Barnes v. Aviva General Insurance Company, 2026 CanLII 8154

Citation: Barnes v. Aviva General Insurance Company, 2026 CanLII 8154

Licence Appeal Tribunal File Number: 24-005626/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:

Sheldon Barnes

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Tahisha Scoon-Allan, Paralegal

For the Respondent: Jeffrey F. Pasternak, Counsel

HEARD: By way of written submissions

OVERVIEW

1Sheldon Barnes, the applicant, was involved in an automobile accident on April 30, 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:

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 limit? Note: The parties agree the MIG limits have not been exhausted as there is $1,001.93 remaining as of the date of case conference.

2. Is the applicant entitled to the following medical benefits proposed by Oshawa Physiotherapy and Rehabilitation Centre ("Oshawa Physiotherapy") in the following treatment plans ("OCF-18s"): a) $1,273.50 for osteopathy services, submitted April 5, 2023; b) $2,200.00 for physiotherapy services, submitted February 14, 2023; and c) $1,273.50 for osteopathy services submitted January 26, 2024?

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

3In his written submissions, the applicant withdrew his claim for a non-earner benefit. As a result, this issue will not be addressed in this decision.

RESULT

4The applicant sustained a minor injury and is therefore subject to treatment within the MIG. As a result, he is not entitled to the OCF-18s in the dispute or interest.

PROCEDURAL ISSUE

5In his submissions, the applicant stated that the respondent did not comply with the Tribunal's case conference report and order, which ordered it to produce the files (including clinical notes and records ("CNRs")) from the insurer examination ("IE") assessors and assessment companies within 45 days of the case conference.

6The respondent submits that this is not accurate because it notified the applicant on May 30, 2025, that it had requested the clinical notes and records ("CNRs") of Dr. Lau and was advised that the doctor did not retain any. It further advised the applicant that Viewpoint (the assessment company) was following up with Dr. Qadeer's office. The complete file was then served on the applicant on June 19, 2025, which was after the deadline for the applicant's submissions for this written hearing.

7In reply submissions, the applicant argues that the respondent's IE reports should be given limited weight because of its late service of Viewpoints CNRs. Further, the IE reports of both Dr. Lau and Dr. Qadeer refer to the completion of questionnaires which were not part of the CNRs produced by Viewpoint, which raises concerns about the transparency and reliability of their assessments. The assessors also failed to produce any contemporaneous notes of their assessments which the applicant argues is in non-compliance with the requirements of the College of Physicians and Surgeons of Ontario, which require physicians to create and retain detailed records. Consequently, the applicant submits that the Tribunal cannot accept the validity of their reports.

8I find that the respondent did not comply with the deadline in the Tribunal's order because Viewpoint's file was not produced 45 days from the date of the case conference, and it was unclear when the respondent requested these records. Consequently, I have assigned the IE reports little weight. Despite this, I find the IE reports had little bearing on this decision because the applicant has not met his onus in proving that his accident-related impairments fall outside of the MIG.

ANALYSIS

The applicant sustained a minor injury which is treatable in the MIG.

9Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor in accordance with the MIG. 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 person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG. The applicant bears the onus of proving on a balance of probabilities that his accident-related impairments fall outside of the MIG.

11The applicant argues that he should be removed from the MIG because he had a documented pre-existing medical condition which was exacerbated as a result of the accident, which would prevent maximum medical recovery within the MIG. He also maintains that he suffers from chronic pain and a psychological impairment which warrants removal from the MIG. In support of his position, he relies on the hospital records and CNRs of Dr. Ke, family doctor, and from Oshawa Physiotherapy, his treating clinic. He also relies on a disability certificate ("OCF-3") prepared by Dr. Visram, chiropractor, and the chronic pain report of Dr. Siva, pain specialist, dated March 24, 2024. He also asserts that the IE report of Dr. Lau supports that his impairments do not fit within the MIG.

12The respondent argues that the applicant's accident-related impairments fall within the definition of a minor injury. It submits that the applicant has not met his onus in proving that he should be removed from the MIG as a result of any of the above criteria. It relies on the IE reports of Dr. Qadeer and Dr. Lau who both determined that the applicant's accident-related impairments fit within the MIG.

13I find the applicant sustained a minor injury for the following reasons.

Pre-existing Condition

14I find the applicant is not removed from the MIG due to a pre-existing condition for the following reasons.

15I find the applicant's submissions provide a summary of various medical records without articulating how the evidence supports his position that any of his pre-existing conditions would prevent him from achieving maximum medical recovery within the MIG, which is the requirement for removal under s. 18(2). For example, he relies on a few pre-accident CNRs from his family doctor from 2019 which establish that he suffered from on and off chronic neck and back pain from a workplace accident. He submits that this pre-existing condition would remove him from the MIG.

16The Tribunal has consistently determined, and the law provides that a documented pre-existing condition on its own does not automatically remove a person from the MIG. There must be compelling medical evidence from a treating practitioner supporting that the pre-existing condition would prevent the applicant from achieving maximal recovery if subject to treatment within the MIG limits. Although I acknowledge that the applicant had pre-existing neck and back pain, I find that I have not been pointed or directed to evidence from a treating practitioner that this condition would prevent maximal recovery if subject to treatment within the MIG limit which is the test that must be met. Consequently, I find that the applicant has not proven that he should be removed from the MIG as a result of any pre-existing condition. Now I will address whether the accident resulted in chronic pain.

Chronic Pain

17I find that the applicant is not removed from the MIG due to chronic pain for the following reasons.

18First, I find the hospital record from the date of the accident supports that the applicant sustained a minor injury. The record supports that he complained of pain in his shoulder, neck, back and right knee. The doctor prescribed naproxen and baclofen and the applicant was discharged.

19Second, I find the OCF-3 dated September 1, 2022, supports that the applicant sustained a minor injury as the chiropractor listed the following injuries: sprain and strain of the lumbar, thoracic and cervical spine. The form also indicated that the applicant reported that he had a fear of driving, limitations of activities and financial constraints. I note that the physical injuries listed are impairments which fit within the MIG.

20Third, I do not find the CNRs of the family doctor or treating clinic persuasive evidence that the applicant suffers from chronic pain as a result of the accident. The applicant submitted the CNRs of his family doctor and treating clinic in its entirety (which consisted of 265 pages) and in his submissions he only directed me to four pages within these records. I find the CNR of the family doctor dated September 22, 2022, supports that he first visited his family doctor four months post-accident where he reported back, neck and right knee pain. The doctor diagnosed him with a right knee sprain, which I find is an impairment which fits within the MIG. In a subsequent CNR dated September 28, 2024, the doctor discusses an MRI which found that the applicant had degenerative disc disease and disc herniation, foramen narrowing bilateral. I find that the applicant has not linked his degenerative changes to the accident.

21In addition, I find the CNRs from Oshawa Physiotherapy unhelpful because they were not legible. I note that the pages referred to confirmed that the applicant reported back and neck pain. The applicant submits that his ongoing pain resulted in functional limitations. However, I note that submissions are not evidence and the two CNRs referred to do not go into any detail regarding the applicant's functional limitations in his personal care or occupation.

22Fourth, I assign the chronic pain assessment of Dr. Siva little weight because the doctor reviewed minimal medical records in completing the assessment and there was little reference to any functional impairments in the report, which is a requirement to be removed from the MIG as a result of chronic pain. The report demonstrates that the applicant reported experiencing ongoing pain, which resulted in a decrease in his ability to perform movements such as bending, lifting, twisting, kneeling, sitting and standing. I find it unclear whether these limitations were tested by Dr. Siva. Moreover, the report notes that the applicant returned to his pre-accident employment without modified duties. Dr. Siva diagnosed the applicant with myofascial pain syndrome and right ankle dysfunction and recommended various treatments including a multi-disciplinary chronic pain program. I find Dr. Siva's report to be limited because the doctor reviewed very few medical records in completing the assessment and as noted above, the CNRs relied upon in this hearing do not support Dr. Siva's opinion. In addition, I find the applicant has not linked Dr. Siva's diagnosis of right ankle dysfunction to the accident.

23I find it unnecessary to address the findings of the IE report of Dr. Qadeer because I find the applicant has not met his onus in proving that he suffers from chronic pain as a result of the accident which would remove him from the MIG.

Psychological Impairment

24I find the applicant is not removed from the MIG due to a psychological impairment because he has not submitted any persuasive evidence in support of this. Other than the OCF-3 which mentions a fear of driving, the applicant's medical evidence does not refer to any psychological symptoms or diagnoses as a result of the accident. In addition, despite the applicant's request that I exclude or assign Dr. Lau's IE report little weight, this is the only evidence the applicant cites in support of his position. The applicant argues that the IE of Dr. Lau supports that he sustained a psychological impairment because he scored in the severe range on the Beck Anxiety Inventory ("BAI") test administered by the doctor.

25I find the applicant selective in quoting from Dr. Lau's report. Dr. Lau's report states that the applicant reported no issues with depression, crying spells, temper or his memory. The report also notes that he drives to and from work everyday, is independent with self care and is fine with walking, sitting and standing. The applicant also reported that he assists his wife with cooking, grocery shopping and light housekeeping chores. Dr. Lau opined that based on his clinical interview and file review there was no clear or reliable indication that the applicant sustained a psychological impairment as a result of the accident. I give little weight to the applicant's severe score on the BAI because there is little evidence in the medical record to corroborate that he suffers from anxiety. I find that Dr. Lau's report does not support the applicant's position that he sustained a psychological impairment as a result of the accident. I also find it confusing that the applicant would request that this report be assigned little weight or be excluded and then solely rely on it in support of his position.

26I find the applicant has not met his onus in proving that he sustained a psychological impairment as a result of the accident which would remove him from the MIG.

27The applicant is not entitled to the three OCF-18s proposed by Oshawa Physiotherapy because they all seek treatment outside of the MIG limit and only $1,001.93 remains. This does not preclude the applicant from seeking treatment within the MIG limit.

The applicant is not entitled to interest

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest because I have not determined that any benefits are overdue.

ORDER

29For the above-noted reasons, I order as follows:

1. The applicant sustained a minor injury and is therefore subject to treatment within the MIG. As a result, he is not entitled to the OCF-18s in the dispute or interest.

2. The application is dismissed.