Capalbo v. Economical Insurance Company
Licence Appeal Tribunal File Number: 23-014852/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:
Luccio Capalbo
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harouna Saley Sidibé
APPEARANCES:
For the Applicant:
Dean Trinetti, Counsel
For the Respondent:
Owen Cromb, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Luccio Capalbo, the applicant, was involved in an automobile accident on February 27, 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 the respondent, Economical 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 limit (“MIG”)?
ii. Is the applicant entitled to the treatment and assessments proposed by Hydrohealth Evaluations Inc. in treatment plans/OCF-18s (“plan”), as follows:
- $3,526.25 for psychological services, in a plan submitted on September 28, 2022;
- $2,460.00 for a psychological assessment, in a plan submitted on June 9, 2022; and
- $2,460.00 for a chronic pain assessment, in a plan submitted on June 7, 2022?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons below, I find that:
i. The applicant’s injuries are not predominantly minor; therefore, the MIG limit does not apply.
ii. The applicant is entitled to the treatment plan for psychological services, plus interest.
iii. The applicant is not entitled to the treatment plans for psychological assessment and chronic pain assessment.
ANALYSIS
Are the applicant’s injuries predominantly minor?
4Section 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.”
5An 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.
6The applicant submits that his impairments are not minor because he suffers from both chronic pain and psychological impairments. I will first address chronic pain.
Chronic Pain with Functional Impairments
7I find that the applicant suffers from ongoing and functionally limiting chronic pain, and therefore that the applicant’s impairments are not predominantly minor.
8The applicant submits that his injuries fall outside the MIG due to chronic pain resulting from the motor vehicle accident. In support of this position, the applicant relies on medical documentation from Dr. Dima Rozen, a specialist in anesthesiology and interventional pain medicine, as well as clinical records from Albion-Islington Medical Centre. He asserts that this evidence demonstrates persistent pain that significantly impairs his ability to work, perform household tasks, and engage in social activities.
9The respondent argues that the applicant has not met the evidentiary threshold required for removal from the MIG. It submits that chronic pain arising from soft tissue injuries remains within the scope of the MIG. The respondent also relies on the limited documentation of impairment in the family physician’s records to challenge the applicant’s claim.
10I accept the applicant’s explanation that he does not have a regular family physician and instead relies on walk-in clinics. This is consistent with his report to Dr. Rozen during the assessment of chronic pain. I find this explanation reasonable and sufficient to account for the limited references in the family doctor’s records.
11The evidence supports that the applicant began experiencing pain immediately following the accident. Discharge records from Humber River Hospital dated February 28, 2019, one day after the accident, document complaints of back pain. It is reasonable to infer that this hospital visit was related to the accident. Further, a Disability Certificate (OCF-3) dated April 15, 2019, lists lower back pain among the applicant’s injuries. An MVA intake form from Health Bound, also dated April 15, 2019, records complaints of lower back, neck, and mid-back pain.
12Clinical records from Albion-Islington Medical Centre dated May 7, 2021, confirm ongoing lower back pain and include a diagnosis of chronic pain. The records indicate that the applicant had no prior history of leg weakness or numbness before the accident. The applicant pursued treatment with a chiropractor and physiotherapist. The treating physician noted that the pain, initially intermittent, had become more persistent. Although the applicant also relies on clinical notes from Dr. Lielmanis, I find that the October 30, 2019, notes are illegible and therefore cannot be given weight.
13Dr. Rozen’s report dated September 12, 2022, provides a comprehensive assessment of the applicant’s musculoskeletal condition. He diagnoses chronic cervical, thoracic, and lumbar myofascial pain; a possible T9 compression fracture; worsening pre-existing spinal degeneration; right knee osteoarthritis; and chronic right elbow pain requiring further investigation. Dr. Rozen concludes that the applicant suffers from chronic pain syndrome, which affects his mood and sleep. Applying the AMA Guides, 6th Edition, Dr. Rozen finds that the applicant meets at least three of six criteria for chronic pain syndrome, including dependence on healthcare and family, physical deconditioning, social withdrawal, failure to regain pre-injury function, and psychosocial issues such as anxiety and depression.
14The respondent relies on a s. 44 insurer’s examination conducted by Dr. Ahmad Belfon, a general practitioner, dated July 30, 2019. Dr. Belfon diagnoses sprain/strain injuries to the cervical and lumbar spine and notes tenderness on palpation of the right lumbar paraspinal musculature.
15I prefer Dr. Rozen's report. His assessment is detailed, applies the AMA Guides, and provides a thorough evaluation of the applicant’s chronic pain condition. While Dr. Belfon identifies soft-tissue injuries, his report also notes ongoing neck and lower back symptoms.
16Regarding functional impairment, the applicant relies on the Disability Certificate, which indicates a complete inability to carry on a normal life. Additionally, a section 44 report by Ms. Veena Mehata, an occupational therapist, dated July 30, 2019, concludes that the applicant needs assistance with the physical aspects of daily activities. I accept that the applicant’s chronic pain significantly impairs his ability to perform daily tasks, housekeeping, and social functions. I am satisfied that the applicant meets the functional impairment test.
17Having considered the totality of the evidence, I find that the applicant suffers from ongoing and functionally limiting chronic pain. Unlike the limited documentation criticized by the respondent, the applicant has submitted detailed assessments from qualified specialists, supported by clinical records.
18I accept that the applicant’s chronic pain results in substantial impairment in daily living, housekeeping, and social functioning.
19Accordingly, I find that on a balance of probabilities, the applicant’s impairments are not predominantly minor. He is therefore not subject to the MIG.
20As I have found that the applicant is removed from the MIG on the basis of chronic pain, it is unnecessary to determine whether his psychological impairments also warrant removal from the MIG.
Is the applicant entitled to the disputed treatment plans?
21To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
22The applicant submits that the disputed treatment plans are reasonable and necessary, notwithstanding the respondent’s denial based on the MIG. He argues that his injuries exceed the MIG threshold due to chronic pain and psychological impairments. The assessments were intended to identify appropriate treatment options, and the applicant maintains that the proposed plans are essential to his recovery.
23The respondent contends that the treatment plans are neither reasonable nor necessary. It maintains that the applicant’s injuries fall within the MIG, and therefore the proposed costs exceed the funding limits under section 18 of the Schedule. The respondent further argues that the assessments are not payable because MIG funding has been exhausted and there is insufficient evidence of significant impairments warranting further investigation.
24I find that the applicant is entitled to the psychological treatment plan dated September 28, 2022.
25The plan seeks funding in the amount of $3,526.25 and is signed by Dr. Peter Waxer, psychologist, and Yana Shcherbina, psychotherapist. The stated goals of the plan include reducing pain, restoring pre-accident psychological functioning, and resuming normal daily activities. The plan proposes 12 sessions of mental health and addictions therapy, 14 support activity documentation services, and preparation and brokerage services.
26While Dr. Rozen’s report dated September 12, 2022, mainly recommends a psychological assessment to address the applicant’s ongoing frustration, depression, anxiety, and vehicle-related anxiety, his observations also highlight the need for therapeutic intervention. He notes that the applicant’s physical and emotional symptoms have significantly affected all areas of his daily life, including employment, household responsibilities, and social engagement.
27Furthermore, Dr. Waxer’s report dated August 23, 2022, explicitly recommends psychotherapy, noting that the applicant’s emotional distress results in a significant psychological impairment. He believes that 12 to 16 sessions of cognitive behavioural therapy are both reasonable and necessary and has submitted the appropriate OCF forms to support this recommendation. This directly endorses the services outlined in the treatment plan.
28The respondent contends that the applicant has not proven that the goals and costs of the treatment plan are reasonable and necessary, asserting that the injuries are minor. However, I disagree with this position. The medical evidence indicates that the applicant continues to experience psychological symptoms that impair his daily functioning. The treatment goals align with the identified impairments, and the proposed services are suitable for the applicant’s needs.
29Accordingly, on a balance of probabilities, I find that the psychological treatment plan dated September 28, 2022, is reasonable and necessary, and therefore payable.
30The purpose is to determine whether a condition exists. For an insured, they bear the onus of demonstrating that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
Chronic pain assessment
31I find that the applicant is not entitled to the chronic pain assessment treatment plan dated June 7, 2022.
32The applicant seeks entitlement to a chronic pain assessment treatment plan dated June 7, 2022, in the amount of $2,460.00. The plan is signed by Dr. Grigory Karmy, a physician, and Mr. David Huang, a chiropractor. It proposes a total body test and support activity documentation. The stated goals include reducing pain, restoring functional tolerance and endurance, and returning to normal daily activities.
33While the plan is described as an assessment, the goals outlined, such as pain reduction and restoration of function, are more consistent with treatment objectives. An assessment typically aims to establish a diagnosis, evaluate the extent of impairment, and inform future treatment planning and management. The goals in this plan suggest a therapeutic intent rather than a diagnostic one, which raises concerns about the nature and purpose of the proposed services.
34The applicant did not expand on this issue in his submissions. He did not explain how the proposed assessment aligns with the Schedule's requirements, which require that goods and services be both reasonable and necessary. Without further clarification, it is unclear how this plan would contribute meaningfully to the applicant’s rehabilitation or provide new information beyond what has already been established through prior assessments, including the report from Dr. Rozen.
35The respondent argues the assessment isn't reasonable or necessary and that diagnostics should be arranged through OHIP. I disagree that all assessments must be OHIP-funded; however, the applicant hasn't demonstrated that this plan meets the Schedule's reasonableness and necessity criteria.
36I am not satisfied that the chronic pain assessment treatment plan dated June 7, 2022, is reasonable and necessary. The goals do not align with the nature of an assessment, and the applicant has not provided sufficient submissions to support entitlement.
37Accordingly, on a balance of probabilities, I find that the applicant is not entitled to payment for the chronic pain assessment treatment plan dated June 7, 2022.
Psychological assessment
38I find that the applicant is not entitled to the psychological assessment treatment plan dated June 9, 2022.
39The applicant seeks entitlement to a psychological assessment treatment plan dated June 9, 2022, in the amount of $2,460.00. The plan is signed by Dr. Leon Steiner, psychologist, and Ms. Yana Shcherbina, psychotherapist. It proposes a mental health and addictions assessment and support activity documentation. The stated goals include managing mood and pain and facilitating a return to modified work activities.
40The plan is called an assessment but aims at treatment, focusing on mood, pain, and return to work, rather than diagnosis or impairment evaluation. This raises questions about its purpose.
41The applicant did not elaborate on how the proposed assessment meets the requirements of the Schedule, which demands that goods and services be reasonable and necessary. Without clarification, it's unclear how this plan aids rehabilitation or offers new insights beyond previous evaluations.
42The respondent argues that the assessment is not reasonable or necessary and suggests that any diagnostic procedure should have been arranged through OHIP. While I do not accept that all assessments must be OHIP-funded, I agree that the applicant has not demonstrated that this particular plan meets the test of reasonableness and necessity under the Schedule.
43I am not satisfied that the psychological assessment treatment plan dated June 9, 2022, is reasonable and necessary. The goals do not align with the nature of an assessment, and the applicant has not provided sufficient submissions to support entitlement.
44Accordingly, on a balance of probabilities, I find that the applicant is not entitled to payment for the psychological assessment treatment plan dated June 9, 2022.
Interest
45Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on any overdue benefits payment in accordance with s.51.
ORDER
46For the above reasons, it is ordered that:
i. The applicant’s injuries are not predominantly minor; therefore, the MIG limit does not apply.
ii. The applicant is entitled to the treatment plan for psychological services, plus interest.
iii. The applicant is not entitled to the treatment plans for psychological assessment and chronic pain assessment.
Released: October 14, 2025
Harouna Saley Sidibé
Adjudicator