Citation and File Number
Licence Appeal Tribunal File Number: 23-006726/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.
Parties
Between:
Anthony Fortini
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Rasha El Sissi
APPEARANCES:
For the Applicant: Nicole Walker, Counsel
For the Respondent: Maryam Younes, Counsel
HEARD: By way of written submissions
OVERVIEW
1Anthony Fortini, the applicant, was involved in an automobile accident on November 13, 2020, 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.
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 $3,725.47 for physiotherapy services, proposed by Newmarket Health & Wellness Center (“Newmarket”) in a treatment plan/OCF-18 (“plan”) dated May 22, 2021?
iii. Is the applicant entitled to $282.50 for a psychological pre-screening assessment, proposed by Imperial Medical Assessments Inc. in a plan dated June 3, 2021?
iv. Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by Imperial Medical Assessments Inc. in a plan dated June 3, 2021?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.
4The applicant is not entitled to the treatment plans in dispute or interest.
5The respondent is not liable to pay an award.
6The application is dismissed.
ANALYSIS
The applicant’s injuries are predominantly minor.
7I find that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG limit. I do not find any basis that warrants removing the applicant from the MIG.
8Section 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.”
9The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under s. 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.
10To demonstrate he should be removed from the MIG, the applicant must show he sustained chronic pain with functional impairment that is more than sequalae from his accident-related injuries. The Tribunal has held that chronic pain syndrome, or pain that is a severe, debilitating condition distinct from ongoing or recurring pain, qualifies as chronic pain.
11The applicant’s position is that he continues to suffer from chronic physical (low back) and psychological pain because of the accident and that his ongoing pain is a barrier to his recovery.
12The respondent’s position is that the applicant has failed to prove that his injuries as result of the accident warrant removal from the MIG. The respondent relies on a s. 44 psychological assessment by Dr. Monique Costa El-Hage and a s. 44 physician’s assessment by Dr. Michael Fung. Dr. Costa El-Hage concluded that the applicant does not meet the criteria for a psychological impairment and meets the criteria for a minor injury. Dr. Fung concluded that the applicant sustained soft tissue injuries over his neck and low back, with a prognosis for full recovery.
Chronic Back Pain
13The applicant’s position is that he continues to suffer from chronic physical (low back) because of the accident and that his ongoing pain is a barrier to his recovery.
14The applicant relies on the records of Newmarket related to his physical treatment there from November 23, 2020 to June 7, 2021. As well, the applicant relies on a pre-screening report completed by Ms. Viktoria Tolmatshov, psychotherapist, under the supervision of psychologist Dr. Eugene Hewchuck dated June 1, 2021. This report is attached as an appendix to the plan in dispute for a psychological assessment to determine appropriate treatment for provisional adjustment disorder affecting the applicant’s ability to carry out his activities of normal life. Accordingly, the applicant seeks treatment outside of the MIG limit and approval of the plans in dispute.
15Regarding chronic pain, I find that the record of the applicant’s assessments by a physiotherapist / chiropractor at Newmarket do not support his position of experiencing chronic physical (low back) pain despite treatment, for the following reasons:
a. on November 23, 2020, ten days after the accident, the health practitioner recorded that the applicant described the accident and that he was feeling low back pain of 5-6/10, with stiffness, aggravated by working out, lifting heavy things, bending and running, etc.;
b. Newmarket’s re-assessments on March 15, 2021 and May 10, 2021 point to progressively improving low back pain. In both visits, palpation was negative for tenderness and the straight leg raise test was negative;
c. at the March 15, 2021 assessment, the applicant reported feeling much better since the initial assessment, with pain in the low back at 1/10 from 6/10, aggravated by laying in odd positions; and
d. at the May 10, 2021 assessment, the applicant reported being a bit stiff in the mid back, with pain in the low back at 0/10 from 6/10.
16There is no evidence that the applicant sought help of a medical doctor following the accident for chronic pain.
17In addition, the applicant has not demonstrated functional impairment accompanying his low back pain, which is necessary for me to find that chronic pain warrants exclusion from the MIG. It is well established that submissions alone are not evidence.
18To analyze a change in function post accident, I require a description of the applicant’s activities of normal living prior to the accident. I infer from Dr. Brezen’s clinical notes and records prior to the accident that the applicant was a good student, social, went to the gym and liked sports.
19For the applicant’s activities of normal living post accident, Dr. Fung recorded that the applicant told him that he attends university, socializes, plays sports, helps his parents with housework, and worked as a busboy and barback in a restaurant. The applicant told Dr. Fung that he was able to engage in physical activities where he would not have any back pain, such as playing soccer, skating or skiing.
20In addition, Newmarket’s visit notations post-accident indicate that the applicant would do his exercises at school, in gym classes or between classes, and in no instance indicates that he cannot do exercises because of pain, though he would have occasional soreness and stiffness.
21Therefore, I do not find compelling evidence to show that the low back pain was causing the applicant functional impairment in light of my understanding of his activities of normal living before and after the accident.
Psychological Pain
22While the applicant does not specifically submit that he should be excluded from the MIG based on a psychological condition, he does submit that he continues to suffer from psychological pain, as well as physical pain, because of the accident.
23The applicant relies on Ms. Tolmatshov’s report to show that he has psychological issues related to the accident.
24There is no record of the applicant seeing a physician or relevant clinician for psychological complaints until June 1, 2021 (the date of Ms. Tolmatshov’s pre-screening interview).
25Ms. Tolmatshov’s report states that since the accident, the applicant reported to her feeling extremely anxious and experiencing constant fear and worry when driving or as a passenger in a vehicle. He reported being "superalert" when in a vehicle, especially when passing parked vehicles, and more agitated since the accident, finding it hard to fall asleep. He reported that he suffered from occasional nightmares and frequently woke up throughout the night.
26Ms. Tolmatshov’s report stated that the applicant’s description of the accident and its consequences suggest a provisional diagnosis of adjustment disorder.
27The other health professional who evaluated the applicant for psychological impairment was Dr. Costa El-Hage, respondent’s s. 44 psychological assessor. On December 9, 2021, she interviewed the applicant, recording his complaints, and administered and evaluated the results of three tests (SIMS, P-3 and PAI).
28I place greater weight on Dr. Costa El-Hage’s report than Ms. Tolmatshov’s due to its greater scope and detail because Dr. Costa El-Hage administered tests and evaluated the results, which was not part of Ms. Tolmatshov’s work with the applicant. Ms. Tolmatshov produced a pre-screening report.
29Dr. Costa El-Hage opined that the applicant did not meet criteria for a psychological diagnosis and had a favourable prognosis for any residual symptoms. Dr. Costa El-Hage opined that the applicant’s nervousness as a passenger was temporary in nature and expected to resolve independently over time.
30I also place greater weight on the conclusions of Dr. Costa El-Hage than Ms. Tolmatshov because the applicant’s self-reported symptoms to the former are more consistent than to the latter when compared to his self-reports to his physical treatment providers at Newmarket, as follows:
a. regarding sleep, what the applicant told Ms. Tolmatshov on June 1, 2021 is contradicted by what he advised his Newmarket health practitioner during the re-assessment on May 10, 2021 (“no difficulty falling asleep, waking up at night or nightmares, or anxiety or dizziness”);
b. this is consistent with the initial assessment on November 23, 2020 (sleep good, no issues anxiety) and re-assessment on March 15, 2021 (sleep good), as well as his self-report to Dr. Costa El-Hage that he was experiencing nightmares closer to the time of the accident that had since resolved; and
c. regarding nervousness driving, in the Newmarket re-assessment on March 15, 2021, the health practitioner recorded, “bit nervous while driving”; however, this was not repeated at the subsequent re-assessment (“no anxiety”).
31The applicant’s self-reports to Dr. Costa El-Hage are also consistent with the absence of any records from medical doctors that indicate he sought help for psychological symptoms.
32Accordingly, I am not persuaded that the applicant has ongoing psychological issues from the accident that warrant his removal from the MIG.
The treatment plans in dispute are subject to the MIG limit.
33As I find that the applicant’s injuries are predominantly minor, these injuries are subject to treatment within the MIG limit. Therefore, it is not necessary for me to consider whether the plans in dispute are reasonable and necessary.
Interest is not payable.
34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments of benefits are overdue, the applicant is not entitled to any interest.
No award is justified.
35The applicant sought an award under s. 10 of Reg. 664.
36Under 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.
37The applicant’s position is that the respondent’s decision to keep the applicant within the MIG has prevented him from receiving treatment for his pain and prevented him from reaching maximal medical recovery. The applicant submits that the respondent mishandled the claim, made errors in its denials and failed to comply with s. 38(8) of the Schedule.
38The respondent submits that its conduct has not amounted to unreasonable withholding or delay of payments. The respondent denies that it was unreasonable in the denial and submits that the denial letters complied with the Schedule.
39The applicant did not particularize any errors in the respondent’s denial letters or how the respondent failed to comply with s. 38(8) of the Schedule.
40Regarding mishandling of the applicant’s claim, the applicant submits that the respondent has medical records showing treating doctors’ opinions of the applicant’s injuries that warrant removal from the MIG and that the respondent failed to consider these medical records and medical interventions.
41However, I have considered the medical evidence and have similarly found that it does not support a removal from the MIG for the following reasons:
a. the clinical notes and records of the applicant’s paediatrician Dr. Brezen end in March 2020, prior to the accident, and are very brief; and
b. the records of Newmarket indicate the applicant visited a walk-in clinic three to five days after the accident for an X-ray, but no records of this visit or the X-ray are in evidence.
42Further, I do not agree with the applicant that the respondent failed to consider the medical evidence. For example, the plan in dispute for a psychological assessment includes the report of Ms. Tolmatshov as an appendix and was listed as a document reviewed by Dr. Costa El-Hage in her report.
43Therefore, I am not persuaded that the respondent failed to consider any relevant medical records that warrant removal from the MIG.
44The applicant has not met his onus to prove that the respondent’s conduct meets the threshold and therefore no award is granted.
ORDER
45For the above reasons, I find:
i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit. The applicant is not entitled to the treatment plans in dispute or interest. No award is granted.
ii. The application is dismissed.
Released: April 2, 2025
Rasha El Sissi
Adjudicator