Licence Appeal Tribunal File Number: 22-004791/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:
Antonio Dearcangelis
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR: Tanjoyt Deol
APPEARANCES:
For the Applicant: Michael Pilieci, Paralegal
For the Respondent: Ainsley Shannon, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Antonio Dearcangelis, (the “applicant”), was involved in an automobile accident on October 24, 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 Economical 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:
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 limit? (“MIG”)
Is the applicant entitled to $2,260.00 for a chronic pain assessment, proposed by Princeton Hills Medical Assessments in a treatment plan/OCF-18 (“OCF-18”) dated August 12, 2021?
Is the applicant entitled to $1,560.00 for a functional abilities assessment, proposed by Princeton Hills Medical Assessments in an OCF-18 dated August 12, 2021?
Is the applicant entitled to $3,795.50 for physiotherapy services, proposed by Mackenzie Medical in an OCF-18 dated November 30, 2020?
Is the applicant entitled to $2,026.55 for physiotherapy services, proposed by Mackenzie Medical in an OCF-18 dated April 17, 2021?
Is the applicant entitled to $1,417.70 for physiotherapy services, proposed by Mackenzie Medical in an OCF-18 dated June 9, 2021?
Is the applicant entitled to $2,635.40 for physiotherapy services, proposed by Mackenzie Medical in an OCF-18 dated August 16, 2021?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
a. The applicant’s impairments are predominantly minor and therefore subject to the funding limit of the MIG.
b. As the full MIG limits on medical benefits have been exhausted, an analysis of whether the disputed OCF-18s are reasonable and necessary is unwarranted. As no benefits are payable, the applicant is not entitled to interest.
ANALYSIS
The Minor Injury Guideline
4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is 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.”
5An 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 they have 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 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.
6In all cases, the burden of proof lies with the applicant.
7The applicant submits that he should be removed from the MIG on three grounds:
a. He has several pre-existing conditions, such as: obesity, diabetes, hypertension, osteoarthritis in his knees, hearing loss, chronic lumbar strain, and exertion dyspnea, “extremely low cholesterol”, right knee pain, right hip pain, right thigh pain, a protruding abdomen, pruritus in his feet, and he is old.
b. He has been diagnosed with chronic pain by his family physician, Dr. Michael Vecchio.
c. There are indications that he may be suffering from psychological impairments.
8In contrast, the respondent argues that the applicant sustained predominately soft tissue injuries that quickly healed. In its position, the applicant has not established a pre-existing condition, chronic pain, or a psychological impairment that would warrant removal from the MIG. Thus, the respondent argues that the applicant should remain within the MIG.
The applicant does not have a pre-existing condition that will prevent maximal recovery within the MIG
9I find that the applicant has not established that he should be removed from the MIG on the basis of his pre-existing conditions.
10As noted above, the applicant argues that he has numerous pre-existing conditions, and his old age, is a barrier for his overall recovery within the MIG limits. The applicant also cites Scarlet v. Belair Insurance Company Inc., 2015 ONSC 3635 that compelling evidence under s. 18(2) is to be determined on a case-by-case basis, with consideration of what is reasonable in all of the circumstances. To support his position, he relies upon the clinical notes and records of Dr. Vecchio, and Decoded OHIP Summary from October 24, 2018, to January 25, 2023.
11Meanwhile, the respondent argues that the applicant sustained a soft tissue injury to his shoulder following the accident, and he did not report an exacerbation of his pre-existing back pain. With respect to the diabetes and other pre-existing chronic health concerns, it submits that these were not exacerbated by the accident, and thus do not remove the applicant from the MIG on this basis. To this end, it relies upon the s. 44 in person physician assessment and addendum report of Dr. Charanjit Sandhu, occupational medicine physician, dated November 30, 2021, and January 6, 2022.
12The presence of pre-existing conditions alone is not sufficient to remove the applicant from the MIG. The applicant bears the onus and must adduce evidence to demonstrate not only that the pre-existing condition exists but also that it prevents him from achieving maximal recovery within the MIG.
13First, I agree with the applicant that he had pre-existing conditions that were documented by Dr. Vecchio and in the Decoded OHIP Summary. The records of Dr. Vecchio, and the Decoded OHIP Summary, documented various conditions prior to the accident, including type-2 diabetes, hyperuricemia, hypertension, osteoarthritis in the knees, chronic lumbar strain, exertion dyspnea, obesity, right sided pain into thigh, knee, and hip, L4 disc irritation, right sciatica, possible mild disc herniation, and pruritus in his feet. However, this satisfies only half of the test. The second half of the test is that there must be compelling evidence that the pre-existing condition would preclude recovery from the accident-related minor injury if subject to the MIG.
14The applicant has not met the second part of the test pursuant to s. 18(2) of the Schedule, as he has not directed me to a medical opinion that his pre-existing conditions would prevent maximal medical recovery if he was kept within the MIG limits. Again, while I acknowledge the applicant’s reliance on the Decoded OHIP Summary and the records of Dr. Vecchio to support he has pre-existing conditions, these records do not speak to whether his pre-existing conditions were exacerbated by the accident, or more critically, whether this would prevent maximal medical recovery if he was kept within the MIG.
15For example, the applicant met with Dr. Vecchio on November 24, 2020, March 2, 2021, April 8, 2021, November 2, 2021, and April 4, 2022, and there is no reference to whether his pre-existing conditions were exacerbated by the accident. Nor is there any reference to his recovery for his accident-related injuries being impeded as a result of his pre-existing conditions.
16I also take note that the applicant was referred to Dr. Xerxes Punthaknee, otolaryngologist, following the accident, for his pre-existing hearing loss. However, in the entry, dated April 1, 2021, it is completely silent with respect to this accident, nor does it mention whether the accident aggravated this pre-existing condition. In fact, it was noted by Dr. Punthaknee that the hearing loss had become worst five years ago.
17Next, in my view, the Decoded OHIP Summary and List of Services, does not support the applicant’s position, that his pre-existing conditions present as a barrier to recovery within the MIG limits. I acknowledge that the OHIP Summary lists out the services, the dates of which these were provided and by whom, however, this does not address whether the applicant’s pre-existing conditions will prevent him from recovering from his accident-related injuries if he was subject to the MIG.
18Significantly, while the applicant submits that his healing process is slowed down because of his old age, he has not referred me to evidence to support this proposition. It is well-settled that submissions are not evidence. In summary, while the applicant has established that he has documented pre-existing conditions, he has not produced compelling evidence to meet the second part of the test under s. 18(2).
19Finally, the onus is on the applicant to prove on a balance of probabilities and not on the respondent to disprove. I acknowledge that the applicant states that the initial s. 44 assessment completed by Dr. Sandhu is deficient, as he concluded that the applicant had no pre-existing conditions, which is contrary to the records of Dr. Vecchio and the OHIP Summary. However, the applicant must first point me to his own evidence and argument that is then potentially further supported by the alleged failings of the respondent. Relying on alleged weaknesses in the respondent’s evidence is insufficient, especially when the applicant has not provided compelling medical evidence to meet the test under s. 18(2).
20To conclude, the applicant has not established on a balance of probabilities that his pre-existing conditions, and old age would prevent maximal medical recovery from his accident-related injuries if he was kept within the MIG.
The applicant is not removed from the MIG on the basis of chronic pain
21I find that the applicant has not established that he suffers from a chronic pain condition with functional impairments that would warrant removal from the MIG.
22The applicant argues that he has been diagnosed with chronic pain by Dr. Vecchio, his family physician, who also recommended injections. Moreover, he takes the position that he has provided compelling evidence that he suffers from chronic pain which prevents him from achieving maximal medical recovery within the normal one-year healing time if he was subject to the MIG limits. The applicant relies upon the Disability Certificate (“OCF-3”), dated November 20, 2020, completed by Dr. Nilav Bhowmik, chiropractor, the records of Dr. Vecchio and Mackenzie Medical Rehabilitation Centre.
23The respondent submits that the applicant has not been diagnosed with chronic pain syndrome, referred to a specialist, or a pain clinic, nor has he reported a functional impairment. It relies upon the s. 44 report of Dr. Sandhu.
24It is well established by this Tribunal that chronic pain cannot be inferred solely based on the length of time elapsed since the injury. A diagnosis of chronic pain or chronic pain syndrome is not strictly required for removal from the MIG treatment limits. However, in the absence of a diagnosis, the applicant must demonstrate, on a balance of probabilities, that he suffers from accident-related pain that causes functional impairment. In this matter, I have not been provided with persuasive medical evidence to indicate the applicant’s related impairments have resulted in chronic pain with functional impairments.
25First, against the applicant’s argument that he was diagnosed with chronic pain by Dr. Vecchio, I could not locate such a diagnosis in the records provided.
26Initially, the applicant met with Dr. Vecchio on November 24, 2020, and was diagnosed with cervical and lumbar myofascial strain, left shoulder girdle myofascial strain, possible tear of the left shoulder rotator cuff tendon, and a contusion in the left leg. After November 24, 2020, the applicant presented with ongoing left shoulder pain and cervical spine pain.
27The possible tear identified by Dr. Vecchio on November 24, 2020, was later ruled out by the x-ray and ultrasound of the left shoulder. On March 10, 2021, these tests revealed degenerative changes, mild tendinopathy in the subscapularis and supraspinatus and mild subacromial bursitis. Also, on April 8, 2021, Dr. Vecchio reviewed these results with the applicant, and once again there was no mention of whether the applicant sustained a tear in his left shoulder. Thus, these records support that the applicant was diagnosed with injuries that fit the definition of a minor injury.
28Contrary to the applicant’s argument, Dr. Vecchio did not recommend injections, instead on April 8, 2021, the entry notes that the applicant may require an injection to his left shoulder. In the subsequent visits with Dr. Vecchio on November 2, 2021 and April 4, 2022, the entry is completely silent with respect to a recommendation of injections.
29In my view, these sporadic visits with Dr. Vecchio do not support that the applicant suffers from chronic pain as a result of the accident. Moreover, Dr. Vecchio did not refer the applicant to any specialists, and he has only seen Dr. Vecchio for a total of five times in three and half years, which further weakens his chronic pain claim.
30Second, the records of Mackenzie Medical Rehabilitation Centre and the OCF-3, are not persuasive evidence of chronic pain. I take note of the applicant’s position that he has incurred treatment above the MIG limit, and has attended for physiotherapy, chiropractic, and massage therapy treatment. I do not find the records of Mackenzie Medical Rehabilitation Centre helpful as most of the notes were not legible. In addition, the applicant did not direct me to entries of his symptoms negatively impacting his function or his activities of daily living.
31Now turning to the OCF-3, I am not persuaded by the applicant’s position. The applicant’s position on this point is unclear and confusing. He appears to be arguing that this OCF-3 constitutes as compelling evidence that his chronic pain has prevented him from recovering within the MIG limits. Upon review of the OCF-3, the applicant was diagnosed with injuries that fit the definition of a minor injury, with the exception of some psychological conditions. It is unclear how this OCF-3 assists the applicant’s position, as he was diagnosed with physical injuries that are within the definition of a minor injury and there is no reference to chronic pain. Therefore, I disagree with the applicant’s argument that this OCF-3 is compelling evidence that he has chronic pain, which prevents recovery within the MIG limits.
32Third, the applicant has not demonstrated that he has an ongoing functional impairment as a result of his alleged accident-related pain. I acknowledge that the applicant argues that he has continued to work under duress, and Dr. Vecchio has suggested that his pain will get worst if he does not take time off work. However, I could not locate such a suggestion in the records of Dr. Vecchio.
33In fact, while the applicant self-reported on March 2, 2021 that he was working under duress, this entry is silent with respect to any alleged recommendations that Dr. Vecchio made with respect to the applicant’s work ability. Moreover, on April 4, 2022, Dr. Vecchio opined that the applicant’s range of motion in the left shoulder was almost normal, although it was painful.
34As such, I have no reason to disagree with Dr. Sandhu’s conclusion that the applicant made a full functional recovery with respect to the range of motion in his left shoulder. While I take note of the applicant’s submission that Dr. Sandhu is not qualified to comment on a chronic pain diagnosis, I find that Dr. Sandhu’s opinion is also consistent with Dr. Vecchio’s opinion, as noted above.
35I note that the applicant referred me to the authority of: 17-002907 v. Aviva Insurance Company, 2018 CanLII 13153 (ON LAT). The applicant relies on this authority to support his position that he suffers from chronic pain, as his alleged minor injuries have not resolved within the normal one-year healing time.
36In my view, the facts in the case of 17-002907, are distinguishable from the present case. In 17-002097, the applicant relied upon an expert’s report that stated the applicant “has completed a chronic pain program, he will require ongoing treatment for the management of his chronic pain syndrome.”
37In the present case, there is no expert report or evidence that opines on chronic pain as in 17-002097. The applicant has the onus to show evidence of chronic pain and in the present case, the applicant has not done so.
38Based on the foregoing, the applicant is not removed from the MIG on the basis of his alleged chronic pain.
The applicant is not removed from the MIG on the basis of any psychological impairments
39I find that the applicant has not led evidence to show that he has a psychological impairment that would warrant removal from the MIG.
40It is trite law that psychological impairments are not included in the definition of minor injury in s. 3 of the Schedule. The onus is on the applicant to establish that he had a psychological impairment and not just psychological symptoms or sequelae of a minor injury.
41The applicants submits that the records of Dr. Vecchio and the OCF-3, indicate that he may be suffering from a psychological impairment.
42In response, the respondent argues that he has not complained of psychological symptoms to Dr. Vecchio, nor was he diagnosed with a psychological condition.
43I find that the applicant has not met his onus to prove an accident-related psychological impairment warranting removal from the MIG. First, the records of Dr. Vecchio do not support that the applicant has or may have a psychological impairment, as stated. For instance, while the applicant self-reported on March 2, 2021 that he was working under duress, he did not report any psychological symptoms as a result of this. Moreover, Dr. Vecchio did not note that the applicant may have a psychological impairment, nor did he refer the applicant to a specialist or prescribe medication for this.
44Second, I place no weight on the OCF-3, as in my view, diagnosing psychological conditions is outside of the scope of practice of a chiropractor.
45Third, the applicant did not refer me to evidence to support his submission that he has refused to seek treatment. It is well-settled that submissions are not evidence.
46Accordingly, the applicant has not established on a balance of probabilities that he should be removed from the MIG on the basis of a psychological impairment.
The applicant is not entitled to the OCF-18s in dispute as the full MIG limits have been exhausted
43Given the entire $3,500.00 funding limit under the MIG have been exhausted, no additional analysis is required to determine if the OCF-18s in dispute are reasonable and necessary pursuant to the Schedule.
The applicant is not entitled to interest pursuant to s. 51 of the Schedule
44As there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
45For the reasons outlined above, I find that:
i. The applicant’s impairments are predominantly minor and therefore subject to the funding limit of the MIG.
ii. As the full MIG limits on medical benefits have been exhausted, an analysis of whether the disputed OCF-18s are reasonable and necessary is unwarranted. As no benefits are payable, the applicant is not entitled to interest.
iii. The application is dismissed.
Released: April 15, 2024
Tanjoyt Deol
Adjudicator