Wang v. Aviva General Insurance Company, 2026 CanLII 8144

Wang v. Aviva General Insurance Company

Citation: Wang v. Aviva General Insurance Company, 2026 ONLAT 24-004582/AABS Licence Appeal Tribunal File Number: 24-004582/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:

Wen Tao Wang Applicant

and

Aviva General Insurance Company Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Sareena Samra, Counsel For the Respondent: Karina Dziuba, Counsel

HEARD: By way of written submissions

OVERVIEW

1Wen Tao Wang ("the Applicant") was involved in an automobile accident on May 7, 2023, and sought benefits from Aviva General Insurance Company ("the Respondent") 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 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 a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline ("the MIG") and the $3,500.00 funding limit for a minor injury?

ii. Is the Applicant entitled to a medical benefit in the amount of $1,300.00 less $1,233.15 approved by the Respondent, for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 ("plan") dated July 15, 2023?

iii. Is the Applicant entitled to a medical benefit in the amount of $4,463.90 for chiropractic services, proposed by Total Recovery Rehab Centre in a plan dated November 6, 2023?

iv. Is the Applicant entitled to a medical benefit in the amount of $2,200.00 for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic in a plan dated July 7, 2023?

v. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?

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

RESULT

3I find that the Applicant sustained a minor injury as a result of the accident. He is subject to the MIG and the $3,500.00 funding limit for a minor injury.

4None of the plans are payable because they propose goods and services outside of the MIG and beyond the $3,500.00 funding limit for a minor injury.

5The denials related to the plans are compliant with the Schedule.

6No interest or award is payable.

BACKGROUND

7The Applicant was the driver of a vehicle which struck the rear end of another vehicle. He sought no medical attention at the scene of the accident, and went to his family physician, Dr. G. Botrous, the following day and complained of neck pain. The Applicant was prescribed medication, but no other recommendations were made. From the clinical notes and records ("CNRs") before me, this is the only visit the Applicant made to Dr. Botrous following the accident. There are no CNRs from the Applicant's treatment facility, or any other healthcare provider. The only other evidence he directs me to is a psychological pre-screen report by Y. Zhou, registered psychotherapist, dated June 27, 2023.

8The Applicant claims he developed psychological injuries and a chronic pain condition which are not included in the definition of a minor injury. The Respondent is critical of the Applicant's evidence, or lack thereof, and submits that the Applicant has not demonstrated that he suffered an injury that is not included in a minor injury.

ANALYSIS

Minor Injury Guideline ("MIG")

9The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

10The onus is on the Applicant to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.

11For the following reasons, I find that the Applicant has not demonstrated that he sustained an injury in the accident that is not included in the minor injury definition.

Psychological injuries

12I find that the Applicant has not demonstrated on a balance of probabilities that he suffers from a psychological injury as a result of the accident.

13I give no weight to the psychological pre-screen report by psychotherapist Y. Zhou, dated June 27, 2023, because it is unsupported by other evidence. No CNRs were provided by the treatment facility to substantiate the referral for a psychological pre-screen report. Without the CNRs, there is no reason provided for the pre-screen report because the evidence demonstrates that the Applicant otherwise made no complaints of a psychological nature – he met with Dr. Botrous on the day following the accident and has not since. The single entry by Dr. Botrous only indicates a complaint of neck pain, and does not list any other injury, and certainly not a psychological injury or symptoms of a psychological injury that would prompt an assessment or a pre-screen.

14Additionally, I find the psychological pre-screen report to be contradictory of itself. For example, the pre-screen report notes that the Applicant suspended all physical and social activities since the accident, but also states that he is too busy to take naps and rest to catch up on his interrupted sleep. A report of suspending all physical and social activities is in stark contrast to the Applicant's report to Dr. P. Bansal, physician, in the insurer's examination ("IE") report, dated April 18, 2024, that he worked a combined 65 to 70 hours per week at two retail stores and a marketing company, and that he missed no time from work following the accident.

15Overall, a psychological pre-screen report, with contradictory information and no other evidence to support the self-reported symptoms, does not demonstrate on a balance of probabilities that the Applicant suffered psychological injuries as a result of the subject accident. Accordingly, I conclude that the psychological symptoms reported by the Applicant are sequalae of his soft-tissue injuries, and is rightly included in the definition of a minor injury.

Chronic pain condition

16I find that the Applicant has not met his onus to demonstrate on a balance of probabilities that he suffers from a chronic pain condition as a result of the accident.

17Chronic pain conditions are not included in the minor injury definition. To demonstrate that he has a chronic pain condition, the Applicant should provide evidence that his pain causes a functional impairment which adversely affects his well-being, or that he meets the criteria for chronic pain according to the American Medical Association Guides to the Evaluation of Permanent Impairment (the "AMA Guides"). While it is not part of the Schedule, the Tribunal has generally accepted the AMA Guides when assessing whether a person suffers from a chronic pain condition. To meet the criteria, the person must demonstrate that they likely meet three of the following six criteria: withdrawal from social milieu (including work, recreation, or other social contracts); use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances; development of psycho-social sequalae after the initial incident; excessive dependence on healthcare providers, spouse, or family; secondary physical deconditioning due to disuse; and a failure to restore pre-injury function after a period of disability.

18I find that the Applicant has not demonstrated that he suffers from a functional impairment as a result of the accident. As noted, the Applicant has missed no time from work following the accident. His limited evidence does not address his range of motion ("ROM") for any part of his body. There is no evidence before me indicating that a healthcare provider ever concluded that the Applicant suffered from ongoing pain, or a functional impairment as a result of pain.

19The Applicant has not demonstrated that he meets the criteria for a chronic pain condition according to the AMA Guides. As noted, the Applicant has missed no time from work, demonstrating no withdrawal from social milieu including work. The evidence is that he was prescribed medication immediately following the accident and never thereafter, suggesting no dependence on or abuse of prescription drugs. The Applicant's evidence shows that he visited his family physician once since the accident, demonstrating no reliance on healthcare providers. There is no evidence the Applicant has experienced physical deconditioning due to disuse. Lastly, the psychological symptoms reported are doubtful and do not rise to a level that is beyond sequalae of his minor soft-tissue injuries.

20I find the April 18, 2024 IE report of Dr. Bansal, mentioned earlier, to be persuasive. The Applicant reported low back pain with prolonged sitting and standing, and right shoulder pain with associated numbness and/or tingling. Dr. Bansal noted that the Applicant also reported his back as "okay" and "feeling great". It was also noted by Dr. Bansal that the Applicant's reported numbness and/or tingling in his right arm is not indicative of a distribution of paresthesia or numbness suggestive of radiculopathy. On examination, the Applicant exhibited full ROM throughout his body and had no pain complaints on palpation. Dr. Bansal concluded that the Applicant sustained uncomplicated, self-resolving soft-tissue injuries that are classified as a minor injury. To me, Dr. Bansal's conclusion that the Applicant sustained a minor injury is consistent with the Applicant's minimal complaints to Dr. Botrous, indicating that he does not suffer from a chronic pain condition.

21Having concluded that the Applicant has not demonstrated that he suffers from a psychological injury or a chronic pain condition as a result of the accident, it follows that I conclude on a balance of probabilities that the Applicant sustained a minor injury as a result of the accident.

The Applicant is not entitled to the treatment and assessment plans in dispute

22The plans in dispute propose goods and services that fall outside the MIG and the $3,500.00 funding limit for a minor injury. Having found that the Applicant is subject to the MIG, it follows that he is not entitled to the plans in dispute.

23I find that the Applicant has not demonstrated that the Respondent failed to provide denials that are compliant with section 38 of the Schedule. The Applicant submits that the Respondent's denials are not compliant with section 38(8) of the Schedule because they do not give medical and relevant reasons for the denials, and that they only refer to the MIG, and do not assess the evidence he provided. At a minimum, the Applicant ought to direct the adjudicator to the denial letters that he believes are insufficient. Failing to do so here is enough to deny the Applicant's claim.

24Moreover, I find the Applicant's characterization of the denials to be inaccurate. The July 21, 2023 explanation of benefits notes that the Respondent characterized the Applicant's injuries as a minor injury based on the medical records provided, and that no evidence of a pre-existing health condition was received, and that it received no objective, demonstrable, definable, and clinically relevant evidence to substantiate treatment outside of the MIG limits. This language is repeated in a separate June 21, 2023 letter addressing the psychological assessment plan. The April 19, 2024 denial letter is based on and refers to the IE report of Dr. Bansal, dated April 18, 2024, and concludes that the Applicant's injuries are a minor injury.

25Having found that the plans propose goods and services beyond the MIG and the funding limit for a minor injury, and that the denial letters related to the plans are compliant with section 38(8) of the Schedule, I conclude that the Applicant has not met his onus to demonstrate that the plans are reasonable and necessary as a result of the accident.

Interest

26Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having concluded that no benefits are payable, it follows that no payments went overdue and that no interest is payable.

Award

27The Applicant sought an award under section 10 of Regulation 664. Under section 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. He submits that he advances a claim for an award to investigate the reasonableness of the Respondent and provide a deterrence to insurers acting in a high-handed manner.

28Having agreed with the Respondent that the Applicant sustained a minor injury and is subject to the MIG and the $3,500.00 funding limit for a minor injury, and that no plans are payable, it follows that no benefits have been unreasonably withheld or delayed. No award is payable as a result.

CONCLUSION AND ORDER

29The Applicant sustained a minor injury as a result of the accident. He is subject to the MIG and the $3,500.00 funding limit for a minor injury.

30None of the plans are payable because they propose goods and services outside of the MIG and beyond the $3,500.00 funding limit for a minor injury.

31The denials related to the plans are compliant with the Schedule.

32No interest or award is payable.

33The application is dismissed.