Citation: Nelson v. Aviva General Insurance Company, 2026 ONLAT 25-000022/AABS

Licence Appeal Tribunal File Number: 25-000022/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:

Dwight Nelson

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rachel Levitsky

APPEARANCES:

For the Applicant:

Maria Papadopoulos, Paralegal

For the Respondent:

Dominik Gora, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Dwight Nelson, the applicant, was involved in an automobile accident on August 26, 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 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 $1,995.33 for a psychological assessment, proposed by Humber Civic Care Centre in a treatment plan submitted November 10, 2022?

iii. Is the applicant entitled to $3,024.62 for chiropractic treatment, proposed by Humber Civic Care Centre in a treatment plan submitted December 20, 2022?

iv. Is the applicant entitled to $3,467.04 for chiropractic treatment, proposed by Humber Civic Care Centre in a treatment plan submitted June 28, 2024?

v. Is the applicant entitled to $2,350.00 for an orthopaedic assessment, proposed by Ontario Independent Assessment Centre, in a treatment plan submitted March 10, 2023?

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

RESULT

3The applicant remains in the MIG, and is not entitled to the treatment plans in dispute or interest.

ANALYSIS

Minor Injury Guideline

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 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.”

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 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.

6The applicant submits that his injuries fall outside of the MIG because his impairments extend well beyond the definition of “minor injury” under s. 3 of the Schedule, he suffers from chronic pain and psychological sequelae that have persisted for more than three years post-accident, and his ongoing need for invasive and facility-based treatment demonstrates both seriousness and permanence.

7For the following reasons, I find that the applicant has not met his burden to prove, on a balance of probabilities, that he should be removed from the MIG.

Chronic Pain

8I find that the applicant has not proven that he should be removed from the MIG due to chronic pain.

9The applicant submits that he often visited his family physician, Dr. Forbes, after the accident. He submits that Dr. Forbes referred him to Releva Pain Clinic on June 14, 2025, due to ongoing neck and shoulder pain, headaches, and disturbed sleep which interferes with his work. He submits that the notes from Releva Pain Clinic confirm that he has been suffering from chronic pain syndrome for over three years and that his condition has been worsening since the accident. He notes that he began weekly interventional nerve block injections, and submits that his treating physician at Releva Pain Clinic opined that his pain was permanent and serious and required ongoing invasive treatment likely on a long-term basis.

10In his submissions regarding the records from Releva Pain Clinic, the applicant points to pages 304-311, and 315 of his document brief. However, these pages contain notes from a hernia repair surgery from June 2025, and specifically refer to his vital signs during his hospital stay. The applicant also refers generally to Tab 19 of his brief, which contains the records from Releva Pain Clinic. I have reviewed these records and, while they do indicate that the applicant underwent nerve block injections, they do not mention a diagnosis of “chronic pain syndrome”. Further, the records do not mention his pain being “permanent and serious”, nor do they indicate that ongoing long-term invasive treatment was required. In fact, the records indicate that the nerve blocks would occur over 4-8 weeks. In addition, the records from Releva Pain Clinic do not mention the applicant’s hernia.

11I note that the applicant has not directed me to any authorities or case law which would speak to the criteria for removal of insureds from the MIG as a result of chronic pain.

12I accept that the applicant experienced pain following the accident which ultimately led him to receive nerve block injections at Releva Pain Clinic. However, the Tribunal has repeatedly held that, in order for a chronic pain condition to remove an insured from the MIG, the insured person must prove that the pain is accompanied by functional impairment or disability.

13The applicant submits that his functional impairments include difficulty with self-care, daily household tasks, work duties, and social activities. In making this submission, the applicant points again to the pages in his brief which pertain only to his hernia surgery, and also Tab 19 of his brief. A note from Releva Pain Clinic dated July 14, 2025, states: “negatively affects functional ability, self care, daily house hold tasks, work function, social activities”. However, the notes do not provide details as to which tasks the applicant is unable to engage in due to pain. The applicant does not otherwise elaborate or direct the Tribunal to evidence of the particulars of these functional difficulties. Without further information or corroborative evidence, I am not compelled by the brief mention of these categories of impairment.

14Dr. Inderdeep Manhas, general practitioner, authored a s. 44 report based on an assessment on January 25, 2023. The applicant reported to Dr. Manhas that he was fully independent in performing his self-care. At the time of the accident, he was responsible for 50% of the household responsibilities, and at the time of the assessment, he was responsible for 30% of the household responsibilities. He reported sharing childcare responsibilities with his spouse, and had returned to driving. At the time of the assessment, he reported not being able to return to work. He reported headaches, neck pain, left shoulder pain, and low back pain.

15Dr. Manhas diagnosed the applicant with WAD I, associated cervicogenic headache, left shoulder sprain/strain, and lumbar spine sprain/strain. Dr. Manhas indicated that there was no impairment to range of motion, and noted that, from a musculoskeletal perspective, there were no ongoing impairments despite reported pain. It was his opinion that the applicant suffered from a predominantly minor injury as defined by the Schedule. After reviewing additional clinical notes and diagnostic imaging reports, Dr. Manhas opined in an addendum report dated July 14, 2023, that his opinion remained unchanged.

16The applicant appears to rely on the symptoms he reported to Dr. Manhas, although he takes issue with Dr. Manhas’ conclusion that his injuries were expected to heal within the MIG despite his endorsement of pain. However, the applicant has not pointed to evidence which suggests that his injuries would not heal further. I note that Dr. Manhas’ assessment took place approximately five months after the accident. Given Dr. Manhas’ opinion that the applicant was expected to continue to heal, I find that Dr. Manhas’ report is of limited assistance to the applicant in supporting the suggestion that his pain and functional limitations at the time of the assessment were chronic.

17The respondent points out that the applicant has not shown that he meets the criteria for a chronic pain diagnosis as set out in the American Medical Association Guides (“AMA Guides”). While the AMA Guides are not binding on me, I find that they are a helpful tool in assessing the existence of chronic pain. I note that the applicant did not make reply submissions, despite having the opportunity to do so, and thus did not address this submission or dissuade me from referring to the AMA Guides.

18According to the AMA Guides, three of the following criteria must be met for a diagnosis of chronic pain:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.

ii. Excessive dependence on health care providers, spouse, or family.

iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.

iv. Withdrawal from social milieu, including work, recreation, or other social contracts.

v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

19The applicant has not pointed to evidence of the use of prescription drugs beyond the advisable duration, secondary physical deconditioning, or fear-avoidance of physical activity. He has not pointed to evidence of withdrawal from his social milieu. Although he reported to Dr. Manhas a reduction in his household responsibilities, as I have indicated above, I am not convinced that the applicant’s difficulties reported five months after the accident have necessarily continued. In fact, Dr. Manhas noted that the applicant was employed as a labourer prior to the accident and was unable to work in that capacity following the accident. However, according to Dr. Forbes’ note from March 2025, he was working as a delivery driver, which demonstrates to me that he was able to restore his pre-injury function after a period of disability which was sufficient to pursue work. The applicant has not otherwise provided compelling evidence of an inability to pursue family or recreational needs, or excessive dependence on his spouse or his family. The applicant previously received treatment at Humber Civic Care Centre, and more recently received pain injections; there was accordingly some reliance on his healthcare providers. However, I am not satisfied, without further explanation, that this reliance was “excessive”. Finally, although I accept, as detailed below, that the applicant developed some symptoms of depression and anxiety after the accident, the development of psychosocial sequelae is only one component of this analysis. Based on the information before me, I am not satisfied that the applicant exhibits three out of the six criteria under the AMA Guides.

20Ultimately, I find that the applicant has not provided compelling evidence to prove, on a balance of probabilities, that he suffers from chronic pain with associated functional impairment or disability. As such, I find that he is not removed from the MIG due to chronic pain.

Psychological Condition

21I find that the applicant has not proven that he suffers from a psychological condition such that he should be removed from the MIG.

22Psychological conditions are not included in the definition of a minor injury at s. 3 of the Schedule. However, what is included in the minor injury definition is “any clinically associated sequelae to such an injury.” In order to be removed from the MIG, the onus is on the applicant to establish that he has a psychological condition, rather than symptoms which are sequelae of his minor injuries.

23The applicant relies on a letter dated September 22, 2022, authored by Kseniya Bulat, social worker. Ms. Bulat noted that the applicant was battling immense stress, burn out, and anxiety post accident. She indicated that he felt distress while driving, and was having difficulty sleeping. Ms. Bulat recommended that the applicant receive a further psychological evaluation and counselling.

24The respondent relies on the s. 44 report of Dr. Debra Mandel, psychologist, from an assessment on December 14, 2022. Dr. Mandel indicated that the applicant reported very little anxious and depressive symptomatology, and stated that he does not feel that he needs therapy and is “doing okay emotionally”. Dr. Mandel opined that the applicant was reporting some adjustment related difficulties but does not meet the DSM-5 diagnostic criteria for a clinical diagnosis. Her opinion was that there was no psychological impairment identified that fell outside of the MIG.

25I agree with the respondent that, as a social worker, Ms. Bulat cannot make psychological diagnoses, nor did she do so. In addition, it is unclear based on Ms. Bulat’s brief letter how she assessed the applicant or whether she administered any testing. I give more weight to Dr. Mandel’s report than Ms. Bulat’s letter, as Dr. Mandel is qualified to make psychological diagnoses and she performed psychological testing in order to reach her conclusions.

26In his submissions, the applicant does not appear to take issue with Dr. Mandel’s findings, per se. However, he submits that Dr. Mandel’s report should carry little weight, as subsequent medical evidence documented a regression and persistence of psychological impairments.

27In my view, while the applicant has pointed to some evidence of psychological symptoms since Dr. Mandel’s assessment, he has not provided compelling evidence that his psychological condition deteriorated or regressed such that a psychological condition emerged. The applicant reported feeling depressed only once to Dr. Forbes, on July 19, 2023. Dr. Forbes did not refer the applicant for treatment or an assessment, make a diagnosis, or comment further on this reported symptom. In addition, the applicant submits that the notes from Releva Pain Clinic indicate that he experienced anxiety. While “stress/anxiety” was noted as one of the applicant’s symptoms in Releva’s note from July 14, 2025, there is no further elaboration or indication that a formal diagnosis was made. I am not persuaded, without further evidence, that these brief and singular notations of depression and stress/anxiety demonstrate a deterioration since Dr. Mandel’s assessment. I am also not convinced that these records are evidence that the applicant sustained a psychological condition which would remove him from the MIG, rather than clinically associated sequelae to his physical injuries.

28The applicant also submits that the respondent failed to obtain an updated psychological report to address this evidence. However, it is the applicant’s onus, not the respondent’s, to prove that he suffers from a psychological condition.

29For the reasons above, I find that the applicant has not proven, on a balance of probabilities, that he suffers from a psychological condition that would remove him from the MIG.

Other Impairments

30In addition to chronic pain and psychological difficulties, the applicant mentions an inguinal hernia requiring surgery. The applicant relies on a note from Dr. Forbes on September 28, 2022, which states that a few days after the accident, a bulge developed at a previous hernia repair site. The applicant subsequently underwent hernia repair surgery. However, the applicant has not pointed to evidence that his hernia, or the need for surgery, was caused by the accident, or would meet the requirements of s. 18(2). I find that the applicant has not met his onus to prove that he should be removed from the MIG due to the hernia.

31Having found that the applicant has not proven that he should be removed from the MIG, I need not consider whether the treatment plans in dispute are reasonable and necessary.

Interest

32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, interest is not payable.

ORDER

33The applicant remains in the MIG, and is not entitled to the treatment plans in dispute or interest.