Vigliotti v. Echelon Insurance Company
Licence Appeal Tribunal File Number: 22-000150/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:
Roman Vigliotti
Applicant
and
Echelon Insurance Company
Respondent
DECISION
VICE-CHAIR: Jan Dymond
APPEARANCES:
For the Applicant: Michael Adamek, Counsel
For the Respondent: Stan Savvateikine, Counsel
HEARD: In Writing
OVERVIEW
1Roman Vigliotti, the applicant, was involved in an automobile accident on January 16, 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, Echelon 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 is/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 the MIG limits have been exhausted.
ii. Is the applicant entitled to $2,144.93 for psychological services, proposed by Neuromotion Therapy Centre in a treatment plan/OCF-18 (“treatment plan”) dated May 13, 2021?
iii. Is the applicant entitled to $205.58 ($1,305.58 less $1,100.00 approved) for physiotherapy services, proposed by Neuromotion Therapy Centre in a treatment plan dated April 16, 2021?
iv. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.
4As the applicant remains within the MIG and the parties agree that the applicant’s treatment limit has been exhausted, there is no entitlement to the benefits at issue.
5No special award is payable.
6No interest is payable.
ANALYSIS
The injuries are predominantly minor and the MIG applies:
7I find that the applicant has not met the onus of proving that his injuries are not predominately minor as defined in s.3 of the Schedule and he is therefore subject to treatment within the $3,500.00 MIG limit.
8Section 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.
9Both parties agreed that the applicant has exhausted the limits payable for medical and rehabilitation benefits under the MIG.
10Individuals may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under section 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. In all cases, the burden of proof lies with the applicant.
11The applicant argues that he is not subject to the $3,500.00 MIG limit on benefits on four grounds:
i. he suffered a concussion as a result of the accident,
ii. the medical evidence supports a chronic pain diagnosis,
iii. he developed new psychological issues as a result of the accident,
iv. a pre-existing medical condition prevents him from achieving maximal recovery if subject to the MIG.
12The respondent submits that the applicant’s soft tissue injuries meet the definition of “minor injury’ and therefore fall within the MIG.
13The respondent further submits that the applicant did not sustain a concussion, suffer from post-concussive symptoms, psychological impairments, or develop chronic pain syndrome as a result of the accident.
Did the applicant sustain a concussion as a result of the accident?
14I find that there is insufficient evidence to support the applicant’s claim that he suffered a concussion as a result of the subject accident.
15Only three types of practitioners are regulated in Ontario to make a diagnosis of concussion: a physician, nurse practitioner, or neuropsychologist.
16The applicant first reported his MVA to a medical practitioner five days post-accident to his family physician, Dr. Jeremy Lo, on January 21, 2021 - at which time the applicant complained of pain in his neck, headache, and tenderness in his upper back the day following the accident. Dr. Lo’s CNRs diagnose the applicant as suffering a sprained neck.
17I find Dr. Lo’s notes do not support a diagnosis of concussion as his CNRs regarding the applicant’s initial and subsequent visits make no mention of concussion. Dr. Lo’s letter of January 8, 2022 (Tab 8) in response to a request by the applicant’s counsel for a “brief note” regarding the applicant also does not mention the applicant as having suffered a concussion. I find that the absence of such mention supports the respondent’s position that the applicant did not suffer a concussion.
18The only diagnosis of concussion is contained the OCF-3 completed by Dr. Benjamin Matheson, Chiropractor, on February 3, 2021 based on clinical notes and records of an examination of the applicant conducted by Dr. Matheson on January 28, 2021.
19The OCF-3 completed by Dr. Matheson reported the applicant’s injuries as whiplash associated disorder (WAD2); sprain and strain of the thoracic spine; chronic post-traumatic headache, concussion, sprain and strain involving (fibular)(fibial) collateral ligament of the knee; sprain and strain of the lumbar spine. Dr. Matheson estimated the duration of the applicant’s disability with respect to activities of daily living and housekeeping activities to be nine to twelve weeks.
20I give Dr. Matheson’s diagnosis little weight with respect to a diagnosis of concussion. As a chiropractor, Dr. Matheson is not qualified to make a diagnosis of concussion. His notes offer no rationale for the diagnosis, nor do they reference the need for additional tests or examinations. There is no record of the applicant being advised to follow a post-concussion protocol, and no referrals are noted.
21I find that the respondent’s position that the applicant did not sustain a concussion as a result of the accident is further supported by the adjuster’s log notes entry dated January 21, 2021, in which the applicant is reported as indicating that he was seat-belted at the time of the accident and that he “didn’t hit head or any body part on anything inside the vehicle.” The log includes the following additional notes with respect to the applicant’s self-reported physical injuries: “no bruising, no bleeding, no loc” (loss of consciousness).
22The applicant argues that there is no evidence that the respondent rejected the diagnosis of concussion. I disagree. The respondent rejected the diagnosis by virtue of finding that the applicant’s injuries are minor. The onus is on the applicant to demonstrate on a balance of probabilities that he suffered a concussion; there is no onus under the Schedule for the respondent to prove that he did not.
23I find that the applicant has failed to meet his onus to establish that he sustained a concussion as a result of the index accident.
Does the medical evidence support a diagnosis of chronic pain?
24I find that the applicant has not met his onus to establish that he suffers from chronic pain.
25Ongoing pain does not automatically take a person out of the MIG. It is well settled that to be removed from the MIG based on chronic pain, the pain must be of a continued severity resulting in functional impairment.
26The respondent submits that the applicant has not provided compelling evidence of chronic pain.
27The applicant submits that the medical records support the finding of a chronic pain diagnosis, as originally reported by the family physician.
28I find only one reference to a diagnosis of chronic pain in Dr. Lo’s records – the CNRs of November 16, 2021 (ten months post-accident), at which time the applicant complained of ongoing neck, back and right shoulder pain. No further CNRs of visits to Dr. Lo after November 16, 2021 were provided by the applicant. I place little weight on Dr. Lo’s diagnosis of chronic pain as the applicant provided no details of Dr. Lo’s credentials to diagnose chronic pain, nor are there any records to suggest that Dr. Lo referred the applicant to a chronic pain specialist. I find that Dr. Lo’s medical records are insufficient to support a finding of chronic pain.
29The applicant also bases his claim of chronic pain on the AMA Guides. While the test in the AMA Guides is not binding or definitive, this Tribunal has long held that it provides a helpful tool for the evaluation of chronic pain. This test establishes that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:
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 behaviours.
30The applicant submits that “the medical records are evidence of at least three of the American Medical Association’s six criteria for a chronic pain diagnosis because they illustrate: his dependency on drugs (i), excessive reliance on support from family and friends for housekeeping responsibilities (ii), withdrawal and lack of engagement in pre-accident hobbies (iv), and an inability to drive due to fear (iv).
31The applicant fails, however, to direct me to sufficient evidence in support of his claims of substance abuse and an inability to drive. He submitted no evidence with respect to an excessive reliance on support from family and friends for housekeeping, withdrawal and lack of engagement in pre-accident hobbies, or reduced work function. Despite failing to provide evidence to support at least three criteria of the five criteria claimed, I will address the applicant’s claims with respect to the two criteria for which he submitted limited evidence.
32The applicant’s brief indicates that the applicant “began to suffer from addiction and entered an opioid rehabilitation program in October 2021.” The applicant submitted records labelled as Addiction Care Follow-up from Recovery Care - Vanier for the period October 21, 2021 to November 22, 2022; however, I find that these records fail to demonstrate a link between the subject accident and a use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
33Recovery Care’s intake records, dated October 21, 2021, indicate the applicant reported an eight-year history of cocaine use and past but discontinued use of Oxycontin and Percocet. The CNRs do not contain any reference to the accident and the records do not establish a causal link between the subject accident and any dependency on drugs the applicant may have acquired. I therefore find that the applicant has failed to establish that he meets the AMA guideline with respect to drug use.
34The applicant’s provides little evidence with respect to his claim of an inability to drive due to fear and anxiety. Dr. Lo’s CNRs of November 16, 2021 note the applicant as reporting “panic with driving”. But I assign this observation nominal weight as it reflects the applicant’s self-reporting and is not supported by objective medical evidence.
35The respondent relies on the report of Dr. David Direnfeld, Psychologist which, I agree, supports the respondent’s position that the applicant does not suffer from vehicular anxiety. Dr. Direnfeld opined that the applicant ‘did not currently endorse clinically significant problems with vehicular anxiety or avoidance.’ Dr. Direnfeld reports the applicant as having indicated that “following the subject accident he was provided with a rental vehicle that he drove when needed and without restriction. He said he no longer has access to a vehicle because he can’t afford to purchase one.” The applicant “reported that he currently experiences vehicular anxiety at times and will avoid driving if he has the option not to do so. However, he clarified that his vehicular anxiety is not at a level of severity that prevents him from driving when he needs to.”
36Dr. Direnfeld’s report also includes the following: “(the applicant) said that in addition to leaving him with less mobility, being without a vehicle triggers his anxiety; he explained that he is anxious about being home alone without a vehicle in case an accident arises.”
37Given the applicant’s failure to submit psychological evidence in support of his submission, and based on Dr. Direnfeld’s finding, I find that the applicant does not suffer from vehicle-related anxiety to a level of functional impairment.
38In summary, I find that the applicant has failed to meet his onus to establish that he satisfies the criteria required to remove him from the MIG based on chronic pain.
Does the applicant suffer from accident-related psychological impairments?
39I find that the applicant has not met his onus to establish that he suffers from accident-related psychological impairments.
40The applicant submits that he suffers from post-traumatic stress disorder (“PTSD”) and vehicular driving anxiety as a result of the accident.
41The respondent denies that the applicant suffers from new psychological impairments as a result of the accident and relies on the Insurer’s Examination report of Dr. David Direnfeld, Psychologist.
42I have already found that the applicant does not suffer from vehicular driving anxiety.
43The applicant’s psychological issues pre- and post-accident are well documented by the clinical notes and records of Dr. Lo dating back to April 19, 2016; however, they do not support a finding of accident-related PTSD.
44Dr. Lo’s notes record regular pre-accident visits by the applicant between April 19, 2016 and May 1, 2019, and post-accident on January 21, 2021 and November 16, 2021 as well as a telephone consultation for gastroenteritis on October 20, 2021. The CNRs include an Ontario Health notification of August 19, 2020 that the applicant had tested positive for COVID-19.
45Dr. Lo records consistent chronic psychological diagnoses pre- and post-accident, i.e., anxiety neurosis, hysteria neurasthenia, and hyperkinetic syndrome of childhood. Dr. Lo’s CNRs of December 10, 2017 note a referral to psychiatrist for anxiety and depression.
46Dr. Lo’s CNRs of November 16 again diagnose the applicant with anxiety and depression with the applicant self-reporting a number of non-accident and accident-related concerns. Concerns specifically noted as linked to the accident include the death of the applicant’s dog. Others are unclear, e.g., the applicant reports that he cannot work as before but Dr. Lo’s notes do not tell us whether it was because of COVID, employer cut-backs, or a post-accident impairment. Dr. Lo again makes a psychiatric referral on January 6, 2022; however, no basis for the referral is listed - he does not note any new psychological issues nor exacerbation of the applicant’s pre-existing psychological impairments as a result of the accident. There is no mention of PTSD. The psychiatrist responded that he/she was not accepting new patients. No further CNRs of Dr. Lo were provided so it is not known whether further referral attempts were made.
47I find that Dr. Direnfeld's report supports the respondent's position that there is insufficient evidence to diagnose PTSD. Dr. Direnfeld’s report indicates that the applicant provided positive responses to probe questions assessing for PTSD; however, during the interview portion of the examination, the applicant denied experiencing symptoms that align with DSM-5 criterion B for PTSD. As a follow up, Dr. Direnfeld had the applicant complete the PTSD standardized self-report rating scale comprised of 20 items that correspond to key symptoms of PTSD. Dr. Direnfeld comments that the questionnaire results indicate (the applicant) meets a provisional diagnosis for PTSD; however, he also notes that some of the questionnaire responses were inconsistent with those provided during the applicant’s interview. With respect to PTSD, Dr. Direnfeld concluded “there is insufficient evidence supporting a diagnosis for this disorder.”
48The applicant asks that I rely on the psychometric testing completed in conjunction with Dr. Direnfeld’s examination as evidence of post-traumatic stress disorder; however, the applicant also asks that I place little or no weight on Dr. Direnfeld’s ultimate finding that there is insufficient evidence to support a diagnosis of PTSD. The applicant provides no qualified medical evidence to support his request. I find that the Tribunal is not in a position to determine, as the applicant suggests, that the psychometric testing should be interpreted differently than was done by Dr. Direnfeld.
49I am persuaded by Dr. Direnfeld’s opinion and find that there is insufficient evidence that the applicant suffers from an accident-related functional impairment from a psychological perspective.
Does the applicant have a pre-existing medical condition that prevents him from achieving a maximal recovery if subject to the treatment limits of the MIG?
50I find that the applicant has failed to demonstrate that a pre-existing medical condition prevents him from attaining maximal recovery if subject to the treatment limits of the MIG.
51The applicant submits that the medical records provide compelling evidence of a pre-existing medical condition documented by a health practitioner before the accident that prevents him from achieving maximal recovery from his injuries if subject to the limit or if he is limited to the goods and services authorized under the MIG. Again, the applicant does not point me to specific evidence.
52I note that, if the applicant is relying on Dr. Lo’s letter of January 8, 2022, Dr. Lo’s letter falls far short of the above test stating that the applicant’s “pre-existing psychological conditions do affect his ability to recover from his accident-related impairments if he is restricted to the Minor Injury Guideline …” Dr. Lo adds, “For someone without his pre-existing conditions, the person would likely have recovered a lot easier.” Dr. Lo’s letter does not specify which pre-existing psychological conditions or which accident-related impairments, nor does it state that remaining within the MIG would prevent the applicant’ from achieving maximal recovery from is injuries. I therefore put little weight on Dr. Lo’s letter.
53In summary, I find that the applicant has failed to establish that, on a balance of probabilities, he suffers from any impairments that satisfy the criteria for removal from the MIG.
Benefits Claimed
54Since I have found that the applicant’s claims are subject to treatment within the $3,500.00 limit of the MIG, and since that limit has already been exhausted, the applicant is not entitled to the benefits claimed.
Award
55The applicant 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. Since no benefits were unreasonably withheld, the applicant is not entitled to an award.
Interest
56Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, no interest is payable.
ORDER
57I find that:
i. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline.
ii. As the limits of the Minor Injury Guideline have been exhausted, there is no entitlement to the benefits at issue.
iii. No interest is payable.
Released: January 12, 2024
Jan Dymond
Vice-Chair