Citation: Albanese v. Intact Insurance Company, 2024 ONLAT 22-011975/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:

Giorgio Albanese

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jeff Chatterton

APPEARANCES:

For the Applicant:

Dean Trinetti, Counsel

For the Respondent:

Patricia Dimakos, Counsel

HEARD: In Writing

OVERVIEW

1Giorgio Albanese, the applicant, was involved in an automobile accident on July 19, 2019, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issue(s) in dispute are:

1. 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? Note: The parties agree the MIG limits have been exhausted.

2. Is the applicant entitled to the assessments or treatments proposed by Health Bound Network, as follows:

(i) $4,061.12 for a physiotherapy services, in a treatment plan dated March 10, 2021; and

(ii) $3,367.23 for a chiropractic services, in a treatment plan dated February 23, 2022?

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

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

RESULT

3The applicant has not met his burden of proving that his accident-related impairments require treatment beyond the MIG.

4As the applicant is subject to the MIG, he is not entitled to the treatment plans in dispute.

5As no benefits were unreasonably withheld or delayed, the applicant is not entitled to an award. As no benefits are payable, the applicant is not entitled to interest.

PROCEDURAL ISSUES

6In its submissions, the Respondent raised a concern about the s.25 Chronic Pain Report by Dr Karmy, dated October 15, 2022. The respondent claimed the applicant failed to comply with production orders contained in the Tribunal’s Case Conference and Order, dated July 10, 2023.

7Specifically, the respondent claimed that it asked for complete clinical notes and records of all treating clinics and physicians, from one year pre-accident to the date of the case conference. Dr Karmy’s report was completed in October 2022, approximately nine months prior to the case conference. It was not produced or exchanged with the respondent.

8Since it was not produced, the respondent submits that Dr Karmy’s report must be excluded according to rule 9.4 of the Common Rules of Practice & Procedure of the Licence Appeal Tribunal.

9The applicant admits they failed to share the document in question but submits that they failed to produce Dr Karmy’s report due to inadvertence. They submit that the respondent also failed to produce a document within the deadlines stipulated in the Case Conference Report and Order of July 7, 2023. The applicant submits that if Dr Karmy’s report is to be excluded, so also should the Addendum Report of Dr Siddiqui, dated January 8, 2024, and served to the applicant on February 12, 2024.

10I am allowing Dr Karmy’s report into evidence because I find that excluding a section 25 report is prejudicial to the applicant and that this outweighs any prejudice to the respondent - particularly as the applicant leans heavily on Dr Karmy’s report in their submissions, and the respondent references Dr Karmy’s report in their submission. I will, however, give the report less weight given its late production.

11I also decline to exclude Dr Siddiqui’s Addendum report because I note it was sent to the respondent in late January 2024. The respondent subsequently shared the report with the applicant via email three weeks later, on February 12, 2024. I find that the applicant had the opportunity to review Dr Siddiqui’s report prior to their written submission. I do not believe Dr Siddiqui’s addendum report deserves to be excluded from consideration.

ANALYSIS

Has the applicant sustained a minor injury?

12I find that the applicant has sustained a minor injury. The applicant has not met the onus to warrant removal from the MIG.

13Section 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.

14An 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.

15The applicant submits that he should be removed from the MIG based on a pre-existing condition and chronic pain.

16The applicant submits that he suffers from ongoing physical impairments and continues to require treatment, that his ability to perform his activities of daily living is impaired by his pre-existing condition and discomfort and that the medical professionals who have treated and assessed him opine that the treatment plans in dispute are necessary for an effective recovery.

Pre-existing Condition

17The applicant submits that the accident aggravated a documented pre-existing medical condition, specifically, degenerative disc disease of the lumbar spine region. The applicant submits that as a result of this pre-existing injury, further medical treatment is necessary than what the MIG allows.

18The applicant submits that he suffered an L2 compression fracture from a workplace accident, and that this prior injury is affecting his recovery.

19To support his argument, the applicant relies on Clinical Notes and Records from Headwaters Medical Clinic and Health Bound Health Network, as well as earlier diagnostic images. The applicant also submitted handwritten clinical notes from Dr Paywandi, which I find are not legible, a concern I note was also shared by Dr Karmy in his s.25 assessment.

20I have no problem accepting that the applicant has suffered a prior injury, or that the location of the injury is where he is experiencing pain. I must ask if the prior injury will prevent a medical recovery under the limits of the Minor Injury Guideline. On this subject, I do note the Treatment Plan / OCF18 from Dr Russi. Dr Russi has checked the “Yes” box when answering the question “Prior to the accident, did the applicant have any disease, condition or injury that could affect his/her response to treatment for the injuries identified in part 6?”

21I note the applicant’s submission clearly indicates their basis for removal from the MIG – that the applicant has suffered a prior injury that could negatively affect recovery.

22The respondent has asked an independent medical practitioner to examine the applicant on multiple occasions. That independent medical examiner, Dr Haroon Siddiqui, stated on multiple occasions that the pre-existing condition has not been aggravated, and that the applicant’s injuries are consistent with injuries contained within the MIG.

23I refer to the statement from Dr Siddiqui, listed on page 246 of the respondent’s submission, “The claimant’s injuries in the lumbar spine are soft tissue in nature and no further benefit is anticipated from facility-based therapy at this time. Consequently, the claimant’s rehabilitation would fall within the MIG cap of $3500. Any amount above or beyond this would be considered not necessary or reasonable.”

24When considering the issue of whether or not the applicant’s injuries, while minor, may have aggravated a pre-existing medical condition enough to warrant removal from the MIG, I note Dr Siddiqui’s statement on page 247: “There were no concurrent and/or pre-existing medical conditions identified which would prevent the injured person from achieving maximal recovery from their accident related injuries.”

25Dr Siddiqui is clear and definitive. He clearly states that the applicant’s injury is minor, and that a pre-existing condition shows no evidence of further aggravation. I do not find Dr Russi’s OCF-18 statement about prior injury enough to meet the onus in the face of a clear and distinct medical opinion from Dr Siddiqui. One Doctor is claiming the prior injury ‘could’ affect recovery, while another doctor states with clarity that it will not.

26Accordingly, I find on a balance of probabilities that the applicant has sustained a minor injury.

Chronic Pain with a Functional Impairment

27With respect to chronic pain with a functional impairment, the applicant again points to his complaints of back pain and the chronic pain assessment of Dr Karmy.

28The applicant also submits that Dr. Karmy’s diagnosis of chronic pain in October 2022, his frequent visits to Headwaters Medical Clinic, and the continued reliance on pain medication are clear indications that he should be removed from the MIG. While I find there are reports of pain, I find the applicant has not demonstrated how chronic pain prevents his recovery under the MIG from the impairments he sustained in the motor-vehicle accident.

29Dr Karmy’s report refers to the American Medical Association (AMA) definition of chronic pain, and states that the applicant has five of the six conditions that are indicative of chronic pain.

30The AMA refers to six conditions that demonstrate chronic pain. While they are not incorporated into the Schedule and therefore not binding on this Tribunal, the criteria are as follows:

i Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.

ii Excessive dependence on health care providers, spouse, or family.

iii Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.

iv Withdrawal from social milieu, including work, recreation, or other social contracts.

v Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.

vi Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

31While I am sympathetic to the applicant’s position, I am not convinced by Dr Karmy’s opinion that the applicant is suffering chronic pain with a functional impairment.

32I find Dr Karmy’s position inconsistent. While I accept that the applicant has been adversely affected by the accident, I do not believe based on the evidence submitted that the applicant meets several of the criteria.

33For example, the applicant did not submit evidence of an over-reliance on prescription medication. I note occasional use of Arthrotec and Flexeril, but do not believe based on the evidence submitted that the applicant’s prescription drug use rose to the level of ‘over-reliance.’

34Regarding the claim of excessive dependence on health providers or family, I note that the applicant lives alone, where he successfully navigates the exercise and routine of a normal life. He does not require attendant care, and while I note that the applicant receives visits from his family, there was no evidence submitted that he is reliant on those visits to address functional impairments.

35Furthermore, the applicant did not miss time at work due to his injury, and has not demonstrated functional impairment in his daily workplace activities.

36In short, the applicant has not proven that he is suffering from chronic pain with a functional impairment.

Are the treatment plans reasonable and necessary?

37As I have found the applicant is subject to the MIG and the parties have confirmed that the MIG limits have been exhausted, it is not necessary for me to consider the treatment plans in dispute.

Interest

38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no benefits payable, no interest applies.

Award

39The applicant sought an award under s. 10 of Reg. 664. 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. As no benefits were unreasonably withheld, the respondent is not liable to pay an award.

ORDER

40I find that:

i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit.

ii. The applicant is not entitled to the treatment plans in dispute.

iii. The applicant is not entitled to interest on any overdue payment of benefits.

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

41This application is dismissed.