Licence Appeal Tribunal File Number: 25-003446/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:
Raphel Rowe
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Bernard Trottier
APPEARANCES:
For the Applicant:
Maka Metreveli, Paralegal
For the Respondent:
Leanne Zabudsky, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Raphel Rowe, the applicant, was involved in an automobile accident on August 11, 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 Aviva General Insurance Company, the respondent, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant’s vehicle was struck from behind and first responders attended. Because of damage to the vehicle, the applicant was unable to drive away from the scene. He sustained no cuts or scrapes, and he declined to go to a hospital with the paramedics. After the accident, the applicant reported anxiety and sleep disturbances, as well as ongoing pain to his lower back, neck, shoulders and forehead.
3The respondent claims that the applicant’s injuries are classified as “minor” under the Schedule, and that his treatment is subject to the $3,500 Minor Injury Guideline (“MIG”) limit. The applicant claims that he suffered psychological impairments and that his pain condition has become chronic, warranting removal from the MIG.
ISSUES
4The issues in dispute are:
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 MIG limit?
Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by De Havilland Health Centre Inc. in a treatment plan/OCF-18 (“OCF-18”) submitted February 18, 2024, and denied March 1, 2024?
Is the applicant entitled to $2,024.02 for chiropractic, physiotherapy and massage therapy services, proposed by De Havilland Health Centre Inc. in an OCF-18 submitted February 28, 2024, and denied March 1, 2024?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5The applicant has not demonstrated that his injuries warrant removal from the MIG.
6Since the applicant’s injuries are considered minor, the proposed OCF-18s seeking services outside of the MIG are not payable.
7The applicant is not entitled to interest.
PROCEDURAL ISSUES
Certain CNRs of the applicant’s family physician not allowed into evidence
8The respondent acknowledges that the applicant previously disclosed the clinical notes and records (“CNRs”) of his family physician, Dr. Sheldon Turner, from August 11, 2020 to July 8, 2024.
9The Case Conference Report and Order, dated June 19, 2025 (the “CCRO”), detailed the timelines for further document productions ahead of the written hearing. The respondent submits that the applicant produced certain CNRs of Dr. Turner, for the period of July 8, 2024 to May 14, 2025, for the first time with his written hearing submissions, contrary to the disclosure timelines of the CCRO. The respondent argues that it is entitled to know the case it needs to meet, and that the untimely disclosure of these CNRs does not afford the respondent the opportunity to assess this evidence. The respondent requests that the late CNRs of Dr. Turner, from July 8, 2024 to May 14, 2025, be excluded from the evidence.
10The applicant made no submissions regarding the respondent’s request to exclude these CNRs.
11The Licence Appeal Tribunal Rules, 2023 (the “Rules”) apply to this matter. Under Rule 9.3, I must consider whether a party will be prejudiced by the admission or exclusion of certain evidence, and the extent to which that prejudice can be mitigated. I find that the applicant has not provided an explanation as to why these CNRs were not produced ahead of the written hearing. I find there is prejudice to the respondent if the applicant relies on these CNRs, because the respondent would not have had the opportunity to duly assess the evidence. For this reason, I exclude Dr. Turner’s CNRs, from July 8, 2024 to May 14, 2025, from the evidence.
Interpretations of hand-written CNRs will be assigned appropriate weight
12The respondent submits that the CNRs of Dr. Turner, from August 11, 2020 to July 8, 2024, are hand-written and largely illegible. The respondent argues that the applicant could have obtained a transcribed copy of the CNRs for the hearing, to reflect accurately the content of the CNRs, but that he chose not to do so. In addition, the respondent argues that the applicant interprets the CNRs in his submissions, but he does not pinpoint references in support of that interpretation. For these reasons, the respondent argues that the interpretations offered by the applicant should not be accepted by the Tribunal.
13The applicant made no submissions regarding the respondent’s request to exclude the applicant’s interpretations of Dr. Turner’s CNRs.
14I find there is prejudice to the applicant to exclude, a priori, his interpretations of Dr. Turner’s CNRs. It is the role of the advocate to interpret and summarize the evidence before the parties, and to direct me to the specific evidence. I will assign the appropriate weight to the applicant’s interpretations of Dr. Turner’s CNRs, to the extent that I can be directed to legible evidence in support of those interpretations.
ANALYSIS
The Minor Injury Guideline
15Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500 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.”
16An 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.
17The OCF-18s in dispute sought services outside of the MIG. In their submissions, the parties agree that the respondent has paid $3,395.62 in medical and rehabilitation benefits to date.
18The parties dispute whether the applicant’s injuries warrant removal from the MIG based on the following factors:
Whether the applicant suffered psychological impairments as a result of the accident; and
Whether he suffered a chronic pain condition with functional impairment.
19The parties also dispute whether the proposed OCF-18s plans are reasonable and necessary.
The applicant’s psychological impairments do not remove him from the MIG
20The applicant submits that on October 24, 2023, about 2.5 months post-accident, he reported driving anxiety and poor sleep to Dr. Turner, and that in a follow-up visit on October 27, 2023, Dr. Turner recommended a psychological assessment. The applicant submits, further, that the CNRs of Dr. Turner, dated July 8, 2024, indicate that he reported dizziness and stress while driving. The applicant submits that, after the accident, he complained continuously about anxiety and pain to Dr. Turner.
21In addition, the applicant submits that he underwent a psychological pre-screening interview with Dr. Svetlana Gabedulina, psychologist. The applicant directed me to the additional comments section of the OCF-18 for the disputed psychological assessment, where Dr. Gabedulina reported that the applicant was struggling with sleep disturbances, increased levels of anxiety, frequent flashbacks and a lack of concentration.
22The applicant submits, also, that the insurer’s examination (“IE”) report of Dr. Douglas Saunders, psychologist, dated July 4, 2024, confirms the applicant’s symptoms that he reported to Dr. Gabedulina.
23The applicant argues that he does not need to prove that he suffers from a psychological impairment to then, in turn, receive full payment from the respondent for an assessment to determine whether he, in fact, suffers from a psychological impairment. The applicant argues, further, that the reports of his psychological symptoms to Dr. Turner and Dr. Saunders corroborate Dr. Gabedulina’s recommendation for an in-depth psychological assessment.
24The applicant cites F.H. v Certas Direct Insurance Company, 2018 CanLII 39445 (ON LAT) (“F.H.”) and Pottayya v Unica Insurance Inc., 2021 CanLII 28673 (ON LAT) (“Pottayya”) to argue that the applicant only needs to prove, on a balance of probabilities, that it is reasonable and necessary that he explore the possibility that he suffers from a psychological impairment, and that the corroboration of symptoms from Dr. Turner and Dr. Saunders indicates sufficient probability.
25The respondent concedes that the applicant does not need to prove he suffers from a psychological impairment to demonstrate that a psychological assessment is reasonable and necessary, warranting removal from the MIG. However, the respondent argues that the tendered evidence does not support the applicant’s contention, on a balance of probabilities, that it is reasonable and necessary to explore whether the applicant sustained a psychological impairment.
26The respondent submits that the CNRs of Dr. Turner, from August 11, 2020 to July 8, 2024, to the extent that they are legible, contain no psychological or other specialist referrals related to the applicant’s accident-related injuries.
27The respondent disagrees that the applicant continuously reported anxiety and sleep disturbances to Dr. Turner. The respondent argues that the applicant’s submissions, even if taken to be a true and correct interpretation of Dr. Turner’s CNRs, make only one reference to anxiety and poor sleep between the date of the accident and May 14, 2025, a period of about 21 months. The respondent argues that it would be disingenuous to suggest that these complaints were “continuously reported”.
28The respondent submits that provisional diagnoses submitted on an OCF-18 do not amount to objective evidence of a psychological impairment, warranting removal from the MIG. The respondent argues, citing Terrio v Aviva Insurance Company, 2024 CanLII 41013 (ON LAT) (“Terrio”), that there must be “corroborating contemporaneous and objective medical evidence” to substantiate the reasonableness and necessity of the assessment. The respondent argues that the applicant’s single mention of anxiety and sleep disturbances to Dr. Turner, and his work continuation, do not provide sufficient corroboration. The respondent argues, further, that Dr. Saunders’ findings of symptom exaggeration and invalid psychological test results indicate that a psychological assessment is not reasonable and necessary.
29The respondent submits further that Dr. Saunders opined, in his IE report of July 4, 2024, that the applicant’s observed behaviour and demeanor were inconsistent with his reported symptoms and test responses. Dr. Saunders opined that the applicant’s response patterns indicated defensiveness and raised the possibility of exaggeration. Of note, the applicant reported to Dr. Saunders that he continued to work as a ride share driver for 35-40 hours per week, as he did before the accident. Dr. Saunders opined that the applicant failed the validity testing for the IE, and he opined that the applicant suffered no psychological impairment.
30The respondent submits that the applicant has tendered no evidence that he reduced his work hours, took time off work, or was afforded any accommodations after the accident. The respondent argues that there is no evidence of psychological impairment in this regard.
31I find that the applicant has not directed me to the specific notes in Dr. Turner’s CNRs, from August 11, 2020, to July 8, 2024, where Dr. Turner mentions the applicant’s claimed anxiety and disturbed sleep, or where he recommends a psychological assessment, in his claimed visits on October 24 and 27, 2023. Nor has the applicant directed me, specifically, to Dr. Turner’s note of July 8, 2024, where Dr. Turner mentions stress while driving. It is well established that a party cannot point to large blocks of evidence and expect the trier of facts to try to locate the evidence and make the case for the party. For these reasons, I find that the applicant has not adduced corroborating evidence from Dr. Turner’s CNRs that he suffered from a psychological impairment.
32I find that the pre-screening notes in the OCF-18 submitted by Dr. Gabedulina are not sufficient evidence of the need for a psychological assessment. The Tribunal finds, generally, that OCF-18s are not considered medical evidence (See, for example, Eli v Definity Insurance Company, 2025 CanLII 31130 (ON LAT) and Sfalcin v Aviva Insurance Company of Canada, 2025 CanLII 28492 (ON LAT). Generally, the Tribunal finds, as in Terrio, that some form of corroboration is required to demonstrate that an assessment is reasonable and necessary.
33I find that the reporting of psychological symptoms in Dr. Saunders’ IE report does not support the reasonableness and necessity of a psychological assessment. To the contrary, I find that Dr. Saunders’ opinion, that the applicant psychological test results were invalid, supports the respondent’s position that a psychological assessment is not reasonable and necessary. I find, also, that the applicant’s continuation of his self-employment as a ride share driver does not support his argument that he suffered driving anxiety and stress while driving.
34I find that the applicant has not met the burden of demonstrating, per F.H. and Pottayya, that a psychological assessment is reasonable and necessary to explore whether he suffered a psychological impairment. In each of those cases, the applicants tendered compelling, corroborating evidence of psychological sequelae as a result of the accident. The applicant has not done so in this case.
35For the reasons above, I find that the applicant has not demonstrated, on a balance of probabilities, that a psychological assessment is reasonable and necessary, warranting removal from the MIG.
The applicant’s ongoing pain does not remove him from the MIG
36The applicant contends that the CNRs of Dr. Turner note continuous, ongoing pain complaints to his neck, back and shoulders, as well as headaches. In support of this contention, the applicant submitted that these complaints are noted in Dr. Turner’s CNRs on the following dates:
August 15, 2023
September 25, 2023
October 24, 2023
June 26, 2024
December 4, 2024
May 14, 2025
37The applicant attended therapy with De Havilland Health Centre Inc. starting one week after the accident, where he received chiropractic, physiotherapy and massage therapy services.
38On February 28, 2024 (about 5.5 months post-accident), Dr. Donald Wong, chiropractor, submitted the disputed OCF-18 for further chiropractic, physiotherapy and massage therapy services. The stated goals of the OCF-18 were to reduce pain, return to activities of normal living, return to pre-accident work activities, improve posture control, reduce pain avoidance behaviour, centralize pain and improve functional tolerances.
39The applicant submits that, while he suffered soft tissue injuries, the normal time for recovery is 12 weeks, and that his pain complaints persisted for more than the normal time. The applicant argues that pain enduring more than 12 weeks can be characterized as chronic pain or chronic pain syndrome.
40The respondent submits that Dr. Turner’s CNRs are largely illegible and cannot be relied upon to support the applicant’s claim that his pain complaints have been continuous and ongoing. The respondent argues that the Tribunal cannot rely on the applicant’s interpretation of the CNRs without some form of transcription or demonstrated legibility.
41The respondent submits that the CNRs, to the extent that they are legible, contain no specialist referrals and no imaging reports related to the applicant’s accident-related injuries. The respondent argues that the applicant has not been diagnosed with chronic pain, nor has he pointed to evidence in support of the contention that his injuries can be characterized as chronic pain or chronic pain syndrome. The respondent argues that, if the applicant has some ongoing pain related to his soft tissue injuries, it can be described as associated sequelae to his soft tissue injuries, and it does not constitute a separate non-minor injury diagnosis warranting removal from the MIG.
42The respondent relies on the opinion of Dr. Greg Gelman, general practitioner, who noted in his IE report, dated May 30, 2024, that the applicant sat comfortably throughout his interview, made movements fluidly and transferred, all with no visible distress. Dr. Gelman diagnosed strain/sprain injuries to the cervical spine and shoulder muscles, and a soft tissue injury to the head. Dr. Gelman opined that the applicant’s injuries fell within the definition of minor injury.
43In reviewing the CNRs of Dr. Turner, I could find no legible reference to the pain complaints listed by the applicant in his submissions. Because the applicant has not directed me to the specific evidence, I cannot rely on the applicant’s interpretations of Dr. Turner’s CNRs. As a result, I find there is no compelling evidence of chronic pain in the applicant’s medical file.
44Furthermore, I find that the applicant has not directed me to evidence of functional impairment, because the applicant reported, among other activities, working 30-40 hours per week as a ride share driver. The Tribunal has determined that chronic pain with functional impairment may warrant removal from the MIG. In this case, I find that the applicant has not directed me to evidence of either chronic pain or functional impairment.
45Because the applicant has not directed me to evidence of chronic pain with functional impairment, I find that the applicant’s pain condition does warrant removal from the MIG.
The proposed OCF-18s are not reasonable and necessary
46I find that the applicant’s impairments, as a result of the accident, do not warrant removal from the MIG. Accordingly, I do not need to analyze whether the disputed OCF-18s seeking services outside of the MIG are reasonable and necessary. The applicant is not entitled to funding for these OCF-18s.
47The parties agree that the MIG limit has not been exhausted. In light of my decision, the applicant may apply for treatment within the MIG, subject to the treatment being reasonable and necessary within the MIG.
Interest
48Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Because no benefits are payable, no interest is payable.
ORDER
49The applicant has not demonstrated that his injuries warrant removal from the MIG.
50Since the applicant’s injuries are considered minor, the proposed OCF-18s seeking services outside of the MIG are not payable.
51The applicant is not entitled to interest
Released: June 8, 2026
Bernard Trottier
Adjudicator