Citation: Ventura v. Intact Insurance Company, 2023 CanLII 96362

Licence Appeal Tribunal File Number: 21-004492/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:

Melaneo Ventura

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Maziar Mortezaei, Counsel

For the Respondent: Michael Rattray, Counsel

HEARD: By way of written submissions

OVERVIEW

1Melaneo Ventura (“M.V.”), the applicant, was involved in an automobile accident on May 28, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). M.V. was denied benefits by the respondent, Intact, 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 M.V.’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 (the “MIG”)?

ii. Is M.V. entitled to $2,380.80 for psychological services, proposed by Health-Pro Wellness in a treatment plan (OCF-18) dated September 13, 2019?

iii. Is M.V. entitled to $3,631.00 for physiotherapy services, proposed by Health-Pro Wellness in an OCF-18 dated October 10, 2019?

iv. Is Intact liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to M.V.?

v. Is M.V. entitled to interest on any overdue payment of benefits?

RESULT

3M.V. has not demonstrated that his accident-related impairments warrant removal from the MIG. The disputed OCF-18s are not reasonable and necessary and no interest or an award is payable.

ANALYSIS

Applicability of the MIG

4The 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.

M.V.’s pre-existing condition does not remove him from the MIG

5Section 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:

i. That their accident-related injuries do not fall within the definition of “minor injury;”

ii. A pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG; or

iii. If they provide evidence of a psychological impairment or chronic pain with a functional impairment.

6M.V. submits that he suffered from pre-existing back pain, which was exacerbated by the accident.

7In response, Intact submits that M.V. has failed to adduce evidence that he suffers from a pre-existing condition that would prevent maximum medical recovery if he was kept within the confines of the MIG. It points to the records of Dr. Rammo, which M.V. relies on in support of his claim. Notably, Dr. Rammo’s CNRs do not reference any pre-existing back pain and are silent on whether M.V. would be precluded from recovery as a result of any pre-existing condition.

8Aside from noting the existence of a pre-existing condition in his submissions, M.V. has not directed me to any evidence that any alleged pre-existing condition would preclude him from achieving maximum recovery if he was kept within the MIG limits. Further, it is not enough to note the presence of a pre-existing condition, there must be evidence that demonstrates that the pre-existing condition prohibits the ability to recover under the MIG.

9M.V. has failed to meet his burden of proof regarding his pre-existing injuries.

M.V. did not suffer psychological impairments that require treatment beyond the MIG

10M.V. reported to his assessor, Dr. Aghamohseni, psychologist, feelings of anxiety and depression; sleep disturbances; fear and anxiety when travelling in a vehicle; social withdrawal; and memory disturbances. Dr. Aghamohseni opined that M.V.’s psychological impairments led to challenges with daily tasks, including personal care, housekeeping, and employment duties. Dr. Aghamohseni diagnosed M.V. with adjustment disorder and recommended psychological counselling. Dr. Aghamohseni concluded that M.V.’s psychological symptoms would impede full recovery and that the impairments could not be treated within the MIG.

11In response, Intact relies on the January 22, 2020 s. 44 report of Dr. Koepfler, psychologist in supported of its determination that M.V. did not suffer psychological impairments as a result of the accident.

12M.V. reported to Dr. Koepfler that he sometimes feels depressed, particularly when he was very ill in the summer. Current stresses include no income or job. He also expressed shock at being diagnosed with diabetes. Notably, M.V. endorsed severe depression and mild anxiety. He reported having lost interest in his appearance, although Dr. Koepfler likened his endorsements to being unable to read or watch television due to vision problems. Dr. Koepfler opined that M.V. presented with symptoms of moderate depressed mood primarily related to his unemployment, financial stress, and recent diagnosis of diabetes. Dr. Koepfler further opined that M.V. does not meet the criteria for a diagnosis of a pain disorder, as his pain does not prevent him from working (he was working at the time of the accident) or participating in activities of normal living. Dr. Koepfler concluded that M.V. did not require psychological intervention as a result of the accident.

13I find Dr. Koepfler’s report persuasive. According to M.V.’s self-reporting, it appeared, that a recent diagnosis of diabetes was a significant factor which he reported was very shocking. In addition, because of his current unemployment, M.V. finds it difficult to pay for his diabetes medication, which also has caused him stress. Further, he has been upset by being found at fault for the accident, having received a ticket as a result, and depressed due to a lack of work and money. I agree with Dr. Koepfler’s opinion that M.V.’s low mood is in response to significant non-accident-related stresses, which will resolve when his health is stable, and he is able to secure employment and pay for his medication.

14In addition, Dr. Rammo’s records are silent on M.V. presenting with any psychological complaints, which are inconsistent with the complaints noted in the OCF-18 for a psychological assessment recommended by Dr. Langis. There does not appear to be any contemporaneous evidence that supports Dr. Langis’ notations in the OCF-18. I also note that M.V. did not report any non-accident-related stressors to Dr. Langis, which contradicts his self-reports to Dr. Koepfler.

15For these reasons, I find that M.V. did not suffer more than psychological sequelae as a result of the accident, which does not require treatment beyond the MIG limits.

M.V. does not suffer from chronic pain as a result of the accident

16The Tribunal has determined that an applicant may be removed from the MIG if they suffer from chronic pain that causes functional impairment or, if they meet three of the six criteria for chronic pain, as set out in the AMA Guides. The basis for M.V.’s chronic pain is the alleged duration and severity of his pain. In support of his position, he provided submissions on the six criteria as follows:

i. Use of prescription drugs – excessive reliance on painkillers due to persistent chronic back pain;

ii. Excessive dependence on health care providers – reported ongoing chronic and neurological pain for more than six months to Dr. Rammo between June 7, 2019 and November 6, 2020), and was referred to a chronic pain clinic;

iii. Secondary physical deconditioning due to disuse and avoidance of physical activity due to pain – avoids physical activities due to pain;

iv. Withdrawal from social milieu – suffers from social withdrawal, including from activities of daily living, leisure, and work;

v. Failure to restore pre-accident function – failed to return to his pre-accident physical and psychological functioning; and

vi. Development of psychological sequelae – continues to suffer from psychological impairments, including symptoms of depression, anxiety, and non-organic sleep patterns.

17M.V. submits that he suffered “serious and permanent injuries to his entire body and psychological sequelae” as a result of the accident, which he identifies as headaches; concussions with associated dizziness; neck, back, shoulder and leg pain; sleep issues; and psychological injuries. He submits that the injuries listed in the May 30, 2019 Disability Certificate (OCF-3), being, WAD II with neck pain; sprain/strain of the cervical and thoracic spine; sprain/strain of the shoulder joints and rotator cuff capsule; lower back pain; acute pain; tension headaches; malaise and fatigue, warrants removal from the MIG. He relies on the clinical notes and records of Dr. Rammo, and diagnostic imaging reports dated September 18, 2019 and March 13, 2020 (which noted degenerative changes).

18Intact argues that M.V.’s injuries are not chronic. In this regard, it submits that he returned to work following the accident, stopping due to symptoms related to diabetes. M.V. reported to Dr. Lee, general physician, and Dr. Koepfler, that he was independent with self-care tasks. Further, on observation, both Dr. Lee and Dr. Koepfler noted normal gait and pace with unrestricted movements. Notably, there were no recommendations for treatment outside of those proposed by the treatment providers. In addition, M.V. reported to Dr. Lee that he was “80% recovered from the accident.” Dr. Lee observed a normal range of motion, and upon physical examination, range of motion was pain-free. Dr. Lee concluded that M.V.’s injuries were soft tissue in nature, diagnosing M.V. with cervical myofascial sprain/strain and left shoulder sprain/strain.

19I am persuaded by Dr. Lee’s report, and the medical documentation does not support that M.V. suffers from chronic pain as a result of the accident. I note that the October 10, 2019 OCF-18 indicated difficulties with physical activities, specifically, lifting, carrying, kneeling or pulling, however, M.V. did not report any of these difficulties to Dr. Lee. Lastly, Dr. Lee reviewed the pre-accident medical documentation, noting that the pre-existing injuries did not contribute to M.V.’s current clinical presentation, and have not been exacerbated by the injuries sustained in the subject accident. Dr. Lee also noted that M.V.’s accident-related injuries will not prevent him from reaching maximum medical recovery.

20Chronic pain syndrome is distinct from ongoing pain, which I find M.V. suffers from post-accident. Chronic pain syndrome is considered to be debilitating and severely limits one’s ability to engage in activities. M.V.’s evidence and documentation does not support that he suffers from such debilitating pain that results in significant functional limitations as a result of chronic pain syndrome. As such, it is difficult to find that his subjective complaints are evidence of a chronic pain condition that warrants removal from the MIG.

21I note that although provided with the opportunity to refute Intact’s arguments by way of reply submissions, M.V. chose not to.

Are the OCF-18s reasonable and necessary?

22It is my understanding that the MIG limits have been exhausted. Accordingly, an analysis of whether the disputed OCF-18s are reasonable and necessary is not required. As no benefits are overdue, it follows that no interest is payable under s. 51.

Award

23M.V. sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

24As no benefits are owing, Intact cannot have been found to have unreasonably withheld or delayed payment of benefits. No award is payable.

ORDER

25M.V. has not demonstrated that his injuries warrant removal from the MIG or that the OCF-18s are reasonable and necessary.