Citation: Soso v. Jevco Insurance, 2023 ONLAT 22-008667/AABS

Licence Appeal Tribunal File Number: 22-008667/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:

Donahue Soso

Applicant

and

Jevco Insurance

Respondent

DECISION

ADJUDICATOR:

Mary Henein Thorn

APPEARANCES:

For the Applicant:

Donahue Soso, (self represented)

For the Respondent:

Fabio Di Bona, ADR Consultant

Kyle McNerney, Counsel

HEARD: by Videoconference:

October 3 & 4, 2023

OVERVIEW

1Donahue Soso, the applicant, was involved in an automobile accident on February 18, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Jevco Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant’s counsel, Ms. Claudia Kwok, advised the Tribunal on June 12, 2023 that effective immediately, she would no longer be representing Mr. Soso.

3The applicant filed a request for an adjournment with the Tribunal on September 21, 2023, citing he was unwell with COVID-19 and that he needed time to find new counsel as reasons. He did not send a copy to opposing counsel and was advised to do so by the Tribunal. Mr. Soso did not send a copy to the respondent’s counsel and as a result the adjournment request was denied on September 28, 2023.

PROCEDURAL ISSUE

4It was unclear at the start of the hearing on October 3, 2023 how the applicant wanted to proceed. At the start of the hearing, he said in passing there was no reason to proceed, as he was unprepared to represent himself, but also made several requests for an adjournment at the same time. He stated he was feeling unwell and did not have legal counsel therefore, the Tribunal should adjourn this matter.

5I advised Mr. Soso that the file was now 421 days old and according to the Licence Appeal Tribunal Rules which took effect on August 21, 2023, Rule 16.2 states that adjournment requests would only be granted in ….”compelling circumstances where the party did not and could not have known of the circumstances giving rise to the adjournment request prior to the event.” Mr. Soso has not presented to me a compelling reason within Rule 16.2 to warrant a further adjournment. A hearing notice was sent to him on May 12, 2023. His lawyer withdrew her counsel on June 12, 2023. I find he had sufficient notice and time for him to have secured counsel in time for this hearing. While a party has the right to counsel, it is not an absolute right. Having considered the Court of Appeal’s decision in Law Society of Upper Canada v. Igbinosun, 2009 ONCA 484 at paras. 37-38, I balanced the applicant’s right to legal representation and the prejudice to the applicant against the age of the file and the desirability to proceed with this hearing on its merits. I advised the applicant the hearing would proceed today.

6Mr. Soso stated that he was feeling unwell and was unable to participate in the hearing. I advised the applicant that as I had no medical evidence to show that he was unable to participate today, the hearing will continue as scheduled. Although he appeared to be in fairly good health, he requested and was granted a brief 2-hour recess to see if he could attend a walk-in clinic or contact his doctor’s office to see if he could provide a medical note. Mr. Soso returned after the 2-hour recess and stated his doctor’s office was closed until after 1:30 pm, and he could not book an appointment. He again requested an adjournment which was denied.

7Both parties did not submit a document brief for to the Tribunal prior to the hearing. The respondent requested a short recess to submit the brief to the Tribunal; however, Mr. Soso needed a longer period to gather his material. With the respondent’s consent, the hearing was adjourned to October 4th at 9:30 am to accommodate the filing of the briefs. The respondent submitted its brief on the eve of October 3rd. and the applicant was not able to get any records submitted by the next day.

8Mr. Soso made several requests to the Tribunal to submit medical evidence approximately 5 days after the hearing had taken place, but I denied his requests.

9The Tribunal, with consent from the respondent, assisted the applicant by reading the test for each issue in dispute several times. Each step of the hearing process was clearly explained, and the Tribunal informed the applicant that although legal advice could not be given, he could ask as many questions about the process as needed.

10He spoke to the substantive issues briefly, while breaking to request an adjournment throughout his testimony. He was reminded several times that a ruling was made regarding an adjournment and the hearing is proceeding.

ISSUES IN DISPUTE:

I. The issues to be decided in the hearing are:

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

ii. Is the applicant entitled to $3,988.49 for physiotherapy services, proposed by Physio Fix and Fitness, in a treatment plan/OCF-18 (“plan”) submitted October 6, 2020 and denied December 7, 2020?

iii. Is the applicant entitled to $1,947.57 for psychological services, proposed by Physio Fix and Fitness, in a plan submitted September 8, 2020 and denied March 5, 2021?

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

RESULT:

11The applicant sustained predominately minor injuries as defined in the Schedule and, thus, he is subject to treatment within the monetary limits of the MIG.

12The applicant is not entitled to $3,988.49 for physiotherapy services.

13The applicant is not entitled to $1,947.57 for psychological services.

14The applicant is not entitled to interest.

15The application is dismissed.

ANALYSIS

Removal from the Minor Injury Guideline (“MIG”)

16The MIG establishes a treatment framework for injured persons who sustain a minor injury because of an accident. A “minor injury” is defined in section 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. Under section 18(1) of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

17An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG, or, under section 18(2) of the Schedule, that they have compelling evidence of pre-existing injury or condition that was documented before the accident, that precludes maximal recovery from their accident-related minor injury if they are kept within the MIG.

18The Tribunal has also determined that an applicant may be removed from the MIG if they sustained chronic pain with functional impairments. Additionally, the applicant can be removed if they sustained a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under section 3(1).

19The applicant did not direct the Tribunal to any expert reports or other evidence to support his position. A document brief was not submitted, and no witnesses were called. He relied only on his oral testimony.

20During his testimony he testified that he had “basically recovered from his injuries, he wasn’t worried about that”.

21The applicant submitted that he should be removed from the MIG for psychological issues only.

Does the applicant have a psychological impairment to remove him from the MIG?

22The applicant has not demonstrated on the balance of probabilities that he has a psychological impairment as a result of the accident, necessitating removal from the MIG.

23The applicant submits he has significant psychological issues, primarily driver anxiety. He testified that he is quite afraid to drive when there is a lot of traffic, and he has a heightened fear of being rear ended again. To deal with his anxiety, he often calls friends to give him a ride or uses Uber services. Sometimes he may even need to pull over all together to compose himself before he can proceed to drive.

24Further, the applicant submitted that his doctor referred him to PhysioFix for psychological treatment, but that he did not find the treatment helpful, so he discontinued his visits. During cross examination, the applicant was asked if he sought different treatment that would assist him with his psychological issues. In response, he testified that his children are in university now and he can’t afford to pay any medical expenses out of pocket, so he won’t consider his doctor’s recommendation at PhysioFix. Aside from his testimony, Mr. Soso did not provide any further evidence in support of his position.

25The respondent submitted a s. 44 report authored by Dr. Koepfler, psychologist dated January 18, 2021. The applicant reported to the doctor that he has disturbed sleep, is less active with his wife and children, and experienced accident-related dreams. After she examined him and conducted tests, Dr. Koepfler questioned the validity of some of the testing and concluded that she was unable to make a prognosis or determine the true extent of any impairments, due to the lack of formal data. She was also unable to attribute the applicant’s self reported symptoms to the accident. She opined that his choice to drive back and forth from Stevensville to Brampton routinely to attend therapy rather than find a clinic closer to home is inconsistent to his reporting that he experiences debilitating driver anxiety. Further, the report notes that the applicant’s “…..reporting of severe functional limitations, severe anxiety and moderate depression were inconsistent with his presentation during interview and his euthymic mood”. She was unable to make a determination as to whether the treatment plans were reasonable or necessary.

26The applicant did not provide a rebuttal report from an expert for comparison, nor did he address these findings in his testimony.

27I prefer Dr. Koepfler’s report over the applicant’s testimony. Given that Dr. She administered several tests with embedded validity measures and in the end, she was unable to give a prognosis. Moreover, I find the testimony of the applicant conflicting and unsubstantiated. On balance, I find that there is insufficient psychometric evidence of the applicant’s self-report of psychological impairment.

28The respondent challenged the applicant’s statement that he drove carefully and was often unable to drive from place to place without having to stop due to his anxiety. The respondent entered into evidence the applicant’s driving abstract which contained a speeding ticket for a driving offence which took place on May 12, 2021, approximately three months after the accident. Mr. Soso was ticketed for driving 149km/h in a 100 km/h zone.

29I find the applicant’s self-reporting to Dr. Koepfler that he chose to drive from Stevensville to a clinic in Brampton routinely rather than attend a clinic close to home, coupled with the traffic ticket presented by the respondent, inconsistent with his testimony. While at the hearing Mr. Soso submitted that he has severe, debilitating driver anxiety, which affected his ability to tend to his business, and manage the activities of his daily life, I am persuaded by the evidence presented by the respondent that the applicant’s driver anxiety may be minimal at best.

30Given the testimony of the applicant and the evidence from the respondent, I find the applicant has not substantiated his injuries or provided me with any evidence to suggest his injuries are outside the MIG.

31I find that the applicant has not provided compelling evidence in support of a psychological impairment taking him out of the MIG.

32As the applicant has been found to fall within the MIG, and the MIG limits have been exhausted, is not necessary to conduct a reasonable and necessary analysis on the treatment plans in dispute.

Interest

33As no benefits are payable, it follows that interest is not applicable.

ORDER

34The applicant remains in the MIG.

35As the MIG limits have been exhausted he is not entitled to any of the treatment plans in dispute, it follows that he is not entitled to interest.

36The application is dismissed.