Tassone v. Western Assurance Company, 2023 CanLII 65788

Citation: Tassone v. Western Assurance Company, 2023 ONLAT 21-005196/AABS

Licence Appeal Tribunal File Number: 21-005196/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:

Adelina Tassone

Applicant

and

Western Assurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Francesco Blasi, Paralegal

For the Respondent: Paul Omeziri, Counsel

HEARD: BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Adelina Tassone, the applicant, was involved in an automobile accident on August 24, 2020, 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, Western Assurance Company, 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 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 $520.19 ($2,517.09 less $1,996.90 approved) for chiropractic services, proposed by Focus Physiotherapy in a treatment plan (“OCF-18”) dated November 12, 2020?

iii. Is the applicant entitled to $3,169.73 for chiropractic services, proposed by Focus Physiotherapy in an OCF-18 dated February 8, 2021?

iv. Is the applicant entitled to $1,995.32 for psychological services, proposed by Pilowsky Psychology Professional Corporation in an OCF-18 dated March 25, 2021?

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

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

3The applicant listed an additional treatment plan as an issue in dispute for this written hearing, an OCF-18 dated April 14, 2021 for $3,852.27 for psychological services. However, the respondent disputes that this treatment plan is an issue in dispute and submits denial letters for all of the other listed treatment plans. Despite having the right of reply, the applicant did not clarify whether the April 14, 2021 OCF-18 was an issue in dispute, nor did the applicant provide the applicable OCF-18 or the respondent’s denial letter. As the applicant has not submitted any evidence with respect to this treatment plan, it will not be included as an issue in dispute in this written hearing.

RESULT

4I find that:

i. The applicant’s impairments are predominantly minor and therefore subject to the treatment limits of the MIG;

ii. As the full MIG limit on medical benefits has been approved, an analysis of whether the disputed treatment and assessment plans are reasonable and necessary is unwarranted.

iii. The respondent is not liable to pay an award.

iv. As no benefits are owing, no interest is payable.

ANALYSIS

Minor Injury Guideline

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. 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.”

6An insured 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 condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

7In her submissions, the applicant has not specified on which ground she should be removed from the MIG, although it appears to be on the basis of a pre-existing impairment, psychological impairment or chronic pain.

Does the Applicant have a Pre-Existing Condition that would Prevent Maximal Recovery under the MIG?

8Although the applicant submits that she suffered from pre-existing neck, low back and knee impairments and was in a prior motor vehicle accident in 2016, I do not find that the applicant had a pre-existing medical condition which would prevent her from achieving maximal medical recovery within the MIG.

9Pursuant to s. 18(2) of the Schedule, an applicant may be removed from the MIG if they have evidence of a pre-existing condition, documented by a medical practitioner prior to the accident, that would preclude maximal medical recovery if they are kept within the confines of the MIG.

10The applicant does not direct me to any evidence that she sustained anything other than soft-tissue injuries as a result of the previous accident. Moreover, diagnostic imaging from 2018 and 2019 indicate only degenerative changes in the knees, cervical and lumbar spine. The applicant did report intermittent neck, knee and back pain complaints to her family physician in the years prior to the subject accident. However, the last such pain complaint was more than seven months pre-accident. Further, the applicant reported to numerous assessors that any residual symptoms from the 2016 accident had resolved prior to the subject accident. Finally, the respondent’s s. 44 assessor, Dr. Mile Stefanac considered the pre-existing degenerative changes, and expressly noted that they would not prevent the applicant from achieving maximal medical recovery under the MIG.

11As such, I find that the applicant has not adduced sufficient evidence to establish that her pre-existing impairments warrant removal from the MIG.

The applicant has not established psychological impairments warranting removal from the MIG

12The applicant submits that her psychological impairments warrant removal from the MIG. She relies in large part on a s. 25 assessment of Dr. Judith Pilowsky, who diagnosed the applicant with chronic adjustment disorder with mixed anxiety and depressed mood.

13I agree with the respondent that the applicant has not adduced sufficient evidence that she has sustained a psychological impairment. The clinical notes and records (“CNRs”) of the applicant’s family physician Dr. Leora Marcovitz do not indicate that that the applicant reported any psychological symptoms in the period after the subject accident. Nor did Dr. Marcovitz diagnose the applicant with a psychological impairment, refer her for psychological treatment or prescribe any medication for psychological conditions.

14Further, the respondent’s s. 44 psychological assessor Dr. Rod Day did not find any accident-related diagnosis. He noted that the applicant denied that low mood was a significant issue for her, did not report symptoms consistent with PTSD and although she reported feeling anxious on highways, she did not believe that it warranted intervention, as she felt that her anxiety was progressively diminishing and that she could drive everywhere.

15When comparing the respondent’s s. 44 assessment to the applicant’s s. 25 report, I prefer the respondent’s report. The applicant’s s. 25 assessment is not consistent with the CNRs of Dr. Marcovitz, which do not indicate any psychological complaints in the 18 months post-accident. In addition, I agree with the respondent that Dr. Pilowsky’s diagnosis of chronic adjustment disorder with mixed anxiety and depressed mood is not consistent with the applicant’s testing scores. In her report, Dr. Pilowsky conceded that the applicant’s testing indicated low levels of depressive, anxious and somatization symptoms, yet despite these scores, diagnosed the applicant with a chronic adjustment disorder.

16As a result, I find that the applicant has failed to establish that she sustained a psychological impairment as a result of the accident.

The applicant has not established chronic pain warranting removal from the MIG

17The applicant submits that she has developed chronic pain as a result of the accident warranting removal from the MIG. She relies on the s. 25 orthopaedic report of Dr. Ogilvie-Harris, who diagnosed the applicant with soft-tissue injuries and chronic pain syndrome. The applicant also points to the CNR entries of Dr. Marcovitz and the treatment records of Focus Physio, submitting that they establish that she continued to report neck and back pain in the eighteen months post-accident.

18The respondent disputes that the applicant has developed chronic pain. It relies upon the s. 44 assessment of Dr. Stefanac, who diagnosed the applicant with only cervical and lumbar sprain/strain as a result of the accident.

19I find that the applicant has not met her onus of establishing pain of the duration, severity and functionally disabling extent necessary to remove her from the MIG. I do not see that the objective medical record supports a finding of chronic pain. In 2021 and 2022, the applicant only attended at her family physician’s office a few times for accident-related upper back and neck pain complaints. I agree with the respondent that the frequency of the applicant’s post-accident pain complaints does not differ significantly from her pain reports pre-accident.

20The applicant further does not direct me to any evidence that she had to take any prescription medication for pain management, with the applicant reporting to assessors that she took only Tylenol or Robaxisol when needed. Nor do the CNRs of Dr. Marcovitz indicate any referrals for specialized pain management or any discussion of chronic pain or a chronic pain diagnosis. The records of the applicant’s treating physiotherapy clinic are also not persuasive evidence of chronic pain. The session entries indicate that the applicant often reported that she was feeling “OK”, or that she had stiffness or tension in her neck and back, rather than the significant pain to be expected of a chronic pain diagnosis

21I further agree with the respondent that the applicant has not established that she meets three out of the six American Medical Association’s Guides’ chronic pain criteria. Namely, the applicant has not provided evidence that she is dependent on or has abused prescription pain medication, is excessively dependent on health care providers or family, that she has withdrawn from social, work or recreational activities due to pain, or that she suffers from secondary physical deconditioning due to fear-avoidance of pain. There is no evidence that the applicant has been unable to restore pre-injury function after a period of disability, such that she is incapable to pursue work, family or recreational needs. The applicant returned to work within a week of the accident and reported to multiple assessors that she continues to exercise and go for walks up to an hour a day. Other than self-reports of functional limitations, the applicant has not led any evidence demonstrating functional impairment.

22Finally, the applicant submits that given that Dr. Ogilvie-Harris’ s. 25 assessment was provided on May 8, 2022, the respondent should have obtained updated s. 44 assessments, as both Dr. Day and Dr. Stefanac had provided their respective assessments in 2021. The applicant submits that given Dr. Ogilvie-Harris’ diagnosis of chronic pain, both assessors should have reviewed their conclusions in light of this report. I do not find that the respondent was obligated to provide an updated s. 44 report or addendum. Section 44 of the Schedule is clear that insurers may require an insured to be examined to assist in determining entitlement to a benefit, but this is not compulsory. It was open to the respondent to rely on prior insurer’s examinations in assessing entitlement to the disputed benefits, particularly in light of the fact that at the time of Dr. Ogilvie-Harris’ assessment, the applicant was not reporting pain complaints to her family physician.

23The respondent has submitted correspondence indicating that the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been approved. As I have found that the applicant has failed to prove that her accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.

Award

24Section 10 of Regulation 664 provides that an award may be granted if the respondent unreasonably withheld or delayed payments.

25In the matter at hand, the respondent took the position that the applicant’s injuries were subject to treatment under the MIG. I have considered the medical evidence and have come to the same conclusion. As such, there is nothing in the evidence before me to suggest that the respondent behaved in an unreasonable manner. Accordingly, the applicant’s request for an award is denied.

Interest

26Section 51 of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

27As no benefits are overdue, no interest is payable under s.51.

ORDER

28For the reasons set out above, I find that:

(i) The applicant’s injuries fall within the MIG;

(ii) The applicant is not entitled the disputed treatment plans;

(iii) The respondent is not liable to pay an award under Regulation 664; and

(iv) The applicant is not entitled to interest.

29The application is dismissed.