Citation: Manchete v. Allstate Insurance, 2025 ONLAT 23-003393/AABS

Licence Appeal Tribunal File Number: 23-003393/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:

Ivey Manchete

Applicant

and

Allstate Insurance

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Maria Makarova, Paralegal

For the Respondent: Kristen Slaney, Counsel

HEARD: By way of written submissions

OVERVIEW

1Ivey Manchete, the applicant, was involved in an automobile accident on March 2, 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, Allstate Insurance, 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?

ii. Is the applicant entitled to the treatment proposed by Downsview Health Care as follows:

(i) $3,982.30 for physiotherapy services, in a treatment plan dated March 8, 2022;

(ii) $1,323.40 for physiotherapy services, in a treatment plan dated April 25, 2022;

(iii) $1,645.10 for physiotherapy services, in a treatment plan dated May 17, 2022;

(iv) $1,728.82 for physiotherapy services, in a treatment plan dated June 13, 2022;

(v) $1,799.00 for physiotherapy services, in a treatment plan dated September 6, 2022;

(vi) $1,679.00 for physiotherapy services, in a treatment plan dated November 2, 2022;

(vii) $2,486.00 for a chronic pain assessment, in a treatment plan dated December 17, 2022;

(viii) $2,486.00 for a psychological assessment, in a treatment plan dated June 23, 2022; and

(ix) $3,697.14 for psychological services, in a treatment plan dated December 19, 2022?

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

iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

3The Case Conference Report and Order (“CCRO”), dated December 7, 2023, lists issue ii. as “Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from March 14, 2023 to date and ongoing?”. The applicant has indicated that this issue is withdrawn. Therefore, I have not included this issue in the issues in dispute.

RESULT

4The applicant’s accident-related injuries are predominantly minor and she is therefore subject to treatment within the $3,500.00 limit of the MIG.

5The applicant is not entitled to the treatment plans in dispute. As such no interest is payable.

6The respondent is not liable to pay an award.

PROCEDURAL ISSUE

Failure to meet the document exchange deadline

7I admit into evidence the chronic pain consultation report, prepared by Dr. Dimitri Louvish, dated February 8, 2024, pursuant to Rule 9.4 of the Common Rules of Practice and Procedure (“Common Rules”).

8The respondent submits that the applicant failed to comply with the production order set out in the CCRO, dated December 7, 2023. The respondent submits that it did not receive the chronic pain consultation report of Dr. Louvish until receipt of the applicant’s submissions on July 9, 2024. The respondent submits that it is prejudiced by the late service of this report as it had no time to respond to this report in a timely fashion within the confines of the hearing deadlines. The respondent submits that this report should be excluded from the evidence or at the very least assigned less weight by the Tribunal.

9In the applicant’s reply submissions, she submits that the Dr. Louvish report was submitted to the respondent by Downsview Health Care on February 9, 2024, within the production disclosure deadline. She further submits that the respondent did not request an adjournment of the hearing or to extend production deadlines in order to respond to the report and chose to proceed with filing its submissions.

10I find that the report was emailed to the respondent on February 9, 2024. However, as this matter was proceeding to a hearing, and there was a production order in the CCRO, this document should have been forwarded to counsel for the respondent as well as to the adjuster on file by the applicant’s counsel. While I do not agree to exclude the report due to the applicant’s submissions that it is important evidence and relevant to the applicant’s injuries and impairments, the weight that this report will be afforded will be set out in my decision with respect to the issues in dispute.

ANALYSIS

The applicant sustained predominantly minor injuries as defined in the Schedule

11I find that the applicant sustained a minor injury as a result of the accident and, therefore is subject to the $3,500.00 MIG funding limit on treatment, which the parties agree has been exhausted.

12Section 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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

13An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical 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.

14In this matter, the applicant submits that she should be removed from the MIG on the basis of her pre-existing conditions that were exacerbated by the accident and preclude her recovery if she is kept within the confines of the MIG. She further submits that she should be removed from the MIG because she sustained a concussion, chronic pain and/or a psychological impairment as a result of the accident.

a) The applicant is not removed from the MIG on the basis of a pre-existing medical condition

15I find on a balance of probabilities, that the applicant does not suffer from a pre-existing medical condition that would warrant removal from the MIG.

16The applicant submits that she has a pre-existing condition that was exacerbated by the accident and precludes her recovery if she is kept within the confines of the MIG. She states that she had thyroid cancer in 2021 and had pre-existing mechanical back pain and a shoulder strain. She relies upon the March 10, 2024 progress note of Dr. Marcos Gobriel, family physician.

17I find that upon review of the March 10, 2024 progress note of Dr. Gobriel, he lists the applicant’s pre-accident medical conditions as “mechanical low back pain recurrent for years; shoulder muscular strain few weeks prior; and hypothyroid started on synthroid, had left subtotal thyroidectomy December 2021 for papillary thyroid cancer.” He notes that her pre-accident low back pain was rendered worse by the accident and that the “lumbar spine showed degenerative disc disease.” However, upon review of the Clinical Notes and Records (“CNRs”) of Dr. Gobrial, while there are pre-accident CNRs with respect to her thyroid cancer, there is no mention of pre-existing mechanical back pain or a shoulder strain.

18Further, I find that even if I were to accept that the applicant has provided documented evidence by a health practitioner of a pre-existing medical condition, the applicant has not met her onus of providing evidence from a health practitioner that a pre-existing medical condition will prevent her from achieving maximal medical recovery if she is subject to the MIG limits. Dr. Gobriel does not comment on whether the pre-existing conditions listed in his report would have an effect on the applicant achieving maximal medical recovery if she is subject to the MIG.

19For these reasons, I find on a balance of probabilities that the applicant has not satisfied section 18(2) of the Schedule.

b) The applicant is not removed from the MIG on the basis of a concussion

20I find that the applicant has not demonstrated that she suffered a concussion that would warrant removal from the MIG.

21I find that the applicant has provided insufficient evidence to support her claim that she suffered a concussion as a result of the subject accident. I find the Tribunal decision relied upon by the respondent, in Vigliotti v. Echleon Insurance Company, 2024 CanLII 2639 (ON LAT), persuasive, where the Tribunal found that there are only three types of practitioners that are regulated in Ontario to make a diagnosis of concussion: a physician, nurse practitioner, or neuropsychologist. I find upon review of the CNRs of Dr. Gobrial, family physician, that there is no diagnosis of a concussion anywhere in his CNRs or his progress report, dated March 10, 2024. The only diagnosis of a concussion was made by Dr. Oleksandr Pivtoran, a chiropractor, who is not qualified to make such a diagnosis. There are no CNRs offering a rationale for the diagnosis, nor is there reference of any testing or examination performed.

22For these reasons, I find on a balance of probabilities that the applicant is not removed from the MIG on the basis of a concussion.

c) The applicant is not removed from the MIG on the basis of chronic pain

23I find that the applicant has not demonstrated that she suffers from a chronic pain condition that would warrant removal from the MIG.

24The applicant submits that she has chronic pain with functional limitations and developed bilateral median nerve neuropathy as a result of the accident as well as vertigo, a concussion and chronic headaches. She relies upon the chronic pain consultation report prepared by Dr. Dimitri Louvish, pain specialist, dated February 8, 2024. Dr. Louvish diagnosed her with chronic pain syndrome and concluded that she meets at least four out of the six criteria in the AMA Guides. She also relies upon the report of Dr. Gobrial, dated March 10, 2024, which concluded that she has significant limitations on her ability to do her work, social, self-care, recreational and housekeeping and home maintenance tasks.

25The respondent submits that the applicant has not demonstrated that her physical injuries rise to the level of chronic pain, or that she is experiencing a functional impairment as a result of the subject accident. The respondent relies upon the Insurer Examination (“IE”) reports of Dr. Michael Devlin, physiatrist and Dr. Ariel Zielinsky, psychiatrist, dated January 3, 2023.

26I find that the applicant has provided insufficient evidence to support that she suffers from ongoing pain or chronic pain or that she has a corresponding functional impairment as a result of the accident. My reasoning is based upon the following findings.

27Firstly, I give little weight to the March 10, 2024 report of Dr. Gobrial, family physician. Upon review of the March 10, 2024 report of Dr. Gobrial, he does not provide a diagnosis of chronic pain other than stating that the applicant has chronic headaches. Further, upon review of Dr. Gobrial’s CNRs, I find that he had not seen the applicant since July 19, 2023, and therefore he did not conduct an assessment of the applicant at the time of this report to support that she was suffering from any ongoing impairment or functional limitations.

28Secondly, as set out above, I give less weight to the February 8, 2024 report of Dr. Louvish. I find upon review of the February 8, 2024 report of Dr. Louvish, that there are several inconsistences noted in his findings as follows:

i. With respect to her attendance at physical rehabilitation therapy, the report states that the applicant attended following the accident until the summer of 2023. I find upon review of the CNRs from Downsview Health, the applicant only attended from March 8, 2022 to December 22, 2022, and there is no other evidence submitted by the applicant to cover the missing time period.

ii. With respect to medications, the report states that the applicant takes Naproxen as well as over-the-counter Tylenol Extra Strength and/or Advil on a regular basis. I find however, that the applicant has not provided any prescription summaries, nor any indication that she is dependent on prescription drugs or other substances. Upon review of the CNRs of the Dr. Gobrial, there is no indication that Dr. Gobrial prescribed the applicant Naproxen. The applicant has not submitted any other evidence that another doctor prescribed Naproxen. The only recommendations for medication were on March 8, 2022 for Baclofen and Advil and on June 17, 2023 for Advil for her left foot pain.

iii. With respect to visits to her family physician, the applicant reported that she visits her family physician on a regular basis. I find that the CNRs of Dr. Gobrial note that she last visited him on July 19, 2023, over seven months prior to Dr. Louvish’ assessment.

iv. With respect to the applicant’s functional abilities, Dr. Louvish notes that the applicant has not resumed performing any housekeeping tasks, is unable to go for long walks and prefers to be alone rather than with others. I find that the two IE reports prepared by Dr. Devlin, physiatrist, and Dr. Zielinsky, psychiatrist, dated January 3, 2023 contradict this evidence. Both reports indicate that she is able to complete all housekeeping activities on her own. The reports further note that the applicant had returned to work and had no social issues. The applicant provided no submissions rebutting the findings made in the IE reports.

29Thirdly, I find the IE report of Dr. Devlin, physiatrist, dated January 3, 2023 persuasive, that the applicant suffered a minor injury and that she has not demonstrated a functional impairment as a result of her ongoing pain. I find that with respect to the applicant’s functional impairment, the applicant reported that she was independent in her personal care, was doing cooking, dishwashing, housework and laundry, drives and goes grocery shopping and she had returned to work two months following the collision and continues to work there 5 hours a day. She was diagnosed with sprain and strain type injuries which are predominantly a minor injury.

30Finally, I find that the applicant does not meet 3 out of 6 of the criteria for a chronic pain condition, as outlined in the AMA Guides. The applicant has not provided any prescription summaries, nor any indication that she is dependent on prescription drugs or other substances. The applicant is not excessively dependent on health care providers or family and exhibited no secondary deconditioning due to disuse or failure to restore pre-accident function. The applicant continues to work at her pre-accident employment in full functional capacity.

31For the reasons set out above, I find on a balance of probabilities that the applicant does not suffer from chronic pain as a result of the accident and therefore she is not removed from the MIG on this basis.

d) The applicant is not removed from the MIG on the basis of a psychological condition

32I find that the applicant has not demonstrated that she suffers from a psychological condition that would warrant removal from the MIG.

33The applicant submits that she suffers a psychological impairment as a result of the accident. She relies upon the psychological assessment report of Sandra Ramnaraine, psychotherapist, dated November 29, 2022, where the applicant was diagnosed with an adjustment disorder with mixed anxiety and depressed mood and features of specific phobia, situational type.

34The respondent relies upon the psychiatry IE report of Dr. Zielinsky, psychiatrist, dated January 3, 2023, which concluded that the applicant did not have severe enough symptoms to warrant a psychiatric diagnosis and she did not require psychiatric treatment. In addition, the respondent submits that there are no psychological complaints recorded in the CNRs of Dr. Gobrial, family physician, in relation to the accident.

35I agree with the respondent that the applicant’s evidence is lacking. Apart from Ms. Ramnaraine’s report, the applicant has not provided corroborating evidence or CNRs that mention or reference her psychological complaints after the accident. I also find that that Ms. Ramnaraine has relied significantly on the applicant’s self-report and there is a lack of supporting medical documentation for her conclusions. I further find the report of Dr. Zielinsky persuasive because the applicant reported that from an emotional point of view, she denied having any persistent symptoms or preoccupation with the consequences of the accident, causing emotional distress. She noted other stressors, both pre-existing and post-accident, which are not related to her involvement in the accident.

36For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she suffers from a psychological condition as a result of the accident and therefore she is not removed from the MIG on this basis.

Entitlement to Treatment Plans

37As I have found that the applicant’s injuries do not take her out of the MIG, I need not determine whether any of the treatment plans in dispute are reasonable and necessary as the $3,500.00 funding limit on treatment applies.

Entitlement to treatment plans for physiotherapy due to non-compliance with s. 38(8) of the Schedule

38As an alternative argument, the applicant submitted that she is entitled to the treatment plans for physiotherapy because the respondent’s denials did not comply with the requirements in s. 38(8) of the Schedule.

39I find that the respondent’s denials of the treatment plans for physiotherapy complied with s. 38(8) of the Schedule and, therefore, the applicant is not entitled to the treatment plans on this basis.

40Sections 38(8) and (11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan within ten days. Pursuant to s. 38(11), if an insurer fails to comply with any of these requirements, it is prohibited from taking the position that the MIG applies and must pay for any incurred treatment and expenses until such time that it gives notice that complies with s. 38(8) of the Schedule.

41The applicant submits that treatment plans for physiotherapy are payable due to the respondent’s failure to provide appropriate notice in accordance with s. 38(8) of the Schedule. The applicant submits that the denial notices from the respondent for the proposed treatment plans are insufficient and provided boilerplate denials without stating any medical and other reasons for the refusal. As a result, they should be deemed reasonable.

42The respondent submits that given the applicant’s conditions fall within the MIG definition, the obligation to give a medical reason was met by stating that the applicant’s injuries fell within the MIG.

43I have reviewed the denial notices and find that they are in compliance with s. 38(8) of the Schedule. In each of the explanations, the respondent indicated that it was unable to approve the goods, services and/or assessments on the basis that the applicant had sustained a minor injury as a result of the accident. It notes that based on the medical brief on file, there is no compelling evidence to support an injury that falls outside of the minor injury guideline. I find that the explanations provided clear and sufficient reasons to allow the applicant to make an informed decision to either accept or dispute the denials. I find that standing within the MIG is a medical reason because it indicates that the applicant’s impairments are minor, which is a medical definition in the Schedule.

44I find that the applicant’s claim that the treatment plans for physiotherapy are payable as a result of the respondent’s non-compliance with s. 38(8) of the Schedule is denied.

Interest

45Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, no interest is owing.

Award

46The applicant sought an award under s. 10 of Reg. 664. Under s. 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. I find that an award is not appropriate because there is no evidence that the respondent withheld or delayed the payment of benefits.

ORDER

47For the reasons outlined above, I find:

i. The applicant’s accident-related injuries are predominantly minor and she is therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to the treatment plans in dispute. As such no interest is payable;

iii. The respondent is not liable to pay an award; and

iv. The application is dismissed.