Citation: Ali v. Definity Insurance Company, 2025 ONLAT 24-003935/AABS

Licence Appeal Tribunal File Number: 24-003935/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:

Bader Ali

Applicant

and

Definity Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jeff Chatterton

APPEARANCES:

For the Applicant:

Kameliya Stancheva, Paralegal

For the Respondent:

Maia Abbas, Counsel

HEARD: In Writing

OVERVIEW

1Ali Bader, the applicant, was involved in an automobile accident on January 31, 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 the respondent, Definity Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

[2] The 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 (“MIG”) limit?

2. Is the applicant entitled to $3,179.08 for physiotherapy services, proposed by Mavis Eglinton Physiotherapy in a treatment plan/OCF-18 (“plan”) dated December 28, 2023?

3. Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by Humber River Medical Diagnostics in a treatment plan dated March 7, 2024?

4. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant has not met the onus to demonstrate why he should be removed from the MIG.

4As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

5No interest or award is granted.

6The applicant is dismissed.

ANALYSIS

Is the applicant held to the Minor Injury Guideline?

7The applicant has not met the onus to demonstrate why he should be removed 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 argues he should be removed from the MIG because of chronic pain. To support his argument, he is relying upon the hospital records after the accident, and the clinical notes and records from General Practitioner Dr. Alaa Al-Khafaji.

11The last record included in the applicant’s evidence is dated March 1, 2023, approximately one month after the accident. Although the onus is with the applicant, I was not directed to further or more supportive medical evidence.

12The respondent argues that the applicant is exaggerating his injuries, and that the applicant has suffered sprain and strain type injuries that are consistent with a minor injury. To support their argument, the respondent relies upon a S.44 Insurers Examination conducted by General Practitioner Dr. Kevin Ho, dated December 20, 2024. Dr. Ho stated that the injuries were all minor injuries, that the applicant had achieved maximal recovery, and that the applicant ‘failed several simulation tests, reporting back pain during tests that could not cause strain to the lower back.’

13The applicant is claiming chronic pain, but has not provided a chronic pain diagnosis, or any supporting objective medical evidence suggesting ongoing chronic pain. Furthermore, chronic pain in and of itself does not remove an applicant from the MIG. Rather the test is chronic pain with a functional impairment and I have not been directed to supportive medical evidence which indicates a functional impairment.

14In summary, I have been provided with very limited supportive medical evidence, and no evidence of chronic pain with a functional impairment. Furthermore, the respondent has provided a medical report which indicates that the applicant’s injuries are minor in nature and have achieved maximal medical recovery.

15For these reasons, I find the applicant has not, on the balance of probabilities, met the onus to warrant removal from the MIG.

16As the applicant is being held to the MIG, it is not necessary for me to consider whether the treatment plans are reasonable or necessary.

Interest

17Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.

Award

18The 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. The applicant is not entitled to an award, because I find the insurer has not unreasonably withheld or delayed the payment of benefits.

ORDER

19The application is dismissed.

i. The applicant is being held to the Minor Injury Guideline.

ii. As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

iii. Neither interest nor an award are payable.