Licence Appeal Tribunal File Number: 20-012680/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:
Vito Foto
Applicant
and
The Personal
Respondent
DECISION
VICE-CHAIR: Monica Ciriello
APPEARANCES:
For the Applicant: John Temperato, Paralegal
For the Respondent: Ranisha Fernando, Counsel
HEARD: By Way of Written Submissions
BACKGROUND
1The applicant was involved in an automobile accident on December 9, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”)1.The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).’
PRELIMINARY ISSUE
2All parties participating in a Tribunal proceeding are expected to adhere to the Case Conference Report and Order (“CCRO”) governing the timeliness and efficiency of the proceedings. Should there be a delay, or a foreseeable reason for a delay, the parties have a duty to ensure the timeliness and efficiency of the proceeding is maintained, by notifying the other party.
3The parties agreed2 to produce documents by August 20, 2021, and any addendums were to be completed by September 17, 2021.
4The respondent argued that the applicant failed to comply with the CCRO’s order to produce and exchange all documents by August 20, 2021. Instead, it received copies of counselling records of Ms. Susan Alexander (dated November 2014-March 2015), counselling records of Mr. Corey Janke (dated February 2015- August 2015) and a Family Impact Assessment by Mr. Barry Brown (dated January 5, 2017) on October 1, 2021. Further, it was not until October 13, 2021 that the respondent received the clinical notes and records of psychologist, Dr. Tamara Biederman (dated August 15, 2019)3. The respondent submitted that this evidence should be excluded from the hearing as the respondent was prejudiced by such.
5The applicant submitted that this omission was an oversight and he tried to remedy the prejudice as soon as possible.
6While parties must adhere to the Tribunal’s Orders, there is discretion afforded to what an Adjudicator considers to a reasonable level of recourse.
7As a result, I will admit the entirety of the applicant’s submissions based on the powers afforded to me by the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure -October 2, 2017 (”Rules”), specifically Rules 3.1 and 9.4.
8I accept that the applicant missed his production deadline. However, the respondent failed to provide any evidence of specific prejudice. Therefore, I will admit the evidence outlined in paragraph 4 of this decision; however, I will consider the non-compliance with a previous Order when assessing the weight of the evidence.
9I would be remiss if I did not caution the parties that any time there is non-compliance with an existing Order, parties risk exclusion of the evidence or submissions or both.
ISSUES
10The following issues are to be decided:
i. Are the applicant’s injuries predominantly minor as defined by the Schedule and subject to a $3,500.00 treatment limit under the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to $1,409.42 for psychological services recommended by Dr. Tamara Biederman, psychologist in a treatment plan (“OCF-18”) dated August 12, 2019?
iii. Is the applicant entitled to an award because the respondent unreasonably withheld or delayed payments under section 10 of the Ontario Regulation 664?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
11The application is dismissed, and I find that:
i. The applicant’s injuries are predominately minor and therefore are subject to treatment within the $3,500.00 limit of the MIG;
ii. The treatment plan in dispute is not payable;
iii. The applicant is not entitled to interest; and
iv. The applicant is not entitled to an award under Ontario Regulation 664.
LAW
12The Minor Injury Guideline (“MIG”) establishes a framework available to injured persons who sustain 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 strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
13Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.
14An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or, if they provide evidence of a psychological impairment or chronic pain with a functional impairment.
15It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.4
16The parties agree that the applicant has exhausted the $3,500.00 MIG treatment limit.
ANALYSIS
Pre-Existing Condition
17Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. In order to do so, 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 on treatment costs under the MIG.
18The standard for excluding an impairment on the basis of pre-existing conditions is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.
19The applicant submits that on August 7, 2014, 17 months before his accident, he lost his only child when she was killed in a motor vehicle accident. Following her death, the applicant submits that he developed severe psychological and emotional disabilities.
20It is the applicant’s position that his accident exacerbated his pre-existing condition which prevents him from making a full recovery within the MIG. The respondent disagreed.
21In support of his position, the applicant submits the clinical notes and records (“CNRs”) of Ms. Susan Alexander, psychotherapist from November-March 2014. concentrate on the death of the applicant’s daughter and his marital breakdown. At the first appointment, on November 26, 2014, Ms. Alexander’s CNRs provided observations that the applicant is unable to experience any positive sense of worth5.
22The applicant also relies on the notes of Mr. Corey Janke, clinical social worker, from February-August 2015.6 Mr. Janke notes that the applicant was sad, angry, and still grieving the death of his daughter and the simultaneous breakdown of his marriage. Dr. Janke’s prescribed plan was to process the divorce and his daughter’s death.
23The applicant also relied on the social emotional assessment completed by Barry Brown, Master of Social Work, which provides similar conclusions including feelings of despair and loneliness because of his daughter’s fatal accident.7
24The applicant relies on the treatment plan (“OCF-18”) completed by Dr. Tamara Biederman, psychologist, dated August 15, 2019, which was completed following a one-hour interview appointment. Dr. Biederman added additional comments on the OCF-18 that the applicant reported nightmares, flashbacks (sitting with his daughter in the hospital) and avoidance. The goal of the OCF-18 is to facilitate the grieving process and address mild trauma symptoms.
25The respondent disagreed with the applicant’s position. It relied on its insurer’s examination (“IE”) performed by its assessor Dr. Murray Awde, general practitioner, dated October 17, 2016. Dr. Awde found that the applicant’s injuries fell within the definition of a predominantly minor injury. Dr. Awde opined that there was no present impairment of a psychological, physiological, or anatomical function upon his evaluation evolution. Further, Dr. Awde found that there is no pre-existing medical condition that would prevent applicant from achieving maximal medical recovery under the MIG.8
26The respondent relies on R.N. v. Certas Direct9 where the adjudicator held “simply having experienced medical issues in the past is not sufficient for removal from the MIG in the present, especially where there is no compelling evidence that these issues have been exacerbated.”
27The respondent also relied on the decision of M.J. v. The Dominion10, where it was found that “the existence of a pre-existing injury and a potential exacerbation of the pre-existing injury does not on its own take an applicant outside of the MIG.”
28After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant has not shown that he has any pre-existing conditions that would prevent him from reaching maximum recovery if limited by the financial constraints of the MIG.
29I find that there is no medical evidence that establishes an actual psychological impairment or diagnosis before or after the applicant’s accident. While I sympathize with the applicant’s situation, the clinical notes and records speak of his personal life, notably the loss of his daughter and martial breakdown. Further there was no evidence to show that any pre-existing condition would prevent maximal recovery.
30Therefore, I am not persuaded that the applicant has established how he would be prevented from reaching maximum recovery within the MIG as a result of any pre-existing impairments.
31As the MIG’s $3,500.00 treatment limit is already exhausted, no additional analysis is required to determine if the treatment plan at issue is reasonable and necessary.
Interest and award
32Given that there are no overdue payments of benefits, the applicant is not entitled to interest under s. 51 of the Schedule.
33As no benefits are owing, the respondent cannot be found to have unreasonably withheld or delayed payment of benefits and, accordingly, the applicant is not entitled to an award under Regulation 664.
ORDER
34The application is dismissed, and I find that:
i. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. The treatment plan in dispute is not payable;
iii. The applicant is not entitled to interest; and
iv. The applicant is not entitled to an award under Regulation 664.
Released: August 30, 2022
__________________________
Monica Ciriello
Vice-Chair
Footnotes
- O. Reg. 34/10.
- CCRO dated April 15, 2021, authored by adjudicator Therese Reilly
- Email from Mr. Temperato to Ms. Fernando, dated October 1, 2021 and email from Mr. Temperato to Ms. Fernando, dated October 13, 2021.
- Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
- CNRs of Ms. Alexander, dated November 26, 2014.
- Counselling Records of Mr. Janke, dated February 17, 2015
- Social Emotion Assessment of the Family of Ms. Alexandra Foto, of Mr. Brown, dated January 5, 2017.
- Insurer’s Examination, Independent Medical Evaluation, of Dr. Awde, dated October 17, 2016
- R.N. vs. Certas Direct Insurance Company, 2020 CanLII 12728 (ON LAT).
- M.J. v The Dominion of Canada, 2020 ONLAT at para 28 at Tab 21.