Citation: Belen Jesso v. Belair, 2024 ONLAT 23-000464/AABS

Licence Appeal Tribunal File Number: 23-000464/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 Belen Jesso

Applicant

and

Belair

Respondent

DECISION

ADJUDICATOR: Nadia Mauro

SUBMISSIONS BY:

For the Applicant: Dayana Soto Santana, Paralegal

For the Respondent: Robbie Brar, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Adelina Belen Jesso, the applicant, was involved in an automobile accident on August 5, 2022, 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, Belair Insurance Company Inc., and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
2. Is the applicant entitled to $2,447.96 for physiotherapy services, proposed by 101 Physio in a treatment plan (“OCF-18”) submitted August 17, 2022?
3. Is the applicant entitled to $2,560.00 for psychological services, proposed by 101 Assessments in an OCF-18 submitted November 28, 2022?
4. Is the applicant entitled to $1,149.20 for transport for insured/aide, proposed by 101 Physio in an OCF-18 submitted October 6, 2022?
5. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments in an OCF-18 submitted September 19, 2022?
6. Is the applicant entitled to interest on any overdue payment of benefits?

3The applicant states in her written submissions that issue 1 and 3 have been withdrawn. The applicant further submits “as per the case conference report and order, the parties agree that the MIG limits have not been exhausted and the submissions shall identify the remaining.” However, both the applicant and the respondent make submissions with respect to the MIG. Specifically, the applicant includes submissions on the applicability of the MIG and chronic pain.

4Therefore, despite the indication that the MIG issue is withdrawn, given the applicant’s submissions and the lack of clarity about the withdrawal, I will consider whether the applicant is subject to treatment within the MIG limits.

RESULT

5The applicant has sustained predominantly minor injuries as a result of the accident, as defined in s. 3 of the Schedule. She is subject to the MIG and the $3,500.00 funding limit on treatment.

6The applicant is not entitled to the treatment plans in dispute, or interest pursuant to s. 51 of the Schedule.

ANALYSIS

The applicant’s injuries are predominantly minor

7I find that the applicant has not established, on a balance of probabilities, that her injuries warrant removal from the MIG.

8Section 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.”

9An 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.

a) Chronic Pain

10I find that the applicant has not proven, on a balance of probabilities, that she suffers from chronic pain with a functional limitation such that she should be removed from the MIG.

11The applicant submits that the definition of a “minor injury” does not include chronic pain. The applicant relies on the Tribunal decisions in T.S. v. Aviva General Insurance Canada, 2020 CanLII 51295 (ON LAT), 17-002907 v. Aviva Insurance Canada, 2019 CanLII 22223 (ON LAT), and C.G. v The Guarantee Company of North America, 2020 CanLII 40333 (ON LAT), where it was found that chronic pain is a condition that persists for three to six months, and that a formal diagnosis of same is not required to remove an applicant from the MIG.

12The respondent submits that the applicant has failed to demonstrate that the injuries she suffered as a result of the accident are ongoing and warrant further treatment beyond the MIG. Moreover, the respondent relies on the s. 44 musculoskeletal MIG paper review of Dr. Eric Silver, dated May 2, 2023, where the applicant’s injuries were found to be predominantly minor.

13A diagnosis of chronic pain or chronic pain syndrome is not required for removal from the MIG treatment limits. However, in the absence of a diagnosis, the applicant must still demonstrate, on a balance of probabilities, that she suffers from accident-related chronic pain that causes functional impairment. In the present case, I find that the applicant has fallen short of meeting her onus in establishing chronic pain with a functional impairment.

14The applicant has not directed me to compelling evidence that would support ongoing accident-related impairments or complaints that would support that she is suffering from chronic pain. While the clinical notes and records (“CNRs”) of the applicant’s family practitioner, Dr. Nicole Shievitz, report accident-related complaints of back and neck pain on September 7, 2022, and September 8, 2022, I am not pointed to any further accident-related complaint after these attendances. Moreover, the CNRs of Dr. Shievitz are silent with respect to functional impairment.

15Moreover, I distinguish T.S., P.L., and C.G., from the present case, as even though I have not been pointed to evidence of a chronic pain diagnosis, I have also not been pointed to evidence of ongoing accident-related complaint that would support a finding of chronic pain. Dr. Silver in his report dated May 2, 2023, stated that, “from a musculoskeletal perspective, it is my opinion that [the applicant] does not suffer from an accident-related condition that requires investigations, consultation, or other treatments or assistive devices.” Given that Dr. Silver’s report occurred nearly eight months after the accident, and that I am not pointed to any other contemporaneous evidence of chronic pain, I am not persuaded that the applicant is suffering from chronic pain.

16Based on the foregoing, I find that the applicant has not proven, on a balance of probabilities, that she suffers from chronic pain with a functional limitation such that she should be removed from the MIG.

b) Psychological Injuries

17I find that the applicant has not proven, on a balance of probabilities, that she suffers from a psychological impairment that would warrant removal from the MIG.

18Although the applicant didn’t specifically submit that she should be removed from the MIG due to psychological impairment, she argued that she suffers from adjustment disorder (with mixed anxiety and depressed mood) and specific (isolated) phobia (driving/passenger). Therefore, and keeping in mind the consumer protection mandate of the Schedule and the fact that the respondent has also made submissions on this issue indicating that they had notice, I have considered whether the applicant should be removed from the MIG due to psychological impairment.

19The applicant submits that she is suffering from psychological impairments such as adjustment disorder (with mixed anxiety and depressed mood) and specific (isolated) phobia (driving/passenger), diagnosed by psychologist, Dr. Konstantinos Papazoglou, in a s. 25 report dated November 7, 2022.

20The respondent, in its submissions, relies on s. 44 psychological assessment report of psychologist, Mr. Fabio Salerno, dated January 11, 2023, who opined that the applicant did not exhibit an accident-related psychological impairment.

21The applicant has not directed me to psychological complaint within the CNRs of Dr. Shievitz. The applicant did not report any psychological impairments to Dr. Shievitz on attendances dated September 7, and 8, 2022. I am also not persuaded by chiropractor, Dr. Bill Nikols’, inclusion of nonorganic sleep disorders, reaction to severe stress, and adjustment disorders, as listed accident-related injuries within the OCF-3 dated August 24, 2022, because opining on psychological impairment is outside of a chiropractor’s scope of expertise.

22Moreover, when weighing the evidence of both psychologists, Dr. Papazoglou and Mr. Salerno, I prefer the latter. The s. 25 report of Dr. Papazoglou does not indicate if the applicant’s medical record was reviewed. The report only states that, “the following diagnostic impression and treatment recommendations are based on [the applicant’s] presentation and self-report during the clinical interview, the writer’s behavioural observations, and the psychometric measures administered.” By contrast, Mr. Salerno indexes a variety of the applicant’s medical record in addition to conducting psychological testing.

23In any event, Mr. Salerno indicates that the applicant reported that she did not require psychological treatment for the subject accident. Mr. Salerno reports that upon further exploration, the applicant reported that “her only accident-related rehabilitative needs are that of physical therapy.” I find that this does not support a psychological impairment that would warrant treatment outside of the MIG limits.

24As such, I find that the applicant has not proven, on a balance of probabilities, that she is suffering from a psychological impairment warranting removal from the MIG.

Conclusion

25As a result of the aforementioned, the applicant is subject to the MIG.

26Given that I have found the applicant to remain within the MIG, I find that it is not necessary to review the treatment plans in dispute to determine if they are reasonable and necessary.

27The parties have not confirmed in their submissions the amount available under the MIG. If there is funding left under the MIG, the applicant is entitled to treatment up to the MIG limits.

Interest

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, the applicant is not entitled to interest.

ORDER

29I find that:

i. The applicant’s injuries are predominantly minor, therefore, she is subject to the MIG limits;

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

iii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule; and

iv. The application is dismissed.