Citation: Ollivierre v. Definity Insurance Company, 2026 ONLAT 24-006939/AABS

Licence Appeal Tribunal File Number: 24-006939/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:

Clemont Ollivierre

Applicant

and

Definity Insurance Company

Respondent

DECISION

ADJUDICATOR: Harry Adamidis

APPEARANCES:

For the Applicant: Linda Spurrell, Paralegal

For the Respondent: Yuliya Yarema, Paralegal

HEARD: In Writing

OVERVIEW

1Clemont Ollivierre, the applicant, was involved in an automobile accident on February 1, 2022, 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, Insurer, 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? The parties agree the MIG limits have been exhausted.

2. Is the applicant entitled to $1,997.00 for physiotherapy services, proposed by Focus Physiotherapy in a treatment plan/OCF-18 (“plan”) dated May 31, 2022?

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

RESULTS

3The applicant’s injuries are predominantly minor and treatable within the MIG.

4The applicant is not entitled to the treatment plan nor interest.

ANALYSIS

Minor injury guideline

5The applicant’s injuries are predominantly minor and treatable within the MIG.

6Section 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.”

7An 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.

8According to the applicant, he continues to experience significant pain caused by accident related injuries. He points to the insurer’s examination dated December 22, 2022 by Dr. Louis Weisleder, orthopaedic surgeon, which confirms that he has range of motion impairments in his neck, shoulders, and lower back. In his view, these circumstances are similar to those in 17-002624 v Aviva Insurance Canada, 2018 CanLII 13183 ON LAT where the Tribunal found that chronic pain alone is enough to be removed from the MIG. He cites a similar finding by the Tribunal in 18-005777 v Northbridge Personal Insurance Corporation, 2019 CanLII 58161 ON LAT. In light of these two decisions, he submits that his ongoing chronic pain is enough to be removed from the MIG.

9The respondent notes that the applicant provided no evidence of ongoing pain complaints. It also points out that the applicant has not been diagnosed with chronic pain, and that the applicant remains functional and continues to work since the accident. It submits that he does not have an injury warranting removal from the MIG.

10I disagree with the respondent in regard to there being no evidence of ongoing pain complaints. Dr. Weisleder determined that the applicant sustained a lumbar strain injury in the accident. The clinical notes and records of Dr. Neveen Hanna, family doctor, dated December 20, 2024 also documents sciatic pain, but does not mention the accident. Instead, the applicant advised Dr. Hanna that “lifting at work…” as a reason for his back pain. It is possible that the applicant’s lumbar strain injury from the accident is linked to his current sciatic pain. However, the mere possibility of such a connection is not enough to conclude, on a balance of probabilities, that the applicant continues to experience accident related pain.

11If I am wrong and the applicant continues to experience accident related pain, he still must show that this pain causes a functional impairment in order to be removed from the MIG. The applicant argues that this is incorrect because the Tribunal found in two previous cases that chronic pain alone is enough for removal from the MIG and that no functional impairment is required. I disagree. In 17-002624, the first case cited by the applicant, the Tribunal identified numerous functional impairments which caused the insured person to be unable to work or do household chores. In 18-005777, the Tribunal’s chronic pain assessment considered whether the “applicant’s pain causes functional impairment and disability specifically with respect to her ability to clean cooks (sic), lift and sleep on the left side according to Dr. C.” This shows that the Tribunal required chronic pain and functional impairment in order to be removed from the MIG. As such, the cases cited by the applicant do not persuade me that experiencing pain without functional impairment is enough to be removed from the MIG.

12Dr. Weisleder reports that the applicant returned to fulltime work as a baker without modified duties. This is an indication that his range of motion limitations did not result in functional impairments at the time of the insurer examination.

13I find that the applicant cannot be taken out of the MIG because on the basis of chronic pain as the evidence does not establish, on a balance of probabilities, that he continues to experience accident related pain. If he does continue to experience accident related pain, then I further find that he cannot be removed from the MIG because he has not established that he has a functional impairment caused by the accident.

14No funds remain in the MIG. As such, no analysis is required is required for the treatment plan because no funding is available to pay for the plan.

Interest

15Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest as there are no overdue benefits.

ORDER

16The applicant’s injuries are predominantly minor and treatable within the MIG.

17The applicant is not entitled to the treatment plan nor interest.

18This application is dismissed.