Zeledon (20-006269) v. Aviva Insurance Company, 2022 CanLII 124642 (ON LAT)

Full Decision

The applicant was involved in a motor vehicle collision on September 29, 2015. Aviva placed her injuries under the Minor Injury Guideline (MIG). At issue at the LAT were whether the applicant’s injuries were predominantly minor under s. 3 of the Statutory Accident Benefits Schedule (SABS) and several disputed treatment plans.

The LAT found the applicant should be removed from the MIG due to chronic pain and entitled to some of the treatment plans in dispute.

Minor injury is described under s. 3(1) of the SABS as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” Section 18(1) of the SABS restricts recovery for medical and rehabilitation benefits beyond $3,500. The applicant has the burden to prove their injuries surpass the MIG.

The adjudicator found that the applicant’s consistent self-reporting of lower back pain for over four years alongside the interference with her ability to work resulting in her resignation from employment was due to her chronic pain and sufficient to remove her from the MIG.

The tribunal followed a prior case, 17-004847 v. Aviva General, 2018 CanLII 81912 (ON LAT), which found the test for pain sufficient to remove the applicant from the MIG where the pain was based on the applicant’s self-reporting and consistent referrals to and from various practitioners that it was ongoing for a number of years.

The tribunal also found the decision of C.G. v. The Guarantee Company of North America, 2020 CanLII 63599 (ON LAT) persuasive, wherein the tribunal found that a formal diagnosis of chronic pain is not required for removal from the MIG provided that the chronic pain is present beyond 3-6 months post-collision.

Ultimately, the tribunal found the weight of evidence pointed to a causation or aggravation of existing back impairment, which led to a level of back pain (see para. 38 of the decision) that did not exist prior to the collision and persisted for several years to a disabling level.

The tribunal also found the applicant was entitled to three of the treatment plans in dispute (chiropractic, physiotherapy and massage and acupuncture) and interest on those plans.

Written by

Called to the bar in 2009 and having successfully passed the Ontario, Michigan and US multistate bar exams, Samia M. Alam is a contract lawyer for plaintiff personal injury law firms in the Hamilton and surrounding areas with a special focus on catastrophic impairment claims. She also has been teaching at Mohawk College since the inception of the paralegal program in 2014 and teaches Legal Research and Writing, Statutory Accident Benefits and Tribunals Practice and Procedure. She is received her LL.M at Osgoode Hall Law School, and she is a member of the Hamilton Law Association and Ontario Trial Lawyer's Association.