Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 20-011968/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:
Matthew Pellizzari
Applicant
and
BelairDirect
Respondent
DECISION
ADJUDICATOR:
Janet Rowsell
APPEARANCES:
For the Applicant:
Matthew Pellizzari, Applicant
Ryan St Aubin, Counsel
For the Respondent:
Leah Dick, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Matthew Pellizzari, the applicant, was involved in an automobile accident on February 26, 2018, 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, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Are the applicant’s injuries predominantly minor as defined in section 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 $2,100.58 for chiropractic services proposed by Physiomed in a treatment plan/OCF-18 (“plan”) dated October 2, 2018?
iii. Is the applicant entitled to $521.24 for chiropractic services proposed by Physiomed in a plan dated February 8, 2019?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant is subject to the MIG, as he has not demonstrated that treatment beyond the $3,500.00 limit is required. He is not entitled to any of the treatment plans in dispute as he has failed to discharge his onus of establishing entitlement to the medical benefits sought. Furthermore, the MIG funds available to the applicant have almost entirely been exhausted based on correspondence from the respondent dated September 2, 2021, stating that of the $3,500.00 MIG claim limit, $3,199.29 has been paid to date for medical and rehabilitation benefits, with $300.71 remaining. I find that the applicant is subject to the MIG, as he has not demonstrated that treatment beyond the $3,500 limit is required. He is not entitled to any of the treatment plans in dispute.
4It is not necessary to consider whether the disputed treatment plans are reasonable and necessary as a result of the accident. Since no benefits are owing, no interest is payable. The application is dismissed.
ANALYSIS
Minor Injury Guideline (MIG)
5The MIG establishes a framework for the treatment of minor injuries. The term “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 clinically associated sequelae to such an injury.” The terms “strain”, “sprain”, “subluxation”, and “whiplash associated disorder” are also defined in section 3 of the Schedule. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.00.
6An injured person may be removed from the MIG if they can establish that their accident-related injuries fall outside the MIG. Section 18(2) of the Schedule makes provision for injured persons who have pre-existing medical conditions to receive treatment in excess of the $3,500.00 cap. To access the increased benefits, the injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident that will prevent the injured person from achieving maximal recovery if the benefits are limited to the MIG cap.
7The applicant does not submit that he has pre-existing injuries which preclude recovery within the MIG. The applicant submits that he has injuries as a result of the accident which remove him from the MIG, which affect him physically, including the development of pulsatile tinnitus.
PULSATILE TINNITUS
8The applicant submits that he does not have pre-existing injuries preventing maximal recovery, but he submits that there is medical evidence substantiating that he developed pulsatile tinnitus as a result of the accident. The applicant described to Dr. Ratha Santhiramohan for the purpose of a neurology consultation, that his health was normal before the accident, but following the accident and as a result of being hit on the right side of his head, the applicant developed right-sided tinnitus. The applicant submits that the treatment plans in dispute offer pain relief and partial restoration of function in relation to his accident-related injuries, which the applicant submits are legitimate goals of treatment.
9The test to determine causation is the “but for” test, that provides that causation is a factual determination made on a balance of probabilities: see Sabadash v. State Farm et al, 2019 ONSC 1121. In order to demonstrate causation, an applicant must show that “but for” the accident he would not have suffered an impairment. A decision-maker is to take a robust and pragmatic approach to determining causation. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be a “necessary” cause.
10The respondent submits that the pulsatile tinnitus contended by the applicant, cannot be accepted by the Tribunal, since there is no evidence that the applicant struck his head in the accident. In addition, that there is no compelling medical evidence that the pulsatile tinnitus is a medically established condition affecting the applicant. I find that there is insufficient compelling medical evidence that the applicant’s reports of pulsatile tinnitus are substantiated. I also find that the applicant has not met his onus to demonstrate the accident caused pulsatile tinnitus. Therefore, the applicant has failed to meet his onus that he is not precluded from maximal recovery within the MIG.
11On February 26, 2018, at the time of the accident, the applicant did not suffer trauma to his head nor lose consciousness, as stated by Dr. Nitin Chauhan, for the purpose of the section 44 Otolaryngology assessment report dated February 19, 2019. Two days after the accident, on February 28, 2018, the applicant went to his family physician, Dr. Antoinette Di Maria, describing that he experienced back and neck pain as a result of the accident. Dr. Di Maria comments in her clinical notes and records (CNR’s) that the applicant had a more limited range of motion, in addition to tenderness in the paracervical muscles. On April 18, 2018, the applicant returned to Dr. Di Maria describing pulsatile sounds in his ears and headache symptoms which he stated had developed within the previous three-week period. He returned to Dr. Di Maria on September 11, 2018, describing difficulty sleeping and fatigue as a result of the ongoing right-sided pulsatile tinnitus.
12The applicant self-reports that the cause of pulsatile tinnitus is the accident, however, the applicant reports to Dr. Di Maria on April 18, 2018, that he has experienced pulsatile tinnitus for the past three weeks, which would signify that the condition first arose a month following the accident. Two days immediately following the accident, on February 28, 2018, the applicant did not describe symptoms of head trauma or pulsatile tinnitus, rather he reported back and neck pain. I find that the applicant has provided insufficient and inconsistent information with a finding of causation in relation to the pulsatile tinnitus being an accident-related impairment. I find on a balance of probabilities that the applicant has not met his onus to demonstrate that the pulsatile tinnitus that he submits he is experiencing was caused by the accident or is an injury that is accident-related.
13As stated, the applicant has not met his onus establishing that he actually is experiencing the medical condition, pulsatile tinnitus. The applicant refers to the opinion of Dr. Jason T. Atlas, Otolaryngologist, Head and Neck Surgeon, dated June 6, 2018, where Dr. Atlas opines that since the accident the applicant has difficulty with bilateral ringing tinnitus. Dr. Atlas describes that the applicant has no family history of early onset hearing loss, in addition, the applicant did not report previous head injuries, exposure to ototoxic medications, or ear infections. On examination, Dr. Atlas stated that the applicant’s ear spaces were clear with normal appearing tympanic membranes. Audiometric evaluation showed normal hearing and normal one hundred percent clarity in both ears. Dr. Atlas arranged an MRI of the applicant’s head to rule out vascular lesions, considering the possibility of head injury. An MRI was performed on August 8, 2018, at the William Osler Health System, showing no structural lesions, and the internal acoustic meatus was unremarkable.
14Dr. Nitin Chauhan, prepared a section 44 Otolaryngology assessment report and Audiology assessment, opining on the disputed treatment plan dated October 2, 2018, submitted by Dr. Timothy Damaso, Chiropractor. The applicant was examined by Dr. Chauhan by means of an Otolaryngology assessment, in addition to audiology testing. The applicant described no history of chronic headaches prior to the accident nor a history of seizures. However, the applicant related that the pulsatile tinnitus severity was significant enough to impair his ability to fall asleep and remain asleep, although he had not suffered hearing loss.
15Dr. Nitin Chauhan opined on examination of the applicant’s ears that there was no evidence of middle ear effusion, and that the ear canal was healthy with no sign of tenderness or trauma. Likewise, the applicant’s larynx, nasal area, oral cavity, face and neck were healthy and free of lesions and polyps. Dr. Nitin Chauhan described in the IE Otolaryngology assessment report that although the applicant complains of right-sided pulsatile tinnitus and periauricular pain, there is no evidence of otologic pathology.
16The applicant’s otologic and clinical evaluation by Dr. Nitin Chauhan were entirely normal, which Dr. Nitin Chauhan stated was typically sufficient to rule out an underlying pathology. The family physician, Dr. Di Maria, referred the applicant to Dr. Ratha Santhiramohan for a neurology consultation dated October 16, 2018. Dr. Ratha Santhiramohan, Neurologist, described in the consultation report that an MRI of the applicant’s brain did not show any structural lesions and the internal acoustic meatus was unremarkable. Dr. Ratha Santhiramohan performed tests ruling out the possibility of vascular or neurological causes for the pulsatile tinnitus.
17Dr. Nitin Chauhan opined that from an Otolaryngologic perspective, based on the mechanism of the accident, past medical history and ENT clinical and audiological assessment, the applicant suffered a minor injury and does not have any impairment or pathology that would warrant treatment beyond the MIG. Dr. Nitin Chauhan states that the proposed exercise program and associated documentation fee listed in Part 12 of the Treatment and Assessment Plan (OCF-18) dated October 2, 2018, in the amount of $2,100.58 submitted by Dr. Timothy Damaso, Chiropractor, is considered neither reasonable nor necessary. Dr. Chauhan opined that the applicant does not present with clinical evidence of neurovascular/otologic injury, potentially manifesting as tinnitus.
18I find based on a consideration of the section 44 Otolaryngology assessment report of Dr. Nitin Chauhan, the report by Dr. Jason Atlas, and the neurology consultation dated October 16, 2018 by Dr. Ratha Santhiramohan following an MRI of the applicant’s brain, that there is insufficient compelling medical evidence on a balance of probabilities, demonstrating that the applicant’s complaints of right sided pulsatile tinnitus are based on a medical condition requiring medical benefits outside the MIG. The reports describe no diagnostic, examination result, audiometric or other testing result, showing any medical condition which would cause right-sided pulsatile tinnitus. As stated, I also find that the applicant has failed to meet the onus to demonstrate that the accident caused the condition which he describes experiencing as right-sided pulsatile tinnitus.
PHYSICAL INJURIES
19The applicant submits that the treatment plans in dispute for chiropractic care offer pain relief and partial restoration of function in relation to the applicant’s accident-related injuries, which the applicant submits are legitimate goals of treatment. The respondent submits that based on a review of the totality of the medical evidence, including the section 44 reports of Dr. Sandhu and Dr. Chauhan, who addressed both OCF-18’s, the applicant’s injuries to his cervical spine, shoulders and lumbar spine are uncomplicated soft tissue injuries that fall within the MIG.
20Dr. Charanjit Sandhu prepared a section 44 Physician’s assessment report opining on the reasonableness and necessity of the treatment and assessment plan/ OCF-18 dated October 2, 2018, prepared by Dr. Timothy Damaso, Chiropractor. Dr. Sandhu, having examined the applicant on November 27, 2018, opined that a neurological exam revealed the applicant’s cranial nerves were normal as was strength in the applicant’s upper and lower extremities. Dr. Sandhu’s musculoskeletal examination showed the applicant with an active range of motion. Dr. Sandhu describes in his report that there has been no radiographic evidence of fractures following the accident. Diagnostic testing dated August 23, 2019, of the applicant’s cervical spine showed normal alignment, joint spaces, and no evidence of fractures.
21Dr. Sandhu opined that the treatment plan for chiropractic care was neither reasonable nor necessary because the applicant had already received education on an exercise program, in addition to and importantly, the applicant did not present with any musculoskeletal injuries. Because the applicant did not present with any musculoskeletal injuries, Dr. Sandhu opined that the applicant required no intervention because of the absence of any impairment or documented substantial underlying accident-related pathology.
22Dr. Charanjit Sandhu examined the applicant on November 27, 2018. He prepared a section 44 Physician’s paper review dated February 19, 2019, offering an opinion on the treatment and assessment plan/ OCF-18 dated February 8, 2019, completed by Dr. Timothy Damaso, Chiropractor, in the amount of $521.24. Given the absence of any accident-related impairment or documented substantial underlying accident-related pathology, Dr. Sandhu found in the paper review that the treatment plan dated February 8, 2019, proposed by Dr. Timothy Damaso, was neither reasonable nor necessary. I agree with Dr. Charanjit Sandhu’s findings since he had examined the applicant recent to his finding before his paper review and Dr. Sandhu lists and thoroughly references the relevant medical documentation he considered, including diagnostic tests and the family physician’s CNR’s. I find Dr. Charanjit Sandhu’s opinion persuasive because it is based on recent examination and a thorough review of relevant medical documentation.
23I find that the applicant has not satisfied his onus nor provided compelling medical evidence that his physical injuries should be considered outside the MIG.
24Dr. Timothy Damaso, Chiropractor, proposed a treatment plan/ OCF-18 in the amount of $2,100.58, dated October 2, 2018, including documentation support activity and exercise of multiple body sites over a nine-week period. The applicant’s injuries are described as sprain and strain of the cervical spine, lumbar spine, thoracic spine, ribs and sternum and other anxiety disorders. The goals of the treatment plan are pain reduction, increasing strength and the applicant’s range of motion, in addition orthopaedic and neurological testing is proposed to determine percentage of impairment.
25Dr. Timothy Damaso, Chiropractor, prepared a treatment plan dated February 8, 2019, to address sprain and strain of the applicant’s cervical spine, lumbar spine, thoracic spine, ribs and sternum as well as other anxiety disorders. The goals of the treatment plan are to return the applicant to the activities of normal living and his pre-accident work activities. The evaluation criteria proposed includes orthopaedic and numerological testing and the percentage of perceived impairment. The treatment proposed is four weeks of exercise of multiple body sites, and documentation support activity.
26I find the opinions offered based on the section 44 Otolaryngology and Audiology assessment of Dr. Nitin Chauhan to be persuasive, that the disputed treatment plans dated October 2, 2018, and February 8, 2019, submitted by Dr. Timothy Damaso, Chiropractor, are neither reasonable or necessary. I note that Dr. Ratha Santhiramohan mentions that the applicant may benefit from physiotherapy for shoulder pain, however, Dr. Ratha Santhiramohan is outside the scope of his expertise as a neurologist opining on matters for a physician’s assessment. As stated, earlier, Dr. Nitin Chauhan’s opinion on the issue of the applicant’s contended pulsatile tinnitus is corroborated by Dr. Jason Atlas, and Dr. Ratha Santhiramohan, in addition to by the information provided in relevant diagnostic tests. In addition, as stated, the applicant has not met the burden of demonstrating that the submitted pulsatile tinnitus was caused by the accident.
27Dr. Charanjit Sandhu prepared a section 44 Physician’s assessment report opining on the reasonableness and necessity of the treatment and assessment plan/ OCF-18 dated October 2, 2018, prepared by Dr. Timothy Damaso, Chiropractor, having examined the applicant on November 27, 2018. In addition, Dr. Charanjit Sandhu prepared a section 44 Physician’s paper review dated February 19, 2019, offering an opinion on the treatment and assessment plan/ OCF-18 dated February 8, 2019, completed by Dr. Timothy Damaso, Chiropractor, in the amount of $521.24. As discussed, Dr. Charanjit Sandhu offered the opinion that neither of the referenced treatment plans/ OCF-18’s for chiropractic treatment proposed by Dr. Timothy Damaso, were reasonable and necessary by reason of the applicant already receiving education on an exercise program, in addition, the applicant did not present with any musculoskeletal injuries based on medical examination and diagnostic tests.
INTEREST
28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I find that the applicant is not entitled to the treatment plans, none of them are overdue and therefore no interest is payable by the respondent.
ORDER
29The applicant has failed to discharge his onus of establishing entitlement to the medical benefits sought. The MIG funds available to the applicant have almost entirely been exhausted based on correspondence from the respondent dated September 2, 2021, stating that of the $3,500.00 MIG claim limit, $3,199.29 has been paid to date for medical and rehabilitation benefits, with $300.71 remaining I find that the applicant is subject to the MIG, as he has not demonstrated that treatment beyond the $3,500 limit is required. He is not entitled to any of the treatment plans in dispute.
30Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
31The application is dismissed.
Released: May 25, 2023
Janet Rowsell
Adjudicator