Citation: Francis v. Aviva Insurance Company of Canada, 2026 ONLAT 24-013402/AABS

Licence Appeal Tribunal File Number: 24-013402/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:

Abbet Francis

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Nadia Mauro

APPEARANCES:

For the Applicant:

Yanira Monterroza, Paralegal

For the Respondent:

Tefiney Scarlett, Paralegal

HEARD:

By way of written submissions

OVERVIEW

1Abbet Francis, the applicant, was involved in an automobile accident on April 21, 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 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:

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 limit ("MIG")?
2. Is the applicant entitled to $349.00 ($1,376.00 less $1,026.86 approved) for Physiotherapy treatment, proposed by GTA Chiropractic in a treatment plan ("OCF-18") dated July 8, 2023?
3. Is the applicant entitled to $4,424.82 for Physiotherapy treatment, proposed by GTA Chiropractic in an OCF-18 dated August 22, 2023?
4. Is the applicant entitled to $3,949.00 for Physiotherapy treatment, proposed by GTA Chiropractic in an OCF-18 dated December 14, 2023?
5. Is the applicant entitled to $2,200.00 for Psychological treatment, proposed by GTA Chiropractic in an OCF-18 dated October 6, 2023?
6. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant's injuries are predominantly minor as defined by the Schedule. As the applicant remains in the MIG, it is not necessary for me to determine whether the disputed treatment plans are reasonable and necessary.

4As there are no overdue benefits, the applicant is not entitled to interest.

ANALYSIS

Minor Injury Guideline

5I find that the applicant has not proven, on a balance of probabilities, that his accident-related injuries warrant removal from the MIG.

6Section 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."

7An 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.

8The applicant submits that he should be removed from the MIG because of a pre-existing condition and psychological impairments sustained as a result of the accident.

a) Pre-existing condition

9I am not persuaded that the applicant should be removed from the MIG based on a pre-existing condition.

10The presence of a pre-existing condition alone is not sufficient to remove the applicant from the MIG. The applicant bears the onus and must adduce evidence to demonstrate not only that the pre-existing condition exists but also that it prevents him from achieving maximal recovery within the MIG.

11I accept that the x-ray of the cervical spine, dated April 22, 2023, supports moderate degenerative disc disease and facet arthropathy, and the x-ray of the lumbar spine, dated April 22, 2023, supports mild to moderate disc disease and facet arthropathy. Although these x-rays were both taken the day after the accident, given the nature of the findings, I find that it is more probable than not that the degenerative changes were pre-existing. However, I am not satisfied that the applicant has met the second part of the test pursuant to s. 18(2) of the Schedule.

12The evidence tendered by the applicant to support his submission on his pre-existing medical condition is not compelling. The applicant has not pointed me to evidence or medical opinion to support that his alleged pre-existing condition would prohibit maximum medical recovery if he were to remain within the confines of the MIG.

13As such, I am persuaded by the s. 44 medical physician assessment report of Dr. Allan Kopyto, dated December 12, 2023. Dr. Kopyto opined that "there is no evidence of any such relevant pre-accident conditions from a musculoskeletal perspective", with respect to any pre-existing medical conditions that would prevent the applicant from achieving maximum medical recovery if kept within the confines of the MIG.

14Given this, I find that the applicant has not established on a balance of probabilities that he should be removed from the MIG under s. 18(2) of the Schedule.

b) Psychological impairment

15The applicant has not provided any medical evidence of significance to demonstrate, on a balance of probabilities, that he suffers from a psychological impairment that would warrant removal from the MIG.

16The applicant relies on a clinical note and record ("CNR") of his family practitioner, Dr. Anand Neeru, dated April 25, 2023, wherein the applicant reported complaints of sleeping difficulty, insomnia, "scared gets up in the nighttime", and "complaining of headache on the top of his head". The applicant also relies on the Disability Certificate ("OCF-3"), dated May 11, 2023, completed by Chiropractor, Dr. Pawan Jit, wherein Dr. Jit lists accident-related psychological impairments such as nightmares, malaise and fatigue, phobic anxiety disorder, unhappiness, disturbance of activity and attention, and concussion symptoms.

17I assign little weight to the CNR of Dr. Neeru because although the applicant makes initial complaints of some psychological symptoms during the April 25, 2023, appointment, Dr. Neeru does not prescribe psychotropics, nor does Dr. Neeru refer the applicant for any psychological treatment. The applicant does not point me to any further psychological complaint to Dr. Neeru.

18I also give little weight to the OCF-3 completed by Dr. Jit, with respect to the applicant's alleged psychological impairments, as diagnosing psychological disorders are not within a chiropractor's expertise. Similarly, I am not persuaded by the CNRs of GTA Chiropractic Centre. While it is noted in the MVA Initial/Re-Assessment Report, dated May 11, 2023, that the applicant made subjective complaints of anxiety, poor sleep, lack of concentration, and fatigue, the applicant has not directed me to any further evidence of significance that support ongoing psychological complaints or a psychological condition that is more than sequalae.

19As such, I give significant weight to the s. 44 psychological assessment of Dr. Rakesh Ratti, dated December 20, 2023. Dr. Ratti opined that there was insufficient credible evidence to suggest that the applicant meets the criteria for any mental health diagnosis with respect to the accident. Dr. Ratti further opined that, from a psychological perspective, the applicant did not present with any concerns that would place him outside of the MIG.

20Given the foregoing, I am not satisfied that the applicant has established, on a balance of probabilities, that he sustained a psychological impairment as a result of the subject accident that warrants removal from the MIG.

21As I have found the applicant to remain within the MIG, I find that it is not required to review the treatment plan in dispute to determine if it is reasonable and necessary.

Interest

22As there are no overdue benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

23I find that:

1. The applicant's injuries are predominantly minor, as defined by the Schedule;
2. The applicant is not entitled to the treatment plans proposed by GTA Chiropractic;
3. The applicant is not entitled to interest pursuant to s. 51 of the Schedule;
4. The application is dismissed.