Citation: Saitowitz v. Intact Insurance Company, 2021 ONLAT 20-001050/AABS

Release date: 04/07/2021

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:

Oren Saitowitz

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Sahereh Baghbani, Paralegal

For the Respondent:

Michael Courneyea, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, Oren Saitowitz, was involved in an automobile accident on June 30, 2018, when his vehicle was rear-ended while stopped at an intersection. He sought benefits from the respondent, Intact Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the “Schedule”).

2The respondent took the position that the Minor Injury Guideline applied to the applicant’s injuries and denied him certain benefits. The applicant applied to the Licence Appeal Tribunal (“the Tribunal”) for resolution of the dispute.

RESULT

3The applicant has not met his onus of establishing entitlement to the benefits he seeks. No interest is owing. There is no basis for an award. The application is dismissed.

ISSUES

4The issues to be decided are as follows:

i. Is the applicant entitled to a medical benefit in the amount of $2,584.47 for chiropractic services recommended by Health Max Physio in a treatment and assessment plan submitted January 23, 2020 and denied January 31, 2020?

ii. Is the applicant entitled to a medical benefit in the amount of $1,700.00 for chiropractic, massage and physiotherapy services recommended by Health Max Physio in a treatment and assessment plan submitted October 19, 2019 and denied November 8, 2019?

iii. Is the applicant entitled to the cost of an examination in the amount of $2,460.00 for a Neurological Assessment recommended by Health Max Physio in a treatment and assessment plan submitted October 24, 2019 and denied October 30, 2019?

iv. Is the applicant entitled to a medical benefit for $2,929.86 for chiropractic, massage and physiotherapy services recommended by Health Max Physio in a treatment and assessment plan submitted December 12, 2018 and denied January 4, 2019?

v. Is the applicant entitled to the cost of an examination in the amount of $2,460.00 for a Chronic Pain Assessment recommended by Health Max Physio in a treatment and assessment plan submitted March 11, 2010 and denied March 15, 2020?

vi. Is the applicant entitled to an award for unreasonably held or delayed payment under section 10 of Regulation 664? Is the applicant entitled to interest on any overdue payment of benefits?

ANALYSIS

5The Schedule establishes a framework for the treatment of minor injuries. Under s. 18(1), the sum of the medical and rehabilitation benefits payable to a person who has sustained an impairment that is predominantly a “minor injury” shall not exceed $3,500.00 in accordance with the Minor Injury Guideline. A “minor injury” is defined in s. 3 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.”

6There is no dispute that the applicant has exhausted the $3,500.00 available to him under the Minor Injury Guideline. The benefits the applicant seeks exceed that amount. The applicant’s position is that the Minor Injury Guideline does not apply because his injuries fall outside the definition of a minor injury. Specifically, he submits he sustained psychological injuries and chronic pain as a result of the accident. He also relies on s. 18(2) of the Schedule, which provides that the Minor Injury Guideline does not apply where there is compelling evidence of a pre-existing medical condition, documented by a health practitioner before the accident, that will prevent maximal recovery from a minor injury under the Minor Injury Guideline.

7The applicant bears the onus of establishing, on a balance of probabilities, that the Minor Injury Guideline does not apply, making him eligible to claim medical benefits in excess of $3,500.00. If he can establish that the Minor Injury Guideline does not apply, he also bears the onus of proving that any additional medical benefits are reasonable and necessary as a result of the accident under s. 15(1) of the Schedule.²

8For the reasons I will outline, the applicant has not met his onus. He has not demonstrated entitlement to the benefits he seeks.

The applicant has not proven accident-related physical injuries exceeding the “minor injury” definition

9The applicant has not met his onus because he has not shown, on a balance of probabilities, that he sustained injuries in the accident that fall outside the definition of a “minor injury.” He has also failed to show that he has a pre-existing medical condition capable of satisfying the requirements set out in s. 18(2) of the Schedule.

10The applicant did not require medical attention at the scene of the June 30, 2018 accident. He was not transported to hospital. He was not treated by his family physician or by any other physician that day or in the days or weeks immediately afterward. The applicant’s OHIP summary and the clinical notes and records of his family physician, Dr. Elizabeth Chertkow, establish these facts.

11The applicant did not seek treatment from Dr. Chertkow until August 10, 2018. At this visit, the applicant reported being in another accident three days prior when riding his bicycle through a construction zone (the “bicycle accident”). A vehicle had attempted to pass him too closely, causing him to fall from his bicycle and onto the road. The vehicle then ran over his foot.

12There is no express mention of the June 30, 2018 accident in Dr. Chertkow’ s August 10, 2018 clinical note. But there is reference to “some mild chronic pain from previous rear-view injury”. Presumably, this is a reference to the rear-end collision several weeks before. This is the only reference in Dr. Chertkow’s records to any injury sustained in that accident.

13The applicant did not seek rehabilitation until August 11, 2018, after the bicycle accident. The records from HealthMax make no reference to the June 30, 2018 accident. Instead, they note the bicycle accident.

14A third incident occurred in the fall of 2018 when the applicant strained his lower back while performing a leg press at the gym.

15The applicant submits that he was unable to return to work after the June 30, 2018 accident, and that when he did return, he was on modified duties and with modified hours. But the evidence on this point is inconsistent. The applicant reported to Section 44 insurer’s examiner, Dr. James Choi, that he returned to work immediately after the June 30, 2018 accident, and that it was not until after the leg press injury that he took time off from work. To Dr. Darren Edelist, a pain specialist, the applicant reported the same: he was off work for two weeks after the leg press injury and returned to work for half days for two weeks after that. The only evidence to support the applicant’s submission on this point is in the report of Ms. Farzaneh Pariman, Psychological Associate, who noted that it was after the June 30, 2018 accident that the applicant took time off.

16On May 8, 2019, the applicant was assessed by Dr. Edelist who concluded that the applicant’s back pain, which had resolved by the time of his assessment, was caused by a herniated disc. Dr. Edelist noted that the applicant had acutely injured his lower back the preceding fall when performing a heavy leg press in the lying position. The applicant highlighted two other events that Dr. Edelist concluded could have contributed to the herniated disc: the rear-end collision and the bicycle accident. Dr. Edelist opined that any of the three incidents reported by the applicant could have resulted in disc overload and herniation

17To be removed from the Minor Injury Guideline on the basis of chronic pain, an applicant must be able to demonstrate that his pain is accompanied by functional limitations. The evidence does not establish that the applicant experienced functional limitations as a result of his accident-related injuries. Dr. Chertkow’s reference to “mild chronic pain” falls short of establishing chronic pain of the severity, duration, or functionally disabling nature required for removing the applicant from the Minor Injury Guideline. The reference to chronic pain in the clinical note is vague. It does not result from any contemporaneous physical examination.

18The evidence the applicant has presented does not clearly establish that the injuries he sustained in the June 30, 2018 accident required time off from work or modified duties upon return to work or caused him difficulty performing essential tasks of his employment. Ms. Pariman’s report is the only evidence linking missed work to the June 30, 2018 accident. Ms. Pariman based her findings solely on the applicant’s self-reported history; she was not provided with medical or employment records for review. The applicant has not presented evidence to confirm the dates of his leave from work, or to establish that he required modified duties or hours in the period reported by Ms. Pariman. Dr. Edelist’s opinion establishes one possible cause of the applicant’s back pain among several. Dr. Edelist’s report also shows that the applicant’s back pain, whatever the cause, had resolved by May 9, 2019.

19In fact, there is very little evidence to establish what physical injuries the applicant sustained in the June 30, 2018 accident. The applicant did not submit a Disability Certificate (OCF-3) until December 13, 2019. The injuries identified all fall under the definition of a “minor injury” in the Schedule except for a luxation, or dislocation of the shoulder. However, there is no reference to a shoulder dislocation elsewhere in the medical records, and I place limited weight on an independent and uncorroborated diagnosis of such an injury made approximately 15 months after the accident.

The applicant has not proven accident-related psychological injuries

20On October 16, 2020, the applicant was assessed by Ms. Farzaneh Pariman, a Psychological Associate under the supervision of Dr. Mrahar, Forensic Psychologist. Ms. Pariman diagnosed the applicant with adjustment disorder, somatic symptom disorder, and specific phobia as a result of the accident after a clinical interview and psychometric testing.

21Ms. Pariman’s report contains information that is not corroborated elsewhere in the record, including the timing of the applicant’s leave from work, a statement that the applicant was seen by his family physician the day after the rear-end collision, and a series of acute psychological symptoms that are not present in the records of the applicant’s treating physicians.

22Ms. Pariman documents severe depressive symptoms, including self-hatred, self-blame, inability to work, and inability to make decisions. She attributes these symptoms to the accident, which occurred over a year beforehand, with no prior reference to psychological difficulties in the medical record. I give limited weight to Ms. Pariman’s conclusions as to the causation of the applicant’s reported psychological symptoms given that she reviewed no medical or other records.

23The objective medical records the applicant has presented do not document psychological symptoms, treatment, or referrals capable of corroborating Ms. Pariman’s conclusions. Ms. Pariman describes depressive symptoms severe enough to render the applicant unable to work. Severe depressive symptoms are not reflected elsewhere in the record. The Minor Injury Guideline contemplates psychological symptoms that are the clinically associated sequelae, or consequences, of minor injuries resulting from an accident. An applicant must show that they have sustained a psychological impairment that is more than mere sequelae of soft tissue injuries to be removed from the Minor Injury Guideline. The applicant has not done so.

No compelling evidence of a pre-existing condition

24On April 14, 2019, the applicant underwent an MRI of the lumbar spine that showed small right paracentral disc protrusions and degenerative changes. He also underwent an ultrasound of his left shoulder, which was normal, and an x-ray of his left shoulder, which showed minimal degenerative changes of the acromioclavicular or ‘AC’ joint.

25On April 24, 2019, the applicant underwent further diagnostic imaging: x-rays of his lumbar spine which showed spondylolisthesis and hyperlordosis of the lower lumbar spine.

26The evidence tendered by the applicant to support his submission on his pre-existing medical condition is not compelling. It was also not documented before the accident. The applicant has not demonstrated how the degenerative changes shown in the diagnostic imaging would limit his recovery from his minor injuries. He has not established that he should be removed from the Minor Injury Guideline under s. 18(2) of the Schedule.

Award

27To be eligible for an award under Regulation 664, the applicant must show that the respondent unreasonably withheld or delayed the payment of benefits.

28The applicant submits that the respondent has purposely neglected him and ignored his medical evidence. I have reviewed the medical evidence and found that the basis of the respondent’s denial of benefits was sound. The applicant does not identify conduct capable of justifying an award.

CONCLUSION

29The applicant has failed to establish entitlement to the benefits he seeks in this application. Since no benefits are payable, no interest is owing. There is no award. The application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 24.