Licence Appeal Tribunal File Number: 22-001101/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:
Jean-Paul Piacente
Applicant
and
Wawanesa Insurance
Respondent
DECISION
ADJUDICATOR: Lisa Holland
APPEARANCES:
For the Applicant: Jeremy Magence, Counsel
For the Respondent: Sophia Souffront, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Jean-Paul Piacente, the applicant, was involved in an automobile accident on January 9, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The respondent, Wawanesa Insurance denied the treatment and expense in dispute on the basis that the applicant sustained predominantly minor injuries that are treatable within the Minor Injury Guideline (“MIG”). The applicant disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The 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 limit and in the MIG? Note: The parties agree that the MIG limits have been exhausted.
ii. Is the applicant entitled to $1,328.10 for physiotherapy services, proposed by Revitamax Rehab & Wellness Inc. in a treatment plan/OCF-18 (“plan”) dated October 21, 2021?
iii. Is the applicant entitled to $45.00 for ambulance services, submitted on a claim form (OCF-6) dated May 13, 2021?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant has failed to demonstrate that removal from the MIG is warranted. The medical evidence does not establish that his accident-related injuries fall outside the MIG. The parties agree that the MIG limits are exhausted. It is not necessary to consider whether the plan for physiotherapy services and ambulance expense are reasonable and necessary. As a result, there is no entitlement to interest.
5The application is dismissed.
ANALYSIS
The applicant has failed to demonstrate that he suffers from accident-related injuries that warrant removal from the MIG
6Section 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 in accordance with the MIG. 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.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. In all cases, the burden of proof lies with the applicant.
7The applicant submits that he should be removed from the MIG based on the following accident-related physical and psychological injuries:
a. his diagnosis of chronic pain;
b. his cervical disc herniation, and;
c. his shoulder injury.
8To this end, the applicant relies on his Disability Certificate (OCF-3), post-accident clinical notes of family physicians, Dr. Patrick Safieh and Dr. Jeffrey Bacher, MRI of the cervical spine and right shoulder, consultation report of Dr. Charles Kassardjian, neurologist, and plan by Dr. Alessandro Pichini, chiropractor.
9The applicant relies on the OCF-3 dated May 11, 2021 completed by Dr. Safieh which indicates he suffers from sprain of the neck, lumbar pain, headache, dizziness and sleep disturbance. Both Dr. Bacher and Dr. Kassardjian note chronic, pre-existing neck and right shoulder complaints. Dr. Safieh contradicts Dr. Bacher and Dr. Kassardjian in finding no pre-existing injuries. The applicant does not refer to any pre-existing conditions that would prevent him from achieving maximum recovery under the MIG limit. In addition, the applicant has not provided any clinical notes and records regarding his pre-accident medical history.
10The plan dated October 21, 2021 completed by Dr. Pichini indicates that the applicant’s injuries fall within the MIG. Dr. Pichini lists the applicant’s accident-related injuries as sprain and strain injuries of the neck, back and shoulder, post concussion syndrome and posttraumatic headaches. However, Dr. Kassardjian has not confirmed a diagnosis of concussion, or posttraumatic headaches.
11The applicant submits that he should be removed from the MIG on account of his accident-related chronic pain, cervical disc herniation and shoulder injury. The applicant submits that he was diagnosed with chronic pain by Dr. Safieh after the accident. However, there are inconsistent findings regarding pre-existing and accident-related chronic pain involving neck and right shoulder complaints. Dr. Bacher and Dr. Kassardjian do not concur with Dr. Safieh regarding a diagnosis of accident-related chronic pain. On March 9, 2023, Dr. Bacher notes significantly improved right shoulder pain with full range of motion.
12In response, the respondent submits that the applicant’s injuries are soft tissue in nature and fall within the definition of minor injury under the Schedule. The respondent relies on the clinical notes of the applicant’s family physicians. The respondent submits that the applicant has not provided the treating clinic records. The respondent further submits that the applicant has degenerative changes in the cervical spine and right shoulder which are unrelated to the accident. The respondent points to the report of Dr. Kassardjian dated January 7, 2022 which found no neurological conditions or changes in the applicant’s activities of daily living after the accident. The respondent submits that although Dr. Safieh diagnoses chronic pain with psychological injuries, there have been no referrals to a chronic pain specialist, psychiatrist or psychologist. In addition, there are no reported functional limitations as a result of the accident. There is no compelling medical evidence that the applicant is unable to achieve maximal recovery under the MIG limits.
13I find that the applicant has not proven on a balance of probabilities that he suffers from accident-related chronic pain warranting removal from the MIG.
14Overall, I find that the applicant has not met his onus of establishing entitlement to treatment beyond the MIG in the absence of any consistent findings in support of a chronic pain or psychological diagnosis.
Are the treatment plan and expense payable?
15I find that the treatment plan and expense in dispute are not payable.
16Here, the applicant seeks payment for a plan in the amount of $1,328.10 for physiotherapy services at Revitamax Rehab & Wellness Inc. and an ambulance expense of $45.00.
17Since the applicant has not demonstrated that his accident-related injuries warrant removal from the MIG, it is not necessary to consider whether the plan and expense are reasonable and necessary.
Interest
18Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since the applicant was not successful on removal from the MIG or the plan for physiotherapy services and ambulance expense, no benefits are owing and interest does not apply.
ORDER
19The applicant has failed to demonstrate that removal from the MIG is warranted. There is no medical evidence in support of an accident-related chronic pain diagnosis.
Therefore, it is not necessary to consider whether the plan for physiotherapy services and ambulance expense are reasonable and necessary and interest does not apply. The application is dismissed.
Released: August 7, 2024
Lisa Holland Adjudicator