Licence Appeal Tribunal File Number: 22-011626/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:
Sergio Mendes
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Brent McQuestion, Counsel
For the Respondent:
Amanda Lennox, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Sergio Mendes, the applicant, was involved in an automobile accident on March 29, 2021, 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, Co-operators General Insurance 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 Minor Injury Guideline (“MIG”) limit? Note: The parties agree that $293.77 remains under the MIG limits.
ii. Is the applicant entitled to $6,742.92 for a neurological assessment and other assistive devices, proposed by Dr. Michel Rathbone, Livelong Wellness Clinic, in a treatment plan/OCF-18 (“plan”) dated November 17, 2022?
iii. Is the applicant entitled to $1,796.02 for an occupational therapy assessment, proposed by Ms. Karyne Lapensee, OT, FunctionAbility Rehab, in a plan dated November 18, 2022?
iv. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Mr. Sean Shahrokhnia, Psychology Health Solutions in a plan dated December 13, 2022?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
3In an Order dated February 9, 2024, the applicant’s claim for income replacement benefits, listed in issue 2 of the Case Conference Report and Order (“CCRO”), was withdrawn.
RESULT
4The applicant has not demonstrated on a balance of probabilities that his accident-related impairments warrant removal from the MIG. It is not necessary to consider whether the disputed plans are reasonable and necessary. They are not payable. As no benefits are owing, no interest is payable.
5An award is not payable.
PROCEDURAL ISSUES
Applicant’s Challenge to Respondent’s Experts
6Rule 10.2(b) of the LAT Rules of Practice and Procedure (the “Rules”), states that the party who wishes to rely on or refer to an expert witness shall provide in writing, a signed statement from the expert in the Tribunal’s required form, acknowledging their duty to provide opinion evidence that is fair, objective and non-partisan, provide opinion evidence that is related to matters within their area of expertise and provide such additional help as the Tribunal may be required to determine a matter in issues.
7Rule 10.4 provides that a party intending to challenge an expert’s qualifications, report or witness statement shall give notice, with reasons, for the challenge to the other parties as soon as possible and no later than 10 days before the hearing and must file a copy with the Tribunal.
8The applicant submits that he is challenging the s.44 assessors, Dr. Rehan Dost, Dr. Andrew Gwardjan, Dr. Cheryl Bradbury and Dr. Jeffrey Mendelsohn pursuant to Rule 10.4 of the Rules. I note that the applicant is not seeking to exclude the reports of Dr. Dost, Dr. Bradbury and Dr. Mendelsohn pursuant to Rule 10.4, and instead asks that the Tribunal assign them negligible weight since these doctors did not provide any clinical notes and records (“CNRs”) relating to their in-person examinations.
9On February 21, 2024, the respondent sent the Tribunal a letter, copied to the applicant, stating that Dr. Dost, Dr. Bradbury and Dr. Mendelsohn have confirmed in writing that they have no CNRs other than their reports.
10Therefore, since the respondent has answered the applicant’s challenge to the s.44 assessors regarding their CNRs, I find that the respondent is entitled to rely on the reports of Dr. Dost, Dr. Gwardjan, Dr. Bradbury and Dr. Mendelsohn, however, I will still consider the applicant’s arguments about the doctors’ reports with respect to the weight afforded to them.
ANALYSIS
Applicability of the MIG
The applicant has not demonstrated that he suffers from accident-related injuries that warrant removal from the MIG
11Section 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 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.”
12An 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 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.
13The applicant’s submissions are predominantly based on a discussion of concussion-based symptomatology, which may support removal from the MIG if established by the applicant. However, I find the applicant has not demonstrated that his accident-related injuries and impairments require treatment beyond the MIG for the following reasons.
14The applicant relies on the Disability Certificate (OCF-3) of Ms. Riddhi Desai, physiotherapist, the clinical notes and records (“CNRs”) of Dr. Aldina Matos, family physician, and the consultation reports of Dr. Michel Rathbone, neurologist, Dr. Donald Robertson, neuro-otologist and Dr. Laura Donaldson, neuro-ophthalmologist.
15In response, the respondent submits that the applicant’s injuries are soft tissue in nature and fall within the definition of minor injury under the Schedule. The respondent relies on the OCF-3, the s.44 Insurer Examination (“IE”) reports of Dr. Rehan Dost, neurologist, Dr. Cheryl Bradbury, neuropsychologist and Dr. Jeffrey Mendelson, otolaryngologist, as well as the CNRs of Dr. Matos and the report of Dr. Rathbone.
16The applicant points to the clinical notes and records of Dr. Matos which I find do not provide a diagnosis of concussion or post-concussion syndrome after the accident. Although the applicant exhibited concussion type symptoms of headaches, in the consultation report dated March 7, 2022, Dr. Robert Yufe, neurologist was unable to explain the applicant’s subjective ataxia. In addition, Dr. Yufe notes the applicant has no symptoms of migraine headaches. In a further neurological consultation, Dr. Rathbone concluded that the applicant’s neurological examination was normal except “sway with Romberg-difficult to keep eyes closed and positive Tinels over the left greater and right lesser occipital nerve.” These findings do not indicate a traumatic brain injury and may be consistent with a balance issue and occipital nerve irritation.
17In his consultation report dated June 3, 2022, Dr. Rathbone diagnosed the applicant with cervicogenic headaches, occipital neuralgia with sleep and mood disturbance. Dr. Rathbone further indicates the applicant has no photophobia, vertigo, diplopia or nausea. As part of his consultation under OHIP, Dr. Rathbone arranged a neuro-otology consultation regarding the applicant’s balance issues, a neuro-ophthalmologist consultation and a VoxNeuro assessment. By September 7, 2022, Dr. Matos notes the applicant has improved with Elavil for his headaches.
18The applicant relies on subsequent medical evidence from Dr. Rathbone, which I find contradicts his earlier findings from his consultation report dated June 3, 2022. Dr. Rathbone provided a letter dated February 21, 2023, presumably to the applicant’s representative, and referring to the applicant as a “client”, in which Dr. Rathbone stated that the applicant “received a concussion” as a result of the accident. He does not make a diagnosis of post-concussion syndrome. Further, in the letter, Dr. Rathbone lists a focal brain injury and concussion as accident-related injuries. The plan dated November 14, 2022 is based on an assessment by Jeffrey Patione, technician of Livelong Wellness Clinic and provides the goal of treatment for migraines and light sensitivity. I place negligible weight on the letter and plan since it contradicts other medical evidence by Dr. Rathbone regarding his diagnosis of the applicant’s cervicogenic headaches and the absence of photophobia.
19On consultation from Dr. Matos, Dr. Rathbone did not recommend neurological treatment and further referred the applicant to specialists regarding his balance and near focus issues. The applicant was diagnosed with vestibulopathy by Dr. Robertson on June 23, 2022 and mild convergence insufficiency by Dr. Donaldson on October 21, 2022, but neither specialist referenced the applicant’s condition to a concussion or post-concussion syndrome. In the consultation report dated June 23, 2022, Dr. Robertson indicates that the applicant’s history is negative for medically diagnosed concussions. Although, Dr. Robertson offered a vestibular physiotherapy and balance retraining program, there is no indication that the applicant attended. In a subsequent consultation report dated March 15, 2023, Dr. Rathbone indicates a VoxNeuro assessment was performed and the applicant achieved results consistent with average concentration, information processing and low working memory. Dr. Rathbone did not schedule any follow up. The applicant made no submissions for removal from the MIG based on the applicant’s vestibulopathy or convergence insufficiency or whether these conditions are accident related.
20The applicant points to other medical evidence with regard to his claimed concussion and post-concussion symptoms. I assign limited weight to the OCF-3 dated June 7, 2021 and progress report dated September 21, 2021, as both were completed by Riddhi Desai, a physiotherapist with no neurological expertise, however, the applicant’s reported concussion type symptoms are noted.
21The applicant submits that the IE report dated September 20, 2022 by Dr. Mendelsohn and the addendum report dated September 20, 2022 by Dr. Dost should be given no weight since Dr. Mendelsohn did not review the report of Dr. Robertson and Dr. Dost did not review the CNRs of the applicant’s neurologist. However, the applicant further submits that the respondent did not acknowledge receipt of the updated CNRs of Dr. Matos and Dr. Rathbone’s report until January 26, 2023. The respondent arranged the addendum report by Dr. Dost on receipt of the updated CNRs of Dr. Matos.
22The respondent submits that the applicant has not provided medical documentation in support of a claim for a concussion or post-concussion syndrome to warrant removal from the MIG, and I agree. The respondent relies on the IE report dated December 7, 2021 and addendum report dated September 20, 2022 by Dr. Dost, in which Dr. Dost indicates that the lack of either loss of consciousness, amnesia, disorientation or confusion at the time of the accident negates a diagnosis of concussion. In addition, the IE report dated September 20, 2022 by Dr. Bradbury concludes that the applicant’s cognitive testing is normal. Dr. Bradbury further indicates the MRI in January 2022 is consistent with age related atrophy which is not attributable to the accident.
23The respondent points to the report of Dr. Mendelsohn dated September 20, 2022, in which Dr. Mendelsohn notes the applicant has no symptoms of vertigo, and he has a sense of loss of balance on moving quickly. Dr. Mendelsohn concludes that the applicant did not sustain a vestibular or cochlear concussion injury as a result of the accident.
24I find that the applicant has not proven on the balance of probabilities that he suffers from accident-related concussion or post-concussion syndrome warranting removal from the MIG. The evidence suggests that the applicant’s symptoms are not related to a traumatic brain injury and are consistent with cervicogenic headaches, vestibulopathy and convergence insufficiency without neurocognitive impairment. In addition, several of the applicant’s symptoms have resolved including visual acuity and improved headaches with medication.
25Overall, I find that the applicant has not met his onus of establishing entitlement to treatment beyond the MIG in the absence of any clear diagnosis of a concussion or post-concussion syndrome.
26Since the applicant has not demonstrated that his accident-related injuries warrant removal from the MIG, it is not necessary to consider whether the plans are reasonable and necessary.
The applicant is not entitled to interest and an award
27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
28Under 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.
29Since there are no benefits owing, there is no interest or award payable to the applicant.
ORDER
30For the reasons set out above, I find that:
i. The applicant is subject to the MIG.
ii. The applicant is not entitled to the treatment plans in dispute.
iii. The applicant is not entitled to interest.
iv. An award is not payable.
v. The application is dismissed.
Released: December 23, 2024
__________________________
Lisa Holland
Adjudicator