Citation: Calore v. Economical Insurance Company, 2023 ONLAT 21-012367/AABS

Licence Appeal Tribunal File Number: 21-012367/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:

Placido Calore

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Janet Hueglin Hartwick

APPEARANCES:

For the Applicant:

Placido Calore, Applicant

Ryan Jeffries, Paralegal

Daniella Messere, Legal Assistant

For the Respondent:

Rovina Sehdev, Accident Benefits Specialist

Julianne Brimfield, Counsel

Arielle Masur, Articling Student

Court Reporter:

Prashanth Thambipillai

HEARD: by Videoconference:

March 29-30, 2023

OVERVIEW

1Placido Calore, the applicant, was involved in an automobile accident on May 23, 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, Economical Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant advised at the start of the hearing that he was withdrawing item four, $2,010.65 for a functional ability evaluation assessment, as listed in the Case Conference Report and Order. In addition, the applicant requested to amend the time period of the non-earner benefit (NEB) to September 27, 2019, to May 23, 2020, rather than June 19, 2018 to May 22, 2020. Accordingly, the NEB was amended on consent.

ISSUES

3The issues in dispute 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 (“MIG”) limit?

ii. Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week for the period from September 27, 2019 to May 23, 2020?

iii. Is the applicant entitled to $2,720.23 for physiotherapy services, proposed by Health One Markham Inc. in a treatment plan/OCF-18 (“plan”) submitted on September 27, 2019 and denied on October 11, 2019?

iv. Is the applicant entitled to $2,260.00 for an orthopaedic assessment, proposed by Medex Assessment in a plan submitted on January 19, 2020 and denied on January 24, 2020?

v. Is the applicant entitled to $2,260.00 for a psychological assessment, proposed by Medex Assessment in a plan submitted on December 6, 2019 and denied on December 16, 2019?

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

RESULT

4I find the applicant has not demonstrated that removal from the MIG is warranted. The applicant’s injuries are predominantly minor and therefore subject to treatment within the MIG limit. Given the MIG has been exhausted, the OCF-18s in dispute are not payable.

5The applicant is not entitled to a NEB.

6The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

ANALYSIS

The applicant has not demonstrated removal from the MIG is warranted

7I am not persuaded the applicant has established, on a balance of probabilities, that he has a pre-existing condition which would otherwise preclude his recovery under the MIG.

8Section 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 their accident-related injuries fall outside of the MIG. The Tribunal has also determined chronic pain with functional impairment, or a psychological impairment may warrant removal from the MIG.

9Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the cap on benefits. However, the applicant must provide compelling evidence that meets the following requirements:

a. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

b. 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.

10In all cases, the burden of proof lies with the applicant.

11The applicant submits he should be removed from the MIG on three grounds:

a. his pre-existing facet joint arthritis;

b. his pre-existing degenerative changes of the cervical spine; and

c. his untreated psychological complaints.

The applicant is not removed from the MIG due to pre-existing conditions

12To support his claim, the applicant relies on an OCF-3 Disability Certificate dated September 27, 2019, clinical notes and records (CNRs) of his family physician Dr. Kuwahara, Miami Valley Hospital and Health One Markham and the s. 44 insurer’s examination (“IE”) of physician Dr. Sandhu.

13In response, the respondent submits the applicant’s medical conditions are not pre-existing as they were diagnosed after the subject accident. In addition, the respondent asserts there is insufficient evidence to prove the applicant requires psychological treatment. It relies on the IEs of occupational medicine physician Dr. Sandhu and occupational therapist Shoabana Kugathasan, a cervical spine imaging record, the report of neurologist Dr. Jalal and clinical notes and records of Lifemark, which includes an OCF-3 Disability Certificate dated June 19, 2018.

14I agree with the respondent. The applicant has not met his onus to prove his removal from the MIG is warranted for the following reasons.

15First, I find the applicant has not proven he suffers from pre-existing conditions pursuant to s. 18(2) of the Schedule. X-rays of the cervical spine taken on September 21, 2018, four months post-accident, determined the “prevertedbral soft tissue space is normal. The alignment is within normal limits. Mild degenerative changes are present. There is associated facet and uncovertebral joint arthritis”. The applicant asserts the diagnoses from the X-ray reflect pre-existing conditions that remained asymptomatic until the accident. In my view, I have not been provided with evidence to confirm this theory applies to the applicant. Furthermore, I am persuaded by the testimony of IE assessor Dr. Sandu who testified the X-rays identified the applicant had a mild level of degeneration, not moderate or severe, which is “pretty good” for someone in his 70s. The applicant has not met his onus to be removed from the MIG as I do not have evidence before me, documented by a health practitioner before the accident, that proves the applicant had a pre-existing medical condition.

16Second, I find the applicant’s arthritis and cervical spine degeneration did not prevent him from achieving maximum medical recovery within the MIG. Chiropractor Dr. Li, the first practitioner to treat the applicant shortly after the accident, stated in a letter to the applicant’s family physician that she had “no concerns” the applicant would return to his pre-accident baseline. Dr. Li also stated the applicant would experience a protracted rate of recovery, due to his age, clinical presentation and the likelihood of underlying degenerative changes of the cervical spine. I find this proved to be an accurate prediction. The applicant testified that by mid-to-late September of 2019 he drove without pain in his neck, and he had resumed the majority of his activities. In addition, his dizziness, the whiplash associated disorder (WAD2) and benign paroxysmal positional vertigo (BPPV) had resolved. Therefore, it is my view the applicant was not prevented from achieving maximal recovery with his treatment costs being kept within the MIG.

17I am alive to the applicant’s submissions that it is unfair the Schedule does not provide additional recovery time for older persons. Nonetheless, the MIG is clear, definitive and it is the test against which I must evaluate the applicant’s injuries. Accordingly, I find the applicant has failed to provide compelling evidence that establishes his maximal recovery has been prevented because he is subject to the $3,500.00 cap on treatment costs under the MIG.

The applicant is not removed from the MIG due to a psychological impairment

18In my view, the applicant’s assertion that he is in need of psychological treatment is unsupported. The applicant argues he should be removed from the MIG because his answers to the mental health screen conducted by IE assessor Dr. Sadhu demonstrates the need for a psychological assessment, pursuant to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. The respondent asserts Dr. Sadhu is not a psychologist and is unable to diagnose psychological conditions. Furthermore, the respondent submits the applicant has not provided medical evidence or CNRs that demonstrate psychological complaints from the applicant. I agree with the respondent. I find there is a lack of evidence to support this claim including the applicant’s testimony.

19There is no support for the applicant’s assertion that he should be removed from the MIG due to a potential psychological impairment. I have not been pointed to a CNR that indicates the applicant made a psychological complaint. The applicant testified he has not endorsed the need for psychological support. The applicant’s comments to Dr. Sandu, namely that he reported having anxiety, he experienced flashbacks of the accident and has become a hypervigilant driver, are not evidence of a psychological impairment. The only evidence to support this claim is the OCF-3 Disability Certificate that was prepared on September 27, 2019, 16 months post-accident. I find it significant there was no reference of psychological impairments or concerns in the first OCF-3 dated June 19, 2018.

20In my view, the medical evidence I have received does not indicate the applicant has a psychological impairment related to the subject accident. Therefore, I decline to remove him from the MIG on this basis.

OCF-18s in dispute will not be analyzed as MIG benefits are exhausted

21Given that the parties indicated the $3,500.00 MIG limit was previously exhausted, no additional analysis is required to determine if the OCF-18s in dispute are reasonable and necessary pursuant to the Schedule.

The applicant is not entitled to a NEB pursuant to s. 12(1)

22Section 12(1) provides that an insurer shall pay a NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The respondent referenced Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, the guiding principles for NEB entitlement set out by the Court of Appeal. The Heath test at paragraph 50 which generally focuses on a comparison of the applicant’s pre- and post-accident activities, is the leading case regarding the standard of entitlement for a NEB and I find it binding on my analysis.

23The applicant has not demonstrated he is entitled to a NEB, from September 27, 2019, to May 23, 2020. As I stated above, the applicant testified that by mid-to-late 2019 his accident-related symptoms had resolved, and he was back to completing most tasks to a “certain degree” while taking breaks as needed. The applicant testified that he agreed with Dr. Sandu’s report, dated December 24, 2019, that stated he is independent with all acts of daily living and he “continues to assist with all housekeeping and cooking activities”. Despite bringing the applicant’s attention to my need for a clear understanding of his pre- and post-accident activities to satisfy the Heath test, I was not provided with additional submissions that specified the applicant’s capabilities before and after the accident. Based on the facts and evidence before me, I find that the applicant has resumed his normal activities of daily living, albeit in a paced manner. He has not demonstrated he suffers from a complete inability to carry on a normal life, and therefore I find he is not entitled to a NEB.

The applicant is not entitled to interest pursuant to s. 51 of the Schedule

24Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

25The applicant has not demonstrated that his accident-related impairments warrant treatment beyond the MIG, or that he meets the test for entitlement to a NEB. As the parties have indicated the MIG limits have been exhausted, he is not entitled to the treatment and assessment plans in dispute. As there are no benefits owing, the applicant is not entitled to interest.

26The application is dismissed.