Licence Appeal Tribunal File Number: 23-011467/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:
Giuseppe Cariati
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: John Mazzilli
APPEARANCES:
For the Applicant: Piera A. Segreto, Counsel
For the Respondent: David Koots, Counsel
HEARD: By way of written submissions
OVERVIEW
1Giuseppe Cariati (the “applicant”) was involved in an automobile accident on March 11, 2023, 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. 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? Note: The parties agree the MIG limits have not been exhausted and the applicant in his reply submissions submits that there is $121.31 remaining in the MIG.
ii. Is the applicant entitled to $2,200.00 for a Psychological Assessment, proposed by New Age Specialized Assessments Ltd. in a treatment plan/OCF-18 (“plan”) dated June 20, 2023?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant remains in the MIG and therefore it is not necessary to consider whether the disputed assessment plan is reasonable and necessary.
4The applicant is not entitled to costs from the respondent.
5The applicant is not entitled to interest or an award.
6The application is dismissed.
PROCEDURAL ISSUES
The respondent did not provide the applicant with the CNRs of Dr. Day
7I deny the applicant’s request to exclude Dr. Day’s report. I also deny the applicant’s alternative argument that I should give diminished weight to Dr. Day’s report. The applicant argues that the respondent did not disclose the CNRs and referral letters of Dr. Day, the respondent’s s.44 psychological assessor, in accordance with the Case Conference Report and Order dated March 15, 2024 (CCRO), and as such the applicant submits that the report of Dr. Day ought to be excluded or in the alternative that I dimmish weight to Dr. Day’s report.
8The respondent acknowledges that the CNRs of Dr. Day were not provided to the applicant. This was due to inadvertence related to staffing changes of a law clerk in May 2024 and because of the responding counsel’s parental leave, therefore some productions were not provided. It argues that the applicant did not advise the respondent that productions were outstanding and still being sought, nor was a motion brought to the Tribunal seeking them.
9I accept that the applicant did not receive the CNRs of Dr. Day. However, I find that the respondent is entitled to rely on Dr. Day’s report because the applicant did not argue that Dr. Day’s report was not produced in accordance with the CCRO therefore the applicant was aware of Dr. Day’s report prior to the hearing. I find that the applicant is not prejudiced by the nondisclosure of the CNRs and disclosure letters of Dr. Day because the applicant received Dr. Day’s report, which outlines Dr. Day’s medical findings that the respondent relies on.
10Further, I do not accept the applicant’s alternative argument, because for the reasons set out above, I find the applicant is not prejudiced.
11Accordingly, I deny the applicant’s request to exclude or provide diminished weight to Dr. Day’s report.
ANALYSIS
The applicant has not demonstrated that he should be removed from the MIG
12I find that the applicant has not demonstrated that he should be removed from the MIG.
13Section 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.”
14An 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.
15The applicant submits that he should be removed from the MIG because he is now reliant on a support belt and a knee brace to function and because of bilateral knee chronic pain. Further, the applicant submits that he is unable to initiate verbal conversations due to a psychological issue. The applicant relies on the CNRs from his family physician Dr. Pronina, a CT scan from Etobicoke General Hospital, an OCF-3 dated May 9, 2023, an ultrasound dated January 20, 2024, and the report of Dr. Leon Steiner, psychologist, dated August 21, 2023.
16The respondent argues that the applicant’s injuries from the accident are soft tissue injuries that have been addressed within the confines of the MIG. Further, the respondent argues that it has not denied any physical therapy plans and the applicant has not sought any further physical treatment from the respondent since June 27, 2023. The respondent relies on the report of Dr. Day, psychologist, dated August 28, 2023; the addendum report and paper review of Dr. Day, dated November 15, 2023; the CNRs from the applicant’s family physician Dr. Pronina, an OCF-3 dated May 5, 2023; and an OCF-23 dated March 20, 2023
Chronic Pain
17I find that the applicant has not established that as a result of the accident he should be removed from the MIG due to chronic pain.
18The applicant submits that as a result of the accident he sustained facial bruising to the side of his eye, neck pain, lower back pain, right elbow, knee and joint pain, headaches, and cognitive delays. He further submits that his employment as a martial arts instructor requires significant physical exertion and his inability to perform at his pre-accident level of function has caused him financial distress. He further submits that he requires further treatment to address his ongoing functional impairments and pain.
19The respondent argues that the applicant returned to his physically demanding pre-accident employment as a martial arts instructor immediately after the accident. It also argues that the applicant has seen his family doctor regularly since the accident but has rarely made accident-related complaints and that his family doctor diagnosed the applicant with soft tissue injuries. The respondent further submits that the applicant’s back and knee pain have been progressively worse for years prior to the accident and that there is no evidence linking the applicant’s knee bursitis/tendonitis to the subject accident.
20In addition, the respondent argues that it has not denied the applicant any physical therapy plans to the date of this hearing and that the applicant has not sought any additional physical treatment from the respondent since June 27, 2023.
21I find that the applicant has not met his onus to prove that he suffers from chronic pain with a functional impairment as a result of the accident that demonstrates he should be removed from the MIG. The medical evidence before me does not support a claim of chronic pain with a functional impairment as a result of the accident.
22It is important to note that the applicant did not argue a pre-existing condition of chronic pain, however the respondent in its submissions does acknowledge that the applicant has a pre-accident history of decreased flexibility and ongoing pain.
23The applicant visited his family doctor regularly following the accident, and the CNRs from Dr. Pronina consistently show that the applicant’s accident-related injuries are soft tissue in nature. This is further evidenced by the OCC-3 completed by Dr. Pronina dated May 5, 2023, which lists the applicant’s injuries from the accident as soft tissue/sprain. Dr. Pronina opines that the applicant’s expected level of disability will be nine to twelve weeks, prescribed the applicant Advil and advised the applicant to avoid jumping, high impact takedowns and heavy lifting.
24The applicant’s physiotherapist Marian Abdalla in an OCF-23 dated March 17, 2023, lists the order of the applicant’s most significant sequelae from the accident to be whiplash with complaint of neck pain with musculoskeletal signs, sprain and strain of thoracic spine, lumbar spine, sacroiliac joint, other part of the shoulder girdle, ribs, sternum, elbow, wrist and lastly sprain and strain of other and unspecified parts of the knee; however, the contemporaneous corroborating medical evidence does not support chronic pain with a functional impairment
25The applicant’s pre-accident medical documentation does not support a conclusion that the applicant has suffered accident-related chronic pain with a functional impairment. Specifically, I note that the CNRs from Dr. Allison Chan, sports medicine physician. At a visit on January 20, 2023, approximately two months prior to the accident, the applicant complained of lower extremity muscle tightness and reported a lengthy history of progressively worsening flexibility.
26While Dr. Chan has noted the applicant’s pre-accident history of progressively worsening flexibility and tightness to the applicant’s lower extremity, I was not pointed to evidence that these symptoms were exasperated by the subject accident or how his condition results in chronic pain with a functional impairment. This is corroborated by the OCF-23 which states that the applicant did not have a pre-existing condition. Further, the applicant returned to his pre-accident employment shortly after the accident as a martial arts instructor, a career that is physically demanding.
27Finally, the results from a January 30, 2024, ultrasound do not support the applicant’s claim of chronic pain with a functional impairment as the clinical impression from the ultrasound results are: right quadricep spurring, “appears to be a small peripheral lateral meniscal cyst which may be associated with undetected horizontal tear or myxoid degeneration and small bilateral effusions which may be associated with bursitis”. Furthermore, I am not pointed to how this diagnosis approximately two years post accident has caused the applicant to suffer from chronic pain with a functional impairment or how this diagnosis is a result of the accident.
28Accordingly, I find on a balance of probabilities that the applicant has not met his onus to prove he should be removed from the MIG because of chronic pain with a functional impairment.
Psychological Impairment
29I find that the applicant has not met his onus to prove he should be removed from the MIG because of a psychological condition.
30The applicant submits that he is saddened by his prolonged recovery and wishes to resume his pre-accident levels of functioning. He feels discouraged about his ability to teach martial arts as he is no longer able to demonstrate certain moves and has lost confidence that in his ability to demonstrate what he is teaching. He is less interested in his personal care such as shaving, and experiences driving anxiety as a result of the accident.
31On August 9, 2023, Dr. Steiner, psychologist, assessed the applicant by telephone. In his report dated August 21, 2023, Dr. Steiner diagnosed the applicant with “adjustment disorder with mixed anxiety and depressed mood, specific phobia, Situational (In-Vehicular Type)”. Dr Steiner opines that the applicant’s current impairment does not fall within the definition of “minor injury.”
32In his report, Dr. Day opined that the applicant did not reveal any accident-related psychological diagnosis and as such the applicant did not suffer from a psychological impairment as a result of the accident. I prefer the report of Dr. Day to that of Dr. Steiner for the following reasons.
33I find Dr. Day’s assessment of the applicant to be to more comprehensive than that of Dr. Steiner because Dr. Day did a thorough file review of the applicant’s medical history and Dr. Steiner did not mention a file review of the applicant’s medical records. Further, Dr. Day’s assessment was conducted in person, rather then over the telephone as was the case with Dr. Steiner, therefore Dr. Day was able to make observations of the applicant and Dr. Steiner was not. Finally, Dr. Day’s assessment of the applicant lasted three hours and fifteen minutes and included the applicant’s self reports, the assessors’ observations of the applicant’s behavior and psychometric testing.
34Dr. Day’s opinion is corroborated by the applicant’s family doctor records. The CNRs of Dr. Pronina do not reference post-accident-related psychological complaints by the applicant.
35Accordingly, I find that the applicant has not met his onus to prove he should be removed from the MIG because of his psychological condition.
36I find that on a balance of probabilities the applicant has not established that he should be removed from the MIG.
The OCF-18 in dispute
37The applicant remains in the MIG, so an analysis of the reasonableness and necessity of the disputed treatment plans is not required.
The applicant seeks costs from the respondent
38I find that the respondent is not liable to pay costs in the amount of $1,000.00 to the applicant.
39In his reply to submissions the applicant sought to add costs in the amount of $1,000.00 in this proceeding pursuant to Rule 19 of the Licence Appeal Tribunal Rules, 2023 (“Rules”).
40Rule 19.5 states that in considering whether to award costs, I must consider all relevant factors, including the seriousness of the misconduct, whether the conduct was in breach of a direction or order issued by the Tribunal, whether a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, prejudice to other parties and the potential impact an order for costs would have on individuals accessing the Tribunal system.
41The applicant submits that the respondent has acted unreasonably, frivolously, vexatiously and in bad faith, because of the late production of log notes and the non-production of all other productions meant to frustrate the applicant. He submits that the respondent’s noncompliance with an order of the Tribunal should be considered serious misconduct on the part of the respondent and interferes with fair, efficient, and effective hearing and is prejudicial behavior.
42The respondent argues that while they did not disclose the CNRs of Dr. Day to the applicant for the reasons already discussed in the procedural section above. It argues that this behavior does not amount to behavior that warrants costs.
43I find that the applicant is not entitled to $1,000.00 in costs from the respondent. I find that the respondent’s conduct in their disclosure of documents does not amount to behavior that interfered with the Tribunal’s ability to conduct a fair, efficient, and effective process. The respondent did produce the logs notes to the applicant on May 31, 2024, which is after the 60-day mark of May 15, 2024; however, it is prior to the 90-day responsive deadline. I have already addressed the other production issues above which I also find do not attract costs because it did not impact the hearing.
Interest
44Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are owing, interest is not payable.
Award
45The 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.
46The applicant submits that he has endured financial, emotional, and physical distress as a result of the respondent’s conduct relating to the denial of the benefits claimed. He further submits that the respondent has acted in a prohibited manner that is subjective or arbitrary and includes conduct resulting in unreasonable delay in or resistance to the fair adjustment and settlement of the claims.
47The applicant further submits that the respondent’s actions are imprudent, stubborn, inflexible, unyielding, and immoderate.
48Having found that the respondent acted appropriately in maintaining the applicant in the MIG, I find that the respondent did not unreasonably withhold or delay any benefits from the applicant and accordingly the applicant’s request for an award is denied.
ORDER
49It is ordered that:
i. The applicant remains in the MIG.
ii. As the applicant is in the MIG, it is not necessary to consider whether the treatment plan in dispute is reasonable and necessary.
iii. The applicant is not entitled to costs.
iv. The applicant is not entitled to an award.
v. Since no benefits are owing, interest is not payable.
vi. The application is dismissed.
Released: July 18, 2025
__________________________
John Mazzilli
Adjudicator