Commisso v. Intact Insurance Company
Licence Appeal Tribunal File Number: 22-001649/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:
Vince Commisso
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Bonnie Oakes Charron
APPEARANCES:
For the Applicant:
Adriano Pranzitelli, Counsel
For the Respondent:
Farzana Merchant, Counsel
HEARD:
In Writing
OVERVIEW
1Vince Commisso, the applicant, was involved in an automobile accident on July 31, 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 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?
ii. Is the applicant entitled to $2,004.96 for physiotherapy services proposed by Vaughan Wellness Clinic (“Healtopia”) in a treatment plan/OCF-18 (“plan”) dated February 6, 2020?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
3The respondent provided a Statement of Benefits dated July 12, 2023, confirming the MIG limit was exhausted and $3,593.83 had been paid in medical and rehabilitation benefits.
RESULT
4The applicant has failed to demonstrate that his accident-related injuries warrant removal from the MIG. He remains subject to the $3,500.00 treatment limit.
5No funding remains in the MIG. As a result, the applicant is not entitled to the treatment plan.
6As no benefits are payable, no interest is owed.
7The respondent is not entitled to costs.
PROCEDURAL ISSUES
Lack of Compliance - case conference report and order (“CCRO”)
8Both parties failed to comply with the case conference report and order (“CCRO”) in various ways.
9The applicant raises an issue about the Insurer’s Examination (“IE”) scheduled for August 3, 2023, shortly before submissions were due for this hearing. He states in submissions that he reserves the right to comment on the findings from the assessment, given the report would be issued after his submissions were due. He further submits that the report was provided to him more than ten days after its release.
10The applicant also points out that the respondent’s submissions exceeded the page limit ordered by the Tribunal and were formatted inappropriately to allow for more text.
11For its part, the respondent seeks leave to submit a sur-reply to the applicant’s reply submissions because it submits that the applicant introduced new evidence and arguments related to the IE report dated August 8, 2023. It also argues that the applicant failed to exchange some clinical notes and records (“CNRs”) for July 29 and August 4, 2020, and December 9, 2021, to which it refers in its reply submissions.
12Due to the unusual circumstances of a new IE report being issued in the midst of submissions for this hearing, I accept both the applicant’s reply and the respondent’s sur-reply into consideration. This prevents any prejudice to the respondent whose full and complete defence had been due prior to the applicant’s reply submissions. Further, the respondent provided evidence in the way of log notes and a time stamp of the report’s receipt from the assessor, to demonstrate the actual date it was received (evening of August 8) and recognized (morning of August 9). This confirmation effectively validates that the applicant received the report within ten days of issuance.
13With regard to the respondent’s excess pages and creative formatting, and the dispute between the parties over whether or not several CNRs were produced in accordance with the CCRO, I find that in this instance, an efficient process is best served by the inclusion of all submissions and evidence into consideration.
ANALYSIS
Applicability of the Minor Injury Guideline
14Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”
15An insured person 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 before the accident, they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes maximal recovery from any accident-related minor injury if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
16The applicant submits that his injuries are not minor on account of chronic pain. The respondent disagrees and argues that there is no medical evidence to support a finding that the applicant’s injuries are other than minor. Both parties rely on the clinical notes and records (“CNRs”) and an OCF-3 from chiropractor Dr. Chiavaroli, the CNRs of GPs Drs. Fiorillo and Kreder, and s. 44 assessments by Drs. Leontidis and Silver.
The applicant’s injuries are minor as defined by the Schedule
17I find that the applicant’s injuries are minor as defined in s. 3 of the Schedule.
18There is no medical evidence to support the applicant’s description of his initial injuries after the accident. He reports symptoms of headache and insomnia, with pain in his neck, back, and shoulder. Although he submits that he attended a walk-in clinic and physiotherapy clinic shortly after the accident, there is no record of these visits.
19A month after the accident, the applicant began treatment at Healtopia with chiropractor Dr. Chiavaroli. An OCF-3 from the clinic recorded injuries that fall within the MIG: whiplash disorder, muscle pain, decreased range of motion, muscle spasm, and headache. Dr. Chiavaroli also made a referral for imaging although there is no record of any results.
20While the applicant submits that he consistently reported pain symptoms to his chiropractor, I did not find similar reports to his GPs, Drs. Fiorillo and Kreder. I found no references in the records of Dr. Fiorillo, although the submitted CNRs are largely illegible and where I was directed to a specific page in the evidence, I found nothing relevant. By the time Dr. Kreder becomes his GP in 2021, the CNRs document few visits. Those that exist are for lifestyle issues such as diet concerns and smoking and are unrelated to the accident.
21The applicant also points to three s. 44 assessments for evidence that his injuries are not minor. He refers to the findings of a Functional Abilities Evaluation (“FAE”) performed by Dr. Leontidis on July 21, 2021, and two Musculoskeletal Examinations with Dr. Silver, the first on July 9, 2020, and a subsequent on August 3, 2023.
22Despite reporting symptoms of pain at the FAE, the applicant also acknowledged significant improvement in his neck, upper back and shoulder. While he had only 50 percent improvement in his mid-back, nevertheless, he was able to complete a 140-minute assessment where he demonstrated an ability to sit, stand, walk, lift, carry, reach, stoop, crouch, kneel, and climb stairs. Dr. Leontidis found that the applicant’s injuries were minor uncomplicated strains and sprains. Dr. Silver came to a similar conclusion following each of the musculoskeletal assessments. Notably, he found there was no evidence of any ongoing accident-related injury.
Chronic Pain
23While none of the records referenced by the applicant support that his injuries were more than minor, he argues that his pain is ongoing and therefore chronic, having lasted longer than six months. The applicant submits that such a condition is not a minor injury under the Schedule, and that his ongoing pain beyond the expected recovery time of three to six months justifies treatment outside the MIG. The respondent takes a different view and indicates that symptoms of ongoing or recurrent pain are not enough to be labelled chronic pain unless there is also significant or debilitating functional impairment present. They both support their perspectives with relevant case law.
24The respondent points to the criteria found in the American Medical Association Guides 6th ed. (“AMA Guides”) that could lead to a diagnosis of chronic pain. The Tribunal has found it a useful tool for evaluating chronic pain in the absence of a diagnosis. At least three of the following six criteria must be met:
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other circumstances;
ii. Excessive dependence on health care providers spouse or family;
iii. Secondary physical deconditioning due to disease and or fear-avoidance of physical activity due to pain;
iv. Withdrawal from social milieu, including work, recreation, or other social contacts;
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; and
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression or nonorganic illness behaviors.
25The applicant’s argument that he meets three of the six criteria is not supported by the medical evidence. His statements to Dr. Silver about certain limitations in his work are self-reports and the medication use he references is an over-the-counter (“OTC”) product. He is not dependent on drugs, caregivers, or healthcare professionals, and further, has not demonstrated any serious deconditioning despite some weight gain reported to his GP.
26In summary, the applicant’s assertion that he has chronic pain that warrants removal from the limits of the MIG is not supported by the evidence. Neither the CNRs from his doctors or any of the s. 44 assessments support a finding that the applicant’s injuries are more than minor.
27The applicant remains subject to the MIG.
28The applicant is not entitled to the treatment plan, because I have determined that the applicant’s accident-related injuries are subject to the MIG limits.
29As there is no funding remaining within the MIG, it is not necessary for me to consider whether the disputed treatment plan is reasonable and necessary.
Interest
30No interest is owed as no payments are overdue.
Costs
31I decline to award costs to the respondent.
32Rule 19.1 of the Licence Appeal Tribunal Rules allows the Tribunal to award costs when a party’s conduct has been unreasonable, frivolous, vexatious, or in bad faith.
33The respondent requested costs pursuant to Rule 19 for the applicant having made an unreasonable and frivolous claim without any evidentiary support. Although I have determined that the applicant’s injuries are properly treated within the MIG, I am not persuaded that the claim had no evidentiary support to the point of being unreasonable or frivolous.
34Consequently, I find that the respondent has not established a basis for an award of costs.
ORDER
35I order that:
i. The applicant remains subject to the MIG.
ii. The applicant is not entitled to the treatment plan or interest.
iii. The respondent is not entitled to costs.
Released: February 29, 2024
Bonnie Oakes Charron
Adjudicator