Valenzona v. BelairDirect Insurance Company, 2025 CanLII 3754

Valenzona v. BelairDirect Insurance Company, 2025 CanLII 3754

Citation: Valenzona v. BelairDirect Insurance Company, 2025 ONLAT 23-001258/AABS

Licence Appeal Tribunal File Number: 23-001258/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:

Janice Valenzona Applicant

and

BelairDirect Insurance Company Respondent

DECISION

ADJUDICATOR: Lisa Holland

APPEARANCES:

For the Applicant: David Carranza, Paralegal

For the Respondent: Christopher Marshall, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Janice Valenzona, the applicant, was involved in an automobile accident on April 8, 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 the respondent, BelairDirect 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 limit and in the Minor Injury Guideline ("MIG")?

ii. Is the applicant entitled to $1,899.05 for an attendant care needs assessment, proposed by Excel Medical Diagnostics, in a treatment plan/OCF-18 ("plan") submitted May 18, 2021?

iii. Is the applicant entitled to $2,494.75 for physiotherapy services, proposed by Promed Rehabilitation Clinic, in a plan submitted August 3, 2021?

iv. Is the applicant entitled to $1,074.50 for physiotherapy services, proposed by Promed Rehabilitation Clinic, in a plan submitted July 15, 2021?

v. Is the applicant entitled to $2,550.40 for a neurological assessment, proposed by Excel Medical Diagnostics, in a plan submitted November 29, 2021?

vi. Is the applicant entitled to $3,018.50 for chiropractic services, proposed by Downsview Healthcare Inc., in a plan submitted February 8, 2022?

vii. Is the applicant entitled to $1,385.10 for chiropractic services, proposed by Downsview Healthcare Inc., in a plan submitted June 16, 2022?

viii. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by Excel Medical Diagnostics Inc., in a plan submitted December 7, 2022?

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

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

RESULT

3The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. It is not necessary to consider whether the disputed treatment plans are reasonable and necessary.

4As there are no overdue benefits, no interest is payable.

5The respondent is not liable to pay an award.

ANALYSIS

The applicant has not demonstrated on a balance of probabilities that she suffers from accident-related injuries that warrant removal from the 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 in accordance with the MIG. 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 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 she should be removed from the MIG based on the following accident-related physical and psychological injuries:

a. Her diagnosis of chronic pain; b. Her psychological injuries; c. Her post-concussive syndrome; d. Her disc bulge; e. Her partial thickness tears in both shoulders with tendinopathy, and; f. Her pre-existing conditions.

a) Chronic Pain

9I find that the applicant has not demonstrated on a balance of probabilities that she suffers from accident-related chronic pain with functional impairment to warrant removal from the MIG.

10In support of her position that she has chronic pain, the applicant relies on a consultation report dated June 23, 2021, by Dr. Krystina Prutis, physiatrist, and a report dated September 4, 2023 by Dr. Stephen Brown, chronic pain specialist, and the clinical notes and records ("CNRs") of Dr. Amirali Samji, family physician.

11In her report dated June 23, 2021, Dr. Prutis diagnoses the applicant with strain and sprain injures of the neck, back and left shoulder and chest wall contusion as a result of the accident. In his report dated September 4, 2023, Dr. Brown opined that the applicant sustained sprain and strain type injuries to her spine and shoulders, a chest wall contusion, a mild traumatic brain injury (concussion) and anxiety and depression as a result of the accident. I place little weight on Dr. Brown's opinion regarding the concussion and psychological symptoms because he is not qualified to make a psychiatric diagnosis and he does not mention any concussion symptoms.

12The respondent submits that the applicant's injuries are soft tissue in nature and fall within the definition of "minor injury" under the Schedule. The respondent relies on the Insurer's Examination ("IE") reports dated June 15, 2021, March 21, 2022, and February 21, 2023 of Dr. Greg Gelman, general practitioner. Dr. Gelman concluded in his reports dated March 21, 2022, and March 3, 2023 that the applicant reported 80% improvement in her symptoms. Dr. Gelman indicates in his report dated February 21, 2023, that the applicant's neck, shoulder and back symptoms are intermittent with no neurological deficits.

13While it is not binding on the Tribunal to follow the American Medical Association's Guides (the "Guides"), the criteria set out in the Guides can be a useful tool in assessing an applicant's claim for chronic pain. The Guides state that at least three of the following six criteria must be met for a diagnosis of chronic pain:

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 physician activity due to pain; iv. Withdrawal from social milieu, including work, recreation, or other social contracts; 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 non-organic illness behaviours.

14The respondent submits that the applicant has not demonstrated that she has functional impairments, pursuant to the Guides, to warrant removal from the MIG on the basis of chronic pain.

15In her reply, the applicant submits that she does not need to address the Guides for a finding of chronic pain. The applicant relies on the reports of Dr. Prutis, Dr. Brown and Dr. Vincenzo Basile, neurologist.

16The applicant has provided contradictory evidence to assessors. In April 2023, the applicant reported to Dr. Brown that she has constant neck and shoulder pain and her ability to do laundry and housekeeping tasks is limited. The applicant reported that she is independent in all her personal care and 50% of her housekeeping tasks to s.44 IE assessor, Dr. Gelman in June 2021. In an attendant care needs assessment report dated June 12, 2021, Kyle Man, occupational therapist, observed that the applicant can perform light housekeeping, grocery shopping and meal preparation. In February 2022, the applicant reported to Dr. Basile that she is independent with housekeeping, laundry, and cooking. In March 2022, the applicant reported to Dr. Gelman that she has 80% improvement in her symptoms and that she returned to doing laundry.

17The evidence suggests that the applicant's functional abilities are inconsistent with chronic pain with functional impairment. For example, there is evidence that the applicant returned to work on modified duties as a personal support worker a couple days after the accident. In addition, there are no records from the applicant's family physician in support of an accident-related injury or functional impairment.

18I find that since the applicant has returned to her pre-accident work, driving and recreational activities and her mood has been affected by unrelated factors, there is insufficient evidence to support a functional impairment based on pain that would warrant removal from the MIG on the basis of chronic pain.

b) Psychological impairment

19I find that the applicant has not demonstrated on a balance of probabilities that she has an accident-related psychological impairment to warrant removal from the MIG.

20The applicant provided minimal medical evidence that she sustained an accident-related psychological impairment. The applicant relies on self reported vehicular phobia, nightmares and flashbacks, poor sleep, mood changes and social withdrawal. The applicant does not refer to any notes from her treating physicians regarding a psychological impairment as a result of the accident.

21The respondent makes no submissions regarding the applicant's accident-related psychological injuries.

22Overall, I find that the applicant has not met her onus of establishing entitlement to treatment beyond the MIG in the absence of any medical documentation from the applicant's treating physicians with consistent findings in support of an accident-related psychological impairment.

c) Post-concussive syndrome

23I find that the applicant has not demonstrated on a balance of probabilities that she has accident-related post-concussive syndrome to warrant removal from the MIG.

24The applicant submits that she should be removed from the MIG on account of her accident-related post-concussive syndrome. The applicant points to the reports of Dr. Gelman, Dr. Prutis and Dr. Basile. The applicant reported headaches associated with neck pain to Dr. Gelman and occipital pain associated with shoulder and back pain and hand numbness to Dr. Prutis. In Dr. Basile's report dated February 10, 2022, Dr. Basile bases his diagnoses of adjustment disorder and specific phobia on the applicant's own self reporting of "some features of post concussive syndrome," such as behavioural/personality changes and some balance impairment. In addition, Dr. Basile notes mood changes due to pain symptoms. The applicant does not refer to any notes from her treating physician regarding a concussion as a result of the accident.

25The respondent submits that the applicant has not provided medical documentation in support of a claim for a post-concussive syndrome to warrant removal from the MIG, and I agree. The respondent relies on the CNRs of Dr. Samji and the reports of Dr. Gelman and Dr. Prutis, in which headaches are either not mentioned or they are associated with neck pain. The applicant does not mention balance issues to her treating physicians.

26The respondent argues that the applicant did not report loss of consciousness immediately after the accident. Dr. Basile notes in his report that the applicant may have lost consciousness after the accident, and she reported some features of post-concussive syndrome such as behavioural changes and balance impairments. The respondent submits that the applicant has not reported any headaches to Dr. Samji other than low energy. Dr. Basile indicates that although he reviewed the CNRs of Dr. Samji and Dr. Prutis, he did not review the MRI reports dated August 2021. I agree with the respondent, and I place little weight on the diagnosis of a post concussive syndrome by Dr. Basile in the absence of supporting documentation of an accident-related concussion by the applicant's treating physicians. In addition, the applicant's physical examination was normal and Dr. Basile based his diagnosis solely on the applicant's self reports of changes in mental capacity, emotional changes, stuttering, balance issues and poor sleep.

27Overall, I find that on a balance of probabilities the applicant has not met her onus of establishing entitlement to treatment beyond the MIG in the absence of any medical documentation from the applicant's treating physicians with consistent findings in support of an accident-related post-concussive syndrome.

d) Disc bulge

28I find that the applicant has not demonstrated on a balance of probabilities that she has an accident-related disc bulge to warrant removal from the MIG.

29The applicant submits that she should be removed from the MIG on account of her accident-related disc bulge. The applicant relies on the MRI of the lumbar spine dated August 11, 2021, which identifies the presence of degenerative disc disease ("DDD"), including a disc bulge, despite Dr. Prutis' opinion that the disc bulge occurred before the accident. The applicant does not refer to any notes from her treating physician regarding a disc bulge as a result of the accident.

30The respondent submits that the applicant has not established a causal connection of a disc bulge to the accident. The respondent further submits that the applicant has not provided medical documentation in support of a claim for accident-related disc bulge to warrant removal from the MIG, and I agree.

31Overall, I find that the applicant has not met her onus of establishing entitlement to treatment beyond the MIG in the absence of any medical documentation from the applicant's treating physicians directly linking the disc bulge to the accident.

e) Partial tears in both shoulders with tendinopathy

32I find that the applicant has not demonstrated on a balance of probabilities that she has accident-related partial tears in both shoulders with tendinopathy to warrant removal from the MIG. The applicant points to the MRI of the left shoulder report dated August 31, 2021, which shows tendinopathy with no evidence of a tear. I further find that even if the applicant was able to establish that partial tears in both her shoulders with tendinopathy is accident-related, by definition, partial tears of the shoulders are minor injuries as defined in s.3(1) of the Schedule, which would not remove her from the MIG.

f) Pre-existing conditions

33The applicant has not established on a balance of probabilities that she had documented pre-existing conditions with compelling medical evidence showing that her pre-existing conditions mean her otherwise minor injuries caused by the accident cannot be treated within the confines of the MIG.

34The applicant submits that she should be removed from the MIG based on the following pre-existing conditions:

a. Her pre-existing back, and; b. Her left shoulder conditions

i) The applicant has not established that her pre-existing back condition requires treatment outside the MIG

35The applicant submits that her pre-existing back condition was aggravated as a result of the accident. The applicant has not produced documented compelling medical evidence of a pre-existing back condition. The applicant points to the post-accident reports dated June 23, 2021 and September 16, 2021and February 16, 2022 by Dr. Prutis, and the report of Dr. Brown. Dr. Prutis reviewed an MRI dated August 9, 2021, of the lumbar spine and an MRI dated August 30, 2021 of the left shoulder which revealed tendinopathy of the left shoulder and DDD of the lumbar spine.

36The respondent submits that the applicant has not provided compelling medical evidence of a pre-existing condition documented by a health practitioner that will prevent her recovery within the confines of the MIG limit. The respondent further submits that Dr. Prutis opined on the applicant's post-accident injuries, and she was not the applicant's health practitioner before the accident. The respondent argues that there is no medical evidence that the applicant had a pre-existing back condition.

37In diagnosing chronic pain, Dr. Brown indicates the applicant has pre-existing DDD and left shoulder tendinopathy which prevent her from recovery within the MIG. Dr. Brown's diagnosis contradicts the other medical evidence before me including the CNRs of Dr. Samji, which do not provide any information on the applicant's pre-existing conditions.

38For all these reasons, I find that the applicant has not produced documentation by a health practitioner of compelling medical evidence of a pre-existing back condition.

ii) The applicant has not established that her pre-existing left shoulder condition requires treatment outside the MIG

39The applicant submits that her pre-existing left shoulder rotator cuff tendinopathy warrants removal from the MIG. The applicant submits that her left rotator cuff tendinitis was exacerbated as a result of the accident. The applicant relies on a report dated September 12, 2022 by Dr. Prutis, which indicates that she is restricted from overhead activities and heavy lifting since the accident.

40The respondent makes no submissions regarding the applicant's pre-existing condition of left shoulder rotator cuff tendinopathy.

41I find that although there is some evidence that the applicant had a pre-existing partial tear of her left shoulder in the CNRs of Dr. Samji, there is no medical evidence of a pre-existing left shoulder rotator cuff tendinopathy, which is documented by a qualified health practitioner. Further, there is no compelling medical evidence that the pre-existing condition of a partial tear of the left shoulder prevents the applicant from achieving maximal recovery under the MIG. Therefore, the applicant is not removed from the MIG on this basis.

The disputed treatment plans

42Since the applicant has not demonstrated that her accident-related injuries warrant removal from the MIG, and the MIG limits are exhausted, it is not necessary to consider whether the plans are reasonable and necessary.

The applicant is not entitled to interest and an award

43Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

44Under s. 10 of Reg.664, 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.

45Since no benefits have been unreasonably withheld or delayed, there is no interest payable.

46Since the applicant isn't owed any benefits, there is no basis for an award.

ORDER

47For the reasons outlined above, I find that:

i. The applicant is subject to the MIG. ii. The applicant is not entitled to the treatment plans in dispute. iii. The applicant is not entitled to interest. iv. An award is not payable. v. The application is dismissed.