Licence Appeal Tribunal File Number: 24-002623/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:
Vincenzo Commisso
Applicant
and
Definity Insurance Company
Respondent
DECISION
ADJUDICATOR: Jeff Chatterton
APPEARANCES:
For the Applicant: Christina Trotta, Counsel
For the Respondent: Sunjay Mistry, Paralegal
HEARD: In Writing
OVERVIEW
1Vincenzo Commisso, the applicant, was involved in an automobile accident on December 7, 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
2The issues to be decided in the hearing are:
- 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 (“the MIG”) limit?
- Is the applicant entitled to the services or treatments proposed by Physiomed Roytec Road, as follows: i. $1,398.29 for physiotherapy services, in a treatment plan submitted December 15, 2023; and ii. $1,955.88 for physiotherapy services, in a treatment plan submitted March 19, 2024?
- Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by TE Rehabilitation Services in a treatment plan submitted June 25, 2024?
- Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
- Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is being held to the MIG. He is not entitled to the treatment plans in dispute, nor entitled to an award or interest.
ANALYSIS
Should the applicant be removed from the MIG due to chronic pain?
4The applicant is not removed from the MIG on the basis of chronic pain with a functional limitation.
5Section 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.”
6An 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.
7The applicant submits they should be removed from the MIG due to chronic pain with functional impairment. They refer to the American Medical Association’s Guide to Evaluating Permanent Impairment, 6th Edition, and claim that the applicant qualifies under four of the six criteria to diagnose Chronic Pain. To support their argument, they rely on the clinical notes and records from General Practitioners Doctors Oluwaseun Adegbenro and Seun Adegbenro. They also rely on an expert report by Orthopedic Surgeon, Dr. Tajedin Getahun, authored August 12, 2024.
[8] I have reviewed the applicant’s submission, specifically in regard to the AMA Guides criteria. The applicant argues they meet four of the six criteria to establish chronic pain, specifically: i. Ongoing reliance on prescription medication, ii. dependence on family members for assistance with daily living, iii. withdrawal from recreational and social activities, and; iv. development of anxiety and sleep disturbance.
9The respondent disagrees, and states that the applicant is not suffering from Chronic Pain. To support their case, they rely on a s.44 Independent Examination conducted May 24, 2024 by GP Dr. Mohamed Lamine.
10I put more weight on the respondent’s evidence because Dr. Tajedin Getahun has diagnosed a number of sprain and strain type injuries, but does not reference chronic pain, nor does he recommend the applicant be removed from the MIG. Meanwhile, the respondent’s expert, Dr. Lamine, noted the right shoulder was primarily healed and had only limited reductions in range of motion.
11As the applicant stated, the first criteria of the AMA Guides is the use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
12The respondent argues, and I agree, that prescription summaries do not support the claim that the applicant was overly dependent on prescription pharmaceuticals because no prescribed pharmaceuticals were refilled more than once in a year.
13The applicant also submits that they have withdrawn from social interaction, arguing that he no longer participates in social and leisure activities such as fishing or exercising.
14The respondent argues that the applicant’s submissions regarding withdrawal from social milieu are based purely on the applicant’s affidavit evidence. I note that the respondent has requested objective evidence such as attendance records from the applicant’s fitness club. Applicant’s counsel agreed to provide those records, however, the respondent submits they were not provided. Facing the lack of objective evidence, despite it being agreed to by the applicant, I place little weight on the affidavit evidence provided by the applicant.
15Furthermore, even if the applicant were to prove the existence of chronic pain, the Tribunal has consistently determined that removal from the MIG requires “chronic pain with a functional limitation.” While the onus is on the applicant, I have not been directed to objective, supportive medical evidence which indicates the scope, breadth or nature of what functional limitations may exist and, importantly, how these impairments were the result of the accident.
16For these reasons, I find the applicant has not met the onus, on a balance of probabilities, to warrant removal from the MIG on the basis of chronic pain with a functional limitation.
17The Case Conference Report and Order reports that approximately $1,385.00 remains under the MIG limits. However, all of the treatment plans in dispute here propose treatment in excess of the remaining limits available to the applicant. As the applicant is being held to the MIG, it is not necessary for me to do a ‘reasonable and necessary’ analysis on the treatment plans in question.
Interest
18Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no treatment plans are overdue, no interest is payable.
Award
19The applicant argued the respondent was liable to pay an award, stating solely that the respondent unreasonably withheld or delayed payments to the applicant. As I have found the respondent has not unreasonably withheld or delayed payments, the respondent is not liable to pay an award.
ORDER
[20] The application is dismissed. i. The applicant is being held to the MIG. 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. No interest is payable. The respondent is not liable to pay an award.
Released: November 27, 2025
__________________________
Jeff Chatterton Adjudicator