Citation: Koffi v. Definity Insurance Company, 2026 ONLAT 24-010507/AABS

Licence Appeal Tribunal File Number: 24-010507/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:

Michel Hermann Dimitri Koffi

Applicant

and

Definity Insurance Company

Respondent

DECISION

ADJUDICATOR: Kathleen Wells

APPEARANCES:

For the Applicant: Kim Mohammed-Sieudhan, Paralegal

For the Respondent: Maia Abbas, Counsel

HEARD: By way of written submissions

OVERVIEW

1Michel Koffi, the applicant, was involved in an automobile accident on July 14, 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, 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:

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 an income replacement benefit in the amount of $400.00 per week from July 25, 2022, to date and ongoing?
3. Is the applicant entitled to $2,686.00 for a psychological assessment, proposed by Elite Specialist Group Inc. in a treatment plan/OCF-18 (“treatment plan”) dated October 3, 2023?
4. Is the applicant entitled to $6,630.50 for psychotherapy services, proposed by Elite Specialist Group Inc. in a treatment plan dated December 21, 2023?
5. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
6. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

1. The applicant’s injuries are predominantly minor, and he is subject to the MIG and its $3,500.00 funding limit.
2. The applicant is not entitled to an income replacement benefit.
3. As I have found that the applicant is subject to the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.
4. The treatment plan for psychotherapy services dated December 21, 2023 is not payable under s. 38(11).
5. As no payments are owing, no interest is due.
6. The applicant is not entitled to an award.
7. The application is dismissed.

ANALYSIS

Applicability of the Minor Injury Guideline (“MIG”)

4Section 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.”

5An 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.

6The applicant submits that he should be removed from the MIG because he has a psychological impairment. He relies on the November 27, 2023 s. 25 psychological report of Dr. Jaqueline Brunshaw, psychologist, and Sandra Ramnaraine, psychotherapist.

7The respondent argues that the applicant has not met his onus to prove that he suffered a psychological impairment as a result of the accident, because he has not provided medical evidence in support of his submissions aside from the s. 25 report. The respondent further argues that the s.25 report of Dr. Brunshaw and Ms. Ramnaraine should be given little weight, because it is not corroborated by any other medical evidence.

8The s. 25 assessment was conducted on November 20, 2023 by Ms. Ramnaraine under the supervision of Dr. Brunshaw, and consisted of a clinical interview and psychometric testing. The documents reviewed were the July 25, 2022 Disability Certificate (“OCF-3”) prepared by Dr. Ashley Narula, chiropractor; and the clinical notes and records (“CNRS”) of the applicant’s family doctor, Dr. Bose Enoma Ibude. It is not clear whether the assessment was conducted in person, or whether Dr. Brunshaw spoke or met with the applicant.

9The applicant was diagnosed with Adjustment Disorder with Anxiety and Depressed Mood, and Specific Phobia (Vehicular: driver [Severe]; passenger, pedestrian [Moderate-to-Severe]) in the s. 25 report.

10I assign little weight to the s. 25 report because the applicant’s reports related to his function and post-accident work history are inconsistent with his reports to Dr. Amhad Belfon, physician, at his February 28, 2024, general practitioner insurer’s examination (“IE”). For example, the applicant told Ms. Ramnaraine that he was experiencing difficulties with his self-care and household chores, while he told Dr. Belfon that he was independent in his personal care and all of his pre-accident household responsibilities.

11Further, there are no complaints of psychological symptoms in Dr. Ibude’s CNRs, and the applicant has not directed me to any other evidence of reports of psychological symptoms, or referrals for treatment, to corroborate the findings of Ms. Ramnaraine and Dr. Brunshaw.

12For these reasons, I find that the applicant has not met his onus to prove on a balance of probabilities that the applicant has sustained a psychological impairment as a result of the accident to warrant his removal from the MIG.

13Accordingly, the applicant remains subject to the MIG and its $3,500.00 funding limit.

Is the applicant entitled to an income replacement benefit (“IRB”) $400.00 per week from July 25, 2022, to date and ongoing?

14To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

15The applicant submits that he is entitled to an IRB because he did not return to work for seven months after the accident, and continues to suffer a substantial inability to perform the essential tasks of his employment as an Uber driver as a result of his accident-related injuries. He relies on the s. 25 report of Dr. Brunshaw and Ms. Ramnaraine who opined that he has a substantial inability to perform the essential tasks of his employment.

16The respondent counters that the applicant has not met his onus to prove that he is entitled to an IRB because he returned to working as an Uber driver nine hours per day after his vehicle was repaired, and that the applicant has not submitted any of the required financial information to determine the quantum of the benefit. The respondent relies on Dr. Belfon’s March 13, 2024 IE report, wherein Dr. Belfon opined that the applicant did not have a substantial inability to perform his essential tasks of employment.

17The evidence reveals that the OCF-3 dated July 25, 2022 was submitted on November 17, 2022. Dr. Narula indicated that the applicant sustained sprain and strain injuries to multiple areas including his jaw, back, and foot, and that he had not returned to work. She noted that the applicant had difficulty performing the essential tasks of his work as an Uber driver including getting in and out of the car, sitting for prolonged periods of time, pressing the pedal with his right foot, and checking his blind spot.

18Dr. Ibude’s CNRs shed little light on the impact of the applicant’s injuries on his ability to return to work. They reveal that the applicant complained only of pain to his right foot on July 18, 2022, and that x-ray imaging reveals slight degenerative changes to his foot. The applicant complained of foot pain again on November 14, 2022, and Dr. Ibude suggested that custom orthotics should be considered. The applicant complained of foot pain again, 9 months later, on August 24, 2024, and was referred for an MRI of his foot. The MRI conducted on December 18, 2024 revealed a normal study. The CNRs are silent on the applicant’s ability to return to work, or any other injury identified in the OCF-3.

19As noted above, I place little weight on the November 27, 2023 s. 25 psychological report of Dr. Brunshaw. I assign more weight to Dr. Belfon’s March 13, 2024 IE report, because Dr. Belfon conducted an in-person physical examination, an interview and a thorough review of the applicant’s medical records. He opined that the applicant’s accident-related injuries were “most consistent with sprain/strain to the lumbosacral spine and contusion to the sole of the right foot.”

20The applicant told Dr. Belfon that he had pain in his right foot since he was a child, and that he had previously used orthotics in his work boots prior to working for Uber. The applicant attributed his delay in returning to work to his vehicle being repaired, and that he had taken a three-month trip to Africa. He reported that prior to the accident, he worked 11 hours per day, 7 days per week, but had reduced his hours to 9 hours per day, 7 days per week, after he returned to work.

21I disagree with the applicant’s submission that Dr. Belfon did not consider the impact of the applicant’s foot pain on his ability to drive, as Dr. Belfon noted that the applicant reported that he has a new car which has an autonomous braking function and is easier on his foot.

22Further, the applicant has not directed me to evidence to corroborate his pre-or post-accident employment activities, the date that he returned to work, or any financial information to assess the quantum of an IRB in order to meet the test set out above.

23For these reasons, I find that the applicant has not met his onus to prove on a balance of probabilities that he has a substantial inability to perform the tasks of his employment as a result of his accident-related injuries.

24As I have found that the applicant remains subject to the MIG and its $3,500.00 funding limit, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.

25However, in the applicant’s submissions with respect to an award, he argues that he is entitled to an award, in part, because the respondent did not respond to the December 21, 2023 treatment plan for psychotherapy services within 10 business days, as required under s. 38 of the Schedule. Therefore, I will consider whether the respondent’s denial was compliant with s. 38(8) of the Schedule.

Section 38

26Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well as the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.

27If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
2. The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

28The applicant submits that the respondent’s denial of the December 21, 2023 treatment plan for psychotherapy services was received on January 9, 2024, which is more than 10 business days after the treatment plan was submitted to the respondent.

29The respondent argues that the notice was received within 10 business days, and that the applicant did not account for three statutory holidays in the relevant time period.

30I find that January 9, 2024 is within 10 business days of December 21, 2023, the date of the treatment plan because of the statutory holidays. I further find that the notice complies with s. 38(8) because it is a clear and unequivocal denial, and provides the reason that the respondent had not received any medical records to indicate that the applicant had sustained a psychological injury as a result of the accident. The notice further provides information on the applicant’s right to dispute the denial, and the process by which to do so, and is sufficiently clear and detailed for an unsophisticated person to make an informed decision whether to dispute the denial.

31Accordingly, the treatment plan is not payable under s. 38(11).

Interest

32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are owing, no interest is due.

Award

33The 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 Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.

34The applicant submits that he is entitled to an award because the respondent withheld benefits because it did not consider the entirety of the applicant’s medical record, and because the respondent denied the December 21, 2023 treatment plan after the 10 business day time limit set out in s. 38(8). I found above that the respondent complied with the 10 business day time limit set out in s. 38(8), and that the treatment plan is not payable under s. 38(11).

35Further, as the applicant has not directed me to evidence that the respondent’s conduct rose to the level of excessive, imprudent, stubborn, inflexible, unyielding or immoderate, I find that the applicant has not met his onus to prove on a balance of probabilities that he is entitled to an award.

ORDER

36I find that:

1. The applicant’s injuries are predominantly minor, and he is subject to the MIG and its $3,500.00 funding limit.
2. The applicant is not entitled to an income replacement benefit.
3. As I found that the applicant is subject to the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.
4. The treatment plan for psychotherapy services dated December 21, 2023 is not payable under s. 38(11).
5. As no payments are owing, no interest is due.
6. The applicant is not entitled to an award.
7. The application is dismissed.