Citation: Briganti v. Security National Insurance Company, 2025 ONLAT 23-007405/AABS

Licence Appeal Tribunal File Number: 23-007405/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:

Felicia Briganti

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kathleen Wells

APPEARANCES:

For the Applicant:

Donata Di Iorio, Counsel

For the Respondent:

Orest Kuchar, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Felicia Briganti, the applicant, was involved in an automobile accident on February 6, 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, Security National 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:

1. 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?

2. Is the applicant entitled to $2,200.00 for a Psychological Assessment, proposed by Prime Health Care Inc. in an OCF-18/ treatment plan dated December 14, 2021?

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

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

RESULT

3I find that:

1. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

2. As the applicant is subject to the MIG, I do not need to consider if the treatment plan in dispute is reasonable and necessary;

3. The applicant is not entitled to an award; and

4. The applicant is not entitled to interest.

ANALYSIS

The applicant is not removed from the MIG

4I find that the applicant has not met her onus to prove on a balance of probabilities that her accident-related impairments warrant removal from the MIG.

5Section 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.”

6An 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.

7The applicant submits that she should be removed from the MIG because she had pre-existing conditions, as well as chronic pain and a psychological injury as a result of the accident.

8The respondent argues that the applicant has not proved that she had a pre-existing condition which would prevent maximum recovery in the MIG, nor has she met her onus to prove has that she suffers from chronic pain with a functional impairment or a psychological injury as a result of the accident which would warrant her removal from the MIG.

Pre-existing condition

9I find the applicant has not established that she has a pre-existing condition which prevents maximal recovery from her injuries.

10The applicant relies on the CNRs of her family physician, Dr. Antoinette Di Maria. The respondent argues that the CNRs of Dr. Di Maria should be given no weight because they are “all” handwritten and “difficult to follow,” I disagree. I find Dr. Di Maria’s written notes to be substantially legible, and the CNRs also contain multiple relevant, typewritten reports from imaging and treatment providers. As Dr. Di Maria is the applicant’s family physician, and, in my view, her CNRs are of significant probative value, I decline to assign them less weight.

11I accept that the applicant had documented pre-existing conditions including headaches, vertigo, and an enlarged pituitary gland. However, the applicant did not direct me to any medical evidence stating that any of her pre-existing conditions would preclude recovery from her accident-related injuries within the MIG. As this is required under Section 18(2), I find she does not meet the second part of the test.

12Therefore, I find that the applicant has not demonstrated on a balance of probabilities that she has a pre-existing condition that would warrant removal from the MIG.

Chronic Pain

13I find that the applicant has not established that she suffers from chronic pain with functional impairment that warrants her removal from the MIG.

14The applicant submits that she has experienced ongoing back and neck pain from her accident-related injuries. In addition to Dr. Maria’s CNRs, the applicant relies on the CNRs of Dr. Chad Hefford, physician of the Prime Health Care Inc.,

15The respondent argues that the applicant has not met her onus to prove that she suffers from chronic pain with functional impairment. The respondent relies on the Insurers Examination report (“s.44 report ”) dated March 30, 2023, and addendum reports, dated April 3, 2023, and July 28, 2023, prepared by Dr. Pankaj Bansal, physician.

16The applicant has not directed me to evidence that she has been diagnosed with chronic pain or chronic pain syndrome, and I find that the CNRs of Dr. Di Maria are indicative of intermittent, rather than consistent pain in the 2 years following the accident. Dr. Di Maria’s CNRs reveal that at her March 6, 2020 appointment, the applicant complained of pain, and Dr. Di Maria diagnosed the applicant with myofascial back pain, and hand and wrist strain, and prescribed pain medication and exercise. The applicant continued to complain of back and neck pain on seven further occasions in the three months following the accident between March 19, 2020 and May 22, 2020, and attended physiotherapy sessions for treatment of her soft tissue injuries between February 10, 2020 and May 27, 2020. The CNRs of Fit for Life Wellness and Rehabilitation Centre indicate that the applicant’s pain was improving with physiotherapy and exercise, and that she was planning to return to work full-time on June 8, 2020.

17The applicant did not report pain again to her family doctor until eleven months later, when she complained of back pain on April 13, 2021, and again on December 7, 2021 and January 3, 2022, when Dr. Di Maria referred the applicant for an MRI of her spine, which found no abnormalities.

18The applicant also complained of back and shoulder pain to Dr. Hefford in an initial assessment conducted on December 1, 2021. I assign no weight to Dr. Hefford’s report because I find it to be lacking in detail, and he did not indicate that he conducted a physical examination or review of the applicant’s medical records. Further, Dr. Hefford indicates that the applicant’s injuries interfere with her ability to work or carry out activities of daily living and caregiving, which I find is not supported by any detail, nor corroborated by other contemporaneous medical or other evidence.

19With respect to functional impairment, I place more weight on the s.44 report, dated March 30, 2023, and the addendum report dated April 3, 2023, of Dr. Bansal, who opined that the applicant had reported no functional impairment as a result of her accident-related injuries. Dr. Bansal conducted a physical examination, reviewed the applicant’s medical records, and provided an addendum to his report which confirmed his initial findings, after reviewing updated medical information. At her March 16, 2023 s. 44 examination, the applicant told Dr. Bansal that although she was experiencing pain, she was working full time, was independent in her self care and household duties, and continued to drive.

20For these reasons, I find that the applicant has not met her onus to prove on a balance of probabilities that she suffers from chronic pain with functional impairment.

Psychological Impairment

21I find that the applicant has not met her onus to prove on a balance of probabilities that she has suffered a psychological impairment as a result of the accident to warrant her removal from the MIG.

22The applicant submits that she suffered depression and anxiety as a result of the accident that has impeded her ability to cope with stresses in her life since the accident.

23The respondent counters that the applicant has not been diagnosed with a psychological condition by a psychiatrist or psychologist, and that the applicant has not met her onus to prove that any subsequent psychological issues are a result of the accident.

24I accept that the applicant experienced symptoms of depression and anxiety immediately following the accident. The CNRs of Dr. Di Maria reveal that on March 6, 2020, Dr. Di Maria noted symptoms of post traumatic stress. Dr. Di Maria prescribed anti-depressants and suggested that the applicant see a psychologist and that the applicant may benefit from driver desensitization. On March 19, 2020, Dr. Di Maria administered psychometric testing and diagnosed the applicant with anxiety with depressed mood. Dr. Di Maria’s CNRs also reveal that on April 12, 2020, the applicant described an anxiety attack that she experienced a week earlier, while discussing uncertainty over plans for her wedding due to the onset of the Covid 19 pandemic.

25The applicant submits that she has been having suicidal ideation since the accident. I find, however, that the evidence reveals that the applicant reported feelings that life was not worth living when discussing her wedding plans with Dr. Di Maria on April 12, 2020, and again on May 13, 2020, during a risk assessment for the Canadian Mental Health Association’s BounceBack program for adults with mild to moderate depression/anxiety. The applicant denied any plan or intent to self-harm. Ryan Stewart, of the BounceBack program, reported to Dr. Di Maria on May 15, 2020 that they had assessed the applicant as a low risk for self harm and admitted her to the program.

26The applicant completed the BounceBack program on September 28, 2020. The final report submitted to Dr. Di Maria reveals that psychometric testing found the applicant’s depression and anxiety symptoms were “minimal,” and her functional impairment score was “subclinical” at her September 28, 2020 assessment.

27I find that the applicant has not established that her subsequent challenges with anxiety and depression were caused by the accident, in part, because she has not directed me to medical evidence to corroborate that the accident has impacted her ability to cope with other stressors. As the respondent notes, there were no further references to the accident in Dr. Di Maria’s CNRs relating to the applicant’s psychological concerns. On January 6, 2021, when the applicant complained of increased anxiety, Dr. Di Maria noted only that the applicant’s mother had been in a serious motor vehicle accident.

28Additionally, the CNRs of Therapy Heals Psychotherapy and Counselling Services reveal that the applicant last referenced the accident at the first of three sessions, on January 18, 2021. The accident was mentioned among a list of more recent, significant adverse events, that the applicant experienced in the previous year, and which were not related to the accident, including the applicant’s parents November 2021 accident which left the applicant’s mother in a rehabilitation facility for several months, and her father in need of assistance at home.

29The evidence reveals no further mentions of the accident in the CNRs of the William Osler Health Centre, where the applicant attended group therapy between March 11, 2021 and April 29, 2021 or in the CNRs of Vaughan Psychologists, where the applicant attended counselling two years later between January 17, 2023 and June 12, 2023.

30The applicant also relies on the pre-screening assessment report of Dr. Jacqueline Brunshaw of the Prime Plus Medical Clinic, dated December 1, 2021. Dr. Brunshaw recommended a comprehensive psychological assessment. I assign little weight to Dr. Brunshaw’s assessment, as she did not indicate whether she had personally interviewed the applicant, or whether the interview took place in person or by telephone, and the self-reports of the applicant are not corroborated by contemporaneous medical or other evidence. For instance, Dr. Di Maria’s CNRs last note driver anxiety more than a year and a half prior to the pre-screening assessment being completed.

31The respondent relies on the March 30, 2023 s.44 report of Dr. Medhi Lotfalizadeh, psychologist, to which I assign more weight because he conducted an in-person interview and psychometric testing of the applicant on March 7, 2023. Dr. Lotfalizadeh opined that the applicant did not meet the criteria for any DSM-5 diagnosis, and that her symptoms were not sufficient to require any treatment or assessment as a result of the accident. Dr. Lotfalizadeh confirmed his findings after reviewing the applicant’s updated medical records in his addendum reports dated April 3, 2023 and July 28, 2023.

32Based on the evidence before me, I find the applicant has not established on a balance of probabilities that she sustained a psychological impairment as a result of the accident.

33Accordingly, the applicant remains within the MIG.

34As the applicant is subject to the MIG, it is not necessary for me to consider whether the treatment plan in dispute is reasonable and necessary. The applicant is entitled to treatment up to the $3,500.00 MIG limit.

Award

35The 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.

36As there are no benefits owing, the applicant is not entitled to an award.

Interest

37As no payments are owing, no interest is due pursuant to s. 51 of the Schedule.

ORDER

38I find that:

i. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. As the applicant is subject to the MIG, I do not need to consider if the treatment plan in dispute is reasonable and necessary;

iii. The applicant is not entitled to an award;

iv. The applicant is not entitled to interest: and

v. The application is dismissed.