Citation and File Number

Citation: Calore v. Economical Insurance Company, 2022 ONLAT 20-011882/AABS Licence Appeal Tribunal File Number: 20-011882/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:

Giuseppina Calore Applicant

and

Economical Insurance Company Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Albert Wong, Counsel For the Respondent: Julianne Brimfield, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on May 23, 2018, in Ohio, United States of America, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (the “Schedule”)¹ from Economical Insurance Company, the respondent. The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

PRELIMINARY ISSUE

2The respondent took issue with the applicant’s failure to comply with the Tribunal’s Case Conference Report and Order (“CCRO”)² and requested that the Tribunal not consider anything after the 10th page of the applicant’s submissions.

3The respondent relied on the CCRO to demonstrate that at the Case Conference, the parties agreed that their submissions were limited to 10 pages in length³.

4The applicant offered no explanation in her submissions as to the reason(s) for exceeding the length, nor did the applicant file a motion to extend the page limit in advance of the hearing.

5After reviewing the evidence and submissions of the parties, I noted that the applicant’s submissions do not comply with the CCRO, as they are 16 pages in length and not the 10 ordered.

6Though I do appreciate the respondent’s submissions, and the fact that the respondent complied with the CCRO, I must also consider what would be a reasonable level of recourse to address the prejudice alleged by the respondent. After doing so, I find that, the respondent failed to provide any evidence of specific prejudice.

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 Rule 3.1.

8However, 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 a previous Order, parties risk exclusion of the submissions or evidence or both.

ISSUES

10The following issues are to be decided:

i. Are the applicant’s injuries predominately minor as defined in s.3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to a medical benefit in the amount of $4,453.83 (USD), less amounts paid, for hospital expenses incurred at Miami Valley Hospital, and submitted on December 17, 2018?

iii. Is the applicant entitled to interest on an overdue payment of benefits?

RESULT

11The application is dismissed, and I find that:

iv. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

v. The applicant is not entitled to the hospital expenses incurred; and

vi. The applicant is not entitled to interest.

ANALYSIS

The Minor Injury Guideline

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.

Did the applicant suffer physical injuries that warrant the removal from the MIG?

17I find that the applicant’s documented injuries fall within the definition of “minor injury” in the Schedule, as the applicant’s accident-related injuries are soft tissue and sprains for the following reasons:

18On May 23, 2018, the applicant was taken to the emergency department at Miami Valley Hospital, where she was diagnosed with a neck sprain and released that same day by Dr. Brian Tucker, emergency room physician. The applicant was prescribed Motrin and Robaxin for her injuries.

19On May 31, 2018, the applicant saw Dr. Tam Pham, chiropractor, at Lifemark Physiotherapy. Dr. Pham completed a motor vehicle accident initial assessment report and concluded that the applicant had whiplash associated disorder (“WAD II”), sprain and strain of sacroiliac (“SI”) joint, and an injury to the tendon of the rotator cuff of the right shoulder.

20The applicant commenced physiotherapy at Lifemark until September 6, 2018. The applicant submitted that her treatment stopped because, she did not believe she would recover, and she would be travelling to Florida for a period of time (no return date was provided).⁵

21On June 19, 2018, Dr. Pham, submitted a disability certificate (“OCF-3”) on behalf of the applicant describing her injuries as: WAD II, sprain and strain of sacroiliac joint, and injury of tendon of rotator cuff.

22The applicant saw Dr. Michelle Taylor, family physician on August 1, 2018, with complaints of pain in her lower back and right hip area following the accident. Although the applicant provides documentation of further visits to Dr. Taylor, no other clinical notes or records (“CNRs”) make reference to the accident.

23Most recently, on May 22, 2020 Dr. Mikahail Shteynberg, chiropractor, submitted a subsequent OCF-3 on behalf of the applicant describing her injuries as: headaches, sprain and strains.

24The respondent argued that to date it has approved treatment within the MIG limit. Other than seeking funding of the remaining hospital invoice currently in dispute, at no point in time has the applicant sought any treatment outside of the MIG limits. It is the respondent’s position that the applicant, by her own actions, demonstrate that her injuries are minor and could be treated within the MIG.

25I find that there is nothing remarkable about the applicant’s physical injuries. The physical injuries listed in the evidence of Dr. Pham, and as described by Miami Valley Hospital and Dr. Taylor are captured within the definition of minor injury. Furthermore, the applicant is not seeking further treatment for her injuries but rather hospital expenses. I find that the applicant’s injuries to be minor.

Pre-existing psychological impairment

26The applicant submitted she suffers from a pre-existing, psychological conditions, namely anxiety and depression, that require removal from the MIG. As both psychological impairments and pre-existing conditions can warrant removal from the MIG, I will address both issues at once.

27It is well settled that 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.

28Section 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.⁶

29The 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.

30Psychological impairments, if established, fall outside the MIG, because such impairments are not included in the prescribed definition of “minor injuries.”

31In support of the applicant’s position of suffering from a pre-existing psychological condition, she relied on the CNRs from Dr. Rustom Sethna, psychiatrist. The CNRs provide that the applicant was admitted into the hospital from March 3-20, 2015 for major depressive disorder with anxiety and symptom panic attacks in the context of significant stress loading and an inability to cope.

32Dr. Sethna’s June 30, 2015, CNRs provide that the applicant presented signs and symptoms of an adjustment disorder with depressed mood and conversation symptomatology related to her stress load. There is no evidence before the Tribunal that the applicant saw Dr. Sethna after June 30, 2015, until January 20, 2020.

33With regard to the applicant’s post-accident injuries, she relied on Dr. Sethna’s CNRs from January 20, 2020, where Dr. Sethna noted that the applicant was tearful. Dr. Sethna also noted on June 20, 2020, that the applicant was “frustrated re: MVA whilst in USA 2 years ago- “insurance won’t pay” – re hospital ER visit in Florida- angry.”

34The applicant relies on the CNRs of Dr. Hamza Jalal, neurologist, who assessed the applicant on October 19, 2019, and referenced the fact that the applicant had a history of depression and anxiety.

35The applicant presents the OCF-3 of Dr. Shteynberg, chiropractor, who determined at the time of the applicant’s assessment that she was suffering from “mixed anxiety and depressive disorder.”

36The respondent argues that the applicant had not been diagnosed with any accident-related psychological impairments by her treating psychiatrist, Dr. Sethna, or any other mental health professional. Thereby, it is the respondent’s position that the applicant failed to establish that she suffers a psychological impairment as a result of the accident.

37The respondent relies on 17-001856 v Travelers⁷ which provides that evidence of the applicant is required to demonstrate that a pre-existing condition will prevent a person from achieving maximal recovery if confined to the $3,500.00 funding limit of the MIG.

38After considering the evidence and submissions of the parties, based on a balance of probabilities, I find that the applicant has not met her evidentiary burden of demonstrating that she suffered from a psychological injury as a result of the accident.

39As noted by Dr. Sethna and Dr. Jalal, the applicant has a history of depression and anxiety, which can be attributed as a pre-accident condition, as described by section 18(2) of the Schedule.

40In terms of the applicant’s pre-existing conditions, after considering the evidence of the parties, based on a balance of probabilities, I find that the applicant has not established that her pre-existing conditions will prevent maximum medical recovery if confined to the $3,500.00 limit of the MIG.

41In this case, the applicant has not explained how she would be prevented from recovering from her accident-related injuries due to her pre-existing psychological condition.

42In terms of Dr. Sethna’s CNRs, I accept that the applicant had a documented, pre-existing condition. The CNRs of Dr. Jalal were vague and had no mention of the accident or accident-related symptoms in the report.

43I placed little weight on the OCF-3 completed by Dr. Shteynberg, as I find that diagnosing anxiety and depressive disorder beyond the scope of a practice of a chiropractor.

44I find that the applicant has not met the threshold as referenced in 17-001856 v Travelers⁸ to demonstrate that a pre-existing condition will prevent her from achieving maximal recovery if confined to the $3,500.00 funding limit of the MIG.

45The applicant has failed to demonstrate that as a result of the accident, she suffered an exacerbation of her psychological condition beyond the clinically associated consequences of her soft tissue injuries.

46She has also failed to satisfy the test for removal from the MIG based on her pre-existing condition, because she has not presented compelling evidence that the condition will prevent her from recovering from her minor injuries if she is held to the MIG.

47In conclusion, I am not persuaded, on a balance of probabilities, that the applicant suffered a psychological impairment as a result of the accident. She has not demonstrated that her pre-existing condition will prevent her from achieving maximal recovery within the MIG.

Does the applicant suffer from a pre-existing physical condition that prevents recovery under the MIG?

48As discussed above, the standard for excluding a pre-existing condition is well-defined and strict; as the applicant has made an argument in relation to a second, pre-existing condition, I will address it separately.

49The applicant relies on Dr. Jalal’s assessment of October 10, 2019, that states the applicant’s “symptoms (including generalized pain, fatigue, tongue spasms, hands tremor, incoordination, and right arm spasms/cramps) began more than 10 years ago but seem to be picking up in frequency over the years.”⁹

50The respondent submits that there is no evidence put forward by the applicant that the accident exacerbated her pre-accident physical condition.

51Further, the respondent submits that there is no reference of the accident or accident-related symptoms in Dr. Jalal’s report, including no specific trigger reported by the applicant to account for the reference that her symptoms began “more than 10 years ago but seem to be picking up frequency over the years.”¹⁰

52After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant submitted compelling evidence that she does have pre-existing physical condition, however she failed to prove that her physical conditions were exacerbated or prevent maximal medical recovery if she is confined to the MIG.

53The applicant has not provided contemporaneous records that support her argument that she requires treatment beyond the $3,500.00 limit of the MIG, nor has she provided persuasive medical evidence to support this argument.

54I remain perplexed as to why the applicant failed to complete the physiotherapy treatment within the MIG limits, when trying to simultaneously make the argument that she cannot recover because of the cap imposed by the MIG.

55I find that the applicant has not demonstrated that the accident worsened or exacerbated her pre-existing physical injuries.

Chronic Pain

56For chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant must provide medical evidence that her accident-related injuries had a detrimental impact on her functionality. More is required to establish what extent a chronic pain condition, be it a syndrome or chronicity of symptoms, affects functionality. This opinion must be supported by medical evidence that establishes the applicant’s functionality is impaired and that the chronic pain is the cause of the disability.

57The applicant submits that she should be removed from the MIG because she suffers from chronic pain as a result of the accident, a condition that can require removal from the MIG.

58The applicant relies on C.G. v The Guarantee Company of North America,¹¹ that a formal diagnosis of chronic pain is not necessary to remove an applicant from the MIG if there is documented medical records showing that injuries persisted for over 3 to 6 months.

59The applicant relies on the August 2018 CNRs of Dr. Taylor, which provide that the applicant complained of neck and back pain post-accident.

60The applicant also references the six criteria found in the American Medical Association Guides to the Evaluation of Permanent Impairment¹² (“AMA Guides”). The applicant submits she would meet most of the criteria including; prescribed medications, including medical cannabis with little relief, her injuries prevent her from performing pre-accident activates of daily living, such as household chores and CNRs.

61The respondent submits that the diagnosis at Miami Valley Hospital, was a neck sprain, and further diagnosis of the applicants’ injuries as referenced above were consistent with a minor, soft tissue injury. The respondent further submits that there are no accident-related pain complaints by the applicant beyond August 2018.

62Pain unaccompanied by functional impairment will not warrant treatment beyond the $3,500.00 funding cap. Chronic pain “must be of a severity that it causes suffering and distress accompanied by functional impairment or disability.”¹³

63After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant has not met her evidentiary onus of showing that she suffers from chronic pain requiring removal from the MIG. I agree with the respondent’s argument relating to the applicant’s accident-related pain complaints being unsubstantiated beyond August 2018.

64While the AMA Guides are incorporated by reference into the Schedule when evaluating an applicant’s claim for catastrophic impairment, they are not so incorporated in respect of chronic pain. That is to say, I am not bound by the AMA Guides when it comes to evaluating an applicant’s claim to have chronic pain; however, I may find them to be a useful interpretative tool.

65That said, I take issue with the applicant’s submission that she meets one or more of the AMA Guides’ six criteria for chronic pain, as there is no evidence to support any of the statements she provided; she did not provide evidence to support her submissions and therefore did not meet her evidentiary onus.

66To be clear, a finding that the applicant’s pain does not meet the threshold for removal from the MIG is not a finding that the applicant does not suffer from pain; A certain degree of pain can be expected as a clinically associated consequence of minor, soft tissue injuries. Treatment for pain of this kind is contemplated in the $3,500.00 funding limit under the Schedule.

67However, in this case the applicant has not demonstrated that she suffers from functionally disabling pain as a result of the accident that requires treatment interventions outside the MIG limit.

68As discussed above, the applicant has exhausted the funding limits of the MIG, therefore I do not need to address the disputed treatment.

INTEREST

69As there are no benefits owing to the applicant, she is not entitled to interest.

ORDER

70The 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 applicant is not entitled to the hospital expenses incurred; and

iii. The applicant is not entitled to interest.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Dated April 19, 2021, authored by Adjudicator Nancy Aquilina.
3. 3Para. 7 of the CCRO.
4. 4Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
5. 5Discharge Report of Lifemark, dated November 6 2018.
6. 6Supra note 1 at page 5, heading 4, “Impairments that do not come within this Guideline”.
7. 717-001856 v Travelers, 2018 CanLII 13173 (ON LAT)
8. 817-001856 v Travelers, 2018 CanLII 13173 (ON LAT)
9. 9Clinical Notes and Records, Dr. Jalal dated October 10, 2019.
10. 10Clinical Notes and Records, Dr. Jalal dated October 10, 2019.
11. 11C.G. v The Guarantee Company of North America, 2020 CanLII 40333 (ON LAT) at para. 36.
12. 12American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition,.2008.
13. 1316-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) .