Gaudio v. Allstate Insurance Company, 2020 CanLII 94792

Citation: Gaudio vs. Allstate Insurance Company, 2020 ONLAT 19-011493/AABS

Released Date: 11/25/2020

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:

Anna Gaudio

Applicant

and

Allstate Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant:

Andrej Rondas, Paralegal

For the Respondent:

Heather Kawaguchi, Counsel

Heard by way of Written Submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1Anna Gaudio (“applicant”), was involved in an automobile accident on February 17, 2018 (“accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The applicant was 63 years old at the time of the accident. The applicant was denied certain benefits by the respondent, Allstate Insurance Company (“respondent”), and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The respondent determined the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (“MIG”).² The respondent has already provided treatment up to the monetary limits of the MIG. The applicant disagrees and has applied to the Tribunal for dispute resolution.

ISSUES

3The issues to be decided in this hearing are:

i. Are the applicant’s injuries predominantly minor injuries as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline?

ii. Is the applicant entitled to receive a medical benefit in the amount of $2,449.72 for physiotherapy treatment, recommended by Synergy Rehab and Physiotherapy Center, in a treatment plan submitted October 29, 2018 and denied by the respondent on November 20, 2018?

iii. Is the applicant entitled to payment for the cost of an examination, in the amount of $2,200.00 for a chronic pain assessment, recommended by Scarborough Physio and Rehab Clinic in a treatment plan submitted August 21, 2019, and denied by the respondent on September 9, 2019?

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

v. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

4The applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit, which has already been provided by the respondent. It is therefore unnecessary to consider the reasonableness or necessity of the disputed treatment plans. No interest is owed. There is no award.

LAW

The Minor Injury Guideline

5The MIG establishes a treatment framework available to an injured person who sustains a “minor injury” as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule 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”. Under s. 18(1) of the Schedule, injuries that are defined as a “minor injury” are subject to a $3,500.00 funding limit on treatment.

6To request treatment above the $3,500.00 funding limit, the applicant must prove that his or her injuries do not fall within the definition of “minor injury”. The applicant can establish that by:

a. Producing compelling evidence, provided by a health practitioner, that a pre-existing condition documented before the accident will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

b. Establishing that an impairment sustained in the accident is not a predominantly minor injury.

7The onus is on the applicant to show, on a balance of probabilities, that his or her injuries fall outside of the MIG.³

8As the applicant can only be successful on the issues in dispute if she can prove that her injuries caused by the accident are not minor, I will determine that issue first.

ANALYSIS

9I find that the applicant’s physical injuries are minor injuries based on the medical evidence. The applicant did not see Dr. Siddiqui, her family physician, until March 21, 2018 at which time she complained about pain in mid and lower back and neck. Dr. Ohoshdushel, applicant’s chiropractor, in the April 3, 2018 OCF-3, disability certificate, describes the applicant’s physical injuries as whiplash [WAD2] with complaint of neck pain with musculoskeletal signs, radiculopathy, cervical region, thoracic, lumbar spine strain/sprain, sprain and strain of sacroiliac joint, dislocation, sprain and strain of joints and ligaments of wrist and hand level. All of these all fall within the definition of “minor injury”. None of the applicant’s other medical reports and records indicate any physical injuries other than soft tissue injuries. However, the applicant argues that “chronic pain syndrome with an associated mood disorder and diminished functioning” removes her from the MIG.

Does the applicant have chronic pain as a result of the accident?

10I find that the applicant has not provided sufficient evidence to meet her burden of proof that she suffers from chronic pain justifying treatment beyond the MIG.

11The applicant relies on her various medical records and reports including the November 30, 2019 report of Dr. Razvi, applicant’s chronic pain specialist. Dr. Razvi describes the purpose of the report as “for the purposes of accident benefits”. The referring source is not identified but does not appear to have been the applicant’s family physician as Dr. Razvi advises the applicant to follow up with the “referring source and the family physician”. Dr. Razvi diagnoses the applicant with chronic pain syndrome secondary to the accident, headaches, cervical and lumbar spine pain, possible right shoulder rotator cuff pathology, right shoulder tendinitis, general cord deconditioning and general deconditioning. I do not accept Dr. Razvi’s report and give it little weight because it contains conclusions not supported by the records of Dr. Siddiqui, her family physician who knows the applicant best. Dr. Siddiqui’s records show no complaints of headaches, no shoulder pathology, no consistent pain and no limitation in function. Further, even though Dr. Razvi is not a psychologist or psychiatrist, he diagnoses chronic pain syndrome “with an associated mood disorder and diminished functioning”. Psychological injuries are not supported by Dr. Siddiqui’s records which contain no reference to the applicant’s complaints of mental, emotional or psychological symptoms as a result of the accident, no referral to a mental health specialist and no prescribed medication for depression or anxiety.

12I prefer the evidence of Dr. Siddiqui who has seen the applicant for some two years post-accident. On April 28, 2018 Dr. Siddiqui recorded that the applicant refused an x-ray and ultrasound. While there are some complaints of neck and back pain in Dr. Siddiqui’s records, starting in March 2018, these are not consistent and continuous. There are reports to Dr. Siddiqui on July 4, 2018 that her neck movement was better and her back pain was better, on August 22, 2018 that her shoulder was better slowly as was the back pain, on December 18, 2018 that the shoulder was much better, that massage made the pain worse. In September 2019 Dr. Siddiqui’s only recommendation was for aqua fitness and swimming. In January 2020, the ultrasound of the applicant’s right shoulder was normal and Dr. Siddiqui’s assessment of the shoulder was normal. Dr. Siddiqui does not diagnose chronic pain or recommend that the applicant see any specialists post-accident.

13I also prefer the evidence of Dr. Soric, respondent’s physiatrist, as it is more consistent with the records of Dr. Siddiqui and the applicant’s self-reporting. The applicant told Dr. Soric in March 2019 that she returned to work immediately after the accident resuming her regular hours and duties, that she was feeling much better, had improved between 70-80%, that her complaints were intermittent right shoulder pain and intermittent low back pain and denied any other symptoms. The applicant also told Dr. Soric that she was independent with self-care, driving, homemaking and house making. Dr. Soric diagnoses soft tissue sprain/strain injury of the cervical spine (resolved), right shoulder and lumbosacral region (almost resolved) and opines that the applicant’s accident-related injuries are within the MIG.

14The applicant relies on the definition of chronic pain from Nova Scotia⁴ which is not helpful here as it comes from legislation that does not apply in Ontario. The applicant also relies on several Tribunal decisions⁵ in support of the proposition that chronic pain is outside the definition of minor injury. These decisions are not binding on me and are specific to their facts. The proposition of law that chronic pain is outside the definition of minor injury is well understood and is not in dispute here. Here, the applicant’s evidence fails to establish that she suffers from chronic pain as a result of the accident.

15Considering the totality of the evidence, I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain as a result of the accident that justifies treatment beyond the limits of the MIG. The burden of bringing forward persuasive medical evidence of her alleged condition is on the applicant and she has not done so.

Medical Benefit: Are the treatment plans reasonable and necessary?

16Having found that the applicant has not proven on a balance of probabilities that she has a condition that would remove her from the MIG, I do not need to consider whether the medical treatment plan and cost of examination in dispute are reasonable and necessary.

Interest

17As no benefits are payable, no interest is payable.

Award

18Section 10 of Ontario Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments. I find that there was no payment unreasonably withheld or delayed. The applicant also argues that the respondent acted in bath faith by arranging an insurer’s examination to address the applicability of the MIG and the respondent failed to reconsider denials and re-address the applicability of the MIG after receiving the chronic pain assessment report. I disagree. The respondent was entitled to request an independent examination and did so. There is no evidence of conduct of bad faith by the respondent. Further, the respondent made denials for the reasons it expressed which was not unreasonable given the report it received from it’s assessor and the other information on file. For these reasons, there is no award.

ORDER

19For the reasons outlined above, I find that the applicant’s injuries are predominately minor injuries that fall within the MIG as defined by the Schedule. As no benefits are payable, no interest is payable. There is no special award. The applicant’s claim is dismissed.

Footnotes

1. 1O. Reg. 34/19
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3(1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.) para 24.
4. 4Chronic Pain Regulations, NS Reg. 187, 2004.
5. 516-004272 v Continental Casualty Insurance Company, 2017 CanLII 63661 (ON LAT); 17-002907 v Aviva Insurance Company, 2018 CanLII 13153 (ON LAT); 17-003735 F.H. v Certas Direct Insurance Company, 2018 CanLII 39445 (ON LAT); 17-000835 T.S. v Aviva, 2018; A.R. v. Unifund Assurance Company, 2019 CanLII 76969 (ON LAT).