Citation: Lagani v. Allstate Insurance, 2023 ONLAT 21-009990/AABS

Licence Appeal Tribunal File Number: 21-009990/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 Lagani

Applicant

and

Allstate Insurance

Respondent

DECISION

ADJUDICATOR:

Clive Forbes

APPEARANCES:

For the Applicant:

Kim Mohammed-Sieudhan, Paralegal

For the Respondent:

Colleen Mackeigan, Counsel

HEARD:

By Way of Written Submission

OVERVIEW

1Vito Lagani, the applicant, was involved in an automobile accident on November 29, 2019, 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, Allstate Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The following issues are in dispute:

1. 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 limit and in the Minor Injury Guideline (“MIG”)?

2. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from December 06, 2019, to May 16, 2020?

3. If the applicant’s injuries are not considered to be predominantly minor then:

i. Is the applicant entitled to $245.00 ($1,500.00 less $1,255.00 approved) for physiotherapy services, recommended by Younge-Spruce Chiropractic Clinic (“YSCC”) as set out in a treatment plan (“OCF-18”) dated March 10, 2021?

ii. Is the applicant entitled to $1,527.72 for chiropractic services, recommended by YSCC as set out in an OCF-18 submitted on February 22, 2021?

iii. Is the applicant entitled to the assessments recommended by Synergy Assessment Centre as follows:

1. $2,200.00 for a chronic pain assessment in an OCF-18 submitted on July 8, 2020;

2. $2,200.00 for a neurological assessment in an OCF-18 submitted on July 08, 2020; and

3. $2,200.00 for an orthopaedic assessment in an OCF-18 submitted on July 15, 2020?

iv. Is the applicant entitled to $2,200.00 for a psychological assessment, recommended by Dr. Leanne Wagner as set out in an OCF-18 submitted on July 09, 2020?

v. Is the applicant entitled to $4,452.44 for psychological services, recommended by Dr. Leanne Wagner as set out in an OCF-18 submitted on November 10, 2020?

vi. Is the applicant entitled to $4,665.00 for dental/temporal mandibular joint (“TMJ”) assessment, recommended by Dr. Leon Treger as set out in an OCF-18 submitted on April 06, 2021?

vii. Is the applicant entitled to $7,415.00 for dental services, recommended by Treger Denistry Professional Corp. as set out in an OCF-18 submitted May 17, 2021?

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

5. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3I find that:

1. The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG.

2. The applicant has not demonstrated that he is entitled to the IRB claimed.

3. The applicant is not entitled to the treatment and assessment plans claimed.

4. No interest is payable.

5. No award is payable.

ANALYSIS

The applicant has not demonstrated that his impairments are outside of s. 3 of the Schedule and therefore removal from the MIG is not warranted

4The applicant has not demonstrated that he suffers from a psychological impairment or chronic pain that warrants removal from the MIG.

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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 person 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 a psychological impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant on a balance of probabilities.

6The applicant submits that the following factors remove him from the MIG:

1. his chronic pain;

2. his psychological impairments as a result of the accident; and

3. his TMJ disorders.

7To this end, he relies on his OCF-3 Disability Certificate, OCF-18 Treatment and Assessment Plans, the s. 25 reports of Dr. Leanne Wagner, psychologist, and Ms. Neha Saxena, social worker, dated October 02, 2020; Dr. Leon Treger, dentist, report dated May 18, 2021; and the clinical notes and records (“CNRs”) from Dr. David Kirsh, his family physician, CNRs from Dr. Frank Catapano, his dentist, and the CNRs from Younge-Spruce Chiropractic Health Centre (“YSCHC”).

8The respondent submits that the applicant has not met his burden to prove that he suffers from more than minor injuries, that he has developed a chronic pain condition or that he sustained an actual psychological impairment from the accident. It relies on the s. 44 reports of Dr. Melvin Devlin, physiatrist, dated July 20, 2020, and Dr. Shulamit Mor, psychologist, dated August 10, 2020.

The applicant does not have chronic pain as a result of the accident

9I find the applicant does not suffer from a functional impairment as a result of accident-related chronic pain.

10To be taken out of the MIG due to chronic pain, the applicant is required to a) have been diagnosed with chronic pain or chronic pain syndrome or b) point me to evidence of consistent severe or functionally disabling pain that affects his day-to-day or work function. Unfortunately, the phrase “chronic pain” is not defined in the Schedule. In assessing the applicant’s claim of chronic pain, I have applied the following factors from paragraph 16 in A.A. v. Technology Insurance Company Inc., 2020 CanLII 12719 (ON LAT):

1. Whether the applicant suffers severe and constant pain -- more than simple ongoing or recurrent, intermittent pain.

2. Whether the applicant’s pain has persisted well beyond the normal healing times for the injuries sustained.

3. Whether the pain is not a clinically associated sequela to minor injuries.

4. Whether the applicant’s pain has caused functional impairment and disability. That is, whether it significantly disrupts or disables pre-accident activities of daily living.

11I find that the applicant does not suffer from chronic pain because of the accident. The applicant relies on the psychological report of Dr. Wagner and Ms. Saxena, social worker, dated October 02, 2020, who indicated that the applicant reported experiencing significant pain which had a disruptive impact on his ability to participate in a variety of activities of daily living such as grooming, washing dishes, cooking, sweeping, grass cutting and grocery shopping. Dr. Wagner concluded that it is evident the subject accident caused the applicant a great deal of emotional and physical distress from which he has not yet recovered. The respondent relies on the s. 44 report of Dr. Delvin, dated May 18, 2021, who concluded that the applicant sustained uncomplicated sprain and strain injuries as a result of the accident. I am persuaded by Dr. Delvin’s findings for the following reasons.

12First, I find that the severity of the symptoms and functional limitations mentioned by Dr. Wagner are not supported by the bulk of the medical and documentary evidence. For example, a review of the CNRs of the applicant’s family physician and other treating practitioners a) make no mention of chronic pain or chronic pain syndrome or b) contain any evidence of consistent severe or functionally disabling pain that affects his day-to-day or work function c) do not offer a referral to a chronic pain specialist or suggest any negative impact on his daily activities. In fact, the applicant has returned to work following the accident and reported to Dr. Delvin that he is essentially doing the same job and it is easier now which I find more persuasive. Second, I have not been pointed to evidence of chronic pain that could be considered more than mere sequelae of the soft tissue injuries. As such, I am not convinced on a balance of probabilities that the applicant suffers from chronic pain that would require him to be removed from the MIG.

13Given the above, I find the applicant has failed to establish that he suffers from chronic pain as a result of the accident that warrants removal from the MIG.

The applicant has not suffered a psychological impairment as a result of the accident

14I find that the applicant has failed to prove on a balance of probabilities that he should be removed from the MIG as a result of a psychological impairment.

15The applicant submits that his psychological impairments justify removal from the MIG. He relies on Dr. Wagner’s report that diagnosed the applicant with chronic adjustment disorder with mixed anxiety and depressed mood, somatic symptom disorder with predominant pain, persistent. The respondent submits that more compelling evidence of a psychological impairment is required for removal from the MIG on this ground. The respondent relies on Dr. Mor’s report who concluded that the applicant does not meet the DSM-5 diagnostic criteria for a psychological disorder.

16I am not persuaded by the applicant’s assertion that his psychological impairments justify removal from the MIG. I find that the applicant has not met his onus to demonstrate he sustained a psychological impairment as a result of the accident. A review of the applicant’s family physician’s records reveals that Dr. Krish did not indicate that the applicant reported psychological difficulties after the accident. Furthermore, the applicant reported to Dr. Mor, the s. 44 assessor, that even though he had some feelings of depression and anxiety post-accident he was now happy most of the time and reported his mood as pretty good. In addition, I have not been directed to other notations of psychological concerns from the applicant's family doctor nor other medical practitioners that support the applicant's submissions. I find that more compelling evidence of a psychological impairment is required for removal from the MIG on this ground. Dr. Wagner's report, which stated the applicant presented with an array of psychological symptoms, is unsupported by the applicant's family physician’s records. I prefer the report of Dr. Mor because it is consistent with the CNRs of the applicant’s family physician in that it does not find a psychological issue which is supported by the lack of psychological reporting in the CNRs. Accordingly, I am persuaded by Dr. Mor's conclusion that the applicant does not meet the DSM-5 diagnostic criteria for a psychological disorder.

17I find the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG.

The applicant’s TMJ disorders do not warrant removal from the MIG

18I find that the applicant has not demonstrated on a balance of probabilities that he should be removed from the MIG because of his TMJ disorders.

19The applicant submits that his TMJ disorders warrants removal from the MIG because he suffers from dental trauma. He relies on the report of Dr. Treger, dentist, who indicated that the applicant has: capsulitis of the TMJ; TMJ stiffness on the right and left sides and left jaw pain. The respondent submits that the applicant’s complaint of TMJ disorder is a clinically associated sequelae of a minor injury and does not warrant removal from the MIG.

20I find that the bulk of the medical evidence does not support the applicant’s position that he suffers from a TMJ disorder that warrants removal from the MIG. Dr. Catapano, who has been the applicant’s dentist since 2005, did not make a diagnosis of TMJ disorder following the accident. In addition, the applicant did not make complaints or report symptoms relating to TMJ disorder to his family physician Dr. Kirsh. There is only one notation in Dr. Kirsh’s CNRs over a two-year period, where Dr. Kirsh mentioned the applicant’s teeth and indicated he sustained a chipped front tooth as a result of the accident. I find that Dr. Treger’s report does not provide evidence that the applicant’s complaint of residual pain and clicking is an impairment that is not captured by the MIG definition.

21I find that the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG.

The applicant is not entitled to the IRB claimed

22I find that the applicant has not proven on a balance of probabilities that he is entitled to the IRB claimed.

23To receive payment for pre-104-week IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

24The applicant submits that he is entitled to IRB in the amount of $400.00 per week from December 6, 2019 to May 16, 2020. He argues that most if not all the documents the respondent requested were submitted on May 26, 2020, and as such his IRB claim should be paid. He further submits that based on a simple calculation for IRB as stated in the Schedule and the financial information provided by his employer, he is eligible for IRB at $400.00 per week for the time period in dispute because he was not working as a result of the accident. The respondent submits that the applicant is not entitled to IRB and relies on the s. 44 report of Dr. Delvin, dated July 20, 2020, who concluded that the applicant does not suffer a substantial inability to complete his essential pre-accident employment tasks as a flag person.

25I find that based on the totality of the medical and documentary evidence the applicant is not entitled to the IRB claimed. Firstly, the applicant did not indicate what are the essential pre-accident tasks as a flag person he is unable to perform because of the accident. Secondly, his record of employment (“ROE”) indicated that he was on a seasonal employment contract that ended on November 20, 2019, because of a shortage of work/end of contract season and that he was later re-hired in May 2020. This suggest that his period of unemployment was not accident related and as such does not meet the IRB test. Thirdly, a review of the CNRs of the applicant’s family physician and other treating practitioners do not support his position that he was not working from December 6, 2019, to May 16, 2020, because of injuries sustained in the accident. In addition, I find that Dr. Delvin’s conclusion is consistent with these CNRs because there is no mention in the CNRs that the applicant’s impairments prevented him from performing the essential tasks of his employment.

26As such, from the totality of the medical and documentary evidence provided, I find that on a balance of probabilities the applicant has not demonstrated entitlement to pre-104 IRBs.

Since the applicant has not demonstrated that removal from the MIG is warranted the treatment and assessment plans are not reasonable and necessary

27I have determined that the applicant has not demonstrated that removal from the MIG is warranted. As the parties have agreed that $97.73 remains of the MIG limit, and the applicant did not direct me to any portion of the treatment and assessment plans where the MIG balance should be applied, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required.

Interest

28As there were no overdue payments found, no interest is payable under s. 51.

Award

29The applicant sought an award under s. 10 of Regulation 664, submitting that the respondent has unreasonably withheld and denied payments of benefits claimed. Under s. 10, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits.

30I find an award is not warranted as the applicant is not entitled to any of the issues in dispute and no payments for benefits were unreasonably withheld or delayed.

ORDER

31I find that:

1. The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG.

2. The applicant has not demonstrated that he is entitled to the IRB claimed.

3. The applicant is not entitled to the treatment and assessment plans claimed.

4. No interest is payable.

5. No award is payable.

32The application is dismissed.