sleep maintenance problems. Dr. Steiner indicated that based on the information obtained there was a need for a psychological assessment, including testing to address whether the applicant’s impairments was warranted.

24The Applicant relies on a plan by Dr. Steiner, dated May 31, 2023, outlined the following injuries: depressive episode, somatoform disorders, specific isolated phobias, adjustment disorders, sleep disorders, insomnia, headaches, and problems related to lifestyle. Dr. Steiner referred to the plan goals of pain reduction, return to activities of normal living, and identifying the factors affecting the applicant and preparing a plan to address them.

25On July 9, 2023, Ms. Adjei underwent a telephone screening interview with Dr. Steiner and was diagnosed with adjustment disorder with mixed anxiety and depressed mood; other specified trauma and stressor related disorder with features of post-traumatic stress disorder and specific situation phobia driver and passenger related; and somatic symptom disorder based on pain being a prominent feature in her presentation and self-reports in the evaluation.

26Dr. Steiner opined that there is a relationship between the occurrence of the motor vehicle accident and the abrupt onset of cognitive and emotional difficulties subjectively experienced by the applicant. He confirmed that her psychological conditions and their severity are consistent with the mechanism of the accident. Given the diagnoses provided, Dr. Steiner concluded that the applicant falls outside the scope of the MIG.

27The respondent argues that the applicant does not suffer a psychological condition that would warrant her removal from the MIG. On July 26, 2023, the applicant was examined by Dr. D. Saunders which resulted in a section 44 insurer’s examination report dated August 10, 2023. In his report, Dr. Saunders opined that the applicant exhibits mild symptoms that do not meet the clinical criteria for a psychological impairment. He observed that the applicant’s behavior and demeanor were inconsistent with her reported symptoms and responses on psychometric tests. Objective testing indicated that the applicant exaggerated and/or misrepresented her symptoms. In the MMPI-3 assessment, Dr. Saunders found that the results reflected non-credible reporting of somatic and cognitive symptoms, raising substantial concerns about the validity of scores related to somatic, neurological, and cognitive complaints, as well as general malaise. In the DSM-V assessment, he noted that the scores required adjustment due to evidence of non-credible reporting. Similarly, in the MAQ test, Dr. Saunders concluded that the presence of non-credible reporting resulted in findings of only mild symptoms, which do not meet the clinical threshold for impairment.

28I find that the testing conducted by Dr. Saunders concludes that the applicant does not suffer from a psychological condition as found in Dr. Steiner’s report. Dr. Saunders’ assessments, as detailed in his report dated August 10, 2023, clearly outlines that the applicant has overreported her symptoms. He further observed that the applicant’s behavior and demeanor were inconsistent with her reported symptoms and her responses across all tests. Dr. Saunders also noted concerns regarding the applicant’s credibility, opining that her symptoms of distress were mild in nature. I prefer this report because Dr. Steiner opined that there is a relationship between the occurrence of the motor vehicle accident and the abrupt onset of cognitive and emotional difficulties subjectively experienced by the applicant. Dr. Saunder’s assessment states that the applicant has overly reported her symptoms. Dr. Saunder’s concludes this in the applicant’s response across all of the tests.

29For these reasons, and on a balance of probabilities, I find that the applicant has not met her onus of proof to establish accident-related psychological impairments and therefore remains within the MIG.

30As the applicant remains subject to the MIG, it is not necessary for me to consider whether the treatment plans in dispute are reasonable and necessary.

Has the respondent breached s. 38(8) of the Schedule which would trigger s. 38(11) of the Schedule in the denial letter dated June 15, 2023?

31I find that the applicant has not established that the respondent was non-compliant with s. 38(8). In terms of the sufficiency of the respondent’s denial, the applicant states that the respondent failed to provide the applicant with firm and clear “medical and all of the other reasons” why they refused to pay for the benefit and the proposed treatments/assessments, as required by s. 38(8) of the Schedule.

32The respondent asserts that the denial is compliant with the Schedule. The respondent argues that it is sufficient for the denial to say that the applicant’s injuries fall within the MIG, particularly because it had little medical documentation to refer to or base its reasons on. The respondent also requested an insurer’s examination to determine if the injuries are minor, to assess MIG applicability and to determine if the proposed goods and services would be reasonable and necessary.

33I find that the reason provided by the respondent, that the MIG applies based on the medical evidence available to it, satisfies the requirement, well-established in the jurisprudence, that an insurer provide reasons capable of giving a claimant a principled rationale, based fairly on the claimant’s file, to which an insured person can respond.

34I find that the denial letter dated June 15, 2023, issued to the applicant regarding the treatment plan from Physiomed Tenth Line, is compliant with s. 38(8). In that letter, the respondent partially approved the plan in the amount of $1,300.00, leaving $902.00 in dispute. I am satisfied that the respondent provided both medical and other reasons for denying the disputed portion of the plan, and that these reasons were sufficiently clear to the applicant. The letter also clearly sets out the next steps required of the applicant, including attendance at a s. 44 insurer’s examination. For these reasons, I find that the denial letter complies with s. 38(8) of the Schedule, and the applicant has not established that the plan is payable pursuant to s. 38(11).

Interest

35No interest is payable as no benefits are overdue.

ORDER

36On the totality of the evidence, I find that:

i. The applicant’s injuries are predominately minor as defined by s. 3 of the Schedule and therefore the applicant is subject to treatment within the MIG.

ii. The applicant is not entitled to the treatment plans in dispute.

iii. There is no interest payable.

iv. The application is dismissed.