Matherson v. Aviva General Insurance Company, 2026 CanLII 29568

Licence Appeal Tribunal

Citation: Matherson v. Aviva General Insurance Company, 2026 ONLAT 24-010427/AABS

Licence Appeal Tribunal File Number: 24-010427/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:

Andrew Matherson

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

VICE-CHAIR:

Julian DiBattista

APPEARANCES:

For the Applicant:

Serena Rhyman, Paralegal

For the Respondent:

Anthony M Naples, Counsel

HEARD: In Writing

OVERVIEW

1Andrew Matherson, the applicant, was involved in an automobile accident on June 20, 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:

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? Note: The parties agree the MIG limits have not been exhausted.

2. Is the applicant entitled to the physiotherapy services proposed by Midland Wellness Centre as follows:

i. $2,797.76 in a treatment plan/OCF-18 ("plan") submitted November 2, 2022; and

ii. $2,443.94 in a plan submitted February 23, 2023.

3. Is the applicant entitled to the assessments proposed by Midland Wellness Centre as follows:

i. $2,164.00 for a chronic pain assessment, in a plan submitted November 2, 2022; and

ii. $2,144.93 for a psychological assessment, in a plan submitted March 3, 2023?

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

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

RESULT

3I find that the applicant's injuries are minor and he remains subject to the MIG limits.

4As the applicant is in the MIG, 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 $3,500.00 MIG limits.

5The applicant is not entitled to interest or an award under s. 10 of Reg 664.

6This application is dismissed.

ANALYSIS

The applicant has not established he should be removed from the MIG on the basis of chronic pain

7I find that the applicant has not established he has chronic pain that warrants removal from 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 submits that they suffer from chronic pain as a result of the accident and should be removed from the MIG.

11In support of this the applicant relies on a pain report from Dr. R Chang from an assessment that occurred on October 30, 2023.

12The respondent submits that the applicant's injuries are within the MIG. The respondent relies on a s.44 physicians assessment report of Dr. H Platnick.

13Dr. Chang assessed the applicant in a report dated October 30, 2023. This assessment occurred over two years post accident. Dr. Chang is specific in noting that the applicant described a 1-month history of leg pain. Dr. Chang also noted that the applicant has a background history of chronic low back pain, but that Dr. Chang was directed by the applicant away from that pain, as the current, newfound pain was unrelated and debilitating.

14As Dr. Chang has explicitly stated he is not investigating the pain which the applicant, in submissions, claims is from the accident, the opinions of Dr. Chang are of no value to this dispute.

15The applicant also submits a report of Dr. D. Chatha, radiologist from an MRI of the lumbar spine on December 9, 2021. Dr. Chatha found a disc protrusion at L5/S1 with mild contact of both descending S1 nerve roots in the lateral recess, without significant nerve root displacement.

16However, there are no associated clinical notes and records submitted that would connect this MRI to the applicant's accident-related injuries. The applicant has not submitted a single clinical note from Dr. R Erry, who is his family physician, despite submitting the pain report from Dr. Chang and the MRI report of Dr. Chatha which appear to have originated from Dr. Erry's clinical records.

17Dr. Platnick assessed the applicant on March 17, 2022. He diagnosed the applicant with a Thoracolumbar myofascial strain – minor.

18In the applicant's reply, I am directed to specific notations in the clinical notes and records of Midland Wellness Centre. I note that in initial submissions the applicant only mentioned Midland Wellness Centre in the following context, "Following the results, the applicant sought rehabilitation for his back injury and participated in a number of physiotherapy sessions according to the recommendations of health professionals at Midland Wellness Centre."

19I also note that the clinical notes and records of Midland Wellness Centre cover the period of August 18, 2021 to October 13, 2021. Experiencing pain during this period is consistent with the findings of Dr. Platnick. I note that there are sign in sheets showing the applicant continued treatment into 2022, however, there are no clinical notes and records submitted as evidence to support the applicant's position.

20As the applicant has not directed me to any other medical evidence which would support a diagnosis of chronic pain syndrome with a functional impairment, I find that the applicant has not proven an injury which would warrant removal from the MIG.

The applicant is entitled to treatment up to the MIG limit

21Having determined that the applicant remains within the MIG, an analysis of the reasonableness and necessity of the disputed treatment plans is not required. The applicant is entitled to funds for treatment up to the $3500 limit of the MIG.

Interest

22Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits were found to be withheld, there is no entitlement to interest.

Award

23The 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 no benefits were found to be withheld, there is no entitlement to an award.

ORDER

24For the reasons above I find that:

i. The applicant remains subject to the MIG;

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

iii. The applicant is not entitled to interest; and

iv. No benefits have been unreasonably withheld.

25This application is dismissed.