Licence Appeal Tribunal File Number: 21-005774/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:
Leszek Jodlowski
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
VICE-CHAIR: Julian DiBattista
APPEARANCES:
For the Applicant: Yanira E Monterroza, Paralegal
For the Respondent: James Schmidt, Counsel
HEARD: By way of written submissions
OVERVIEW
1Leszek Jodlowski, the applicant, was involved in an automobile accident on September 19, 2018, 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, Wawanesa Mutual 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? Note: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to $3,770.94 for psychological services, proposed by Dr. Vuyo Mpumwana in a treatment plan/OCF-18 (“plan”) dated March 20, 2019?
iii. Is the applicant entitled to $25.00 ($1,280.00 less $1,255.00 approved) for physiotherapy services, proposed by Kipling Heights Rehabilitation in a plan dated January 25, 2019?
iv. Is the applicant entitled to $1,640.00 for physiotherapy services proposed by Kipling Heights Rehabilitation in a plan dated April 8, 2019?
v. Is the applicant entitled to $5,526.80 for physiotherapy, massage, chiropractic services, laser treatment and acupuncture, proposed by Kipling Heights Rehabilitation in a plan dated August 13, 2022?
vi. 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?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant has not met her onus of proving that her accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, it is unnecessary for me to consider the reasonableness or necessity of the disputed treatment plans. The applicant is also not entitled to an award or interest, and the application is dismissed.
PROCEDURAL ISSUES
4In their submissions, the applicant noted that the respondent failed to provide medical records and adjusters’ log notes in accordance with a December 30, 2022 order by the Tribunal.
5The respondent conceded the accuracy of the applicant’s submission and stated that the documents in question were provided by the respondent upon receipt of the applicant’s submissions. The respondent further stated that they do not oppose the applicant addressing this evidence in their reply submissions as the applicant could not have done so in their initial submissions and would not ask the Tribunal’s permission to file a sur-reply.
6The applicant asked for the Tribunal to allow them to address the newly disclosed evidence in their reply submissions.
7Having considered the respondent’s late disclosure of relevant evidence, the request and consent of both parties about the applicant’s reply submissions, and in the interests of procedural fairness, I considered the applicant’s reply submissions concerning the late disclosed evidence. I did not seek any sur-reply from the respondent.
ANALYSIS
The applicant has not proven injuries outside of the MIG
8I find that the applicant has not proven, on a balance of probabilities, that they have suffered injuries in the accident that fall outside the MIG.
9Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustained 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.”
10An insured 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 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. In all cases, the burden of proof lies with the applicant.
11The applicant made submissions on three fronts on why they should be removed from the MIG. First, they have a history of health issues and request removal as per s.18(2). Secondly, they suffer from psychological impairments as a result of the accident. Thirdly, they developed chronic pain syndrome as a result of injuries sustained in the accident.
12The respondent counters these arguments. First, the applicant failed to produce clinical notes and records of their treating psychiatrist and without these records, they fail to meet their burden of proof. Secondly, the respondent relies on a s. 44 Insurance Examination (“IE”) that did not find any accident-related psychological impairment. Thirdly, the respondent disputes the findings of the chronic pain assessment submitted by the applicant relying on their s. 44 IE.
The applicant has not satisfied s. 18(2).
13I find that the applicant has not proven a pre-existing condition that would warrants removal from the MIG.
14The applicant submits that they are considered a person with a disability and are suffering from the following pre-existing conditions:
i. Diabetes Mellitus;
ii. Suspect major depressive disorder with anxious component and panic attacks;
iii. Degenerative disc disease; and
iv. Limited intellectual resources.
15The applicant points to clinical notes and records provided by Dr. B. Praglowski, the applicant’s family physician at the time of the accident. Dr. Praglowski noted on September 27, 2018 that the injuries sustained in the accident are an “MSK sprain – underlying DDD”. The applicant provided notes documenting three subsequent visits with Dr. Praglowski covering the period between the accident and February 1, 2019. While these notes confirm the existence of pre-existing conditions, they do not demonstrate that these pre-existing conditions would prevent the applicant’s maximal recovery from any accident-related minor injury.
16The applicant also points to a clinical relationship with Dr. P. Nynkowski, psychiatrist as evidence of a history of psychological issues.
17The applicant provided evidence that they attempted on numerous occasions to request clinical notes and records from Dr. Nynkowski. However, there is no evidence that Dr. Nynkowski addressed these requests. The only documents from Dr. Nynkowski that were disclosed to the respondent and the Tribunal were two handwritten notes, one dated August 8, 2019 where Dr. Nynkowski confirms a clinical relationship with the applicant, outlines the applicant’s prescribed medication and notes that “his depression and insomnia has significantly increased after the MVA in 2018”.
18The second note dated August 23, 2021 again confirms the clinical relationship and notes that medications were adjusted due to the accident. The note ends with the following statement “his condition is severe and prolonged”. Dr. Nynkowski does not indicate that pre-existing conditions would prevent the applicant’s maximal recovery from any accident-related minor injury, which is a necessary requisite of removal under s. 18(2).
19The respondent counters these notations with a s. 44 report conducted by Dr. R. Finkel, psychiatrist. This report was the result of an assessment conducted May 1, 2019. Dr. Finkel notes, “There is inadequate information currently available in order to determine whether the Treatment and Assessment Plan in dispute is reasonable and necessary as a result of the index accident. Review of clinical records of Dr. Nynkowski as well as those of the family physician for at least a five-year period prior to the index accident is recommended.”
20The burden of proof rests with the applicant to prove, on a balance of probabilities, that they suffer from injuries that warrant removal from the MIG.
21The two handwritten notes from Dr. Nynkowski and the four visits documented by Dr. Praglowski are not sufficient to meet this burden. I note that the applicant made unsuccessful requests from Dr. Nynkowski for their records, however, that does not relieve them of the burden of proof. The applicant is still required to prove their case. The burden cannot be overcome with the evidence provided.
22For the reasons above, I find that the applicant has not proven a pre-existing condition that would warrant removal from the MIG under s. 18(2).
The applicant has not proven a psychological impairment outside of the MIG
23I find that the applicant has not proven a psychological impairment that would warrant removal from the MIG.
24As discussed in the previous section, there was no diagnosis of a psychological impairment contained in Dr. Praglowski’s clinical notes and records, and I give limited weight to the statements made by Dr. Nynkowski in the absence of the underlying clinical notes and records.
25There was no s. 25 psychological evaluation conducted.
26Dr. Finkel’s s. 44 psychiatric report noted that a conclusion could not be made without the clinical notes and records from Dr. Nynkowski.
27For the reasons above, I find the applicant has failed to provide evidence to prove, on the balance of probabilities, that they suffer from a psychological condition that would warrant removal from the MIG.
The applicant has not proven a diagnosis of chronic pain syndrome that would warrant removal from the MIG
28I find that the applicant has failed to prove that they suffer from chronic pain syndrome that would warrant removal from the MIG. In order to be removed from the MIG based on accident-related chronic pain, the applicant must prove not only chronic pain, but that the pain impairs the applicant’s functionality.
29The applicant points to reports from Dr. A. Di Fonzo, physician. Dr. Di Fonzo has a clinical relationship with the applicant, and has provided three reports dated February 20, 2019, September 17, 2020 and October 21, 2022. In these reports it is noted that the applicant suffers from chronic pain.
30The respondent submits that according to a s. 44 examination conducted by Dr. J. Stewart, physician, on May 24, 2019, the injuries sustained in the accident fall within the MIG.
31I prefer the evidence of Dr. Stewart to that of Dr. Di Fonzo for the following reasons:
i. Dr. Di Fonzo notes in his initial report, “Mr. Jodlowski was seen today, without a translator. As his first language is Polish, our history and examination was limited.” By contrast, a Polish speaking interpreter was present for the assessment by Dr. Stewart.
ii. With the exception of the February 20, 2019 report by Dr. Di Fonzo, which noted he assessed the applicant earlier that day, it is unclear when the applicant was subsequently assessed by Dr. Di Fonzo and the scope of the clinical relationship is not disclosed. The applicant’s evidence does not include information detailing the frequency and number of sessions with Dr. Di Fonzo nor is there any information about the level of involvement of Dr. Di Fonzo in the applicant’s rehabilitation.
iii. It is not clear when the applicant was last assessed, or treated in Dr. Di Fonzo’s reports.
32As mentioned above, a longstanding clinical relationship between a clinician and patient is best documented by clinical notes and records. The applicant has not included clinical notes and records from Dr. Di Fonzo.
33For the reasons outlined above I find that the three reports from Dr. Di Fonzo do not prove, on the balance of probabilities, that the applicant has been diagnosed with chronic pain syndrome.
The applicant is not entitled to any of the disputed treatment plans
34As I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the dispute treatment plans because the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG have been exhausted.
The applicant is not entitled to a s.10 award
35As I have found in that there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.
The applicant is not entitled to interest
36As there are no benefits owing, no interest is payable.
ORDER
37For the reasons outlined above, I find that:
i. The applicant sustained predominantly minor injuries as defined under the Schedule.
ii. The applicant is not entitled to the disputed plans;
iii. The applicant is not entitled to an award under Regulation 664;
iv. No interest is payable; and
v. This application is dismissed.
Released: January 29, 2024
Julian DiBattista
Vice-Chair