Licence Appeal Tribunal File Number: 20-006812/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:
Marco Bottoni-Lucente
Applicant
and
Economical Insurance
Respondent
DECISION [AND ORDER]
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Marco Bottoni-Lucente, Applicant
Robert Lamot, Counsel
For the Respondent:
Economical Insurance
Grant W. Black, Counsel
HEARD: In Writing
REASONS FOR DECISION AND ORDER
BACKGROUND
1The applicant was involved in an automobile accident on February 26, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule1 Effective September 1, 2010 (including amendments effective June 1, 2016). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2I have been asked to decide the following issues:
i. Are the applicant’s injuries predominantly minor as defined in the Schedule and subject to a $3,500 treatment limit under the Minor Injury Guideline (MIG)?
ii. Is the applicant entitled to receive medical benefits in the amount of $1,995.33 for psychological assessment recommended by Brampton Civic Care Centre Inc. in a treatment plan dated May 3, 2018, and denied by the respondent on June 11, 2018?
iii. Is the applicant entitled to receive medical benefits in the amount of $3,245.94 for chiropractic services recommended by Brampton Civic Care Centre Inc. in a treatment plan dated June 12, 2018, and denied by the respondent on June 21, 2018?
iv. Is the applicant entitled to receive medical benefits in the amount of $2,326.28 for chiropractic services recommended by Brampton Civic Care Centre Inc. in a treatment plan dated June 28, 2018, and denied by the respondent on July 4, 2018?
v. Is the applicant entitled to interest on any overdue payment of benefits?
vi. Is the applicant entitled to an award under RRO 664 because the respondent unreasonably withheld or delayed payment of benefits?
ANALYSIS
Test for Causation
3The applicant submitted that material contribution remains the test for causation in accident benefit cases. The applicant further submitted that the motor vehicle accident materially contributed to his physical and psychological injuries. A significant portion of the applicant’s submissions consisted of a summary of case law in relation to this. However, the applicant did not provide any additional submissions regarding the test for causation.
4The leading case on causation is set out in the Divisional Court’s decision in Sabadash v. State Farm (“Sabadash”).2 This decision establishes that the test for determining causation in accident benefits cases is the “but for” test. The applicant must prove that “but for” the accident, she would not suffer the impairments which cause the complaints she puts forward as the basis for her claim. Sabadash supports that an accident need not be the sole cause but rather a “necessary cause” of an individual’s impairment.
Issue i: The Minor Injury Guideline
5Section 3(1) of the Schedule 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 and includes any clinically associated sequelae to such an injury.”3
6Section 18(1) of the Schedule prescribes a $3,500.00 limit on medical and rehabilitation benefits payable for any one accident.
7The onus is on the applicant to show that his injuries fall outside of the MIG.4
RESULT
8Based on the evidence and submissions, I find that the applicant sustained predominantly minor injuries as defined under the Schedule for the reasons that follow.
Did the applicant have a pre-existing condition?
9Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempt from the $3,500.00 cap on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements:
i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and
ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500.00 limit on treatment costs under the MIG.
10The standard for excluding an impairment on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG.
11I find that the applicant did not have any pre-existing conditions that would remove him from the MIG.
12The applicant submitted that “his pre-accident medical condition is a barrier to achieving full recovery and that his February 26, 2018 accident-related injuries require treatment outside of the MIG.”
13The respondent submitted that the applicant has submitted no evidence that he has been unable to recover under the MIG due to any pre-existing injuries.
14In the Disability Certificate (OCF-3), Dr. Aliya Salayeva, chiropractor, notes the following under Part 8 regarding pre-existing conditions: MVA in 2016 and depression and anxiety. The applicant did not provide any clinical notes and records (‘CNRs’) prior to the subject accident. I am unable to verify that the applicant had depression and anxiety prior to the accident. Moreover, diagnosing psychological conditions is not within the scope of a chiropractor’s speciality.
15Other than this note in the OCF-3, there is nothing in the records to suggest that the applicant had a pre-existing condition, which would prevent him from reaching maximal medical recovery. At the insurer examination with Dr. Khaled, medical practitioner, the applicant advised him that he did not have a history of depression or anxiety before the accident. Dr. Khaled opined that “the insured does not present with any conditions that would be categorized as significant pre-existing conditions that would exclude the claimant's treatments from being included within the Guidelines.”
16The applicant also reported to Dr. Prendergast, psychologist, that he did not have any substantive mental health problems other than the fact that he was diagnosed with Attention Deficit Hyperactivity Disorder. However, Dr. Prendergast opined that this condition is not preventing the applicant from achieving full recovery within the MIG.
17As such, I find that the applicant has not discharged his onus. He has not advanced any evidence to suggest that he had any pre-existing conditions that would remove him from the MIG.
Psychological impairment
18A psychological impairment, if established, may fall outside the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include accident-related psychological impairments.
19The applicant submitted that the subject accident materially contributed to the applicant’s psychological issues. He experiences headaches, fatigue, nervousness, anxiety, depression, nightmares, diminished motivation, forgetfulness, and sleeping difficulties.
20The respondent submitted that the applicant has provided no evidentiary medical reports or opinions which even remotely suggest that he is suffering any psychological impairments as a result of the subject accident.
21I find that the applicant has not demonstrated that he suffers from a psychological impairment that would remove him from the MIG for the following reasons.
22The CNRs of Dr. Robert Ames, family physician, dated June 28, 2018 makes reference the applicant having issues in relation to anxiety, sleep disturbances, mood, and motivation since the accident. The applicant requested a referral for a counsellor. A referral to CHAAT was completed by the doctor based on the note. Dr. Ames did not formally diagnose the applicant.
23Other than this note, the applicant has not tendered any evidence that supports that he suffered a psychological impairment as a result of the subject accident. The applicant must show that he has an actual psychological impairment and not just symptomology.
24A psychological diagnosis requires the development of ongoing, substantive, and residual post-traumatic symptomology or clinically significant psychological distress. After the June 28, 2018 note, there is nothing in the CNRs that were submitted by the applicant that supports that he was suffering from psychological issues and nor has the applicant directed me to such evidence.
25Other than the referral for counselling, Dr. Ames did not refer the applicant to see a psychologist or psychiatrist. If his psychological issues were as serious as he has purported them to be, then it raises the question why he was not referred to see a specialist for additional help. Furthermore, the applicant did not submit any evidence from the counselling sessions. It is unclear as to whether or not he even attended counselling. Nor did the applicant provide a prescription history which shows that he was on medication for his psychological issues.
26The applicant is relying on a treatment plan (OCF-18) completed by Dr. Konstantinos Papazoglu, psychologist, dated May 3, 2018. In my view, in the absence of corroborating evidence I do not find the treatment plans themselves compelling evidence as per the test to be removed from the MIG as a result of a psychological impairment.
27The respondent is relying on the report of Dr. Prendergast, psychologist, dated November 9, 2018. He found that the applicant is not experiencing any significant psychological impairment as a direct result of the accident at this time. He opined:
In light of the current examination, which included a review of the supplied documentation, clinical interview and psychological test procedures, I am confident that Mr. Bottoni-Lucente is not experiencing any significant mental health problems from his accident that would require further examination or treatment. His presentation was largely devoid of any substantive emotional turmoil to take nothing away from his history of feeling occasionally agitated and distressed by Attention Deficit and Hyperactivity Disorder. It is conceivable that this disorder complicated his reaction to the accident resulting in some initial stress and reduced function. However, he reports 75% improvement. He also self-described as having returned to most areas of function including full time employment. He also is optimistic about returning to his college studies in September of 2019. As such, while the accident may have been complicated by some agitation and impulsivity secondary to Attention Deficit and Hyperactivity Disorder, he has improved considerably and is maintaining a high degree of function without substantive distress. He does not at this point require mental health assistance as he understands his condition fully and has good supports and a positive attitude. His psychological strengths and resilience were reflected in his having returned to most areas of function. At this time, I would not see him as meeting the criteria for a DSM-5 condition, would not see him as psychologically impaired and would not see him as requiring mental health services. Equally, he was not aware of the OCF-18 in dispute.
28I prefer the report of Dr. Prendergast over the evidence that the applicant submitted. He reviewed the applicant’s medical history and conducted a series of tests, which showed that there were no psychological issues. The applicant did not submit any evidence to refute these findings.
29As such, I find that the applicant has not demonstrated that his psychological impairments warrant removal from the MIG.
Post-Concussive Syndrome
30Concussions and post-concussive syndrome, if established, fall outside the MIG because the MIG relates only to “minor injuries”, as defined in section 3(1) of the Schedule. However, in order to be removed from the MIG, the applicant must present evidence that demonstrates that as a result of the accident, he suffered a concussion or post-concussive syndrome.
31Neither parties have provided submissions as to whether or not the applicant suffered a concussion or post-concussive syndrome as a result of the accident.
32The ambulance call report notes that the applicant was experiencing dizziness post accident. The OCF-3 notes that the applicant suffers from headaches. The CNRs dated March 8, 2020 mentions that the applicant has been having ongoing headaches since the accident.
33Other than the fact that there are complaints of headaches, the applicant did not submit any evidence that supports that he suffered a concussion or post-concussive syndrome. Nor is there a formal diagnosis of such.
34Based on the totality of the evidence before me, I do not find that the applicant has sustained a concussion or post-concussive syndrome as a result of the accident that would remove him from the MIG.
Chronic Pain
35I am not satisfied that the applicant has chronic pain as a result of the accident. The applicant did not provide any submissions or an analysis as to whether he suffers from chronic pain as a result of the accident.
36Moreover, there is a lack of medical documents, assessments or suggested treatment plans that address and support chronic pain. The applicant has not provided a single medical report that has diagnosed him with chronic pain or chronic pain syndrome. Dr. Ames did not diagnose him with chronic pain or chronic pain syndrome. Nor did he refer him to see a pain specialist.
37The disability certificates and the treatment plans do not mention chronic pain or chronic pain syndrome. While a formal diagnosis of chronic pain or a report from a specialist is not mandatory in order to be removed from the MIG, I find that the evidence of chronic pain is lacking.
38While I recognize that that the applicant has experienced pain since the accident, I have not been provided with compelling evidence that he should be removed from the MIG on this basis.
39As such, the applicant has not satisfied his onus to establish that he has chronic pain that may remove him from the MIG.
Did the applicant sustain a predominantly minor injury?
40I find that the applicant has not provided the evidence necessary to establish on a balance of probabilities that his injuries fall outside of the MIG.
41The applicant did not make cogent submissions about whether or not the injuries that he sustained in the subject accident are predominantly minor injuries.
42The respondent submitted that the applicant sustained soft tissue injuries as a result of the subject accident and that these injuries fall within the MIG.
43In the OCF-3 dated February 28, 2018, Dr. Salayeva diagnosed the applicant with the following injuries: whiplash associated disorder [WAD 3] with complaint of neck pain with neurological signs, radiculopathy (cervical region), muscle strain, sprain and strain of cervical spine, thoracic spine, lumbar spine, shoulder girdle, fingers, contusion of thorax, knee and abdominal wall, low back pain, tension-type headache, headache and disorder of initiating and maintaining sleep (insomnia).
44The applicant did not provide any submissions regarding whether or not the applicant sustained a predominantly minor injury. Nor are the CNRs of Dr. Ames helpful in this regard. The applicant submitted an MRI of the lumbar spine that found the following: Lumbarization of L5 with a mild curvature of the lumbar spine, convex left may be related to muscle spasm. However, there is no evidence that links the subject accident to the lumbarization of the L5.
45Other than the MRI, the applicant did not submit any records or diagnostic imaging to show that his injuries were more than a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.
46The respondent is relying on Dr. Khaled’s report dated November 9, 2018. Dr. Khaled opined “I find that as a result of the index MVC the insured has developed mechanical low back pain as well as grade 2 whiplash of the neck with general axial skeletal pains. I find these to be uncomplicated soft tissue injuries only without evidence of significant orthopedic or neurological sequela.” He did not identify any residual or ongoing musculoskeletal, neurological, or orthopaedic accident-related injury or impairment.
47I prefer the report of Dr. Khaled because he reviewed the applicant’s medical history and conducted an examination/testing, which found that he had uncomplicated soft tissue injuries. The applicant did not submit any evidence to refute these findings.
48As such, I find that the applicant’s physical injuries are predominantly minor injuries as per the definition set out in the Schedule.
MIG not exhausted/treatment plans
49The parties did not make any submissions regarding whether the MIG has been exhausted. It is unclear how much is remaining under the MIG.
50With respect to the treatment plans in dispute, the applicant submitted that the treatment plans in dispute are reasonable and necessary. The respondent submitted that the applicant has failed to prove that the treatment plans are reasonable and necessary.
51The onus is on the applicant to prove that the treatment plans are reasonable and necessary. The applicant did not direct the Tribunal to any specific references to evidence that supports his entitlement to the treatment plans in dispute. The applicant must direct the adjudicator to the relevant evidence in support of his case and explicitly explain why he meets the test based on this evidence. He has failed to do so.
52As such, I find that the applicant is not entitled to any of the treatment plans that are in dispute.
Interest
53Interest is not payable as there are no overdue amounts owing.
Is the respondent liable to pay an award under s. 10 O. Reg 664?
54The applicant seeks an award under s. 10 of the O. Reg 664 on the basis that the respondent unreasonably withheld or delayed payments to the applicant.
55The applicant has not provided any submissions or evidence that proves that the respondent unreasonably withheld or delayed payments to him. Hence, I find that the applicant is not entitled to an award under s. 10 of the O. Reg 664.
ORDER
56For the reasons outlined above, I find:
i. The applicant sustained predominantly minor injuries as defined under the Schedule;
ii. The applicant is not entitled to the treatment plans claimed in this application;
iii. The applicant is not entitled to interest;
iv. The applicant is not entitled to an award; and
v. The application is dismissed in its entirety.
Released: January 25, 2022
Tavlin Kaur
Adjudicator
Footnotes
- Statutory Accident Benefits Schedule, O Reg 34/10
- Sabadash v. State Farm et al. 2019 ONSC 1121, 2019 ONSC 1121
- Supra note 1
- Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 24