Citation: Kundaria v. Definity Insurance Company, 2026 ONLAT 24-011110/AABS

Licence Appeal Tribunal File Number: 24-011110/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:

Ashika Kundaria

Applicant

And

Definity Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Neha Kohli, Paralegal

For the Respondent:

Yuliya Yarema, Paralegal

HEARD:

By way of written submissions

OVERVIEW

1Ashika Kundaria, the applicant, was involved in an automobile accident on March 14, 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 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 $1,695.75 for physiotherapy services, proposed by Hope Wellness Center in a treatment plan (“OCF-18”) submitted August 9, 2024?

3. Is the applicant entitled to $1,296.75 for physiotherapy services, proposed by Hope Wellness Center in an OCF-18 submitted September 12, 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

3After reviewing both parties’ submissions and evidence, I find the applicant sustained a minor injury and is subject to treatment within the MIG limit. She is not entitled to the OCF-18s in dispute, interest or an award.

ANALYSIS

The applicant sustained a minor injury which is treatable in 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 a 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 sustained a concussion and a psychological impairment as a result of the accident. In support of her position, she relies on the clinical notes and records (“CNRs”) of Dr. Hapuarachchi, family doctor, a disability certificate (“OCF-3”) prepared by Zebi Ali, physiotherapist dated July 4, 2023, psychological report of Dr. Brunshaw, psychologist dated May 14, 2024, and report of Dr. Rathbone, neurologist dated February 21, 2024.

7The 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 her onus in proving that she should be removed from the MIG as a result of any of the above criteria. It also asserts that the applicant failed to mention in her submissions that she was involved in a subsequent motor vehicle accident on October 12, 2023, which is responsible for her current complaints. It also maintains that neither Dr. Brunshaw nor Dr. Rathbone’s report diagnosed the applicant with any impairments as a result of the subject accident.

Physical Impairments

8I find the applicant’s physical impairments fit within the MIG for the following reasons.

9First, I find the applicant’s family doctor’s CNRs support that she sustained a minor injury as a result of the accident. The applicant first visited her family doctor the day following the accident where the doctor noted “mvc; msk pain” (“musculoskeletal pain”). The note stated “no head injury.” A subsequent CNR dated April 17, 2023, notes “neck pain ongoing since mva, felt like whiplash.” I find these CNRs support that the applicant sustained a minor injury in accordance with the MIG definition.

10Second, I find the injuries listed on the OCF-3 prepared by Mr. Ali establishes that the applicant sustained a minor injury. Under injuries the form notes “tension-type headache, whiplash associated disorder (WAD 2) with complaint of neck pain with musculoskeletal signs, sprain and strain of shoulder joint, rotator cuff capsule and low back pain.” I find these impairments are explicitly captured within the MIG.

11Third, I find the applicant has not proven that she sustained a concussion as a result of the subject accident which warrants removal from the MIG. As highlighted by the respondent, a CNR of the family doctor dated October 23, 2023, supports that the applicant was involved in a subsequent accident on October 12, 2023, where she reported that she lost consciousness for 10 minutes, and was experiencing headaches, nausea and blurred vision. The emergency record from the same date states that the applicant hit her head, the air bags were deployed and the car was deemed a total loss. The family doctor then referred the applicant to Dr. Rathbone to address her post-concussive symptoms. I find Dr. Rathbone’s consult report dated February 21, 2024, addresses the applicant’s concussion symptoms arising from the October 12, 2023, accident and not the subject accident.

12For the above-noted reasons, I find the applicant’s physical impairments sustained in the accident fit within the MIG.

Psychological Impairment

13I find the applicant is not removed from the MIG as a result of a psychological impairment for the following reasons.

14First, I find there is a lack of medical evidence supporting that the applicant made any complaints about psychological symptoms as a result of the subject accident. In support of her position that she sustained a psychological impairment the applicant relies on a CNR of her family doctor dated September 15, 2023, which states “complained of anxiety at exam/ panic disorders.” The applicant also reported having some anxiety while driving. The doctor recommended supportive counselling and prescribed Ativan for the applicant to use before an exam or class presentation. I find this CNR does not support any significant psychological complaints as a result of the accident.

15Second, I do not find the psychological report completed by Dr. Brunshaw persuasive because the report addresses both the March 14, 2023, and October 12, 2023, accidents and the applicant’s reported pain complaints and symptoms interchangeably. Dr. Brunshaw diagnosed the applicant with adjustment disorder with anxiety, major depressive disorder, single episode, somatic symptom disorder, with predominant pain, persistent type and specific phobia, situational type. I find Dr. Brunshaw’s report is based on the applicant’s self-reports because the doctor did not review any medical records as part of the assessment. The doctor noted that the applicant struggled with completing her schoolwork and part-time job as a sales associate at a health food store because of her accident-related psychological symptoms. However, of significance, the doctor did not review any records which support these functional limitations because of the subject accident. Nor did the applicant submit sufficient evidence in this hearing to support that she has any functional limitations as a result of any accident-related impairments.

16Finally, I find the applicant has not linked the family doctor’s diagnosis of cognitive disability, general anxiety disorder or panic episodes cited in a letter dated April 23, 2024, in support of her receiving accommodation to write the LSAT exam to this accident. Instead, the family doctor notes “cognitive disability -suspected ADHD”. Moreover, Dr. Rathbone’s consult report noted mood changes as a result of the October 12, 2023 accident and recommended counselling.

17For the above-noted reasons, I find the applicant has not proven on a balance of probabilities that she is removed from the MIG as a result of an accident-related psychological impairment due to the subject accident.

18The applicant is not entitled to either OCF-18 proposing physiotherapy because they both seek treatment exceeding the MIG limit and as of the date of the case conference only $303.25 remains.

The applicant is not entitled to payment of interest.

19Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest as I have not determined that any benefits are overdue.

The applicant is not entitled to an award

20In the Tribunal’s case conference report and order the 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’s submissions did not address the award issue. In light of my decision in this matter, I find an award is not warranted in this case.

ORDER

21For the above-noted reasons, I order as follows:

1. The applicant sustained a minor injury and is subject to treatment within the MIG limit. She is not entitled to the OCF-18s in dispute, interest or an award.

2. This application is dismissed.