Citation: Romanczyk v. Intact Insurance Company, 2025 ONLAT 23-004921/AABS

Licence Appeal Tribunal File Number: 23-004921/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:

Jacek Romanczyk

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Doina Marinescu, Paralegal

For the Respondent: Theomarcus Giannou, Counsel

HEARD: By way of written submissions

OVERVIEW

1Jacek Romanczyk, (the “applicant”), was involved in an automobile accident on May 25, 2021, 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 Intact Insurance Company (the “respondent”) 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. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from June 25, 2021, to May 25, 2023?

ii. 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?

iii. Is the applicant entitled to $2,777.54 for psychological services, proposed by Q Medical in a treatment plan (“OCF-18”) dated October 18, 2021?

iv. Is the applicant entitled to $2,439.10 for physical therapy services, proposed by Bloor Jane Physiotherapy and Active Rehabilitation in a OCF-18 dated November 15, 2021?

v. Is the applicant entitled to $2,768.50 for a Chronic Pain Assessment, proposed by Q Medical in a OCF-18 dated April 25, 2022?

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

RESULT

3I find that:

i. The applicant is not entitled to NEB.

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

iii. He is not entitled to the OCF-18s.

iv. The applicant is not entitled to interest.

v. The application is dismissed.

ANALYSIS

The applicant has not established entitlement to NEB

4I find that the applicant has not met his burden to prove his entitlement to NEB.

5Section 12(1) of the Schedule 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.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 at para. 50, which focuses on a comparison of the applicant’s pre-and post-accident activities.

6Despite NEB being a live issue in dispute as indicated in the Case Conference Report and Order, released on December 8, 2023, the applicant provided no submissions on his pre-accident activities of daily living, or more crucially, demonstrated how his engagement in these activities has changed as a result of the accident. Moreover, in his submissions, the applicant did not identify the activities he values or provide evidence of the frequency and time commitments of his pre-accident activities as required by Heath. In the absence of this information, it is difficult to compare his pre- and post-accident capabilities with respect to the activities he ordinarily engaged in or valued. This alone makes it challenging for the applicant to meet his burden.

7Instead, the applicant vaguely argued that he has limitations in his daily activities because he requires assistance from his wife for his housekeeping tasks and is unable to drive. To this end, he relies upon the s. 44 Occupational Therapy In-Home Assessment Report of Mr. Robert Campos, occupational therapist, dated October 26, 2021 and a s. 25 Psychological Assessment Report of Dr. Konstantine Zakzanis, psychologist, dated February 28, 2022.

8I acknowledge that the applicant reported to Dr. Zakzanis that he was unable to drive since the accident because he was afraid to get in a car, and he no longer went fishing and hunting. I also acknowledge that the applicant reported to Mr. Campos that his wife came over more often to help with housekeeping tasks, and that his wife helped with the laundry following the accident. However, this does not provide me with evidence of the frequency or time commitments of these activities’ pre-accident, or whether he valued these activities most.

9Moreover, the applicant also reported to Dr. Zakzanis, Dr. Walters, Dr. Lau, and Mr. Campos that he is independent with his personal care tasks, continues to go to the park for walking, continues to read his newspapers, and he continues to spend time with his friends, and family, and attended church. Therefore, while I acknowledge the applicant reports he has limitations with driving, fishing, hunting and housekeeping tasks, a reduced ability to complete pre-accident tasks is insufficient to meet the test for NEB. The test for entitlement to NEB is stricter and requires the applicant to demonstrate a complete inability to continuously engage in substantially all of his pre-accident activities, which I find is lacking here where the applicant has reported independence in the vast majority of his daily activities.

10I also place limited weight on the applicant’s self-reported limitations with driving and housekeeping tasks because of his inconsistent self-reporting, as indicated below:

i. On October 26, 2021, the applicant reported to Mr. Campos that he had not resumed driving following the accident because he did not have a car. The applicant also reported that after the accident, his wife came over more often to help with housekeeping tasks, due to pain symptoms, and that his wife helped with laundry, despite him being able to do it.

ii. The applicant reported to Dr. Walters, on November 25, 2021, that he was not driving after the accident because he did not have a car, and that his wife helped with laundry.

iii. Shortly thereafter, on December 13, 2021, the applicant reported to Dr. Lau that before the accident, he did the groceries, cooking, laundry, and cleaning and that there was no change following the accident. The applicant also reported that he planned to buy a new car in March of 2022, and he believed that he can drive.

iv. Approximately four months following these assessments, on March 14, 2022, the applicant reported to Dr. Zakzanis that he had no trouble with his housekeeping tasks and had not resumed driving since the accident because he is afraid to get in the car. He also reported to Dr. Zakzanis that he had no trouble with completing his housekeeping tasks. There was no reference to whether the applicant had bought a new car or was planning to do so, despite him advising Dr. Lau that he planned to buy a new car in March of 2022.

11The applicant has not addressed why he did not report these driving issues to the three previous assessors, rather he reported that he was not driving because he did not have a car. Likewise, the applicant has not addressed why he reported issues with his housekeeping tasks to Mr. Campos and Dr. Walters and not Dr. Lau and Dr. Zakzanis who he saw shortly thereafter.

12In short, where the applicant has not addressed the guiding principles for NEB as outlined in Heath, returned to the vast majority of his daily activities, and there are inconsistencies with respect to his driving and housekeeping ability, it follows that he has fallen well short of establishing entitlement to NEB.

The Minor Injury Guideline

13Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is 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.”

14An insured person 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 from any accident-related minor injury 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.

15In all cases, the burden of proof lies with the applicant.

16The applicant submits that he should be removed from the MIG on the following three grounds:

i. He has significant pre-existing psychological conditions.

ii. He has ongoing and persistent neck pain, low back pain, right hand swelling/pain, left leg pain, left ankle swelling, and headaches.

iii. He has significant psychological difficulties.

17The respondent argues that the applicant has not produced compelling evidence to show that he sustained injuries or his pre-existing conditions warrant removal from the MIG.

The applicant does not have pre-existing conditions that will prevent maximal recovery within the MIG

18I find that the applicant has not established that he should be removed from the MIG on the basis of his pre-existing conditions.

19The applicant argues that he has pre-existing schizophrenia and that he has a 25-year history of chronic pain and numbness following a previous truck rollover accident. To this end, he relies upon the clinical notes and records (“CNRs”) of West Nipissing General Hospital, Dr. Krystyna Mandelman, psychiatrist, and Dr. Mary-Slusarcyzk-Pietraszek, family physician, and the s. 25 report of Dr. Zakzanis.

20The respondent argues that the applicant has not produced a medical opinion that supports his pre-existing conditions would preclude his maximal medical recovery if he was kept within the MIG.

21The presence of pre-existing conditions alone is not sufficient to remove the applicant from the MIG. The applicant bears the onus and must adduce evidence to demonstrate not only that the pre-existing condition exists but also that it prevents him from achieving maximal recovery within the MIG.

22Section 18(2) requires compelling evidence of a pre-existing condition documented before the accident, which the applicant has not presented because the CNRs he relies upon are after the accident. Even If I were to accept that the applicant met the first part of the test because the CNRs of West Nipissing General Hospital, dated May 25, 2021, note that the applicant had a history of schizophrenia and a history of a neck injury 20 years ago, the applicant still has not referred me to compelling evidence from any medical practitioner that his pre-existing conditions will prevent him from achieving maximal medical recovery from the minor injury if he is limited to the $3,500.00 monetary limit. Indeed, the CNRs of Dr. Mandelman and Dr. Pietraszek are largely illegible, and from the records that can be read, neither have opined that the applicant’s pre-existing conditions will prevent him from achieving maximal medical recovery if he is subject to the MIG limits.

23I also place little weight on Dr. Zakzanis’s opinion that the applicant’s pre-existing history was a negative prognostic indicator because he provided a limited rationale on how he arrived at this conclusion and it is not supported by the CNRs of the applicant’s treating psychiatrist. Therefore, the applicant does not meet the last part of s. 18(2), and is not removed from the MIG on the basis of his pre-existing conditions.

24As a result, I find that the applicant has not shown on a balance of probabilities that he has pre-existing conditions in accordance with s. 18(2) to be removed from the MIG.

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

25I find that the applicant has not met his burden to prove that he suffers from a chronic pain condition, that would warrant removal from the MIG.

26The applicant argues that the CNRs of his family physician, Dr. Pietraszek show recurring entries of physical pain to his neck, low back, right hand swelling/pain, left leg, left ankle swelling, and headaches. The applicant also relies upon the reports of Dr. Zakzanis, Dr. Walters, Dr. Lau, and Mr. Campos.

27The respondent argues that the applicant sustained soft tissue injuries and that the applicant has not provided compelling evidence that his pain has resulted in a functional impairment.

28A chronic pain diagnosis or ongoing pain by itself does not remove the applicant from the MIG. It must be accompanied by some functional impairment, see: 16-000438 v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT). For chronic pain to be more than sequelae from soft tissue injuries, there must be: (1) continuous, or chronic pain syndrome; and (2) it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. Unless the applicant provides evidence that the pain he experiences contains these elements, the pain is sequelae of a MIG injury.

29I accept that the applicant has ongoing back and neck pain as a result of the accident. Indeed, the CNRs of his family physician, Dr. Pietraszek show that he has consistently reported ongoing neck and back pain on June 15, 2021, July 5, 2021, July 21, 2021, September 2, 2021, November 3, 2021, February 9, 2022, February 16, 2022, February 14, 2023, and July 26, 2023, However, there is minimal evidence of a functional impairment or disability as a result of the applicant’s ongoing pain.

30First, Dr. Pietraszek’s records are largely illegible but from the records that can be read, he has not opined that the applicant has functional limitations or a disability as a result of his ongoing neck and back pain. Notably, on June 15, 2021, and February 14, 2023, Dr. Pietraszek noted that the applicant was able to walk and had full range of motion in his lumbar spine.

31I acknowledge the applicant’s argument that on September 2, 2021, Dr. Pietrazek noted that the applicant had decreased range of motion. However, the CNR is largely illegible, and while I note that the CNR states “ROM”. I am unable to read the majority of the results of this testing, with the exception of “no neck deficit”. In any event, Dr. Pietrazek did not opine that the applicant had functional limitations with his daily activities, nor did the applicant report any restrictions.

32The applicant has also consistently reported to Dr. Zakzanis, Dr. Walters, Dr. Lau, Dr. Mandelman and Mr. Campos that he is independent with his personal care tasks, continues to go to the park for walking, does his grocery shopping, and he continues to spend time with his friends, and family, and attend church. Also as noted at paragraphs 10 and 11 above, I place very little weight on the applicant’s reported functional impairments with housekeeping tasks because of the inconsistencies in his self-reporting. I am alive to the fact that the applicant has reported to Dr. Zakzanis and Mr. Campos that he was unable to do fishing and hunting and reported back pain with tasks such as bending, lifting, and carrying a five-pound weight, however the applicant is independent with his personal care tasks, goes for walks, and has not withdrawn from his family, friends, or the church. Therefore, given the applicant’s described level of function, he has not demonstrated that his overall functionality has been impacted by his ongoing pain.

33The applicant argues that he uses a cane for walking and engaged in minimal physical exercise. I acknowledge that on August 11, 2022, Dr. Mandelman, noted that the applicant walked with a cane because of issues with his foot, which got worst following the accident and she diagnosed the applicant with a physical decline in walking. However, I place little weight on this opinion because Dr. Mandelman is a psychiatrist, and therefore this conclusion is outside of her scope of practice.

34I also find that Dr. Mandelman’s opinion is not supported by Dr. Pietrazek’s CNRs for the following three reasons. First, Dr. Pietrazek noted that the applicant was able to walk on June 15, 2021, and there is no indication that the applicant’s walking ability declined after June 15, 2021. Second, from the records that can be read, Dr. Pietrazek did not opine that the applicant’s foot issues got worst from this accident. Third, the first reference to the applicant having left foot pain was not until April 26, 2022, where Dr. Pietrazek noted that the applicant had left foot osteoarthritis and there is no reference to the accident being the origin of the pain.

35Finally, Dr. Mandelman’s opinion is not consistent with the reports of Dr. Zakzanis, Dr. Lau, Dr. Walters, and Mr. Campos who have all noted that the applicant reported that he is able to walk, and the applicant did not report foot pain as a result of the accident. Indeed, Dr. Walters noted that the applicant ambulated into the room without abnormality of gait.

36Additionally, I find that the applicant does not meet the criteria in the American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition (“Guides”). The applicant had an opportunity in reply to address the Guides but chose not to do so. While the Guides are not incorporated into the Schedule for chronic pain, or otherwise binding on this Tribunal to determine if someone suffers from chronic pain, they provide a helpful tool in that they set forth that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

ii. Excessive dependence on health care providers, spouse, or family;

iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

iv. Withdrawal from social milieu, including work, recreation, or other social contacts;

v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviour.

37I agree with the respondent that the applicant has not established that he meets three out of the six criteria as set out in the Guides for establishing chronic pain. I acknowledge that the applicant is taking Baclofen for his pain, however he has not tendered evidence that shows he is dependent or abuses Baclofen. I acknowledge that the applicant has sought medical attention from his family physician from 2021 to 2023, however he did so a total of 11 times for accident-related injuries, which in my view does not demonstrate that he is excessively dependant on Dr. Pietrazek. Similarly, the applicant has not led evidence of secondary physical deconditioning. Thus, he does not meet the first three criterion outlined in the Guides.

38Also, although the applicant reports not returning to fishing and hunting and reported back pain with tasks such as bending, lifting, and carrying a five-pound weight, there is no evidence that he has withdrawn from his social contacts or that he failed to restore pre-injury function sufficient to pursue family needs. Indeed, the applicant has reported to Dr. Lau that his social life and family life has remained the same since the accident. Finally, the applicant has not developed psychosocial sequalae from this accident. Therefore, he does not meet any of the remaining three criterion.

39In brief, where there is minimal evidence of a functional impairment as a result of the applicant’s ongoing pain, and he does not meet any of the six criteria under the Guides, I have insufficient evidence to find that he should be removed from the MIG on the basis of chronic pain.

The applicant is not removed from the MIG on the basis of psychological impairments

40The applicant has not demonstrated that he suffers from a psychological impairment from the accident, thus he remains within the MIG.

41An applicant can be removed from the MIG if he demonstrates a psychological impairment. A psychological impairment must be more than mere clinically related sequelae of a minor injury. Psychological impairments, if established, fall outside the MIG because the MIG only governs “minor injuries”, and the definition does not include psychological impairments.

42The applicant argues that prior to the accident he had a known history of schizophrenia, and after the accident, he was found wandering and confused. As a result, he argues that he was diagnosed with decompensated schizophrenia. The applicant further argues that Dr. Steve McLeod, physician completed a Form 1 under the Mental Health Act, R.S.O. 1990, c. M.7 because of his confusion, lack of medication adherence and recent behaviour. He further submits that he has complained of psychological distress from the accident to his treating psychiatrist, Dr. Mandelman. To this end, he relies upon the CNRs of West Nipissing General Hospital, and Dr. Mandelman, and the s. 25 report of Dr. Zakzanis.

43I find that the CNRs of West Nipissing General Hospital do not establish that the applicant sustained psychological impairments as a result of the accident. I acknowledge that Dr. McLeod on May 25, 2021, at the emergency department diagnosed the applicant with decompensated schizophrenia. However, Dr. McLeod provided no opinion on whether this was connected to the car accident, rather he also noted that the applicant had a history of schizophrenia and that his family had advised that the applicant had not taken his medication in two weeks. Likewise, in the triage records, it was noted that the applicant was wandering the streets and had a history of schizophrenia, however once again there was no reference to whether this was connected to the accident.

44Ultimately, on May 25, 2021, Dr. McLeod completed a Form 1 where he noted that the applicant was confused post-accident, not taking his antipsychotics, and that he drove from Toronto. As a result, the applicant was transferred to the psychiatric ward at North Bay Regional Health Centre. Significantly, the applicant has not produced the records from North Bay Regional Health Centre, which in my view, would have shed light on the applicant’s psychological condition, and whether it was connected to the accident. I acknowledge that Dr. McLeod diagnosed the applicant with confusion following the accident, however the applicant’s family also reported that he had been off his medication for the past two weeks. As a result, without the records from North Bay Regional Health Centre, I am unable to determine whether the applicant’s psychological state at that time was connected to the accident or his pre-existing schizophrenia.

45I acknowledge that the applicant relies upon the CNRs of January 17, 2023, February 25, 2023, March 28, 2023, and September 7, 2023 of Dr. Mandelman, to support his position that he has reported accident-related psychological distress. As noted above, the CNRs of Dr. Mandelman are largely illegible, however, from what can be read, I note that on January 17, 2023, February 25, 2023, March 28, 2023, and September 7, 2023, it was noted that the applicant was sleeping well, compliant with all his medication, his thoughts were organized, and that his energy was decreased since the accident.

46I place little weight on the applicant’s reported decreased energy since the accident because the first time he reported this issue was on March 28, 2023 (nearly two years after the accident). The applicant did not report decreased energy to Dr. Mandelman previously from September 15, 2021, to February 25, 2023. Indeed, in the CNR most contemporaneous to the accident (September 15, 2021), the applicant reported that his energy was good. Nor, did Dr. Mandelman diagnose the applicant with a psychological condition from the accident.

47I am also alive to the applicant’s position that Dr. Mandelman has provided expressive supportive psychotherapy, however there is no indication in the records that can be read that this treatment has been provided in relation to the accident.

48Finally, I place minimal weight on the s. 25 report of Dr. Zakzanis for the following three reasons.

49First, Dr. Zakzanis noted that the Trauma Symptom Inventory and Beck Depression Inventory-II (“BDI-II”) testing revealed a single clinical elevation on the scale measuring tension reduction behaviour and the BDI-II revealed a score that corresponded to the severe range. However, Dr. Zakzanis provided no specifics on how these tests results were achieved, i.e., which psychological symptoms were resulting in these test scores. Significantly, when the applicant reported poor mood, feeling hopeless, and weight loss, following the accident, Dr. Zakzanis opined that these issues may be related to his pre-existing history of schizophrenia, and that the applicant’s reporting contained contradiction.

50Second, despite the applicant reporting flashbacks, dwelling on the accident, and distressing and intense memories of the accident, Dr. Zakzanis concluded that only the applicant’s driving issues would not have occurred but for the accident. As a result, Dr. Zakzanis diagnosed the applicant with specific phobia, situational vehicle. However, as noted above from paragraphs 10 to 11, I have determined that the applicant’s reported driving issues to Dr. Zakzanis are inconsistent because he did not report these driving issues to the three other assessors despite seeing them in a short period prior to seeing Dr. Zakzanis. The applicant has also not addressed why his driving anxiety emerged on March 14, 2022 (nearly a year after the accident), or referred me to a CNR from his treating psychiatrist that supports he reported this issue.

51Third, Dr. Zakzanis’s conclusion that the applicant has accident-related psychological impairments is not supported by the bulk of the evidence before me, like the lack of an accident-related psychological diagnosis in the emergency records and the applicant’s treating psychiatrist CNRs.

52For the above-noted reasons, I find that the applicant has not met his burden of proof to establish that he as a psychological impairment as a result of the accident.

53The OCF-18s in dispute propose goods and services that fall outside the MIG and the $3,500.00 funding limit for a minor injury. The applicant is not entitled to these benefits because he sustained a minor injury and is limited to benefits within the MIG and the $3,500.00 funding limit.

54Interest is not payable pursuant to s. 51 of the Schedule as there are no overdue amounts owing.

ORDER

55For the reasons outlined above, I find that:

i. The applicant is not entitled to NEB.

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

iii. He is not entitled to the OCF-18s.

iv. The applicant is not entitled to interest.

v. The application is dismissed.