Licence Appeal Tribunal File Number: 24-010872/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:
Leslie Csucs
Applicant
and
Definity Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harouna Saley Sidibé
APPEARANCES:
For the Applicant:
Lauren A Cullen, Counsel
For the Respondent:
Mirsa Duka, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Leslie Csucs, the applicant, was involved in an automobile accident on December 10, 2021, 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.
2On March 6, 2025, the applicant submitted a Notice of Motion requesting the Tribunal to include the treatment plan/OCF-18 dated January 10, 2025, for occupational therapy as an issue in dispute. The Tribunal granted the motion, and therefore, the issues before the Tribunal are those outlined below in the Motion Order dated March 25, 2025.
ISSUES
3The issues in dispute are:
i. 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?
ii. Is the applicant entitled to an income replacement benefit (IRB) in the amount of $400.00 per week from July 18, 2023, to date and ongoing?
iii. Is the applicant entitled to $1,996.84 for an In-Home Assessment, proposed by Pursuit Health Management in an OCF-18/treatment plan (“treatment plan”) dated October 7, 2024?
iv. Is the applicant entitled to attendant care benefits (ACB) in the amount of $1,261.76 per month from December 6, 2024, to date and ongoing?
v. Is the applicant entitled to $5,732.30 for occupational therapy treatment and devices, proposed by Morgan Batten of Pursuit Health Management in a treatment plan/OCF-18 dated January 10, 2025?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
4Although the applicant’s written submissions mention a “special award,” that remedy is not identified as an issue in the Case Conference Report and Order (“CCRO”) or in the Motion Order. I therefore make no ruling on an award.
5In its submissions, the respondent states that it paid the applicant an IRB of $400 per week from June 12, 2023, to July 17, 2023, totalling $2,057.14, and that entitlement was denied as of July 18, 2023. The applicant similarly submits that she received an IRB of $400 per week until July 17, 2023, when the benefit was denied. Given the parties’ consistent positions, there is no dispute that IRBs were paid up to July 17, 2023. Accordingly, the period in question is from July 18, 2023, onward, and I have adjusted the IRB issue before me to reflect the disputed payment period.
RESULT
6For the reasons below, I find that:
The applicant remains within the MIG; therefore, the MIG’s monetary limit applies.
Because the applicant remains within the MIG, I do not need to assess the reasonableness of the disputed treatment plans beyond the MIG limits.
The applicant has not met his onus to establish entitlement to an ACB or an IRB.
The applicant is not entitled to interest.
ANALYSIS
Are the applicant’s injuries predominantly minor?
7I find that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and are therefore subject to the MIG.
8Section 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.”
9An 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.
10The applicant contends that she is not within the MIG because she sustained a concussion or, alternatively, chronic pain syndrome.
Concussion
11I find that the applicant has not demonstrated that she sustained a concussion due to the accident.
12The applicant primarily relies on the emergency department record from Bluewater Health dated December 10, 2021, the July 20, 2023, progress note of chiropractor Dr. Joel Simpson, and the April 18, 2024, physiatry report of Dr. Keith Sequeira. She argues that the medical record demonstrates a direct blow to the head and ongoing symptoms. She also submits that a concussion is not a minor injury.
13The respondent contends that the applicant was diagnosed with a minor head injury and a chest wall injury in the emergency department, rather than a concussion. It asserts that the contemporaneous hospital record is the most reliable evidence of the applicant’s acute presentation. The respondent also relies on the March 18, 2022, OCF-23; the May 15, 2023, OCF-3; and the s. 44 insurer’s examination report of Dr. Pankaj Bansal dated September 28, 2023, along with Dr. Bansal’s addendum report dated June 21, 2024. The respondent submits that these materials support a finding of uncomplicated, self-resolving soft tissue injuries.
14I prefer the emergency department records because they are contemporaneous, treatment-focused, and consistent with the early accident documentation. These records detail a frontal hematoma with ecchymosis, a frontal headache, and mid-back pain radiating to the coccyx. They also note no photophobia or phonophobia, no visual deficits, clear speech, and that the applicant was alert, oriented, ambulatory, and answering questions appropriately. A chest x-ray showed no acute intrathoracic findings. No CT head was performed, no referral to a concussion clinic or neurologist was made, and the applicant was discharged with a diagnosis that included minor head injury.
15I accept that the applicant struck her head in the accident and reported some head-related symptoms. However, the critical issue is whether the totality of the medical evidence establishes that she sustained an accident-related concussion. While concussion symptoms may not always be immediately apparent, the broader medical record does not support such a diagnosis. When the emergency department findings are considered together with the subsequent post-accident documentation, there is no consistent or persuasive medical evidence demonstrating that the applicant was diagnosed with, or treated for, a concussion in the period following the accident.
16The post-accident documentation further weakens the applicant’s case. The March 18, 2022, OCF-23 lists only soft tissue injuries. The May 15, 2023, OCF-3 notes whiplash-associated disorder and spinal complaints, but neither mentions a concussion. These forms were filled out significantly closer to the time of the accident than Dr. Sequeira’s report and do not show a concussion diagnosis.
17I have reviewed the July 20, 2023, chiropractic progress notes of Dr. Joel Simpson. While the note states that the applicant was diagnosed with a concussion, it mainly relies on her own report. As a chiropractor, Dr. Simpson is not qualified to diagnose a concussion. Therefore, I assign limited weight to this note when considering the diagnosis of a concussion.
18I have also reviewed the report dated April 18, 2024, from Dr. Keith Sequeira, a specialist in physical medicine and rehabilitation. He diagnosed the applicant with a concussion, musculoskeletal neck pain, musculoskeletal left hip and buttock pain, general moderate low back pain, and chronic pain syndrome. He also stated that the applicant had restrictions and functional limitations.
19I assign limited weight to Dr. Sequeira’s report on the MIG issue. The assessment occurred more than two years after the accident and relies heavily on the applicant’s self-reported history rather than contemporaneous clinical findings. The report does not clearly explain the medical basis for the concussion diagnosis in light of the absence of an early concussion diagnosis, specialist referral, neurological investigation, or consistent documentation of concussion-related symptoms in the earlier records. In addition, the report does not meaningfully address other potentially relevant intervening events, including subsequent motor vehicle accidents referenced in Dr. Bansal’s assessment, which further limits its probative value on the question of whether a concussion was sustained as a result of the subject accident.
20While I acknowledge that the applicant did not have a family doctor and depended on walk-in clinics, this does not exempt her from the burden of proof. No reliable medical records from around the time of the accident or shortly thereafter establish an accident-related concussion diagnosis.
21In contrast, I find Dr. Bansal’s September 28, 2023, section 44 report and June 21, 2024, addendum more convincing on the specific issue before me. Dr. Bansal carried out an in-person assessment, reviewed the available documentation, including Dr. Sequeira’s report, and concluded that the applicant experienced uncomplicated, self-resolving soft tissue injuries. His opinion is consistent with the emergency department record and earlier medical documents.
22Accordingly, on the balance of probabilities, I find that the applicant did not sustain a concussion that would have removed her from the MIG.
Chronic Pain
23I find that the applicant has not established that she sustained chronic pain with a functional impairment that would remove her from the MIG.
24The applicant states that she has been diagnosed with chronic pain syndrome by Dr. Sequeira and has consistently experienced pain since the accident. She also argues that chronic pain syndrome is not included in the statutory definition of a minor injury and has been recognized by the Tribunal as potentially excluding an insured person from the MIG.
25The respondent argues that the medical evidence indicates uncomplicated, self-resolving soft tissue injuries and does not demonstrate chronic pain as a separate, accident-related impairment.
26I have reviewed Dr. Sequeira’s report dated April 18, 2024, which diagnoses chronic pain syndrome and notes functional limitations.
27While a formal diagnosis of chronic pain syndrome is not required to exclude an applicant from the MIG, the evidence must still demonstrate that the chronic pain results in a functional impairment caused by the accident. In this case, although Dr. Sequeira describes the applicant’s presentation as chronic pain syndrome, the report does not adequately clarify how the applicant’s ongoing symptoms amount to chronic pain with a consequential functional impairment, rather than prolonged pain from soft tissue injuries that have not been shown to significantly restrict function.
28I acknowledge that emergency department records usually do not document chronic pain, as such conditions develop gradually. However, upon reviewing the medical and accident records from months and years after the incident, including the OCF-23 and OCF-3, I find no persuasive evidence of pain-related functional impairment that would remove the applicant from the MIG. These records primarily address soft-tissue complaints and do not clearly indicate chronic functional limitations resulting from pain.
29I find Dr. Bansal’s section 44 report and addendum more convincing. He concluded that the applicant’s injuries were uncomplicated and self-resolving, with no objective findings of ongoing impairment. His conclusions align with the earlier documentation and the absence of sustained treatment intensity or specialist referral.
30Removal from the MIG does not depend on a specific diagnosis but on whether the applicant has established, on a balance of probabilities, that she suffers from chronic pain accompanied by a functional impairment caused by the accident. In this case, I am not persuaded that the evidence shows functional limitations attributable to chronic pain that go beyond what is considered in the MIG for minor injuries, or that such limitations have been consistently documented and causally linked to the accident.
31Accordingly, on a balance of probabilities, I find that the applicant did not sustain chronic pain that would remove her from the MIG.
32I therefore find that the applicant’s accident-related impairments are predominantly minor and remain subject to the MIG.
Is the applicant entitled to disputed treatment plans?
33Since I have determined that the applicant remains within the MIG, her medical and rehabilitation benefits are limited to the $3,500.00 MIG cap.
34The parties agree that the MIG limits have not been exceeded. Since I have found that the applicant has not been removed from the MIG, it is unnecessary for me to assess the reasonableness and necessity of the disputed treatment plans beyond the MIG framework. The applicant is entitled to treatment up to the MIG limits.
Is the applicant entitled to an ACB?
35I find that the applicant is not entitled to attendant care benefits in the amount of $1,261.76 per month from December 6, 2024, to date and ongoing.
36Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (ACBs) provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).
37The applicant relies on the occupational therapy assessment report and Form 1, both completed by Ms. Morgan Batten, occupational therapist, dated December 17, 2024. She submits that the assessment indicates ongoing physical, cognitive, and functional impairments and supports a need for assistance with grooming, feeding, mobility, community outings, hygiene, and bathing.
38The respondent disputes the entitlement, arguing that the attendant care claim conflicts with the broader medical record, which shows that the applicant has remained independent in her activities of daily living (ADLs) and instrumental activities of daily living (iADLs). The respondent also references the applicant’s ongoing placement within the MIG.
39When assessing entitlement to attendant care benefits, I must review Form 1 and the entire evidentiary record. The Tribunal has consistently stated that a Form 1 is not determinative; it must be supported by convincing medical and functional evidence demonstrating a need for attendant care arising from accident-related impairment.
40I place limited weight on Ms. Batten’s assessment and Form 1. The assessment was carried out nearly three years after the accident and relies heavily on the applicant’s self-reported symptoms and perceived limitations. While subjective reporting is a relevant part of occupational therapy assessments, the level of attendant care identified must be consistent with objective findings and the broader clinical record.
41The assistance level specified in Form 1 is difficult to reconcile with other medical evidence. Dr. Sequeira noted that the applicant was independent with both ADLs and iADLs. Similarly, Dr. Bansal observed that the applicant was self-care capable, able to drive, use stairs unaided, and perform some household and community activities. These findings are inconsistent with a need for regular monthly attendant care starting in December 2024.
42I am not convinced that the applicant has provided a medical basis for an accident-related impairment requiring ongoing attendant care services. There is no evidence in the record of consistent treatment, physician-led care, or functional need that would support a new or increased need for attendant care nearly three years after the accident.
43Further, my finding that the applicant’s injuries remain within the MIG weighs against entitlement to attendant care benefits. While MIG placement is not determinative of attendant care entitlement, it is relevant to the overall assessment of injury severity and functional impact. In the absence of evidence demonstrating a material deterioration in function or a distinct need for personal assistance, I am not persuaded that the attendant care services claimed are reasonable or necessary.
44Accordingly, on a balance of probabilities, I find that the applicant has not established entitlement to attendant care benefits from December 6, 2024, to date and ongoing, in the amount claimed.
Is the applicant entitled to an IRB?
45I find that the applicant is not entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from July 18, 2023, to date and ongoing.
Pre-104-Week IRB Entitlement – Section 5 of the Schedule
46To 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.
47The applicant states that she was working part-time in her family’s taxi business during the time of the accident, handling office management duties and driving. She claims that although she initially continued working in a reduced capacity, her condition eventually prevented her from performing the essential tasks of her role. In support, she primarily relies on the Disability Certificate (OCF-3) dated May 15, 2023, and a report from Dr. Sequeira dated April 18, 2024.
48The respondent disputes entitlement, citing the employment file dated July 24, 2023, the Employer’s Confirmation Form (OCF-2) dated November 18, 2022, and the insurer’s examination report by Dr. Bansal dated September 28, 2023, along with his June 21, 2024, addendum. The respondent contends that the applicant continued working after the accident with accommodations, that her employment ended due to her failure to attend work rather than accident-related incapacity, and that the medical evidence does not support the statutory criteria for a pre-104-week IRB.
49In assessing entitlement under section 5 of the Schedule, the Tribunal must perform a realistic, evidence-based analysis of the applicant’s employment duties, functional abilities, and actual post-accident work activity, including consideration of accommodations that were available and used.
50I am not persuaded that the applicant has established entitlement to a pre-104-week IRB.
51The employment evidence does not support the applicant’s claim that she stopped working because she was substantially unable to perform the essential tasks of her job due to the accident. Employer records show that her hours were flexible, that she was allowed to complete invoicing from home, and that she did not experience a loss of pay attributable to the accident. The records also indicate that her employment ended after she stopped attending work and became uncontactable, rather than because of any documented accident-related incapacity.
52While the OCF-3 generally supports the applicant’s claim, it is not determinative. The certificate lacks a detailed analysis of the essential tasks of the applicant’s employment, does not specify which tasks she was unable to perform, and does not explain why the accommodations available to her were insufficient. Consequently, it has limited weight in establishing a substantial inability under section 5 of the Schedule.
53I prefer Dr. Bansal's opinion to Dr. Sequeira's on the IRB issue. Dr. Bansal specifically assessed the applicant using the statutory criteria applicable to IRBs and concluded that she did not suffer a substantial inability to perform the essential tasks of her pre-accident employment as a result of the accident. His opinion reflects a detailed review of the applicant’s work duties, functional abilities, and employment circumstances. By contrast, Dr. Sequeira’s opinion was prepared in a different context and is not directed to the statutory test under section 5.
54The applicant’s post-accident work activity further undermines her claim. The evidence shows that she continued to perform office-based work after the accident and subsequently undertook delivery work with Instacart in 2023. While post-accident employment is not, by itself, fatal to an IRB claim, this activity is inconsistent with the level of incapacity alleged and underscores the absence of persuasive medical evidence linking her claimed inability to the accident.
55Even acknowledging that the applicant experienced ongoing symptoms, I am not satisfied that those symptoms resulted in a substantial inability to perform the essential tasks of her pre-accident employment within the meaning of section 5 of the Schedule.
56I therefore find that the applicant has not established entitlement to a pre-104-week IRB.
Post-104-Week IRB Entitlement – Section 6 of the Schedule
57To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.
58Given my finding that the applicant is not entitled to a pre-104-week IRB, she cannot qualify for a post-104-week IRB. As confirmed by the Ontario Superior Court of Justice in Paesano v. Co-operators Insurance Company, 2025 ONSC 3245, entitlement to a post-104-week IRB under section 6 of the Schedule presupposes entitlement to a pre-104-week IRB.
59Given my determination under section 5, it is therefore unnecessary to conduct a full analysis under section 6. Otherwise, I note that the record lacks vocational or compelling medical evidence demonstrating a complete inability to engage in any employment suitable to the applicant's education, training, or experience.
60Accordingly, on a balance of probabilities, I find that the applicant is not entitled to an income replacement benefit from July 18, 2023, to date and ongoing.
Interest
61Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the applicant has not established entitlement to any of the disputed benefits, there are no overdue benefits and therefore no interest is payable.
ORDER
62For the above reasons, it is ordered that:
i. The applicant remains within the MIG; therefore, the MIG’s monetary limit applies.
ii. Because the applicant remains within the MIG, I do not need to assess the reasonableness of the disputed treatment plans beyond the MIG limits.
iii. The applicant has not met his onus to establish entitlement to an ACB or an IRB.
iv. The applicant is not entitled to interest.
v. The application is dismissed.
Released: May 6, 2026
Harouna Saley Sidibé
Adjudicator