Licence Appeal Tribunal File Number: 24-014767/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:
Yolanta Bzdyk
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
VICE-CHAIR: Julian DiBattista
APPEARANCES:
For the Applicant: Lucas Lindsay, Counsel
For the Respondent: Alicia Edwards, Counsel
HEARD: In Writing
OVERVIEW
1Yolanta Bzdyk, the applicant, was involved in an automobile accident on August 1, 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 $3,008.97 for physiotherapy services, proposed by Physiomed Yorkdale Inc. in a treatment plan/OCF-18 (“plan”) submitted November 9, 2022 and denied December 22, 2022?
iii. Is the applicant entitled to $110.45 for prescriptions/personal items, submitted on a claim form (OCF-6) dated July 12, 2024?
iv. Is the applicant entitled to $821.74 for damaged clothing and other expenses, submitted on anOCF-6 dated July 12, 2024?
v. Is the applicant entitled to $577.21 for prescriptions and other expenses, submitted on anOCF-6 dated July 12, 2024?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not proven injuries which warrant removal from the MIG.
4It is not necessary for me to analyze the disputed treatment plan to determine if it is reasonable and necessary.
5The applicant is not entitled to any of the expenses outlined in the OCF-6 forms.
6The applicant is not entitled to interest or an award under s. 10 of Reg 664.
7This application is dismissed.
ANALYSIS
The applicant has not proven injuries which warrant removal from the MIG
8Section 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.”
9An 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.
10The applicant submits that she should be removed from the MIG as she has developed chronic pain as a result of the accident.
11In support of this, the applicant submits the clinical notes and records of her family physician, Dr. H. Dimitrakoudis. The applicant notes that her complaints to Dr. Dimitrakoudis have resulted in several referrals to specialists, further bolstering her claims that her injuries are not minor.
12The respondent submits that the applicant made only five accident-related visits to her family physician between November 2022 and December 2023, and that there is no history of functional impairment relating to accident-related chronic pain.
13I agree with the respondent. There is a history of the applicant presenting with complaints of pain which have been linked to the accident. However, there is no mention of an associated functional impairment. In submissions, the applicant has not tied her chronic pain to a functional impairment. In reviewing the cited evidence, I have not been able to find a documented impairment of function that is related to the applicant’s reported accident-related pain. Her physician’s notes indicate she suffers from pain, however they do not address the impact this pain has on function.
14The Tribunal has held that both chronic pain and an associated functional impairment is required for removal from the MIG. As there are no submissions before me identifying a functional impairment, I find on a balance of probabilities that the applicant’s injuries do not warrant removal from the MIG.
It is not necessary to review the disputed treatment plan
15Having found that the applicant sustained a minor injury as a result of the accident, I find that it is not required to review the treatment plan in dispute to determine if it is reasonable and necessary.
No submissions have been made on the disputed OCF-6 forms.
16In submissions, the applicant identified only issues i and ii above as being in dispute. No submissions were made on the disputed OCF-6 forms (issues iii to v).
17I therefore find that the applicant has not proven entitlement to expenses submitted on the disputed OCF-6 forms, on a balance of probabilities.
Interest
18Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is owed.
Award
19The 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. Provide the basis for the award.
20As no benefits have been unreasonably withheld there is no basis for me to consider an award under s. 10 of Reg 664.
ORDER
21For the reasons above I find that:
i. The applicant has not proven her injuries warrant removal from the MIG;
ii. It is not necessary for me to analyze the disputed treatment plan to determine if it is reasonable and necessary;
iii. The applicant is not entitled to the disputed OCF-6 forms;
iv. The applicant is not entitled to interest; and
v. The applicant is not entitled to an award under s. 10 of Reg 664.
22This application is dismissed.
Released: June 18, 2026
__________________________
Julian DiBattista
Vice-Chair