Citation: Owusu v. Aviva General Insurance Company, 2026 ONLAT 24-005225/AABS

Licence Appeal Tribunal File Number: 24-005225/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:

Francis Owusu

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Bruce Stanton

APPEARANCES:

For the Applicant:

Bianca Pirrotta Iaccino, Paralegal

For the Respondent:

Aleah Thomas, Counsel

HEARD:

In Writing

OVERVIEW

1Francis Owusu, the applicant, was involved in an automobile accident on January 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 Insurance Company of Canada, 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 the following treatment plans/OCF-18s proposed by Alma Rehab Clinic Inc.:

a. $3,244.58 for chiropractic services dated May 24, 2022; and

b. $2,912.56 for chiropractic services dated January 11, 2023?

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

3The treatment plan for $1,955.33 for psychological services was withdrawn by the applicant and is no longer in dispute.

RESULT

4The applicant’s injuries are predominantly minor and therefore subject to the $3,500.00 limit prescribed in the Minor Injury Guideline.

5As the applicant is in the MIG, it is not necessary to consider if the two disputed treatment plans, $3,244.58 or $2,912.56, for chiropractic services are reasonable and necessary.

6The applicant is not entitled to interest.

ANALYSIS

Minor injury guideline

7I find that the applicant’s injuries are predominantly minor and subject to the MIG limit. He has not met his onus to demonstrate that his accident injuries fall outside of the MIG.

8Section 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.”

9An 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.

10The applicant is claiming that he suffers from chronic pain as a result of the accident should therefore be removed from the MIG.

11The applicant submits that his accident injuries have developed into chronic pain thereby exceeding the definition of a minor injury. He supports this contention with clinical notes and records of his family physician, previous decisions of the Tribunal in respect of chronic pain, and that he meets the threshold for chronic pain set out in the American Medical Guides 6^th Edition (“AMA Guides”).

12The applicant submits that his chronic pain complaints (predominantly in his shoulders, back and neck) are documented in the clinical notes and records of repeated visits to his family physician, Dr. Christian Akotoye, following the accident, for which Dr. Akotoye recommended therapy and Tylenol with Codeine. On December 22, 2022, 11 months post-accident, Dr. Akotoye also referred the applicant for X-rays of the lumbar spine due to the ongoing pain complaints. The X-ray was completed on December 28, 2022. The applicant included the results of the X-ray in his submissions without commenting on how the results relate to his pain symptoms. I note that there was no mention of the X-ray results in the clinical notes of the applicant’s next appointment with Dr. Akotoye of February 28, 2023.

13The applicant submits that he has not received a formal chronic pain diagnosis but contends that the Tribunal, in C.G. v. The Guarantee Company of North America, 2020 ONLAT 17-007300/AABS (“C.G.”), at paragraphs 36 through 38, accepted that a formal chronic pain diagnosis is not required to remove an applicant from the MIG. He notes that in C.G., chronic pain was described as a condition persisting three to six months.

14The applicant contends that the Tribunal has accepted the AMA Guides criteria for assessing chronic pain which state that when an injured party meets at least three of six criteria, they can be said to be suffering from chronic pain. The applicant submits that he meets the following three criteria:

i. Use of prescription drugs beyond normal duration;

ii. Excessive dependence on healthcare providers; and

iii. Failure to restore pre-injury function.

15Accordingly, the applicant asserts that he suffers from chronic pain caused by the accident and since chronic pain is not a minor injury, he seeks removal from the MIG.

16The respondent submits that the applicant has only been diagnosed with minor accident-related injuries; soft-tissue and sprain/strain musculoskeletal injuries as attested to in the s. 44 report of Dr. Hashmat Khan, GP, from an assessment he conducted on the applicant July 20, 2023. The respondent submits that the applicant was not referred to any pain specialists or diagnosed with chronic pain syndrome as result of his accident injuries.

17The respondent submits that even when an injured person suffers chronic pain over an extended duration of time, they can only be removed from the MIG if the pain is accompanied by functional impairment. On that point, the respondent submits the applicant has not produced any evidence of functional impairment and is fully independent with all self-care and substantially all activities of daily living.

18The respondent submits the applicant has not produced any compelling, contemporaneous evidence to support a finding that he meets at least three of six criteria under the AMA Guides, to substantiate his chronic pain claim.

19I find the applicant does not meet a threshold of chronic pain such that he is removed from the MIG.

20As noted above, chronic pain with a functional impairment can be a basis to be removed from the MIG. Because the threshold or test consists of two parts, firstly, whether the applicant suffers from chronic pain, and secondly, whether he suffers a functional impairment resulting from chronic pain, I will discuss each part of the threshold below.

Chronic pain

21I find that the applicant has not established that the pain he is experiencing meets the threshold of chronic pain.

22I accept that the applicant is experiencing persistent pain that appears to be accident related, but I am not persuaded that his condition rises to the threshold of chronic pain such that he be removed from the MIG for the following reasons.

23I give weight to the clinical notes and records (“CNRs”) of Dr. Akotoye across nine appointments between January 7, 2022 and January 26, 2024 which demonstrate the applicant was experiencing persistent back, neck and shoulder pain beyond the period normally associated with minor injuries. However, Dr. Akotoye’s records make no reference to the applicant’s symptoms being “chronic pain”, the results of the X-ray from December 2022 are not discussed at the subsequent appointment in February 2023, and there is no referral to any pain specialist for these symptoms. Dr. Akotoye’s prescriptions for pain medication (Tylenol) and recommendations for physical therapy and exercise suggest that the severity of the applicant’s pain symptoms fall short of “chronic”.

24I give little weight to the applicant’s contention that he meets three of six criteria for chronic pain set out in the AMA Guidelines. The applicant did not provide any objective evidence to support this claim. I have only his brief comments as to why he believes he meets three of the six criterial. In that regard, I am not convinced that nine visits to his family physician over two years meets a definition of “excessive dependence” on healthcare providers. The applicant also argues that he meets the “failure to restore pre-injury” criteria on the basis that he had to drop back to part-time work, but as noted above, there is no evidence before me to substantiate the reduced employment, or whether the reduction was occasioned by his pain symptoms.

25I am not persuaded by the applicant’s reasoning that the Tribunal’s decision in C.G. (that pain is “chronic” when it persists from three to six months beyond event that triggered it) is a basis by which he should be removed from the MIG. I am not bound by previous decisions of the Tribunal. The threshold to meet for removal from the MIG based on chronic pain, as noted above, rests on whether an applicant can demonstrate they suffer from chronic pain with a functional impairment.

26Accordingly, I find the applicant has not demonstrated that he suffers from chronic pain.

Functional impairment

27Even if I were to grant that the persistent pain the applicant is experiencing meets the level of chronic for these purposes, the applicant has not demonstrated that the effects of his symptoms are impairing his functionality, i.e., limiting his participation in daily activities and selfcare.

28The applicant made no submissions on how his pain symptoms were affecting his activities of daily of living. It appears that the singular reference to the pain’s impact on daily activities was the mention of having to drop back to part-time work, however; and as the respondent noted in its submissions, the applicant has not provided any evidence to substantiate the reduced employment activity, or that it was caused by his pain symptoms.

29Therefore, I find the applicant has not established his pain symptoms resulted in a functional impairment.

30For the reasons discussed above, I find that the applicant has not established that he suffers from chronic pain resulting in functional impairment. He is therefore entitled to treatment only up to the limit of the MIG.

31I find on a balance of probabilities that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.

32As I have found that the applicant’s injuries are predominately minor, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary. The applicant is entitled to treatment up to the MIG limits.

Interest

33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no payment of benefits is overdue or outstanding, the applicant is not entitled to interest.

ORDER

34I order the following:

i. The applicant’s injuries are predominantly minor and subject to the Minor Injury Guideline.

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 interest.