Domenico Beollomo v. Allstate Insurance Company of Canada, 2022 CanLII 4630

Citation: Beollomo v. Allstate Ins. Co. of Canada., 2022 ONLAT 20-008189/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:

Domenico Beollomo

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Carlos Ortiz, Paralegal

For the Respondent:

Sandra Buhain, Counsel

HEARD:

Via written submissions

OVERVIEW

1The applicant was injured in an accident on April 19, 2018, and sought benefits from the respondent, Allstate, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). Allstate denied the benefit in dispute based on its determination that the applicant’s accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

a. Are the applicant’s injuries predominantly minor as defined in the MIG?

b. Is the applicant entitled to $2,000 for a psychological assessment recommended by Network Health Assessments and Rehabilitation Centre in a treatment plan submitted October 12, 2018 and denied October 25, 2018?

c. Is the applicant entitled to the following treatment plans for physiotherapy recommended by Revive Health Centre Inc. as follows:

a. for $227.85 (after partial approval) submitted August 24, 2018 and denied October 26, 2018?

b. for $1,315.43 submitted November 15, 2018 and denied November 30, 2018?

c. for $1,085.32 submitted January 30, 2019 and denied February 15, 2019?

d. for $1,000.71 submitted April 11, 2019 and denied April 26, 2019?

e. for $1,508.37 submitted June 20, 2019 and denied July 16, 2019?

f. for $ 1,289.01 submitted November 23, 2019 and denied December 8, 2019?

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

RESULT

3The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG or that the treatment plans in dispute are reasonable and necessary.

ANALYSIS

Applicability of the MIG

4Section 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 in accordance with the MIG. 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.” An 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 psychological impairments may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

5The applicant submits that as a result of the accident he sustained injuries to his head, neck, back, shoulders and right hip which has now resulted in chronic, persistent pain coupled with insomnia, depression and anxiety. He submits that he is unable to lift, bend, reach, push or pull without discomfort and has extreme difficult sitting, standing, walking and driving. He relies on the clinical notes of his family physician, Dr. Omoto, and the treatment records from Revive Health Physio Clinic and TCG Pain Clinic. To this end, he submits that his injuries fall outside of the MIG because of the clinically relevant neurological and psychological signs that have persisted post-accident.

6In response, Allstate submits that the applicant sustained minor sprain and strain injuries in the accident and has not provided medical evidence to support an impairment that warrants removal from the MIG, citing to diagnostic imaging that revealed tendinosis and no tears to the shoulder or hip. Allstate contends that the applicant, being a construction worker, has also not demonstrated that his impairments occurred but for the subject accident and that his only consistent post-accident complaint is a neck injury, for which there is no diagnosis of chronic pain or chronic pain syndrome and no evidence of functional impairment where the applicant has consistently worked a physically demanding job without accommodations. Additionally, Allstate submits that the referral to a psychologist was made three years after the subject accident and following a second accident in June 2019 and the applicant’s reports of stress to his doctor were related to his issues at his job.

7I agree with Allstate and find that the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. The applicant offered no objective medical evidence to suggest that his physical injuries are anything but soft-tissue injuries that clearly fall within the definition of a minor injury under s. 3(1). While the applicant reported pain in his shoulder and hip, he did not definitively trace these impairments to the accident and, in any case, the diagnostic imaging did not reveal a tear in either area and revealed tendinosis in the shoulder, which is a repetitive strain injury that does not warrant removal from the MIG. The applicant’s submission that he cannot lift, bend, reach, push or pull without discomfort and has extreme difficulty sitting, standing, walking and driving is undermined by his ability to work in construction in the three years post-accident. His submission that the medical evidence reveals “clinically relevant neurological” issues is also not supported by objective medical evidence.

8With regard to s. 18(2), an applicant may be removed from the MIG if they have evidence of a pre-existing condition, documented by a medical practitioner prior to the accident, that would preclude maximal medical recovery if they are kept within the confines of the MIG. The applicant provided no indication that there were any pre-existing impairments that a practitioner identified as preventing maximal medical recovery if kept within the MIG, which is the requirement for removal under this ground.

9The Tribunal has determined that chronic pain syndrome or chronic pain with functional impairment may warrant removal from the MIG. However, other than his contention that he has “chronic, persistent pain,” the applicant offered no objective medical opinion or evidence to support removal from the MIG under this ground and there are no contemporaneous clinical notes to support ongoing functional impairment. Indeed, the applicant has never been diagnosed with chronic pain or chronic pain syndrome and did not offer submissions on the six criteria under the AMA Guides that the Tribunal has adopted as an interpretive tool for evaluating chronic pain claims in the absence of a diagnosis.

10While I am alive to the fact that the applicant has received two cortisone injections in his shoulder and hip, again, the applicant failed to demonstrate that but for the subject accident would these impairments have occurred, which is his burden. In any case, the applicant did not provide evidence of functional impairment stemming from this pain that would provide support for removal from the MIG based on chronic pain. The applicant’s November 2018 report to Dr. Omoto of “new” lower back pain makes no reference to the accident, his neck pain complaints do not continue past April 2018 and he has not tied his right wrist/forearm pain to the accident.

11Finally, the applicant is correct that the Tribunal has determined that accident-related psychological impairments may warrant removal from the MIG, as they are not captured within the definition of a minor injury. To this end, the applicant submits that his practitioners have corroborated his psychological impairments, which he identifies as low mood, irritability, anxiety, inability to sleep, PTSD and flashbacks of the accident.

12However, I agree with Allstate that there are only three documented reports to Dr. Omoto with respect to anxiety. Two of those notes clearly reference issues he was having at work with increased work/reduced pay and an inability to discuss it with his family members and do not mention the 2018 accident, with the third instance being reported on the date of his second accident when he may have struck a pedestrian. Dr. Omoto’s March 2021 referral to a psychologist was made three years post-accident and makes no reference to the 2018 accident, but rather again to his anxiety symptoms. It also does not appear that the applicant ever followed up on the referral. On balance, I agree that the applicant has not demonstrated that his anxiety is a result of the 2018 accident or that it justifies removal from the MIG.

13Accordingly, for these reasons, I find the applicant has not demonstrated on balance of probabilities that his 2018 accident-related impairments warrant removal from the MIG. I see no reason to interfere with Allstate’s determination.

Are the treatment and assessment plans reasonable and necessary?

14Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, an analysis of whether the treatment plans in dispute are reasonable and necessary is not required as it appears the applicant has funds remaining within the MIG, which he should first exhaust. As no evidence of overdue benefits was provided, it follows that no interest is payable under s. 51.

CONCLUSION

15The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG or that the treatment plans in dispute are reasonable and necessary.

Footnotes

1. 1O. Reg. 34/10, as amended.