Clarke v. Aviva General Insurance Company, 2026 CanLII 18322

Citation: Clarke v. Aviva General Insurance Company, 2026 ONLAT 24-008003/AABS

Licence Appeal Tribunal File Number: 24-008003/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:

Darnley Clarke

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

VICE-CHAIR: Julian DiBattista

APPEARANCES:

For the Applicant: Kayla Cuff, Paralegal

For the Respondent: Justin Chan, Counsel

HEARD: In Writing

OVERVIEW

1Darnley Clarke, the applicant, was involved in an automobile accident on February 2, 2022, 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 $3,510.09 for Physiotherapy Services, proposed by Axiz Physiotherapy in a treatment plan/OCF-18 (“plan”) dated August 15, 2022?

iii. Is the applicant entitled to $2,598.81 for a Chronic Pain Assessment, proposed by Prime Health Care Inc. in a treatment plan dated March 13, 2024?

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

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

RESULT

3The applicant remains within to the MIG.

4The applicant is not entitled to any of the disputed treatment plans, interest or an award under s.10 of Reg 664.

5This application is dismissed.

ANALYSIS

The applicant remains within the MIG

6I find that the applicant remains within to the MIG.

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.

9The applicant submits that there is compelling medical evidence that his accident-related injuries are not minor as defined by s.3(1) of the Schedule, specifically due to the presence of chronic pain. In support of this, the applicant submits the clinical notes and records (“CNRs”) of the applicant’s family physicians, Dr. A Toma and Dr. N Malak at the Derry Medical Clinic. The applicant also points to CNRs of the applicant’s physiotherapist, Ms. J Searay.

10The respondent submits that the applicant does not suffer from chronic pain syndrome and remains within the MIG. The respondent points to the CNRs of Derry Medical Clinic to support this position. The respondent further relies on the s.44 assessment of Dr. J. Stewart, physician.

11The applicant was seen by his family physician, Dr. Malak, on February 3, 2022 the day after the accident. Dr. Malak noted a whiplash type injury and recommended physiotherapy.

12On February 9, 2022, the applicant began attending physiotherapy sessions with Ms. J Searay, physiotherapist. There is evidence of follow-up appointments with both Dr. Malak and Ms. Searay to address the applicant’s accident-related injuries.

13The last documented visit with Dr. Malak which addresses accident-related injuries was on April 30, 2022.

14The last physiotherapy session with Ms. Seary was on June 28, 2022. Ms. Searay notes in a CNR from this visit that the applicant’s left shoulder is good and that the applicant only experienced low back pain 4 days prior to the appointment while he was driving for 6 hours.

15The next documented medical visit addressing pain was on April 19, 2023. Dr. Toma notes in the CNR that the applicant has left shoulder pain with extreme abduction, no other joint pain and no swelling on the back. This visit occurred approximately one year following the applicant’s last appointment where accident-related injuries were discussed. Dr. Toma does not reference the accident in their CNR.

16The applicant did not have a pain-related visit with his family physician for just under a year following his visit on April 30, 2022. When the applicant was subsequently seen for pain, the accident was not referenced.

17This fact pattern does not support the presence an accident-related chronic pain syndrome. In addition, there have been no submissions made which identify a functional impairment linked to chronic pain syndrome.

18Dr. Stewart conducted a s. 44 musculoskeletal assessment on April 19, 2024. Dr. Stewart found that the applicant would have initially sustained a cervical spine strain/sprain and a thoracolumbar spine sprain/strain as a result of the accident. Dr. Stewart wrote that the assessment of the applicant showed he has recovered from his accident related soft-tissue injuries.

19I give the highest weight to Dr. Stewart’s assessment as it is corroborated by the CNRs of both the applicant’s family physicians and the applicant’s physiotherapist.

20The applicant was treated for accident-related injuries from the date of the accident until June 28, 2022. He then presented with no complaints of pain until April 19, 2023. The CNR of April 19, 2023 does not connect the applicant’s pain to the accident.

21This is reinforced by the CNRs of the applicant’s physiotherapist from May and June of 2022. In multiple notes during this period, Ms. Searay notes that the applicant’s back and left shoulder have improved. Ms. Searay further notes that lower back soreness appears to occur only after exercising, long periods of driving or at the end of the applicant’s shift at work.

22I therefore find that the applicant has not met their burden to prove the presence of chronic pain syndrome with an associated functional impairment which would warrant removal from the MIG.

It is not necessary to consider if any of the disputed treatment and assessment plans are reasonable and necessary

23As the parties agree the policy limits within the MIG have been exhausted, the applicant is not entitled to any of the disputed treatment plans.

Interest

24As no benefits are overdue, there is no entitlement to interest.

Award

25The 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.

26As there have been no benefits which have been unreasonably withheld, there is no basis to grant an award.

ORDER

27For the reasons above I find that:

i. The applicant’s injuries fall within the MIG;

ii. The applicant is not entitled to any of the disputed treatment plans;

iii. The applicant is not entitled to interest; and

iv. The applicant is not entitled to an award under s. 10 of Reg 664.

28This application is dismissed.