Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-007344/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:
Edward Peacock
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
VICE-CHAIR: Tyler Moore
APPEARANCES:
For the Applicant: Omar Duhaney, Paralegal
For the Respondent: Emily Schatzker, Counsel
HEARD: By way of written submissions
OVERVIEW
1Edward Peacock, the applicant, was involved in an automobile accident on May 21, 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, Co-operators General 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?
ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from July 8, 2022 to date and ongoing?
iii. Is the applicant entitled to $3,991.54 for chiropractic services, proposed by HealthMax Physiotherapy in a treatment plan/OCF-18 (“plan”) submitted November 10, 2022?
iv. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by TE Rehabilitation Services in a treatment plan submitted November 1, 2022?
v. Is the applicant entitled to $2,460.00 for a neurological assessment, proposed by TE Rehabilitation Services in a treatment plan submitted August 30, 2022?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant sustained a minor injury as a result of the accident. He is subject to the MIG and the $3,500.00 funding limit for a minor injury.
4The applicant is not entitled to NEBs.
5The applicant is not entitled to the treatment and assessment plans in dispute, or interest.
ANALYSIS
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. 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.”
7An 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.
8The applicant submits that he should be removed from the MIG on the basis that he sustained a concussion, he has pre-existing conditions, he suffers from chronic pain, and he suffers from psychological injuries as a result of the accident.
9For the following reasons, I find that the applicant sustained a minor injury as a result of the accident.
Concussion
10I find that the applicant’s accident-related physical injuries do no warrant removal from the MIG.
11The applicant submits that Dr. Dinna Icatar, chiropractor, listed that he sustained a concussion on the disability certificate dated June 26, 2022. The applicant also submits that Dr. Icatar performed some type of concussion test on an unknown date.
12The applicant relies on the neurological assessment report of Dr. Antonio Gallo dated February 21, 2023 which notes that the applicant had episodic tension headaches following a head injury and probably concussion symptoms that began in May 2022, based on the applicant’s self-report. Dr. Gallo also noted that the applicant described some non-specific light-headedness as well as mild tinnitus.
13I note that the applicant indicates in his submissions that his injuries constitute minor injuries as that term is defined within the Schedule. He also submits, however, that he suffered a head injury as a result of the accident when the airbags deployed, and that it was possibly a concussion.
14The respondent submits that Dr. Gallo’s February 2023 neurological examination was normal, and on September 21, 2023, Dr. Gallo reported that the applicant had minimal headache symptoms. The respondent agrees with the applicant’s concession that his injuries are within the MIG.
15The respondent argues that there is no evidence the applicant sustained a concussion as a result of the accident. There is also no indication that the applicant reported headaches or post-concussive symptoms to Dr. Bonnah in the first month after the accident, or to anyone until he began attending physiotherapy. The respondent also argues that on July 26, 2022, the applicant reported to Dr. Graham O’Brien, optometrist, that his vision complaints had resolved, and in February 2023 he reported to Dr. Gallo that his headaches were only weekly.
16The respondent further submits that the only concussion diagnosis has been made by Dr. Icatar, and there is no evidence that Dr. Icatar is qualified to diagnose a concussion as a chiropractor. Dr. Bonnah did not make any such diagnosis and relied on the applicant’s self-report when noting “probable concussion”.
17I am not persuaded by the applicant’s submissions that he should be removed from the MIG based on a concussion. There is no indication in Dr. Bonnah’s clinical notes that the applicant complained of concussion-like symptoms in the weeks following the accident, and the applicant concedes that his accident-related injuries are minor as defined in the Schedule. I find that apart from Dr. Icatar, there has been no definitive concussion diagnosis. I also agree that there has been no evidence submitted to support a finding that Dr. Icatar is qualified to make such a diagnosis.
18I accept that the applicant may have sustained some concussion-like symptoms as a result of the impact from the airbag during the accident, but he has not established on a balance of probabilities that he has a concussion that would warrant removal from the MIG.
Pre-existing injuries
19I find, on a balance of probabilities, that the applicant does not suffer from a pre-existing condition that would warrant removal from the MIG.
20To be removed from the MIG based on a pre-existing condition, the applicant must satisfy both parts of a two-part test pursuant to section 18(2) of the Schedule. He must provide documented evidence of a pre-existing medical condition by a health practitioner, and he must also provide evidence that the pre-existing condition will prevent him from achieving maximal recovery from the minor injury if he is subject to the MIG limits.
21The applicant submits that the accident exacerbated his pre-existing back pain, depression, and anxiety. The applicant relies on the clinical notes and records of Dr. Bonnah which indicate that he complained of low back pain in 2020. The applicant also relies on Dr. Gallo’s neurological assessment report dated February 21, 2023, noting depression and anxiety, as well as chronic back pain that had been relatively stable. The applicant argues that Dr. Bonnah’s records also indicate that he had a history of depression and anxiety for which he was prescribed Citalopram.
22According to the applicant, he had recovered from his back injury and was not seen by Dr. Bonnah again for almost two years until after the accident. The applicant argues that both Dr. Gallo and Dr. Bonnah were of the opinion that he had not reached maximal medical recovery because physiotherapy continued to be recommended and he continued to be prescribed medication for his depression and anxiety.
23The respondent submits the applicant has provided little evidence of his pre-existing conditions and that he has provided no evidence that he cannot recover from his minor injuries because of his prior conditions.
24According to the respondent, the applicant was prescribed Naproxen and Baclofen by Dr. Bonnah on October 5, 2020. He was also prescribed Citalopram at some point before the accident, but the respondent argues that the applicant did not provide any pre-accident OHIP summary or prescription summary to confirm this, which is in violation of the Tribunal’s case conference report and order dated January 12, 2024.
25The respondent relies on Dr. Gallo’s September 21, 2023 clinical note indicating that the applicant’s back pain was under good control, that the applicant was not exercising or doing stretching, and that he did not require any medication for his back at that time.
26In terms of a pre-existing psychological condition, the respondent submits that the clinical notes of Dr. Bonnah indicate that the applicant may have been taking Citalopram at the time of the accident, but again, it has not been clarified. In addition, the applicant reported some sleepless nights and memory fatigue and anxiety to Dr. Bonnah on June 22, 2022, but no psychiatric referrals were made and no changes made to the applicant’s medication.
27The respondent argues that the psychological pre-screen telephone interview conducted by psychologist, Dr. Anusha Venugopal, is unreliable compared to the records of Dr. Bonnah, and not sufficient to remove the applicant from the MIG. According to the respondent, the applicant’s self-reported symptoms to Dr. Venugopal are well in excess of those reported to Dr. Bonnah. For example, the applicant reported to Dr. Venugopal symptoms such as pain in his legs and stomach, driving anxiety, nightmares, and significant difficulty with concentration and memory. Those same symptoms were not reported to Dr. Bonnah.
28While I accept that the applicant consulted with Dr. Bonnah for back pain on October 5, 2020, I find that the applicant did not consult with Dr. Bonnah again for any health concerns until after the accident on May 22, 2022. In October 2020, Dr. Bonnah prescribed the applicant 10 tabs of Baclofen and Naproxyn with no medication refills. There is no indication that the applicant sought prescription refills before the accident, that he participated in other treatment for his back, or that his back pain had not resolved before the accident. There is also no evidence in Dr. Bonnah’s clinical notes regarding pre-existing anxiety or depression, apart from one indication that Citalopram had been previously prescribed, and no evidence that the applicant’s pre-existing condition precludes recovery if he is kept within the MIG.
29While I find that the applicant has provided some documentary evidence of a pre-existing medical condition, I find that he has not met his onus of providing compelling evidence from a health practitioner that a pre-existing medical condition will prevent him from achieving maximal medical recovery if he is subject to the MIG limits. As a result, I find that the applicant has not satisfied section 18(2) of the Schedule.
Psychological condition
30I find no compelling evidence demonstrating that the applicant suffers from a psychological injury as a result of the accident that would warrant removal from the MIG.
31The applicant submits that according to Dr. Bonnah’s clinical notes and records he has a history of depression and anxiety for which he was prescribed Citalopram. Dr. Bonnah’s clinical notes also show that on June 22, 2022 the applicant complained of sleepless nights, some memory fatigue, and feeling anxious.
32The applicant also relies on a psychological pre-screen dated September 21, 2022 by Dr. Venugopal. According to the pre-screen, the applicant reported distress, challenges with memory and concentration, loss of interest in activities, driver and passenger vehicle anxiety, low motivation, and increased worry.
33Again, the respondent argues that the psychological pre-screen interview conducted by Dr. Venugopal, is unreliable compared to the records of Dr. Bonnah and not sufficient to remove the applicant from the MIG. While the respondent agrees that the applicant reported to Dr. Bonnah that he was having some sleepless nights, memory fatigue, and anxiety on June 22, 2022, Dr. Bonnah did not make any changes to the applicant’s psychiatric medications or recommend a psychiatric or psychological referral.
34I am not persuaded by the applicant’s submissions and limited evidence of a psychological condition. The applicant has not been formally diagnosed with a psychological condition as a result of the accident, and there has been inconsistent psychological symptom self-report when comparing Dr. Bonnah’s clinical notes and Dr. Venugopal’s psychological pre-screen interview. As the applicant’s treating family physician, I have placed more weight on Dr. Bonnah’s notes than Dr. Venugopal’s limited telephone interview.
35While I accept that the applicant has some psychosocial symptoms as a result of the accident, I find on a balance of probabilities that he did not sustain accident-related psychological injuries that would warrant removal from the MIG.
Chronic pain
36I find that the applicant has not demonstrated that he suffers from a chronic pain condition that warrants removal from the MIG.
37The applicant submits that he suffers from chronic back pain and relies again on the neurological clinical notes of Dr. Gallo dated September 23, 2021. Dr. Gallo reported that the applicant had chronic back pain which had been relatively stable.
38The respondent submits that the applicant has provided no evidence that his symptoms are ongoing. The applicant has reported that his back symptoms have resolved and that he stopped taking Naproxen. The respondent also submits that the applicant has only made sporadic complaints of back pain since the accident, as he did before.
39I find that the applicant has not met his onus of establishing on a balance of probabilities that he suffers from chronic pain condition with functional impairments that would warrant removal from the MIG. While I accept that the applicant sustained injuries to his back as a result of the accident, the clinical notes of Dr. Christopher Wallis, urologist, dated September 26, 2023 indicate that the applicant’s back pain was resolved, which was echoed by Dr. Gallo on September 21, 2023. Dr. Gallo noted that the applicant’s back pain was under good control, and that he did not require any medication for his back pain at that time.
40I find on a balance of probabilities that in light of the absence of a diagnosis of chronic pain with functional impairment and evidence that medical evidence that supports a significant improvement in the applicant’s physical condition, the applicant’s injuries are rightly captured by the minor injury definition in section 3 of the Schedule.
NEBs
41I find that the applicant is not entitled to NEBs from July 8, 2022 to date and ongoing. He has not established that he suffers a complete inability to carry on a normal life as a result of the accident.
42Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”
43It is well established that the test for NEBs is set out in the decision of Heath v. Economical Mutual Insurance Company 2009 ONCA 391 (“Heath”), wherein the Court of Appeal held that the analysis focuses on a comparison of the applicant’s pre- and post-accident activities over a reasonable period of time.
44The applicant submits that the psychological pre-screening report of Dr. Venugopal reflects a loss of interest in activities he used to enjoy, his low energy, low motivation, and increased worry and anxiety. According to the applicant, the pre-screening report also notes that when comparing his life before and after the accident, he is unable to engage in pre-accident functioning because of his pain, anxiety, and low mood.
45The applicant argues that the disability certificate completed by Dr. Icatar shows that he was limited in his social and recreational activities, as well as his conversations because of word finding difficulties and forgetfulness. The applicant argues further that the respondent did not engage in a comprehensive analysis of his pre- and post-accident activities and an analysis of the importance of these activities to him.
46The respondent submits that contrary to the applicant’s submission, the onus is on him to establish entitlement to NEBs, which he has not done. The respondent argues that the applicant did not submit a disability certificate until August 18, 2022, which would limit any entitlement to NEBs until after that date. In addition, the applicant did not submit any additional medical documentation until after a request was made in August 2023, and even then, he did not provide any prescription summaries or hospital records. The applicant has only provided a 2023 OHIP summary, and no pre-accident OHIP summaries.
47The respondent submits that the applicant has not provided a clear list of his pre- and post-accident activities, and the medical evidence supports only sporadic reports of pain with no reliance on pain medication. According to the respondent, even the OCF-24 completed by Dr. Icatar on September 27, 2022 indicates that the applicant had returned to his activities of daily living on a partial/modified basis.
48The applicant’s evidence and submissions do not establish that he suffers a complete inability to carry on a normal life as a result of the accident. While the applicant may have some limitations as a result of his injuries, the evidence shows that his condition has improved significantly. Specifically, the reports of Dr. Icatar, Dr. Wallis, and Dr. Gallo. The only evidence that briefly compares the applicant’s pre-accident activities to his post-accident activities is the psychological pre-screen of Dr. Venugopal. However, the psychological pre-screen notes that the applicant was not motivated to do household chores, and not that he was unable to. The pre-screen also reflects that the applicant continued to do activities such as driving and walking his dog, but with difficulty after the accident. For all of these reasons, I find on a balance of probabilities that the applicant is not entitled to NEBs.
49As I have found that the applicant is not removed from the MIG, the disputed treatment plans are not payable. The applicant is entitled to treatment up to the MIG limits.
Interest
50Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having concluded that no benefits are payable, it follows that no payments are overdue, and no interest is payable.
ORDER
51I find that the applicant sustained a minor injury as a result of the accident. He is subject to the MIG and the $3,500.00 funding limit for a minor injury.
52The applicant is not entitled to NEBs.
53The applicant is not entitled to the treatment and assessment plans in dispute, or interest.
54The application is dismissed.
Released: February 14, 2025
Tyler Moore
Vice-Chair