Riad v. Economical Insurance Company, 2024 CanLII 61862

Riad v. Economical Insurance Company, 2024 CanLII 61862

Citation: Riad v. Economical Insurance Company, 2024 ONLAT 22-003043/AABS

Licence Appeal Tribunal File Number: 22-003043/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:

Mohd Riad

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Alexander Makaronets, Counsel

For the Respondent: Kelechi Onuigbo, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Mohd Riad (the “applicant”) was involved in an automobile accident on August 9, 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 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:

1. 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”)
2. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by All Health Medical Centre in a treatment plan/OCF-18 (“OCF-18”) dated October 21, 2020?
3. Is the applicant entitled to $2,260.00 for a chronic pain assessment, proposed by All Health Medical Centre in an OCF-18 dated August 12, 2021?
4. Is the applicant entitled to interest on any overdue payment of benefits?
5. Is the respondent liable to pay costs pursuant to Rule 19 of the Licence Appeal Tribunal Rules, 2023 (“the Rules”)?

RESULT

3I find that:

i. The applicant remains within the MIG. ii. He is not entitled to the treatment plans, nor interest. iii. The respondent is not liable to pay costs. iv. The application is dismissed.

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 has sustained non-minor injuries, such as psychological impairments and chronic pain. The respondent submits that the applicant suffered uncomplicated soft tissue injuries from the subject accident. Thus, its position is that the applicant has not met his evidentiary onus to establish his impairments fall outside the scope of the MIG.

The applicant is not removed from the MIG on the basis of his psychological impairments

8The applicant has failed to prove on a balance of probabilities that he suffers from a psychological impairment, thus he remains within the MIG.

9An applicant can be removed from the MIG if he demonstrates a psychological impairment. A psychological impairment must be more than mere clinically related sequelae of a minor injury. Psychological impairments, if established, fall outside the MIG because the MIG only governs “minor injuries”, and the definition does not include psychological impairments.

10The applicant submits that he has sustained non-minor injuries such as ongoing post-traumatic stress disorder (“PTSD”), anxiety, panic attacks, and eventual development of night sweats related to this accident. To support this position, he relies upon the clinical notes and records (“CNR”) of Dr. Joe Pontoriero, family physician and a pre-screening psychological intake report, completed by Larisa Levitas, psychotherapist, supervised by Dr. Zehra Suer, psychologist, dated October 21, 2020.

11In response, the respondent relies on the report of s. 44 assessor, Dr. Charles H. Pierce, psychologist, dated February 22, 2022, who concluded that the applicant has no psychological impairments and the applicant has reached maximum medical recovery from this accident.

12First, the evidence to support that the applicant has a psychological impairment from the accident is underwhelming. To start, the applicant only complained of psychological symptoms to Dr. Pontoriero on one occasion, which was nearly two years following the accident. Significantly on June 18, 2021, Dr. Pontoriero did not diagnose the applicant with PTSD, rather he concluded that the applicant “incurred an element of PTSD following the accident.” In my interpretation, having an element of PTSD does not equate to having PTSD. Contrary to the applicant’s position, this is the only visit with Dr. Pontoriero with respect to psychological symptoms from this accident. There are no June 28, 2021 nor June 30, 2021 entries as alleged.

13Likewise, the referral note of Dr. Pontoriero has little evidentiary value. I note that in this referral form, Dr. Pontoriero noted that the applicant “has ongoing PTSD related to an MVA in 2019.” However, I place little weight on this, as in the actual clinical note and record, as noted above, Dr. Pontorieiro opined that the applicant had an element of PTSD.

14Second, the applicant has not directed me to evidence that he underwent counselling as suggested by Dr. Pontoriero on June 18, 2021. Notably, Dr. Pontoriero completed a referral for psychotherapy/counselling, yet, once again, I have not been directed to evidence that the treatment was done.

15I also acknowledge that the applicant self-reported on June 30, 2021, to Dr. Bhavin Patel, an OHIP-Funded, chronic pain doctor, that his mood was frustrated. However, the Hospital Anxiety and Depression Scale Scores revealed scores that were borderline, and Dr. Patel did not diagnose the applicant with a psychological impairment.

16Third, I place little weight on the pre-screening psychological intake report completed by Ms. Levitas and Dr. Suer, for the following three reasons. First, neither assessor conducted any psychometric testing but relied solely on the applicant’s self-reporting to arrive at their conclusion, thus it is unclear how they arrived at a provisional diagnosis of an adjustment disorder. Second, the pre-screen intake report is unsupported by other contemporaneous medical evidence, like the lack of complaints to Dr. Pontoriero. Third, they did not review any medical evidence.

17Finally, the onus is on the applicant to prove he has a psychological impairment that warrants removal from the MIG, and not on the respondent to disprove. While I acknowledge that the applicant states that the s. 44 assessment by Dr. Pierce, is deficient, and should be given little weight by the Tribunal, the applicant must still 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 alone is insufficient. Here, the evidence demonstrates that the applicant has fallen well short of meeting his burden.

The applicant is not removed from the MIG on the basis of chronic pain

18I find that the applicant has not established on a balance of probabilities that he should be removed from the MIG due to chronic pain.

19The applicant argues that the records of Dr. Pontorieiro indicate that he complained significantly about his physical symptomology following the accident. Furthermore, he submits that he was diagnosed with chronic pain syndrome by Dr. Patel on June 30, 2021.

20Meanwhile, the respondent argues that the applicant has not adduced evidence to prove that his chronic pain diagnosis by Dr. Patel warrants removal from the MIG. It relies upon the s. 44 report of Dr. Raymond Zabieliauskas, physiatrist dated February 22, 2022.

21I find that the applicant has fallen well short of establishing that he has chronic pain syndrome or chronic pain that would warrant removal from the MIG.

22First, the applicant has only complained of upper back pain, lower back pain, and neck pain on two occasions in the past four years to Dr. Pontoriero. While Dr. Pontoriero did refer the applicant to a chronic pain specialist, Dr. Patel on June 18, 2021, he did not prescribe medication, nor did he note any functional limitations as a result of the pain. In my view, these sporadic visits to Dr. Pontoriero do not support that the applicant suffers from chronic pain or chronic pain syndrome as a result of the accident.

23Second, I agree with the respondent and place little weight on the diagnosis of chronic pain syndrome by Dr. Patel for the following three reasons. First, it does not appear that Dr. Patel reviewed any medical evidence before arriving at his conclusion. Second, Dr. Patel did not discuss the effect of the pain on the applicant’s function, or whether is bearable without treatment. Third, the diagnosis of chronic pain syndrome is inconsistent with the other medical evidence, like the sporadic visits with Dr. Pontoriero.

24I also prefer the report of Dr. Zabieliauskas for the following three reasons. First, Dr. Zabieliauskas, reviewed a number of documentation before arriving at his conclusion that the applicant had sustained a cervical strain and mild lumbosacral strain from the accident.

25Second, the applicant did not advise Dr. Zabieliauskas that he had any functional limitations as a result of the accident. For example, he advised that he had completed his business administration degree after the accident, was independent with his personal care tasks and working. Against the applicant’s argument, there was no indication that his pain affected his housekeeping tasks or his social life. Indeed, the applicant self-reported that his mother had recently moved to Canada and had taken over cooking, laundry, and cleaning, but significantly, there was no indication that this was due to his injuries.

26Likewise, the applicant did not report any functional limitations to his social life as a result of his accident-related injuries. As such, while the applicant submits that his social life has been impacted, he has not referred me to evidence to support this position, nor could I locate this information in the evidence produced. It is well-settled that submissions are not evidence.

27Third, in my opinion, Dr. Zabieliauskas’s findings are supported by the contemporaneous medical evidence, like the sporadic visits to Dr. Pontoriero.

28The applicant further relies upon the FSCO case of Arruda and Western Assurance Company, FSCO A13-003926 dated July 7, 2015 (“Arruda”) in support of his position that chronic pain is a basis for removing a person from the MIG. I am not bound by this authority, nor do I find it persuasive as the factual matrix before me is distinguishable. In Arruda, the applicant was diagnosed with chronic pain syndrome and it was held that the applicant in that case had her life changed dramatically as a result of her chronic pain diagnosis. In the present case, there is no evidence of the applicant’s life being changed dramatically as a result of his chronic pain diagnosis.

29As such, I find that the applicant has not met his onus of establishing pain of the duration, severity and functionally disabling extent necessary to remove him from the MIG.

30As I have found the applicant’s injuries fall within the MIG, it is unnecessary for me to determine whether the claimed treatment plans are reasonable and necessary.

31Interest is not payable pursuant to s. 51 of the Schedule as there are no overdue amounts owing.

The respondent is not liable to pay costs

32I find that the respondent is not liable to pay costs to the applicant.

33According to the provisions of s. 19 of the Rules, a party may make a request to the Tribunal for costs if it believes that the other party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Such a request for costs may be made to the Tribunal in writing or orally at a case conference or hearing at any time before a decision or order is released. It is the burden of the party that raises a request for costs to support allegations of misconduct.

34The applicant did not refer to s. 19 of the Rules, nor did he provide submissions of how the respondent’s conduct rose to the level of being unreasonable, frivolous, vexatious, or in bad faith. I am alive to the applicant’s position that he wants costs and his expenses for these proceedings, however, he did not engage with any of the criteria under s. 19 of the Rules. Accordingly, I find that the applicant has not established that costs are warranted.

ORDER

35For the reasons outlined above, I find that:

i. The applicant remains within the MIG. ii. He is not entitled to the treatment plans, nor interest. iii. The respondent is not liable to pay costs. iv. The application is dismissed.