Gallerno v. Intact Insurance Company

Citation: Gallerno v. Intact Insurance Company, 2025 ONLAT 24-003734/AABS Licence Appeal Tribunal File Number: 24-003734/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:

Graeme Gallerno

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Aric Bhargava

APPEARANCES:

For the Applicant:

Jennifer Amer, Counsel

For the Respondent:

Eluxmeenah Rishihesan, Counsel

HEARD:

By way of written submission

OVERVIEW

1Graeme Gallerno, the applicant, was involved in an automobile accident on November 17, 2022, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The parties agree that the Minor Injury Guideline limits have not been exhausted.

ISSUES

3The issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to $1,815.85 for occupational therapy services, proposed by Novus Rehab in a treatment plan/OCF-18 (“plan”) submitted December 7, 2022?

iii. Is the applicant entitled to $4,127.31 for physiotherapy and massage services, proposed by Neuphysio North in a plan submitted January 3, 2023?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

v. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

4The applicant withdrew issue iii), v), and vi) listed in the Case Conference Report & Order (“CCRO”), as such, I have only made a finding with respect to the issues listed above.

RESULT

5I find:

i. The applicant is subject to the MIG.

ii. As the applicant is in the MIG, it is not necessary for me to consider if any of the disputed treatment plans are reasonable and necessary.

iii. The applicant is not entitled to interest.

iv. The respondent is not liable to pay an award.

ANALYSIS

Application of the Minor Injury Guideline

6I find the applicant’s injuries are predominantly minor injuries subject to treatment within the MIG.

7Section 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.”

8The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2), that he has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if he is kept within 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.

9The applicant submits that he suffered a concussion, psychological impairments, and chronic pain as a result of the accident and his pre-existing low back pain prevents maximal recovery if he is kept within the MIG.

10The respondent submits the applicant suffered minor injuries that are treatable within the MIG limit, and he has not met his burden to be removed from the MIG.

Does the applicant have pre-existing conditions that prevent maximal recovery?

11I find the applicant has not established that he should be removed from the MIG on the basis of a pre-existing condition that prevents maximal recovery within the MIG.

12The applicant submits he has pre-existing low back pain that was aggravated due to the accident. He relies on the section 25 independent medical legal assessment report dated October 25, 2023, prepared by Dr. Keith Sequeira, physiatrist, the clinical notes and records (“CNRs”) of Dr. Jonas Vanderzwan, family physician, and the FSCO case Violi and General Accident Assurance Company of Canada (P99-00047, September 27, 2000), (“Violi”).

13The respondent submits the applicant has not met his burden to demonstrate a pre-existing condition prevents him from achieving maximal recovery.

14The section 25 report notes the applicant “had occasional low back pain” prior to the accident. Yet, the family doctor’s CNRs do not refer to a pre-existing impairment or condition. The applicant has not directed me to any other evidence from a medical practitioner that documents that he has a pre-existing condition, or critically that a pre-existing condition will prevent him from achieving maximal recovery if he is kept within the $3,500.00 monetary limit, which is the test for removal from the MIG on this ground.

15In my view, Violi does not support the applicant’s argument because Violi is about effective treatment and pain relief as a broader strategy to maintain the applicant’s functioning, and not about pre-existing conditions that prevent maximal recovery. Here, the evidence does not support the applicant’s claim that a pre-existing injury prevents maximal recovery to warrant removal from the MIG limit.

16As a result, I find that the applicant, on a balance of probabilities, does not have a pre-existing injury that prevents maximal recovery within the MIG.

Does the applicant have a psychological impairment?

17I find the applicant has not met his burden to prove that he suffers from a psychological impairment that would warrant removal from the MIG.

18The applicant submits he suffers from increased irritability, anger, emotional dysregulation, symptoms of post-traumatic stress disorder, vehicle anxiety and increased alcohol intake. The applicant relies on the family physician’s CNRs, the section 25 report prepared by Dr. Sequeira, the section 25 occupational therapy assessment report dated December 7, 2022, prepared by Kelly Smale, occupational therapist, the audiological report dated December 4, 2024, prepared by Dr. Barbara Taylor, audiologist, the speech language pathology assessment dated March 16, 2025, prepared by Stephanie Ellis, speech language pathologist, and the reassessment report dated October 7, 2024, prepared by Marianne Lee, social worker.

19The applicant’s family physician notes on November 28, 2022 that the applicant was “rattled” due to the accident and “had an episode where he was incapable of controlling his emotions” with no trigger event. Dr. Vanderzwan notes it may have been a delayed reaction to the accident and there has been nothing similar since. The doctor did not diagnose a psychological impairment and did not recommend psychological treatment. Also, the applicant has not directed me to any other family doctor CNRs regarding a psychological impairment outside of this self-reported event.

20I place less weight on the occupational therapy assessment report and the audiological report because it is out of scope for an occupational therapist and an audiologist to diagnose psychological impairments. The social worker report notes the applicant has anxiety and depression type symptoms. I place less weight on the social worker report because it is mostly based on the applicant’s self-reporting. Also, I place less weight on the speech language pathology assessment because it mostly notes the spouse’s concerns with regards to the applicant’s emotional state.

21Dr. Sequeira’s section 25 report notes a diagnosis of neck and parascapular pain of a musculoligamentous etiology, mechanical low back pain, and concussion (resolved). The report states the applicant may suffer from “vehicular anxiety.”

22The respondent submits the applicant’s injuries are predominantly minor and relies on the section 44 psychological examination report dated May 11, 2023, prepared by Dr. Jay McGrory, psychologist, and the section 44 general practice examination report dated April 14, 2023, prepared by Dr. Bansal, family physician.

23The section 44 report prepared by Dr. Bansal notes the applicant shows “no valid signs of musculoskeletal, orthopaedic, or neurological injury” as a result of the accident. Dr. McGrory’s in-person psychological examination notes the applicant “does not meet the DSM-5-TR diagnostic threshold for a psychological disorder”. The report also notes the applicant had some “emotional adjustment issues [that] have resolved” and there were no recommendations for any psychological treatment.

24I place more weight on Dr. McGrory’s in-person psychological report because psychological diagnosis is within the practitioner’s scope of practice, and it is consistent with the CNRs of the family doctor that did not note a psychological diagnosis or ongoing psychological symptoms as a result of the accident. I recognize the family doctor notes a single self-reported instance of an emotional outburst in November 2022, however, in my view, the applicant does not meet the threshold to support his position on a balance of probabilities. I also recognize that the applicant reported psychological symptoms to the social worker and the speech language pathologist, however I am not persuaded that the reported symptoms reach the threshold of a psychological impairment in the absence of a diagnosis or referral because there is nothing that shows these symptoms negatively impacted his function or activities of daily living or were recurring in nature.

25I find, on a balance of probabilities, that the applicant has not met his burden to establish that he has a psychological impairment as a result of the accident that would warrant removal from the MIG.

Does the applicant have chronic pain with functional impairment?

26I find on a balance of probabilities that the applicant does not have chronic pain with a functional impairment that would remove him from the MIG.

27The applicant submits his accident-related injuries have resulted in chronic pain and he is in a compromised state due to the pain. The applicant relies on Dr. Sequeira’s section 25 report and the CNRs of Mr. Iain Cumberland, physiotherapist, and Mr. Arpan Shah, physiotherapist.

28Dr. Sequeira’s section 25 report notes the applicant “has pain through the course of his day and especially by the end of a workday and week” and he is slightly limited in his home maintenance participation. In my view, the report does not state what functional impairment the applicant suffers from. Also, the family doctor’s CNRs do not note chronic pain, or a functional impairment, and I have not been directed to CNRs outside of the visit in November 2022 that would confirm Dr. Sequeira’s findings.

29The respondent submits the applicant sustained minor injuries that are treatable within the MIG. The respondent relies on the section 44 report prepared by Dr. Bansal.

30Dr. Bansal’s section 44 report notes the applicant suffered uncomplicated self-resolving soft tissue injuries and has no signs of neurological, orthopaedic, or musculoskeletal injury or functional impairment. This is consistent with the lack of reporting in the family doctor’s CNRs. Therefore, I am not persuaded the applicant has chronic pain with a functional impairment.

31I assign greater weight to Dr. Bansal’s report and in my view, there is no evidence of significance of functional impairment. The applicant has directed me to one family doctor visit and there is no indication that there was any follow up. In my view, his family doctor’s CNRs of November 2022 are consistent with Dr. Bansal’s report and do not suggest he suffers chronic pain with a functional impairment.

32I find the applicant has not met his onus to prove he has accident-related chronic pain with a functional impairment that warrants removal from the MIG.

Does the applicant have a concussion?

33I find the applicant has not demonstrated on a balance of probabilities that he has a concussion as a result of the accident.

34The applicant submits the family doctor, Dr. Vanderzwan, diagnosed a concussion and post-concussive symptoms within days of the accident. The applicant relies on the CNRs of Dr. Vanderzwan, and the OCF-3/Disability Certificate also completed by Dr. Vanderzwan.

35Dr. Vanderzwan notes on November 28, 2022 that the applicant suffered whiplash and may have a concussion. The doctor ordered a computer tomography (“CT”) scan “in the interest of patient reassurance” and the subsequent imaging dated November 30, 2022 confirms the applicant did not suffer a concussion.

36The respondent submits the applicant’s injuries are predominantly minor and relies on the section 44 reports prepared by Dr. Bansal, and Dr. McGrory.

37The section 44 reports note the applicant sustained uncomplicated, self-resolving soft tissue type injuries involving his neck, back and arms. Neither of the section 44 reports refer to a concussion or post-concussive symptoms.

38Upon consideration of the evidence, I find that there is no confirmed diagnosis or related concussion symptoms. Accordingly, I find, on a balance of probabilities, the applicant did not suffer a concussion and is not subject to removal from the MIG.

39Having found that the applicant is subject to the MIG, I do not need to consider whether the treatment plans in dispute are reasonable and necessary.

Interest

40Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As there are no benefits are owed, no interest is payable.

Award

41The applicant sought an award under section 10 of Reg. 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

42The applicant submits the insurer’s conduct is unreasonable because it unreasonably withheld or delayed payments.

43The respondent submits the applicant has not met the onus to demonstrate how its actions were in bad faith, or that it unreasonably withheld or delayed any payment of benefits in dispute.

44I find an award is not appropriate and the respondent’s actions do not constitute unreasonable withholding of benefits. As a result, no award is payable.

ORDER

45The applicant is subject to the MIG.

46As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

47As there are no overdue benefits, the applicant is not entitled to interest.

48The applicant is not entitled to an award under section 10 of Reg. 664 because no payments were unreasonably delayed or withheld.

49The application is dismissed.