Citation: Lojares v. Definity Insurance Company, 2026 ONLAT 25-001470/AABS

Licence Appeal Tribunal File Number: 25-001470/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:

Richard Balicol Lojares

Applicant

and

Definity Insurance Company

Respondent

DECISION

ADJUDICATOR: Amar Mohammed

APPEARANCES:

For the Applicant: Yalini Yogeswaran, Paralegal

For the Respondent: Savneet Multani, Counsel

HEARD: By Way of Submissions

OVERVIEW

1Richard Lojares, the applicant, was involved in an automobile accident on November 7, 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.

2While the applicant’s submissions indicate the accident took place on November 8, 2023, the respondent’s submissions and the hospital records from Mississauga Hospital indicate that the applicant visited the emergency department as a result of this accident on November 7, 2023 and was discharged on the early morning of November 8, 2023. Accordingly, I have amended the date of the accident above.

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 $3,372.00 for Chiropractic treatment, proposed by In Motion Rehabilitation and Wellness Centre Inc. in a treatment plan/OCF-18 (“plan”) dated February 26, 2024?

iii. Is the applicant entitled to $4,389.16 for Chiropractic treatment, proposed by In Motion Rehabilitation and Wellness Centre Inc. in a plan dated August 11, 2024?

iv. Is the applicant entitled to $3,706.95 for Chiropractic treatment, proposed by In Motion Rehabilitation and Wellness Centre Inc. in a plan dated November 13, 2023?

v. Is the applicant entitled to $261.51 ($1,338.48 less $ $1,076.97 approved) for Chiropractic treatment, proposed by In Motion Rehabilitation and Wellness Centre Inc. in a plan dated January 17, 2024?

vi. Is the applicant entitled to $3,372.00 for proposed by In Motion Rehabilitation and Wellness Centre Inc. in a plan dated October 30, 2024?

vii. Is the applicant entitled to the assessments proposed by Red Door Medicare Inc., in plans as follows:

(a) $1,155.95 for a In Home Assessment, dated March 3, 2024;

(b) $1,155.95 for a Concussion Assessment, dated May 31, 2024;

(c) $2,235.37 for a MIG treating Physician Triage Assessment, dated November 15, 2024;

(d) $1,155.95 for a Paper review for MIG Treating Physician triage assessment, dated November 15, 2024; and

(e) $1,155.99 for a Psychological Assessment, dated February 2, 2024?

viii. Is the applicant entitled to the assessments proposed by TDI Chronic Pain and Medical Assessments Inc. in plans, as follows:

(a) $2,008.00 for a In Home Assessment, dated March 4, 2024;

(b) $2,299.22 for a Psychological Assessment, dated February 6, 2024;

(c) $2,496.09 for a Chronic Pain Assessment, dated December 11, 2024; and

(d) $2,799.00 for a Neurological Assessment, dated May 15, 2024?

ix. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

4Withdrawn Issue: The applicant withdrew his dispute to entitlement of $152.92 for medication and travel expenses, submitted on a claim form (OCF-6) dated October 15, 2024.

RESULT

5The applicant is subject to the MIG. Since the applicant is subject to the MIG, an analysis of whether the plans in dispute are reasonable and necessary is not warranted. There are no overdue benefits to which interest applies. The respondent is not liable to pay an award. The application is dismissed.

ANALYSIS

Minor Injury Guideline

6I find that the applicant has not established, on a balance of probabilities, that removal from the MIG is warranted.

7Section 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.”

8An 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.

9The applicant’s position is that he should be removed from the MIG because his accident-related impairments extend beyond the scope of a minor injury under the Schedule. He argues that the following conditions warrant removal: mild traumatic brain injury (“mTBI”), post-concussion symptoms, rotator cuff tendinitis, severe depressive episode, situational phobias, and persistent anxiety and sadness. In addition, the applicant submits that the following diagnoses further justify removal: post-concussion syndrome, post-traumatic vestibulopathy, post-traumatic vision syndrome, mood disturbance, sleep disturbance, cervical and lumbar radiculopathy, chronic rotator cuff tendinitis, myofascial pain, partial thickness elbow tear, and severe obstructive sleep apnea. The applicant also contends that he suffers from chronic pain, neurological injuries, and psychological conditions including depressive episode and situational phobia, each of which warrant his removal from the MIG.

10The respondent’s position is that the applicant’s accident-related impairments fall within the definition of a minor injury under the Schedule. The respondent argues that the applicant did not sustain an mTBI or concussion and has not established either chronic pain or a functional impairment sufficient to warrant removal from the MIG. The respondent further submits that the applicant denied any accident-related psychological symptoms to the insurer’s psychological assessor and therefore has not established a psychological condition warranting removal from the MIG. In addition, the respondent argues that the applicant has not demonstrated that his elbow injuries or for the degenerative changes in his cervical and lumbar spine were caused by the accident.

Concussion

11I find that the applicant has not established a concussion warranting removal from the MIG.

12The applicant submits that he has suffered from an accident-related concussion, recorded in the OCF-3, dated November 13, 2023, completed by Dr. Gail Wright, chiropractor. In support, the applicant refers me to a referral from his family doctor to a concussion clinic on May 28, 2024 due to complaints of headaches, six months post-accident. Subsequently, the applicant was seen by Ms. Linda C. Johnson, PHC-NP, at iScope Concussion and Pain Clinics and diagnosed with post-concussion syndrome, post-traumatic vestibulopathy, post-traumatic vision syndrome, mood disturbance, sleep disturbance, benign headache, phonophobia, and photophobia.

13The respondent argues diagnosing a concussion is outside the scope of a chiropractor and therefore I should not be persuaded by the OCF-3 authored by Dr. Gail Wright in this regard. Further, the respondent argues that the diagnosis of post-concussive symptoms noted by Ms. Johnson is completely reliant on self-reporting by the applicant, not corroborated by medical evidence such as the family doctor’s records, and the physical exam administered by Ms. Johnson was normal. Further, the respondent argues that the diagnosis is contrary to the more immediate post-accident records from the Mississauga Hospital opining that there was no head injury noted, despite the complaint of pain at the top of the head. The respondent also argues that more recently, the applicant did not report any concussion related symptoms to Dr. Rehan Dost, neurologist, according to a s. 44 neurology report dated February 6, 2025.

14I give little weight to the OCF-3 authored by a chiropractor and to Ms. Johnson’s opinions concerning the concussion-related diagnosis. Diagnosis of a concussion is outside of a chiropractor’s scope. As to Ms. Johnson’s assessment, it is clear that the physical neurological exam in the Initial Assessment Report as assessed on June 19, 2024 was normal. I find that the s. 44 report of Dr. Rehan Dost, neurologist, dated February 6, 2025 aligns with the contemporaneously recorded symptoms and complaints as well as the results of Ms. Johnson’s physical exam and therefore accord it more weight. Dr. Dost opined that the applicant suffered no primary neurological injury, did not sustain an mTBI or concussion and he does not have cervical or lumbar radiculopathy. Dr. Dost’s opinion also aligns with the most immediate records noting no head injury from the Mississauga Hospital. A review of the family doctor’s records indicates that headaches were the primary reason for a concussion referral and the applicant’s other noted symptoms recorded by Ms. Johnson are not corroborated.

15For the reasons above, on a balance of probabilities, I find that the applicant has not established a concussion warranting removal from the MIG.

Chronic Pain

16I find that the applicant has not established accident-related chronic pain with a functional impairment warranting removal from the MIG.

17The applicant’s position is that he has chronic pain in his right shoulder, neck, low back, bilateral elbows, thoracic spine and myofascial tenderness, warranting removal from the MIG. The applicant argues that the persistence, multiplicity and severity of these symptoms exceed the expected recovery period for minor musculoskeletal injuries and raises the likelihood of chronic pain syndrome and warrant removal from the MIG.

18The respondent argues that the applicant suffered a minor injury and removal from the MIG is not warranted. The respondent relies on the emergency department records from Mississauga Hospital, which document non-cardiac chest pain from the seatbelt, low back pain, pain at the top of the head, anxiety, and right shoulder pain, the latter is noted as a pre-existing issue. These records also confirm no head injury, no loss of consciousness, and no airbag deployment. After ECG and x-rays of the chest, lumbar spine, and right shoulder, the only clinical impression noted is a shoulder sprain. The applicant was prescribed Vimovo and physiotherapy for his right shoulder pain, and Dr. Hanna Bielawska noted suspected tendonitis.

19According to the clinical notes and records of Dr. Inas Sadek, family doctor, on November 15, 2023, the applicant complained of right shoulder pain. Dr. Sadek’s pre-accident records from August 2023 document complaints of back pain and right shoulder pain, with a diagnosis of mechanical back pain and a request for shoulder imaging. From the available evidence, this imaging did not take place prior to the accident. Post-accident x-rays on November 20, 2023 revealed early AC joint osteoarthritis changes, and an ultrasound showed no acute rotator cuff tear, joint effusion, or bursitis. The subsequent visits in January and May of 2024 record complaints limited to shoulder pain. I give weight to the applicant’s family doctor’s clinical notes and records because they are contemporary.

20Based on this evidence, the applicant has established pre-existing mechanical back pain and ongoing pre-accident right shoulder symptoms. Post-accident, his primary accident-related complaint that is corroborated by the family doctor’s records, remained right shoulder pain.

21The applicant was referred to Dr. Azar Bahrami, rheumatologist, for right shoulder symptoms and diagnosed with chronic rotator cuff tendinitis with persistent pain, mild to moderate limitation of movement of his shoulder and difficulty with daily activities, on September 18, 2024. Dr. Bahrami noted a right shoulder MRI dated August 26, 2024 revealed supraspinatus bursal surface fraying, tendinosis and mild bursitis.

22Considering the applicant’s pre-accident shoulder symptoms and the November 2023 post-accident imaging showing early AC joint osteoarthritis and no acute tear, effusion, or bursitis, I find that the applicant has not established that Dr. Bahrami’s later findings of chronic rotator cuff tendinitis with persistent pain, mild to moderate limitation of movement of his shoulder and difficulty with daily activities based on an August 2024 MRI are accident related injuries.

23I also find that, even if the applicant had established that he has accident-related chronic pain, he has not led evidence of a functional impairment. The applicant submits that he was employed full time as an assembly technician and resumed work less than two weeks post-accident as a result of financial need rather than functional recovery. However, the applicant did not lead evidence of functional impairment related to accident-related pain.

24In March 2025, Dr. Bahrami diagnosed the applicant with chronic lateral epicondylitis in his right elbow and noted functional difficulties with repetitive lifting and holding of objects at his job. I am not persuaded by the applicant’s submissions that complaints made over a year post-accident are accident-related because this is treated as a foregone conclusion. Specifically, the applicant first reported right elbow symptoms on February 8, 2025 and left elbow symptoms on April 24, 2025. I find that these elbow complaints and resulting functional limitations are not supported by the medical record as being accident related.

25For the reasons above, on a balance of probabilities, the applicant has not established that he has accident-related chronic pain with a functional impairment warranting removal from the MIG.

Psychological condition

26I find that the applicant has not established a psychological condition warranting removal from the MIG.

27The applicant relies on a section 25 psychological assessment report by Ms. Sandra Ramnaraine, registered psychotherapist, dated August 16, 2024. The applicant argues that Ms. Sandra Ramnaraine’s diagnosis of depressive episode, severe, and situational (isolated) phobias, moderate (automobile anxiety) are psychological conditions warranting removal from the MIG.

28The respondent argues that the s. 25 report should be afforded less weight than the s. 44 report of Dr. Janet Clewes, psychologist, dated December 23, 2024. The respondent notes that the only contemporaneous notation of psychological symptoms is a single record of “anxiety” at the applicant’s initial hospital visit on November 7, 2023, while the first family‑physician entry recording “depressed and anxious” does not appear until May 30, 2025, approximately 18 months after the accident. On that basis, the respondent submits the s. 25 report rests largely on the applicant’s self‑report at the assessment and is not corroborated by contemporaneous medical records.

29I give less weight to the s. 25 assessment because it does not include a medical file review, is based on self-reporting, and is not supported by the contemporaneous medical record and the family doctor’s file. For these reasons I am not persuaded that the applicant has an accident-related psychological condition that would remove him from the MIG as reported in the s. 25 report. I prefer the opinion of Dr. Clewes because it better aligns with the contemporaneous record. Dr. Clewes states that the applicant specifically denied any accident-related psychological symptoms, such as a depressed mood, being anxious, feeling traumatized, and being overly pain-focused such that he is unable to concentrate on his day-to-day activities. Dr. Clewes opined that the applicant does not suffer from any accident-related DSM-5 diagnostic condition. I find Dr. Clewes report better aligns with the contemporaneous record.

30For the reasons above, on a balance of probabilities, I find that the applicant has not established that removal from the MIG is warranted.

Plans in dispute

31Since the applicant is subject to the MIG, an analysis of whether the plans in dispute are reasonable and necessary is not warranted.

Interest

32The applicant is not entitled to interest. Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

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. Since there are no withheld or delayed payments of benefits, the applicant is not entitled to an award.

ORDER

34For the reasons above, I make the following orders:

i. The applicant is subject to the MIG.

ii. Since the applicant is subject to the MIG, an analysis of whether the plans in dispute are reasonable and necessary is not warranted.

iii. There are no overdue benefits to which interest applies.

iv. The respondent is not liable to pay an award.