Licence Appeal Tribunal File Number: 24-012836/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:
Sukhwinder Gidda
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Roderick Walker
APPEARANCES:
For the Applicant: Iqra Akram, Counsel
For the Respondent: Anthony M Naples, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Sukhwinder Gidda, the applicant, was involved in an automobile accident on January 13, 2020, 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
1The issues in dispute are:
i. Are the applicant’s injuries 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 $2,550.00 for a chronic pain assessment, proposed by Alliance Diagnostics and Treatments Inc. in a treatment plan/OCF-18 (“plan”) submitted June 14, 2024?
iii. Is the applicant entitled to $2,550.00 for an orthopedic assessment, proposed by Alliance Diagnostics and Treatments Inc. in a treatment plan submitted June 14, 2024?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
2The applicant’s injuries are minor in nature, and the applicant is subject to the MIG.
3The applicant is not entitled to any of the treatment plans or interest.
ANALYSIS
MIG
4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are 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.”
5An 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 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.
6The applicant in this case submits that he should be removed from the MIG on the basis of his chronic pain, and a psychological condition.
The applicant does not suffer from a chronic pain impairment.
7I find that the applicant does not suffer from accident‑related chronic pain that would remove him from the MIG.
8The applicant relies on the clinic notes and records (“CNRs”) from his family doctor, Dr. M. Sulaiman, covering January 2020 to December 2022. He also relies on the two disputed treatment plans: one for a $2,550 chronic pain assessment and another for a $2,550 orthopedic assessment.
9The applicant saw Dr. Sulaiman on or about January 26, 2020. Dr. Sulaiman noted there was no loss of consciousness, no memory loss, and no vomiting after the accident. Regarding the applicant’s mental state, Dr. Sulaiman reported no stress, no irritability, and no low mood, and that the applicant was not thinking about the accident. The physical examination was mostly normal except for some tenderness in the back and spine. The applicant complained of neck and back pain, and Dr. Sulaiman prescribed Arthrotec for pain relief.
10The respondent relies on its section 44 assessor, Dr. Stewart, G.P., who assessed the applicant on June 17, 2022, and authored a report. Dr. Stewart concluded that the applicant suffered soft‑tissue injuries from the January 13, 2020, accident, that he fully recovered, and that the injuries fall within the MIG.
11It is the applicant’s onus to prove, on a balance of probabilities, that his injuries such as chronic pain fall outside the MIG. In this case, the applicant was involved in at least five additional motor vehicle accidents on or about December 4, 2020; January 8, 2021; December 4, 2021; January 2022; and September 2023.
12I find that the family doctor’s records do not support the applicant’s claim for removal from the MIG due to chronic pain as a result of the subject accident. Dr. Sulaiman noted on January 26, 2020, that the applicant was “not thinking about the accident,” and his physical exam was normal except for some tenderness. On September 14, 2020, the applicant continued to report back and neck pain. Dr. Sulaiman recommended daily exercise, over‑the‑counter pain medication, and ordered spinal imaging. The September 18, 2020, imaging showed only degenerative changes unrelated to the accident. On September 14th, 2020, Dr. Sulaiman noted that the applicant continued to experience ongoing back pain following the accident especially in his upper neck area which increased with movement, bending, prolonged sitting and standing. As well, tenderness was observed and noted in the spine between L3,4,5, physiotherapy, acupuncture, and massage therapy were all recommended by Dr. Sulaiman.
13I find that Dr. Sulaiman did not diagnose the applicant with chronic pain syndrome. Although the applicant relies on the treatment plans themselves, treatment plans alone are not proof of a diagnosis, causation, or impairment. The applicant has not provided contemporaneous medical evidence to support chronic pain stemming from the accident. I find that the applicant has not proven, on a balance of probabilities, that he suffers from chronic pain impairment caused by the accident that would remove him from the MIG.
The applicant does not suffer from a psychological condition.
14To establish his accident-related psychological injuries, the applicant relies on the CNRs of the family doctor, Dr. M. Sulaiman, and the CNRs of Dr. Shafey, psychiatrist.
15The respondent relies on s. 44 assessor, Dr. Bradbury, psychiatrist, and her report dated July 13, 2022. Like Dr. Stewart, she reviewed all relevant medical documentation. She opined that the applicant did not meet the criteria for any psychological disorder attributable to the January 13, 2020, accident. She concluded that the applicant is within the MIG.
16The applicant submits that on February 4, 2021, he reported a psychological symptom to Dr. Sulaiman, stating that he felt stress thinking about the accident in December 2020, and as a result, Dr. Sulaiman made a referral to a psychiatrist. On April 2, 2021, Dr. Shafey reported back to Dr. Sulaiman to acknowledge the referral. Dr. Shafey noted that the applicant had been involved in two motor vehicle accidents: one in December 2020 and another on January 21, 2021. The applicant reported feelings of worry, which had increased during the COVID‑19 pandemic. Dr. Shafey diagnosed the applicant with an anxiety disorder and prescribed 25 mg of sertraline.
17The applicant next saw Dr. Sulaiman. on June 7, 2021. Dr. Sulaiman documented that the applicant was experiencing “post‑traumatic stress and anxiety,” and noted that the applicant had been seen by a psychiatrist and was taking sertraline. Subsequent visits with Dr. Sulaiman through November 2021 primarily related to treatment and complications arising from an unrelated DVT diagnosis.
18On December 6, 2021, the applicant saw Dr. Sulaiman again following a fourth motor vehicle accident that occurred on December 4, 2021. The applicant reported feeling stressed and tense as he was thinking about the most recent accident. Dr. Sulaiman diagnosed post‑traumatic stress, recommended counselling, and advised the applicant to continue taking Sertraline at 50 mg.
19I find that the applicant has failed to establish, on a balance of probabilities, that his injuries fall outside the MIG due to a psychological impairment arising from the January 2020 accident.
20To be removed from the MIG, the applicant must demonstrate that he suffered a psychological impairment caused by the subject accident and that it is something more than resulting emotional sequelae. I find that the applicant has not established that he has an actual diagnosed psychological condition linked to the January 2020 accident. The applicant saw Dr. Sulaiman six times between January and September 2020, and during this period his diagnoses were limited to a neck sprain, back sprain, and trapezius spasm. There were no psychological complaints or psychological diagnoses during this period.
21Overall, the evidence does not support a finding that the applicant sustained a psychological impairment caused by the January 2020 accident that would remove him from the MIG.
22As I have determined that the applicant remains subject to the MIG, it is not necessary for me to conduct an analysis of whether the treatment plans in dispute are reasonable and necessary.
Has the respondent complied with s.38(8) of the Schedule?
23The applicant argues that the denial notices issued by the respondent did not comply with the requirements of section 38(8) of the Schedule and the disputed treatment plans are therefore payable pursuant to section 38(11).
24Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well as the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary. If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:
i. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies; and
ii. The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice.
25The respondent asserts that the denials are compliant with the Schedule. The respondent argues that it is sufficient for the denials to say that the applicant’s injuries are minor and fall within the MIG, particularly because it had little medical documentation to refer to or base its reasons on. The respondent points out the applicant submitted the disputed OCF-18s without corroborating evidence to support his claim. As a result, of the limited amount of medical documentation provided by the applicant, the respondent submits that its medical reasons were sufficient. I agree.
26The standard for sufficient notice is contained in T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT). In her decision, Executive Chair Lamoureux states, at paragraph 19:
an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. An insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.
27The denials comply with s. 38(8) of the Schedule. In the Explanation of Benefits letters (EOBs) dated June 24, 2024, and August 24, 2024, they both identify the treatment plans. Also, the EOBs advise that the respondent does not agree to pay for the plan. The EOBs provide a medical reason for the denial and are compliant with the 10 days business deadline. They clearly state reasons for denial and give extensive reasons as to why the respondent is not paying for them. I find that the respondent has complied with s. 38(8) and the consequences of s. 38(11) are not triggered.
Interest
28No interest is awarded as no benefits are payable.
ORDER
29On the totality of the evidence, I find that:
i. The applicant’s injuries are minor in nature, and the applicant is 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.
iii. No interest is payable.
iv. The application is dismissed.
Released: April 21, 2026
Roderick Walker
Adjudicator