Licence Appeal Tribunal

Citation: Smith v. Aviva Insurance Company of Canada, 2026 CanLII 45611

Licence Appeal Tribunal File Number: 25-001394/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:

Neil Smith

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Jeff Chatterton

APPEARANCES:

For the Applicant:

Hyun Jin Ryna Kim, Paralegal

For the Respondent:

Zoe Panday, Counsel

HEARD: In Writing

May 8, 2026

OVERVIEW

1Neil Smith, the applicant, was involved in an automobile accident on May 21, 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 issue(s) in dispute is/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?

2. Is the applicant entitled to the assessments proposed by Seksek Chiropractic Professional Corp., as follows:

   (a) $1,436.50 ($3098.75 less $1,66.25 partially approved) for physiotherapy services, in an OCF-18/treatment plan (treatment plan) submitted May 23, 2024;

   (b) $2,694.25 for physiotherapy services, in a treatment plan submitted August 6, 2024; and

   (c) $2,634.75 for physiotherapy services, in a treatment plan submitted November 11, 2024?

3. Is the applicant entitled to $2,597.87 for psychological services, proposed by Medex Assessments Inc. in a treatment plan submitted June 19, 2024?

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

3The applicant has met the onus to demonstrate he should be removed from the Minor Injury Guideline ("the MIG") on the basis of Chronic Pain with a functional impairment.

4The applicant is entitled to the outstanding balance and the treatment plans for physiotherapy services, identified as issues 2a, 2b and 2c.

5The applicant is not entitled to the treatment plan for psychological services, identified as issue 3.

6Interest is payable on the outstanding balance and the treatment plans identified in issue 2a, 2b, and 2c.

7An award is not payable.

ANALYSIS

Is the applicant removed from the MIG due to chronic pain?

8I find the applicant has met his onus to demonstrate he should be removed from the MIG due to chronic pain with a functional limitation.

9Section 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."

10An 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.

11The applicant states that they have established that the applicant has a two-plus year history of chronic pain caused by the accident. To support his claim, the applicant relies on the Clinical Notes and Records from his family physicians (Dr. Gharib and Dr. Clottey), Physiatrist Dr. Ballyk, and pain specialist Dr. Al-Jazrawi.

12The respondent disagrees and states that the applicant's injuries are sprain/strain type injuries and should be captured within the MIG. To support its position, the respondent relies on s.44 Insurers Examination reports authored by Physiatrist Dr. Cavaliere, dated October 21, 2024.

13For the following reasons, I find the applicant's evidence to be more persuasive.

i. The applicant has a history of making pain complaints to his family physician, which I find to be the best tool to determine the history of the applicant's claim because the family physician is an objective, neutral source. I note complaints of pain in the applicant's neck, shoulder and back dating from October 6, 2022, with ongoing treatments continuing to April 25, 2025. In addition, the CNRs identify the functional limitations of the applicant's inability to turn his head (November 25, 2022), increased shoulder stiffness and motion restrictions (December 16, 2022, January 18, 2023, and ongoing) and reduced range of motion in his spine (multiple reports).

ii. At the April 25, 2025 visit, the family physician diagnosed the applicant with "Chronic pain secondary to spinal injuries from an MVA." I find this shows a causal relationship between the chronic pain and the accident in question.

iii. The applicant sought and received multiple MRIs in an attempt to determine the cause of the pain. He received X-Rays and Ultrasound in November 2022, an MRI in January 2023, and a second MRI in November 2024. I also note that the applicant visited multiple specialists, such as Physiatrist Dr. Ballyk in March 2024, and pain specialist Dr. Al-Jazrawi in April 2025. Furthermore, the respondent reports that the applicant sought physiotherapy treatment over 61 sessions from April 2024 and April 2025. The repeated visits to specialists and treatment providers, coupled with a diagnosis of accident-related chronic pain, indicate to me that the applicant was in a state of chronic pain.

iv. When I review the respondent's evidence, I find contradicting reports regarding the cause of the applicant's pain. In the initial IE report dated October 21, 2024, Physiatrist Dr. Cavaliere wrote "there is no compelling evidence of a pre-existing medical condition." However, I find this contradicts his addendum report dated July 17, 2025, where Dr. Cavaliere wrote that the degenerative changes noted on the MRI are pre-existing and not accident related."

14For these reasons, I find the applicant has, on the balance of probabilities, met his onus to demonstrate that he should be removed from the MIG due to chronic pain with a functional impairment.

Are the physiotherapy treatment plans reasonable and necessary?

15As the applicant has been removed from the MIG, I now turn to the physiotherapy treatment plans (identified as issues 2a, 2b and 2c).

16To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

17In dispute are three treatment plans, all calling for physiotherapy. The treatment plan dated May 23, 2024 calls for 24 sessions of treatment (and was partially approved in the amount of $1,662.25). The treatment plan dated August 6, 2024 calls for 22 sessions, while the plan dated November 11, 2024 calls for a further 20 treatments, as well as assistive devices and 5 education sessions. All of the sessions have a stated goal of pain reduction, increased strength and range of motion all to return to the activities of normal living.

18The reason given for all denials or partial denials was that the applicant had suffered a minor injury and had reached his policy limits. The respondent provided no further arguments regarding whether or not they are reasonable or necessary.

19I have found that the applicant has been removed from the MIG on the basis of chronic pain. I also note that there are multiple references in the applicant's evidence that he was receiving benefit from physiotherapy in the form of pain management. As the respondent pointed out, the applicant attended 61 sessions between April 2024 and April 2025. As such, I find that the number of treatments proposed is both reasonable and necessary and I find the balance of the treatment plan dated May 23, 2024 all the other two treatment plans are payable.

20In summary, I find the applicant has, on the balance of probabilities, met his onus to demonstrate that the outstanding balance and the physiotherapy treatment plans are reasonable and necessary and he is entitled to them.

Is the applicant entitled to a treatment plan for a Psychological Assessment?

21The applicant did not provide submissions regarding the treatment plan for a psychological assessment.

22The respondent argues a psychological assessment is not reasonable and necessary, and depends on a s.44 IE conducted by Psychologist Dr. Alan Chan on October 8, 2024. Dr. Chan reported that the applicant was suffering from some clinically associated psychological sequelae, but no psychological impairment or disorder.

23Although the applicant has the onus to demonstrate entitlement, I have not been led to further evidence from the applicant regarding entitlement to a psychological assessment.

24I find the applicant has not, on the balance of probabilities, established that he is entitled to a psychological assessment.

Interest

25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies on the outstanding balance and the physiotherapy treatment plans identified as issues 2a, 2b and 2c, as per the Schedule.

Award

26The 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.

27The applicant did not make submissions regarding an award.

28In the absence of submissions from the applicant, I find that while the respondent was mistaken by not removing the applicant from the MIG, I do not find that such conduct rises to the level of an award. No award is payable.

ORDER

29The application is granted in part.

30The applicant has met the onus to demonstrate he should be removed from the Minor Injury Guideline ("the MIG") on the basis of Chronic Pain with a functional impairment.

31The applicant is entitled to the outstanding balance and the treatment plans for physiotherapy services, identified as issues 2a, 2b and 2c.

32The applicant is not entitled to the treatment plan for psychological services, identified as issue 3. Interest is payable on the outstanding balance and the treatment plans identified in issues 2a, 2b and 2c.

33An award is not payable.