Licence Appeal Tribunal

Citation: Ruffolo v. Travelers Canada, 2023 ONLAT 20-014871/AABS

Licence Appeal Tribunal File Number: 20-014871/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:

Mark Ruffolo

Applicant

and

Travelers Canada

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Daniela Algieri-Boileau, Counsel

For the Respondent: Joseph Filice, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on March 4, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule, Effective September 1, 2010 (including amendments effective June 1, 2016)¹ (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.

ISSUES

2The issues to be decided in this hearing are²:

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?

ii. Is the applicant entitled to $2,147.00 for occupational therapy services, proposed by Medex Assessments Inc. in a treatment plan (“OCF-18”) dated March 27, 2019?

iii. Is the applicant entitled to $2,010.65 for other goods and services, proposed by Medex Assessments Inc. in an OCF-18 dated May 2, 2019?

iv. Is the applicant entitled to $1,997.06 for a functional ability evaluation, proposed by Mackenzie Medical Rehabilitation Centre Inc. in an OCF-18 dated July 26, 2019?

v. Is the applicant entitled to $1,384.70 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre Inc. in an OCF-18 dated September 4, 2019?

vi. Is the applicant entitled to $2,260.00 for a psychological assessment, proposed by Zack Cernovsky in an OCF-18 dated April 2, 2019?

vii. Is the applicant entitled to $1,300.00 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre Inc. in an OCF-18 dated May 30, 2019?

viii. Is the applicant entitled to $3,696.00 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre Inc. in an OCF-18 dated March 13, 2019?

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

RESULT

3I find that the applicant’s impairments are predominantly minor as defined by the Schedule and subject to the treatment limits of the Minor Injury Guideline (“MIG”).

4As the full MIG limit on medical benefits has already been approved by the respondent³, an analysis of whether the disputed treatment and assessment plans are reasonable and necessary is unwarranted.

5As no benefits are owing, no interest is payable.

minor injury guideline

6The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

7Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or if they provide evidence demonstrating that their injuries are not included in the minor injury definition. Further, the Tribunal has found that evidence of chronic pain that causes functional impairment justifies removal from the MIG.

8The onus is on the applicant to show, on a balance of probabilities, that his injuries fall outside of the MIG.⁴

Did the Applicant Sustain Physical Injuries that Warrant Removal from the MIG?

9Based on the totality of the medical evidence, I find that the applicant suffered from predominantly minor injuries as a result of the accident.

10To substantiate his physical accident-related impairments, the applicant relies on two Disability Certificates (“OCF-3s”), one dated March 12, 2019 prepared by Dr. Mitesh Panchal, chiropractor, and one dated October 16, 2019 prepared by Dr. Dr. Angel Russi, chiropractor. Both of the OCF-3s listed similar impairments, including radiculopathy, sprain and strain of the lumbar, thoracic and cervical spine, sprain and strain of the sacroiliac joint and jaw, headaches, anxiety disorder, irritability and anger.⁵ The October 16, 2019 OCF-3 also included injuries of the muscles and tendons of the rotator cuff of the shoulder and “other chronic pain”.⁶

11The applicant further submits that the treatment records from his chiropractic clinic corroborate his claims of ongoing headaches, radiculopathy and limited range of motion.⁷ In addition, the applicant relies on the clinical notes and records (“CNRs”) of two family physicians Dr. Robert Ames and Dr. Dina Nahab, which indicate that in addition to ongoing reports of pain, diagnostic imaging of the applicant’s back, neck and right shoulder was ordered⁸, the applicant was referred to the emergency room in April 2020 for headaches and anxiety⁹, and was diagnosed by Dr. Ames with paraspinal muscle sprain and strain and post-MVA Whiplash¹⁰.

12In contrast, the respondent asserts that the applicant did not sustain anything other than soft-tissue injuries as a result of the accident, which are treatable within the MIG. The respondent relies upon the Insurer’s Examination (“IE”) reports of Dr. Jamsheed Desai, neurologist, Dr. Raymond Zabieliauskas, physiatrist and Dr. Jason Bacchiochi, psychologist, all of whom found that the applicant’s accident-related impairments fell within the MIG. The respondent further relies upon surveillance reports, which the respondent submits, indicate that the applicant was seen crouching to clean his vehicle, lifting and carrying his golf bag, putting and chipping.

13Upon review of the evidence and submissions of the parties, I find that the applicant has not led sufficient medical evidence to establish that he has sustained non-minor physical impairments, which would warrant his removal from the MIG.

14To establish non-minor physical impairments, the applicant relies in part on the OCF-3s prepared by Dr. Panchal and Dr. Russi. However, an OCF-3 does not in and of itself establish whether an applicant has sustained a non-minor injury. It is a form used to apply for a specified benefit and is not a comprehensive assessment of injuries sustained in an accident.

15Further, the bulk of the physical impairments listed in the OCF-3s involve sprain and strain-type injuries of the back, neck and shoulder. Similar diagnoses were made by the applicant’s family physician Dr. Ames, who also found that the applicant suffered from paraspinal muscle sprain and strain and post-MVA cervical whiplash.¹¹ However, these sprain and strain-type diagnoses fall squarely within the definition of a minor injury.

16Although the applicant further asserts that Dr. Panchal and Dr. Russi diagnosed him with radiculopathy in the applicable OCF-3s, I place limited weight on this diagnosis. I note that a diagnosis of radiculopathy would be beyond the scope of practice of Dr. Panchal and Dr. Russi, as chiropractors. The applicant has not been diagnosed as suffering from radiculopathy by a physician nor did the CNRs of Dr. Ames indicate ongoing radiculopathy symptoms. Similarly, the diagnostic imaging conducted of the back and neck both in April 2019 and in May 2020, was unremarkable and did not identify any injury. Finally, the neurological IE assessment of Dr. Desai found that the applicant did not sustain a neurological impairment as a result of the accident¹². The applicant has not directed me to any objective medical evidence supporting a finding of radiculopathy.

17I also find that the applicant’s claim of a serious shoulder injury to the rotator cuff, is not corroborated by the medical evidence. The diagnostic imaging of the applicant’s shoulder did not find any abnormalities, and noted that the “rotator cuff appears intact. There is no fluid collections or calcification demonstrated.”¹³

18Moreover, the physiatry IE assessment of Dr. Zabieliauskas noted that the applicant displayed full range of motion of the neck, upper extremities, back and lower extremities, without any reports of pain. Dr. Zabieliauskas found that the applicant had sustained “at most” a cervical strain WAD II, as well as a mild thoracolumbar strain and that there were no residual accident-related impairments.¹⁴ As previously noted, such injuries fall squarely within definition of a minor injury.

19I similarly find that the applicant’s intermittent reports of headaches do not warrant removal from the MIG. While the applicant did report headache pain at the time of the accident, according to the emergency room records at the time of assessment, it was “since resolved”.¹⁵ In his submissions the applicant points to the fact that he reported headache pain to Dr. Nahab and Dr. Ames in April and May 2020, and that he was referred to the emergency room in April 2020 for headache pain.¹⁶ However, I note that these reports to his family physicians were more than a year post-accident. The applicant does not direct me to CNR entries establishing that headache pain was a persistent complaint to his family doctors in the years post-accident. It also does not appear that the applicant’s family physician ever considered or ordered any diagnostic imaging to address headache concerns, nor was a referral to a specialist ever made to investigate headache symptoms.

20Moreover, I note that in the neurology IE assessment conducted by Dr. Desai, the applicant had reported that he did have headaches prior to the accident, and that they had not changed substantially with respect to frequency or intensity post-accident. After his assessment, Dr. Desai concluded that there were no identifiable neurological impairments or disabilities that can be attributed to the accident. Dr. Desai further found that the applicant’s headaches had been pre-existent and were not exacerbated by the accident.¹⁷

21As such, I find that the applicant has not adduced sufficient objective, medical evidence that he sustained physical accident-related impairments that would warrant removal from the MIG.

Did the Applicant Develop a Psychological Impairment that would remove him from the MIG?

22Psychological injuries, if established, may fall outside of the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include psychological impairments. The applicant claims that he suffers from ongoing psychological accident-related impairments, warranting his removal from the MIG.

23To establish psychological impairments, the applicant submits the OCF-3s which include anxiety disorder, unspecified irritability and anger, among the listed impairments. The applicant further submits that in April 2020, he was referred to the emergency department by Dr. Nahab, for a number of symptoms including a possible anxiety attack.

24Upon a review of the review of the submissions and evidence, I find that the applicant has failed to adduce sufficient evidence that he suffers from a psychological impairment.

25Although the applicant relies on the fact that Dr. Panchal and Dr. Russi listed anxiety, unspecified irritability and anger as listed impairments on the OCF-3s, as previously noted, an OCF-3 itself is not evidence of an impairment. Rather, additional objective medical evidence corroborating this diagnosis is required. Further, I note that Dr. Panchal and Dr. Russi are both chiropractors and as such, psychological diagnoses are outside of their scope of practice.

26The applicant does not direct me to any evidence that he has been diagnosed with an accident-related psychological impairment by a physician or a psychologist. Nor does the applicant refer me to entries in Dr. Ames’ or Dr. Nahab’s CNRs, indicating that he had complained of psychological symptoms to his family physicians, other than the April 2020 entry, a year post-accident.

27The applicant submits the CNR entry from April 20, 2020 indicating that he had a telephone consultation with Dr. Nahab, who referred him to the emergency department. This CNR entry noted that the applicant had chest pain, vomiting and a headache and Dr. Nahab queried whether it was a viral illness or anxiety. However, the applicant has not led evidence that the possible anxiety or panic attack was linked to the accident, that he continued to report such psychological symptoms to his family physicians or that he was ever formally diagnosed with anxiety. The CNRs of Dr. Ames and Dr. Nahab do not indicate that the applicant ever requested a referral to a psychologist or any kind of psychological support.

28Finally, I find the psychological IE Assessment Report of Dr. Bacchiochi, to be persuasive. As part of his assessment, Dr. Bacchiochi conducted a clinical interview, the Miller Forensic Assessment of Symptoms Test and the Personality Assessment Inventory Test. The applicant reported to Dr. Bacchiochi that he had experienced stress and anxiety prior to the accident related to studying for his solicitor’s exams, but that his mood and stress had improved, after he passed the exam in November, 2019. Upon conducting the clinical interview and psychometric tests, Dr. Bacchiochi found that the applicant was not presenting with any accident-related symptoms that would warrant a DSM-5 diagnosis.¹⁸

29As a result, based on the totality of evidence, I find that the applicant has failed to establish that he has sustained a psychological impairment as a result of the accident.

Did the Applicant Develop Chronic Pain as a Result of the Accident?

30The applicant submits that he suffers from chronic pain as a result of the accident. The applicant relies on the OCF-3 prepared by Dr. Russi, which listed chronic pain as one of the applicant’s impairments, as well as the treatment records of Mackenzie Medical Rehabilitation Centre Inc. and the CNRs of Dr. Ames which indicate that the applicant complained of neck, shoulder and back pain post-accident. The applicant also submits that he reported to the respondent’s psychological IE assessor, Dr. Bacchiochi, that his shoulder still hurt.

31Upon a review of the evidence and submissions of the parties, I find that the applicant has not met his onus of establishing pain of the duration, severity and functionally disabling extent necessary to remove him from the MIG.

32The applicant does not direct me to any diagnosis of chronic pain or chronic pain syndrome in the CNRs of Dr. Ames or any other physician. Although Dr. Russi listed chronic pain as one of the applicant’s physical injuries in an OCF-3, as a chiropractor, I find that a chronic pain diagnosis would be outside his scope of practice.

33With respect to the applicant’s pain complaints, the applicant only directs me to a few entries where he had reported pain to Dr. Ames in the years post-accident. The CNRs of Dr. Ames indicate that the applicant reported pain soon after the accident in March 2019, with two additional complaints in subsequent months in June and August 2019. The applicant then reported pain in his head, shoulder, back and neck, almost a year later in April and May 2020. I note the respondent’s submissions that the applicant’s decoded OHIP summary indicates that the applicant visited his family physician only six times in the three years post-accident, and not all of the visits were pain-related. Six visits in almost three years, is not evidence of the type of frequency or continuity of pain that would be reflective of a chronic pain diagnosis.

34In addition, I note that an applicant can still be found to be within the MIG, even if he suffers from ongoing, post-accident pain. A certain degree of pain can be expected as a clinically associated consequence of minor, soft tissue injuries and their sequalae. Treatment for pain of this kind is contemplated in the $3,500.00 funding limit under the Schedule.

35Therefore, it is not simply reports of ongoing pain that establish a finding of chronic pain. Rather, ongoing pain must be accompanied by some functional impairment or disability and must be of a severity that causes an adverse effect on an individual’s well-being. I agree with the respondent’s submissions that as noted in 17-007825 v. Aviva Insurance Canada,¹⁹ this Tribunal has often used the American Medical Association’s Guides (“AMA Guides”) chronic pain criteria as an assistive tool to evaluate chronic pain complaints where there is no diagnosis of chronic pain.

36In applying these AMA Guides criteria, I find that the applicant has not provided any evidence that he is dependent on or has abused prescription pain medication. Rather, from the evidence it appears that the applicant has not been prescribed prescription pain medication after the first few months post-accident. The applicant has also led no evidence that he is excessively dependent on health care providers or family or that he suffers from secondary physical deconditioning due to fear-avoidance of pain.

37There is also no evidence that the applicant has withdrawn from social, work or recreational activities due to pain, or that he has been unable to restore pre-injury function after a period of disability, such that the applicant is incapable to pursue work, family or recreational needs. I note the respondent’s submissions that post-accident, the applicant passed his bar exams, was called to the bar, established a practice and was working as a criminal lawyer. The respondent also submitted surveillance evidence of the applicant playing golf and socializing with friends. Other than self-reports of functional limitations, the applicant has not led any evidence demonstrating functional impairment. With respect to the final AMA Guides criteria, the development of psychosocial sequalae after the accident, as previously noted, the applicant has not established that he has developed a psychological impairment as a result of accident-related pain.

38As a result, on a balance of probabilities, I find that the applicant has failed to meet his evidentiary onus to establish that he suffers from chronic pain as a result of the accident, that would warrant removal from the MIG.

treatment plans

39As I have found that the applicant has failed to prove that his 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, because the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been approved.

interest

40Section 51(1) 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.

41As no benefits are overdue, no interest is payable under s.51.

CONCLUSION and order

42The applicant’s injuries fall within the Minor Injury Guideline.

43The applicant is not entitled to the disputed treatment plans.

44The applicant is not entitled to interest.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2The applicant did not provide a list of the issues in dispute as part of his written submissions, or the applicable OCF-18s. The respondent included the Case Conference Report and Order dated May 31, 2021 as part of its written submissions at Tab A of its submissions. However, the respondent’s list of the issues in dispute in its submissions, differed somewhat from that contained in the Case Conference Report and Order. The list of issues in the respondent’s submissions did not include three additional treatment plans which had been listed in the Case Conference Report and Order. No explanation was provided for this discrepancy. As such, for the purposes of this written hearing, I am relying on the Case Conference Report and Order dated May 31, 2021 to determine the issues in dispute.
3. 3Respondent’s Submissions at para 23.
4. 4Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
5. 5Applicant’s Submissions, Tabs 4 and 7, OCF-3s dated March 12, 2019 and October 16, 2019
6. 6Applicant’s Submissions, Tab 7, OCF-3 dated October 16, 2019
7. 7Applicant’s Submissions, Tab 3, CNRs of Mackenzie Medical Rehabilitation Centre Inc.
8. 8Applicant’s Submissions, Tab 5, Diagnostic Imaging April 17, 2019, respondent’s Submissions, Tab F CNRs of Dr. Ames, X-ray dated May 25, 2020
9. 9Applicant’s Submissions, Tab 8, CNRs of Dr. Nahab
10. 10Applicant’s Submissions, Tab 5 and 9, CNRs of Dr. Ames
11. 11CNRs of Dr. Ames dated May 25, 2020
12. 12Respondent’s Submissions, Tab N – Neurological Assessment Report of Dr. Desai, dated March 24, 2020
13. 13Applicant’s Submissions, Tab 5 - Diagnostic Imaging April 17, 2019,
14. 14Respondent’s Submissions, Tab M - Physiatry Assessment Report of Dr. Zabieliauskas, dated March 24, 2020
15. 15Applicant’s Submissions, Tab 2 - CNRs of Trillium Health Partners
16. 16Applicant’s Submissions, Tab 5, 8 and 9 - CNRs of Dr. Ames and Dr. Nahab
17. 17Respondent’s Submissions, Tab N – Neurological Assessment Report of Dr. Desai, dated March 24, 2020
18. 18Respondent’s Submissions, Tab O – Psychology IE Assessment Report of Dr. Bacchiochi, dated March 24, 2020
19. 1917-007825 v. Aviva Insurance Canada, 2018 CarswellOnt 16432 (ONLAT).