Ashley Lattanville v. Definity Insurance Company, 2025 CanLII 94797

Licence Appeal Tribunal

Citation: Lattanville v. Definity Insurance Company, 2025 ONLAT 23-014904/AABS

Licence Appeal Tribunal File Number: 23-014904/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:

Ashley Lattanville

Applicant

and

Definity Insurance Company

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Alexei Antonov, Counsel

For the Respondent: Marcus Rozsa, Counsel

HEARD: By way of written submissions

OVERVIEW

1Ashley Lattanville, the applicant, was involved in an automobile accident on August 8, 2018, 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 IN DISPUTE

2The issues to be decided in the hearing 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? Note: The parties agree the MIG limits have not been exhausted and there is $1,585.00 remaining as of the date of case conference.
2. Is the applicant entitled to $2,680.00 for physiotherapy services, proposed by Downsview Healthcare Inc., in a treatment plan (“OCF-18”) submitted February 24, 2023?
3. Is the applicant entitled to $1,885.62 for physiotherapy services, proposed by Physiomed, in an OCF-18 submitted December 18, 2023?
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’s injuries are minor and subject to treatment within the $3,000 MIG limit. She is not entitled to the benefits in dispute, interest or an award.

ANALYSIS

The applicant’s accident-related impairments fit within the MIG

4Section 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.”

5An 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 balance of probabilities that her accident-related impairments fall outside of the MIG.

6The applicant argues that she should be removed from the MIG because she suffers from chronic pain which has resulted in functional impairment as a result of the accident. In addition, she also submits that she sustained a psychological impairment which removes her from the MIG. In support of her position, she relies on a disability certificate (“OCF-3”) completed by Dr. Charlambous, chiropractor dated August 27, 2019, the OCF-18s in dispute, hospital records and clinical notes and records (“CNRs”) of Dr. Judah, family doctor and Dr. Yeates, obstetrician and treating clinic, and a prescription and decoded OHIP summaries.

7The respondent argues that the applicant’s accident-related impairments fall within the definition of MIG. It relies on the insurer examination (“IE”) report of Dr. Walters, General Practitioner dated March 17, 2020, who diagnosed the applicant with soft tissue injuries which fall within the MIG. The respondent also argues that the evidence relied upon by the applicant support that she sustained a minor injury.

8I agree with the respondent for the following reasons.

9First, the applicant’s submissions and evidence fell far short of meeting her onus that she suffers from chronic pain as a result of the accident that warrants removal from the MIG. The applicant provides a summary of the CNRs of her family doctor and treating obstetrician. However, none of these CNRs mention the accident or any impairments as a result at all. Instead, they support that the applicant visited her family doctor and obstetrician regarding pregnancies, prenatal care or for the delivery of her children. The decoded OHIP summary confirms the same thing. Further, the hospital records support that on the date of the accident the applicant was taken to the hospital by ambulance out of her concern for her fetus. The hospital notes that she had minor abdominal pain, and lower back pain. I find the complaints made by the applicant on this hospital visit consistent with the definition of a minor injury.

10Second, I find the prescription summary unhelpful. The applicant submits that she was prescribed oxycocet and hydromorphone because of the accident. However, the prescription summary supports that she was prescribed these medications once in December 2020 and June 10, 2021. I find the date of the prescriptions too remote from the date of the accident. Further, there was no record addressing the reason why these medications were prescribed. I find the applicant has not proven a link between these prescriptions and the accident.

11Third, the OCF-3 relied upon by the applicant is unhelpful. The OCF-3 was completed by a chiropractor who listed various sprain and strain impairments as well as generalized anxiety disorder. The form also noted that the applicant had a complete inability to carry on a normal life and is unable to perform her activities of daily life, attend her social/recreational activities or carry out her caregiving activities because of pain and decreased range of motion. I find many of the injuries listed on the OCF-3 consistent with the MIG. Further, it was completed two weeks post-accident. Consequently, it does little to support that the applicant suffers from ongoing chronic pain. I also place little weight on the chiropractor’s diagnosis of sleep and anxiety disorder as it is outside the scope of a chiropractor to diagnose these conditions. It is well established that OCF-3s or insurance forms on their own are insufficient evidence. For these reasons, I give the OCF-3 little weight.

12Fourth, I find that all the treating clinic’s records support is that the applicant attended for treatment. There are no reports within these records which support that the applicant suffers from either chronic pain or a psychological impairment as a result of the accident.

13Finally, the respondent relies on the IE report of Dr. Walters who diagnosed the applicant with WAD-II strain and lumbosacral strain. I find these diagnoses consistent with the minor injury definition. I also accept this doctor’s opinion because it is the only medical opinion before me, and it is consistent with the medical evidence or lack thereof.

14For the above-noted reasons, the applicant has not met her onus in proving on a balance of probabilities that she suffers from chronic pain or a psychological impairment which warrants removal from the MIG.

The applicant is not entitled to either OCF-18s for chiropractic treatment.

15The applicant submits that the MIG limit is not exhausted and that $1,585.00 remains. The respondent argues that she is not entitled to either OCF-18 because they both seek treatment out of the MIG.

16Since I have determined that the applicant’s impairments fit within the MIG, she is not entitled to the two OCF-18s recommending chiropractic treatment because they both seek treatment outside of the MIG. However, she is entitled to treatment up to the MIG limit, so it is unnecessary for me to address whether the two OCF-18s are reasonable and necessary.

Interest

17Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since I have not determined that any benefits are overdue the applicant is not entitled to interest.

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 argues that the respondent failed to give reasonable consideration to all of the medical records available to it while adjusting the claim. In light of my decision in this matter, the respondent is not liable to pay an award because I have not determined that any benefits were unreasonably withheld. Nor do I find that it ignored any medical records.

ORDER

19For the above-noted reasons, I make the following order:

1. The applicant’s injuries are minor and subject to treatment within the $3,000 MIG limit. She is not entitled to the benefits in dispute, interest or an award.