Citation: Kusch v. Definity Insurance Company, 2026 ONLAT 25-000774/AABS

Licence Appeal Tribunal File Number: 25-000774/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:

Kristopher Kusch

Applicant

and

Definity Insurance Company

Respondent

DECISION

ADJUDICATOR:

Amar Mohammed

APPEARANCES:

For the Applicant:

Alex Nikolaev, Counsel

For the Respondent:

Ainsley Shannon, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Kristopher Kusch, the applicant, was involved in an automobile accident on December 15, 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 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 $4,008.50 for physiotherapy services, proposed by Bounce Back Physiotherapy in a treatment plan/OCF-18 (“plan”) dated April 20, 2023?

iii. Is the applicant entitled to $199.50 ($1,299.50 less $1,100.00 approved) for physiotherapy services, proposed by Bounce Back Physiotherapy in a plan dated February 15, 2023?

iv. Is the applicant entitled to $2,825.00 for a chronic pain assessment, proposed by Injury Management Medical Assessment in a plan dated December 5, 2024?

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

3Withdrawn Issue: The applicant withdrew his claim for an award under s. 10 of Reg. 664 in his initial submissions.

RESULT

4The applicant has chronic pain with a functional impairment warranting removal from the MIG.

5The applicant is not entitled to the plans proposing physiotherapy services.

6The applicant is partially entitled to the plan proposing a chronic pain assessment in the amount of $2,200.00 plus applicable tax.

7The applicant is entitled to interest, pursuant to s. 51 of the Schedule.

ANALYSIS

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 MIG limit?

8I find that the applicant has chronic pain with a functional impairment warranting removal from the MIG.

9Section 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.”

10An 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.

Chronic pain with a functional impairment and chronic pain syndrome

11The applicant’s position is that he has been diagnosed with chronic pain in his hip by Dr. Matthew Berardocco, physical medical and rehabilitation specialist and with chronic pain syndrome by Dr. Tajedin Getahun, orthopaedic surgeon, warranting removal from the MIG. While the applicant’s submissions do not directly address a functional impairment, the applicant refers me to Dr. Berardocco’s right hip pain assessment report dated June 11, 2025, and Dr. Getahun’s s. 25 Chronic Pain Medicolegal Report dated February 6, 2025.

12The respondent’s position is that the applicant’s evidence, taken as a whole, does not establish that he has chronic pain with a functional impairment, or chronic pain syndrome, warranting removal from the MIG. The respondent does not dispute that satisfying either of these requisites may warrant removal from the MIG. The respondent relies on a s. 44 report dated February 25, 2025, by Dr. Alexander Rabinovich, orthopaedic surgeon, however, that assessment does not address whether the applicant has chronic pain or chronic pain syndrome.

13Dr. Berardocco’s report stems from a referral through the applicant’s family doctor. Dr. Berardocco notes that the physical exam revealed antalgic gait in the right leg and the applicant reported limping, and pain with long strides when walking or running. The applicant reported not being able to run as a result. The applicant also reported that his symptoms were worse with prolonged sitting. The applicant reported the pain radiates to the groin, buttock, and hamstring and although the pain was between 4-5 out of 10 at the time of the assessment, the severity reaches 8 out of 10. The applicant’s complaints of right sided low back pain is noted most likely to be compensatory in the context of his hip pain. Dr. Berardocco noted the applicant’s report that physiotherapy provided temporary relief but did not address the underlying issue. A diagnostic and therapeutic intra-articular corticosteroid injection was discussed but was declined by the applicant due to work commitments. Dr. Berardocco queried a potential tear or impingement as a result of the accident, however, it appears he did not have the May 2023 right hip ultrasound showing no tear.

14Dr. Getahun’s report largely corroborates the above report and notes that the applicant’s employment is labour intensive and while he returned to work the day after the accident and continued his regular full-time duties, he experiences pain while working. The applicant manages this pain with a combination of Advil and Tylenol; however, he has not been able to return to his pre-accident activities at the gym or return to football, basketball, and softball.

15The respondent argues that I should give less weight to Dr. Getahun’s report for not including a discussion on the level of pain or whether the pain is bearable without treatment, in light of the applicant continuing to work full time. Further, that Dr. Getahun’s report relies on self-reporting, does not address a lack of treatment since August 2023, a lack of pain medication, and a lack of contemporaneous complaints.

16I find that the applicant reasonably explained the lack of treatment post August 2023 being a result of the applicant being subject to the MIG and not being able to fund further treatment in the face of an outstanding balance of $2,500.00 for incurred physiotherapy sessions. I further find that Dr. Getahun’s report addressed pain medication as reviewed above and incorporated a medical document review which included the family doctor’s clinical notes and records, decoded OHIP summary, treatment provider records and logs, and a Disability Certificate (“OCF-3”). I also find that the family doctor’s clinical notes and records provide contemporaneous complaints of both hip pain and back pain after the subject accident. I find that the applicant’s visits to his family doctor provide sufficient contemporaneous complaints despite at times being infrequent and despite a large gap between November 2023 and June 2025.

17The respondent relies on Dr. Rabinovitch’s report opining that the applicant sustained the following accident-related injuries:

i. Cervical spine myofascial sprain/strain with trapezius myalgia

ii. Lumbo-sacral myofascial sprain/strain with L5 spondylolysis exacerbation

iii. Right hip greater trochanteric bursitis

[18]

18However, Dr. Rabinovitch did not address chronic pain and did not have either of the reports from Dr. Berardocco and Dr. Getahun. Even if I were to assign less weight to Dr. Getahun’s report, which I find is not warranted in this case, the family doctor’s records and Dr. Berardocco’s report sufficiently establish chronic pain with a functional impairment warranting removal from the MIG.

19Considering that an OHIP funded assessor and a s. 25 assessor agree that the applicant has chronic pain, and their reports establish the applicant’s resulting functional impairment, I am persuaded that removal from the MIG is warranted.

20For the reasons above, on a balance of probabilities, I find that the applicant has chronic pain with a functional impairment warranting removal from the MIG.

ii. – iii. Is the applicant entitled to $4,008.50 and to $199.50 ($1,299.50 less $1,100.00 approved) for physiotherapy services proposed by Bounce Back Physiotherapy?

21I find that the applicant has not established that the plans proposing physiotherapy are reasonable and necessary.

22To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

23The applicant’s position is that these plans are reasonable and necessary because he has chronic pain in his right hip, the applicant’s family doctor recommended physiotherapy, Dr. Getahun recommended a comprehensive rehabilitation program, and these plans aim to reduce pain and increase function.

24The respondent argues that the applicant is subject to the MIG and alternatively, that Dr. Rabinovich opined the applicant had no ongoing orthopaedic injuries, therefore the applicant is not entitled to further physiotherapy treatment.

25I find that the family doctor has not recommended physiotherapy since January 2023 and the February 2023 plan was largely approved, except for $199.50 in dispute. The applicant did not lead the denial notice to establish what this amount in dispute relates to. Further, while Dr. Getahun recommended a multidisciplinary chronic pain program, an MRI, and a facet injection of the lumbar spine, there is no reference to a recommendation of physiotherapy and no reference to the plans in dispute. While Dr. Berardocco noted the applicant’s report of temporary relief from physiotherapy, he did not recommend any further physiotherapy treatment. The applicant did not address this aspect of his evidence and did not address whether the costs of the plans in dispute would be reasonable under the circumstances. The applicant’s submissions refer me to the clinical notes and records of his treatment provider, Bounce Back Physio. However, this is a single page physical therapy assessment form dated December 27, 2022. This does not address the context of whether the April 2023 plan is reasonable and necessary after having undergone treatment. Accordingly, the applicant has not established that the physiotherapy plans in dispute are reasonable and necessary.

26For the reasons above, on a balance of probabilities, I find that the applicant has not established that the plans proposing physiotherapy are reasonable and necessary.

iv. Is the applicant entitled to $2,825.00 for a chronic pain assessment, proposed by Injury Management Medical Assessment in a plan dated December 5, 2024?

27I find that the applicant has established that the plan proposing a chronic pain assessment is partially reasonable and necessary in the amount of $2,200.00 plus applicable tax.

28The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds to suggest that some condition exists that warrants investigation by way of an assessment.

29The plan aims to address ongoing pain symptomology and to determine treatment options with a goal to return to activities of normal living and his pre-accident work activities. The plan proposes an assessment as a $2,000.00 procedure, $200.00 for form completion as a procedure, and $300.00 for transportation of the applicant to treatment as a procedure, plus applicable taxes.

30The applicant’s position is that the chronic pain treatment plan was incurred and is reasonable and necessary given that he was referred to a pain doctor by his family doctor, and because he had been diagnosed with chronic pain by Dr. Berardocco, an OHIP funded doctor, as well as by Dr. Getahun.

31The respondent argues that the assessment is not reasonable and necessary because is not reasonably possible that he is suffering from chronic pain syndrome. The respondent refers me to this Tribunal’s prior decisions that found a lack of pain complaints leads to a conclusion that there is no chronic pain condition. Further, that despite a family physician noting chronic pain, this does not establish a reasonable possibility of chronic pain syndrome warranting an assessment. The respondent reiterates submissions made in relation to removal from the MIG based on chronic pain including that the applicant did not take pain medications.

[32]

32I adopt my reasons addressing chronic pain in the context of removal from the MIG. In addition, I find that the applicant’s contemporaneous reports of hip pain to his family doctor post-accident leading to a referral to Dr. Berardocco, consumption of over-the-counter pain medication, and Dr. Berardocco’s opinion of accident-related chronic pain demonstrate that there are grounds to suggest an accident-related pain condition exists and that an investigation is warranted.

33The costs of the assessment are in line with section 25(5)(a) of the Schedule, which sets a maximum fee of $2,000.00 per assessment. The Superintendent's Guideline No. 03/14 by Financial Services Commission of Ontario sets a maximum fee of $200.00 for completion of an OCF-18 form under s. 25(1)3 of the Schedule. I find, based on the applicant’s symptoms already reviewed, and that physiotherapy and pain medication only provided temporary relief, that these fees are reasonable because the necessary chronic pain assessment is a complex assessment to be completed by an orthopaedic surgeon. The OCF-18 states that a detailed evaluation is required to determine diagnosis and recommend treatment. The OCF-18 required a detailed screening interview as reported in the additional comments section of the form. However, the applicant’s evidence does not support the proposed transportation costs, nor does the OCF-18 explain this cost.

34For the reasons above, on a balance of probabilities, I find that the applicant has established that the plan proposing a chronic pain assessment is partially reasonable and necessary in the amount of $2,200.00 plus applicable tax.

Interest

35The applicant is entitled to interest, which applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

ORDER

36For the reasons above, I make the following orders:

i. The applicant has chronic pain with a functional impairment warranting removal from the MIG.

ii. The applicant is not entitled to the plans proposing physiotherapy services.

iii. The applicant is partially entitled to the plan proposing a chronic pain assessment in the amount of $2,200.00 plus applicable tax.

iv.

iv. The applicant is entitled to interest, pursuant to s. 51 of the Schedule.