Murray v. Aviva General Insurance Company, 2026 CanLII 21071

Citation: Murray v. Aviva General Insurance Company, 2026 ONLAT 24-001920/AABS

Licence Appeal Tribunal File Number: 24-001920/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:

Natalie Murray

Applicant

And

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Matthew Frontini

APPEARANCES:

For the Applicant: Zoe Meditskos, Paralegal

For the Respondent: Sadaf Shahzad, Counsel

HEARD: By way of written submissions

OVERVIEW

1Natalie Murray, the applicant, was involved in an automobile accident on October 26, 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 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 $3,795.50 for chiropractic and massage services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 (“treatment plan”) dated October 28, 2021?

iii. Is the applicant entitled to $3,561.81 for chiropractic and massage services, proposed by VIP Health Care Clinic in a treatment plan dated December 10, 2021?

iv. Is the applicant entitled to $1,361.81 ($3,561.81 less $2,200.00 approved) for physiotherapy services, proposed by VIP Health Care Clinic in a treatment plan dated December 10, 2021?

v. Is the applicant entitled to $1,514.17 ($2,614.17 less $1,100.00 approved) for chiropractic services, proposed by VIP Health Care Clinic in a treatment plan dated March 8, 2022?

vi. Is the applicant entitled to $800.00 for an attendant care assessment, proposed by VIP Health Care Clinic in a treatment plan dated December 10, 2021?

vii. Is the applicant entitled to $900.09 for the cost of massage services, submitted on a claim form (OCF-6) dated July 27, 2022?

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

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

RESULT

3I find that:

i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the $3,500.00 limit of the MIG;

ii. As the applicant is in the MIG, it is not necessary to consider if the disputed treatment plans are reasonable and necessary;

iii. the applicant is not entitled to $900.09 for the cost of massage services, submitted on a claim form (OCF-6) dated July 27, 2022;

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

v. The applicant is not entitled to interest pursuant to s. 51 of the Schedule; and

vi. The application is dismissed.

ANALYSIS

The applicant is not removed from the MIG

4The applicant is not removed from the MIG. She has not established on a balance of probabilities that she has suffered more than a minor injury because of the accident.

5Section 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.”

6An 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 a functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

7In this case, the applicant submits that she should be removed from the MIG because she suffers accident-related chronic pain.

The applicant has not established that she suffers chronic pain with a functional impairment warranting removal from the MIG

8I find that the applicant has not established on a balance of probabilities that she suffers chronic pain with a functional impairment warranting removal from the MIG.

9The applicant submits that the medical evidence demonstrates that she has suffered pain as result of the accident that has persisted well beyond the normal healing time expected of minor injuries and that this pain has significantly disrupted or disabled her pre-accident activities of daily living. In this regard, the applicant submits that she did not report low back pain until after the accident and has consistently reported pain since the accident. With respect to her functional impairments, she submits that she “…is suffering from ongoing physical and functional impairments that impact her daily activities, including daily household tasks and work function.” (emphasis in the original). The applicant’s submissions do not describe the magnitude of the impact of the pain on her function.

10The applicant also relies on diagnoses of chronic pain made by medical professionals. The clinical notes and records of the applicant’s family doctor, Dr. Mazaheri, reference “chronic low back” pain in March and April 2023. These notes do not refer to the motor vehicle accident and Dr. Mazaheri notes that the chronic low back pain is likely due to degenerative disc disease. During these consultations, Dr. Mazaheri also reviewed a report of an MRI examination, conducted on November 15, 2022, that indicated “[p]ost partum low back pain on the right” as the reason for the examination. Dr. Mazaheri provided a referral for pain management and the applicant attended Releva Chronic Pain Centre for treatment.

11The applicant was also assessed by Dr. Meera Harris, physician, at Releva Chronic Pain Centre, on April 18, 2023. In Dr. Harris’ report, the onset of low back pain was indicated a post-vehicle collision, as reported by the applicant. Dr. Harris performed a physical examination and interviewed the applicant, concluding with an “impression” of lumbar muscular strain and chronic mechanical low back pain. Dr. Harris’ report does not describe what specific findings lead to his diagnoses or make reference to any functional impairments suffered by the applicant.

12The respondent submits that the applicant has not established that she suffers chronic pain warranting removal from the MIG. The respondent submits that the evidence does not establish that the applicant suffers any functional impairments, noting that the applicant returned to work two months after the accident. The respondent also notes that the applicant’s submissions regarding her functional limitations in respect of household chores and work function are only supported by a single record in March 2023 in the clinical notes of Releva Pain Clinic.

13The respondent also relies on the assessment of Dr. Greg Gelman, physician, dated April 7, 2022. Dr. Gelman interviewed the applicant, reviewed medical documentation and performed a physical examination, concluding that she had initially suffered a strain from the accident and that there were no signs of ongoing impairment.

14The evidence before me does not support the applicant’s submissions. First, while the applicant submits that she did not experience low back pain prior to the accident, her family doctor noted low back pain in July of 2017, reported as being the result of her work. Dr. Mazaheri notes indicate that weight control, proper posture and frequent exercise were discussed with the applicant at this appointment. In November of 2018, Dr. Mazaheri’s notes reference the applicant’s history of low back pain and musculoskeletal pain and recommend medication and physiotherapy. This evidence is contrary to the applicant’s initial submission that she did not suffer previous low back pain prior to the motor vehicle accident.

15I also note that Dr. Mazaheri’s references to chronic pain in his clinical notes do not link this pain to the motor vehicle accident. Dr. Mazaheri’s notes refer to chronic pain pre-dating the accident, the motor vehicle accident, pain due to prolonged standing and working two jobs and post-partum pain.

16I also place very little weight on Dr. Harris’ conclusion that the applicant suffers accident-related chronic low back pain. Dr. Harris’ conclusion was reached without reviewing the medication documentation of the applicant’s history and was based on the applicant’s self-report of a history of low back pain since the accident. Dr. Harris did not have the benefit of the applicant’s medical records evidencing chronic back pre-dating the accident. Based on the totally of the evidence, I find that the applicant has not established on a balance of probabilities that she suffers from accident-related chronic pain.

17Regarding functional limitations, the preponderance of evidence also shows that the applicant’s complaints and functional impairments were resolved within three-to-six-months of the accident. The evidence shows that the applicant returned to work approximately two months after the accident. The last time the applicant referenced the motor vehicle accident to Dr. Mazaheri, on March 22, 2022, she reported that felt better, had less low back pain and concurrently, was pregnant. The next time the applicant complained of pain, in August 2022, there was no reference to the accident and a report following MRI of the applicant’s lumbar spine in November 2022 listed a clinical indication of post partum low back pain on the right.

18The evidence and submissions do not establish that the applicant suffers functional impairments as a result of chronic pain. The applicant’s submissions, supported by the March 2023 note from Releva, do not provide any insight into the level of impairment that the applicant suffers as a result of the chronic pain. The applicant’s submissions are only definitive on the fact that the applicant is not prevented from performing her daily activities. Without specific submissions and evidence describing the applicant’s level of functional impairment, the applicant has not established that she suffers chronic pain with a functional impairment warranting removal from the MIG.

19The applicant has not established on a balance of probabilities that she suffers chronic pain with a functional impairment as a result of the accident. The applicant remains within the MIG.

20As the applicant is in the MIG, and the parties agree the MIG limits have been exhausted, it is not necessary for me to consider if the treatment plans in dispute are reasonable and necessary. However, I have considered the parties’ submissions and find that the applicant has not established that she is entitled to any of the disputed treatment plans.

21To 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.

22I note that the applicant did not make any submissions in respect of the reasonableness and necessity of the any of the five treatment plans in dispute. Rather, the applicant argued that because she suffers chronic pain, the respondent has a duty of good faith review the medical evidence that it has already considered and approve the treatment plans. These submissions do not meet the applicant’s burden to establish on a balance of probabilities, that any of these treatment plans are reasonable and necessary.

The applicant is not entitled to the cost of incurred massage services

23The applicant is not entitled to $900.09 for the cost of massage services, submitted on a claim form (OCF-6) dated July 27, 2022. Aside from being confined to the MIG limit for rehabilitation benefits, the applicant has not established on a balance of probabilities that the OCF-6 is payable.

24The respondent noted that pursuant to section 38(2) of the Schedule, an insurer is not liable to pay for medical expenses which are incurred prior to the submission of a treatment and assessment plan. The respondent also noted that none of the potential exceptions provided in section 38(3) are applicable to the applicant’s claim for massage services.

25The applicant did not make any submissions regarding this OCF-6 and section 38(2). Rather, she grouped her submissions regarding this OCF-6 together with her submissions for the other five treatment plans in dispute, stating that a duty of good faith requires the respondent to approve the “six denied treatment plans”.

26Given the lack of submissions by the applicant regarding section 38(2), I find that that the applicant has not established on a balance of probabilities that she is entitled to payment of this OCF-6.

Interest

27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is not entitled to any benefits in dispute, she is not entitled to interest.

Award

28The 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.

29As the respondent did not withhold or delay any payment of benefits, I find that the applicant has not established that she is entitled to an award.

ORDER

30I find that:

i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the $3,500.00 limit of the MIG;

ii. As the applicant is in the MIG, it is not necessary to consider if the disputed treatment plans are reasonable and necessary;

iii. the applicant is not entitled to $900.09 for the cost of massage services, submitted on a claim form (OCF-6) dated July 27, 2022;

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

v. The applicant is not entitled to interest pursuant to s. 51 of the Schedule; and

vi. The application is dismissed.

Released: March 9, 2026

__________________________

Matthew Frontini

Adjudicator