Lopena v. Intact Insurance Company, 2024 CanLII 2646

Citation: Lopena v. Intact Insurance Company, 2024 ONLAT 22-002079/AABS

Licence Appeal Tribunal File Number: 22-002079/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:

Rolando Lopena

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Applicant:

Michael Yermus, Counsel

For the Respondent:

Maryam Younes, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Rolando Lopena (the “applicant”) was involved in an automobile accident on July 6, 2020, 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 Intact Insurance Company (the “respondent”) 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 section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (the “MIG”) limit?

ii. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for psychological services, proposed by Scarborough Physiotherapy & Rehabilitation Centre in a treatment plan (the “OCF-18”) dated May 3, 2021?

iii. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for a chronic pain assessment, proposed by Scarborough Physiotherapy & Rehabilitation Centre in an OCF-18 dated May 3, 2021?

iv. Is the applicant entitled to a medical benefit in the amount of $13,140.98 for a chronic pain program, proposed by Scarborough Physiotherapy & Rehabilitation Centre in an OCF-18 dated January 19, 2022?

v. Is the applicant entitled to a medical benefit in the amount of $1,379.00 proposed by Scarborough Physiotherapy & Rehabilitation Centre in an OCF-18 dated March 22, 2021?

vi. Is the applicant entitled to a medical benefit in the amount of $3,405.00 proposed by Scarborough Physiotherapy & Rehabilitation Centre in an OCF-18 dated June 14, 2021?

vii. Is the applicant entitled to a medical benefit in the amount of $3,405.00 proposed by Scarborough Physiotherapy & Rehabilitation Centre in an OCF-18 dated September 14, 2020?

viii. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant remains in the MIG. The applicant is not entitled to the OCF-18s in dispute and no interest or award are payable.

ANALYSIS

The applicant has not demonstrated he should be removed from the MIG

4I am not convinced the applicant has met his onus to show removal from the MIG is warranted.

5Section 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.” The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2), that he has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if he is 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.

6For this matter, the applicant says removal from the MIG is merited because he has chronic pain and a pre-existing condition.

The applicant did not sustain chronic pain as a result of the accident

7I find the applicant has not demonstrated he should be removed from the MIG because of chronic pain.

8The Tribunal has consistently held that for chronic pain to be found to be more than sequelae from soft-tissue injuries, it must be chronic pain syndrome, or it must be continuous and of a severity that it causes suffering and distress accompanied by functional impairment or disability.

9The applicant submits he sustained significant accident-related injuries to his neck, right shoulder, low back, and right knee. He says he has been diagnosed with chronic pain syndrome, and points to a chronic pain report by Dr. Nayyar Razvi (physician) that “clearly documents and diagnoses ongoing and persisting injuries (chronic pain) beyond six months …”. The applicant’s submissions reason that his pain is chronic because it is now more than three years since the accident, and his injuries are still not resolved. In addition to Dr. Razvi’s report, the applicant relies on the clinical records of Dr. Vilma Tan-Jarvis (family physician), the Midland Wellness Centre, and the Scarborough Physiotherapy & Rehabilitation Centre.

10The respondent’s submissions argue that Dr. Razvi’s report is not consistent with the other medical evidence in this case, and that the applicant has not provided reliable evidence to show he sustained chronic pain as a result of the accident, nor demonstrated that he has chronic pain syndrome. The respondent relies on imaging tests as well as the section 44 Insurer’s Examinations (the “IEs”) of Dr. Michael Hanna (physician), Dr. Charanjit Sandhu (physician), and Dr. Marc Mandel (psychologist).

11While I accept the evidence shows the applicant experienced pain from his accident-related injuries—and underwent a variety of physical therapies to treat those injuries at the Midland Wellness Center and Scarborough Physiotherapy & Wellness Centre—I agree with the respondent’s position on this matter, and assign limited weight to the report of Dr. Razvi because it is not consistent with the bulk of the medical evidence in this case.

12For example, Dr. Tan-Jarvis’ clinical records twice confirm the applicant did not miss work because of the accident—the first entry in September 2020 and the second in June 2022—and this is repeated in Dr. Mandel’s June 2023 report where the applicant says he worked his regular hours and duties after the accident. The in-person IE examination performed by Dr. Hanna in June 2021 produced normal neurological results, no evidence of radiculopathy, myelopathy, or neuropathy, and determined the applicant’s range of motion was normal. These results are repeated in February 2022 by Dr. Hanna during a second in-person IE, and then again in May 2023 during an in-person IE with Dr. Sandhu.

13I find this medical evidence is inconsistent with disability and functional impairment arising from chronic pain as assessed by Dr. Razvi. It does not support a diagnosis of chronic pain syndrome. Rather, in my view, the evidence corroborates Dr. Tan-Jarvis’ contemporaneous June 2022 assessment—where he notes improved musculoskeletal pain and encourages activeness—as well as the applicant’s reports to Dr. Mandel in June 2023, when he confirmed that he was able to care for himself without assistance after the accident and that he works, drives, and shops.

14Taken together on balance, I find this medical evidence does not support functional impairment arising from accident-related chronic pain, or the chronic pain syndrome diagnosis by Dr. Razvi. I therefore decline to remove the applicant from the MIG because of chronic pain.

The applicant does not have a pre-existing injury that precludes maximal recovery of his accident-related injuries within the MIG

15I find the applicant has not met his onus to prove his pre-existing conditions preclude maximal recovery of his accident-related minor injuries under the MIG.

16The applicant submits that Dr. Tan-Jarvis noted osteoarthritis as a pre-existing condition in the applicant’s neck and right knee in December 2022, and that he is therefore precluded from maximal recovery within MIG limits because the osteoarthritis occurs in parts of his body that sustained accident-related injuries.

17The respondent’s submissions argue that the pre-existing condition is actually osteoporosis, and that the applicant has not shown that osteoporosis will prevent maximal recovery within the MIG. The respondent relies on the opinion of Dr. Hanna, who concluded the applicant’s pre-existing osteoporosis will not prevent maximal recovery of the applicant’s accident-related injuries if subject to the MIG.

18I am not convinced there is evidence of a pre-existing condition. The applicant points only to a 2022 post-accident note made by Dr. Tan-Jarvis that references “known” osteoarthritis without any clear indication as to when this condition became known (i.e. before or after the accident). And even if the evidence did establish osteoarthritis as a pre-existing condition, I am not pointed to any opinion by Dr. Tan-Jarvis, or any other medical professional, that confirms osteoarthritis precludes maximal recovery of the applicant’s accident-related injuries. Although the respondent directs me to a pre-accident 2019 entry made by Dr. Tan-Jarvis that references osteoporosis, the applicant does not argue that osteoporosis precludes maximal recovery of his accident-related injuries.

19On balance, I find this evidence does not support the applicant’s position that his osteoarthritis precludes maximal recovery of his accident-related injuries within the MIG.

The applicant is not entitled to the disputed OCF-18s

20The applicant remains in the MIG and the parties agree the MIG limit has been exhausted. Therefore, an analysis of whether the OCF-18s in dispute are reasonable and necessary is not required.

Interest

21Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Interest does not apply here because no benefits are payable.

Award

22The applicant seeks an award under section 10 of Regulation 664. Under section 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. The respondent is not liable to pay an award in this case because these are no benefits payable.

ORDER

23The applicant remains in the MIG and is not entitled to the disputed OCF-18s or interest. No award is payable. The application is dismissed.