Citation: Campisano v. Economical Insurance Company, 2025 ONLAT 23-013920/AABS

Licence Appeal Tribunal File Number: 23-013920/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:

Elizabeth Campisano

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Applicant:

Ilan Liebner, Counsel

For the Respondent:

Branson Wong, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Elizabeth Campisano (the “applicant”) was involved in an automobile accident on February 18, 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 Economical Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

Is the applicant barred from proceeding to a hearing for all of the benefits claimed in this application because she failed to attend an Insurer’s Examination (“IE”) under section 44 of the Schedule?

2I find the parties have disposed of the preliminary issue raised in the case conference report and order (“CCRO”) for this matter. Their written submissions confirm the applicant has since attended the section 44 IEs requested by the respondent. Accordingly, the respondent concedes the preliminary issue is “no longer of concern.” I therefore accept that the preliminary issue is resolved between the parties, and I have not further considered it as part of my decision.

ISSUES

3The issues in dispute are:

1. Are the applicant’s injuries predominantly minor as defined in section 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 physiotherapy services in the amount of $1,308.75, proposed by New Hope Physiotherapy and Rehabilitation (“New Hope”) in an OCF-18 treatment plan submitted on April 18, 2022, and denied on May 5, 2022?

3. Is the applicant entitled to psychological services in the amount of $3,491.49, proposed by Prime Healthcare Inc. in an OCF-18 treatment plan submitted on May 25, 2022, and denied on June 3, 2022?

4. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

4The applicant remains in the MIG and is not entitled to the disputed OCF-18 treatment plans. Neither interest nor an award are payable. The application is dismissed.

ANALYSIS

The applicability of the MIG

5I find the MIG applies to the applicant’s claim.

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. 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.”

7The applicant may be removed from the MIG if she can establish her accident-related injuries fall outside of the MIG or, under section 18(2) of the Schedule, which says the MIG limit does not apply if the applicant’s health practitioner determines and provides: (1) compelling evidence that the applicant has a pre-existing medical condition that was documented by a health practitioner before the accident; and (2) that the pre-existing medical condition will prevent the applicant from achieving maximal recovery from her accident-related injuries if kept in 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.

8For this matter, the applicant seeks removal from the MIG on the basis of a pre-existing condition and psychological impairment.

The applicant does not establish that the pre-existing medical condition exclusion applies

9I find that the applicant has established a pre-existing medical condition, but did not prove this condition prevents maximal recovery of her accident-related injuries within the MIG.

10The applicant submits that her pre-existing conditions include diabetes, anemia, and a right-leg fracture. She explains that the leg fracture—allegedly sustained after a fall down a set of stairs—required surgery and hardware implants to address but had fully recovered at the time of the accident. The applicant’s submissions relate that she again began to experience pain in her right leg after it struck the dashboard during the February 2021 accident, and that this pain has endured up to at least July of 2024—despite undergoing 15 physiotherapy sessions between March 12, 2021, and April 20, 2022—when she reported ongoing pain to the respondent’s section 44 assessors.

11The applicant contests the reliability of the medical opinion offered by Dr. James Stewart (physician)—who determined that treatment within the MIG was adequate for her accident-related injuries—on the basis that the emergency room hospital records were not provided for review as part of Dr. Stewart’s section 44 IE.

12The applicant relies on the emergency department report of Humber River Hospital; the clinical notes and records of her family physician, Dr. Jaskaren Kaur Dhaliwal; and the treatment records of New Hope Physiotherapy & Rehab Centre Inc. to support her pre-existing injury claim.

13The respondent agrees that the applicant’s medical history is notable for a prior fracture to her right leg approximately 10 years pre-accident. However, the respondent argues that this pre-existing condition does not prevent maximal recovery. The respondent submits that the applicant had only one accident-related consultation with Dr. Dhaliwal ad never again made any complaints of right-leg pain. The respondent adds that Dr. Dhaliwal’s records do not comment on how the applicant’s pre-existing injury was affected by the accident or prevents maximal recovery of her accident-relate injuries under the MIG.

14The respondent relies on the section 44 IE by Dr. Stewart to show the MIG applies.

15I accept the applicant sustained a right-leg fracture prior to the accident that constitutes a pre-existing condition. I do so, however, on the basis of evidence cited by the respondent and not by the applicant. While the applicant bears the onus of proving her case, I find it is the respondent’s submissions that point to the applicant’s pre-existing injury in Dr. Dhaliwal’s earlier records, which appears to be an entry in the medical history summary that simply documents a fracture of right tibia in 2000—and not in 2011 as claimed in the applicant’s submissions.

16The applicant submits that she also meets the second part of the test for a pre-existing medical condition because her right leg fracture will prevent her from achieving maximal recovery of her accident-related injuries. I disagree.

17The applicant’s submissions do not point to a medical opinion by a health practitioner that determines her leg fracture will prevent maximal recovery of her accident-related injuries, which the Schedule requires of her to make her case. Rather, the thrust of her position, as I understand it from her submissions, is that she cannot achieve maximal recovery because of a recurring “on-and-off” burning sensation in her right leg that she reported to Dr. Dhaliwal in March 2021 after the accident. In my view, this is not sufficient evidence without a corresponding medical opinion from Dr. Dhaliwal, or another heath practitioner, who corroborates a requirement for non-MIG treatment to achieve maximal recovery of her accident-related injuries.

18While I accept that Dr. Dhaliwal observed a palpable “ridge” and tenderness where hardware was installed in appellant’s right leg, I find this evidence too falls short of demonstrating that Dr. Dhaliwal believed the applicant should be removed from the MIG. And while I have no reason to doubt the applicant’s reports of experiencing physical difficulties with daily living activities, her submissions do not persuade me that this is attributed in any substantive way to her right leg injury. Rather, the applicant points to continued reporting of “severe pain and soreness in her left shoulder, neck, [and] upper back that is aggravated by prolonged sitting, bending forward, and household chores” in the records of New Hope. In my view, this suggests the applicant’s leg injury is a relatively diminished factor in her recovery. I find this is supported by the applicant’s submissions pertaining to Dr. Dhaliwal’s March 2021 entry, which mentions no functional limitations pertaining to the applicant’s leg but observes limited range of motion in her left shoulder due to pain and very limited lower back flexion.

19Taken together on a balance of probabilities, I am persuaded this evidence does not support the applicant’s claim of a pre-existing medical condition (i.e., her right-leg fracture) that will prevent her from achieving maximal recovery from her accident-related injuries if kept in the MIG. I therefore find the applicant remains in the MIG on this basis.

20Given that the applicant’s own submissions and evidence fail to meet her onus, I have not addressed the respondent’s section 44 report or the applicant’s position on that evidence.

The applicant did not sustain an accident-related psychological impairment because of the accident

21I find the applicant has not shown she sustained a psychological impairment arising from the accident.

22The applicant submits that Dr. Dhaliwal documented her psychological difficulties within a month of the accident, and that they persisted up to her May 2022 section 25 assessment with Dr. Leon Steiner (psychologist), who diagnosed somatic symptom disorder, a specific trauma and stressor-related disorder, and a vehicular-related phobia. The applicant explains that she has no pre-accident history of a psychological condition, but that since the accident, she has persistently experienced disabling depression, fatigue, and anxiety that have caused her to withdraw from all the social and leisure activities she enjoyed prior to the accident.

23The applicant contests the reliability of the medical opinion offered by Dr. Sharleen McDowall (psychologist)—who determined the applicant did not sustain an accident-related psychological impairment—on the basis that Dr. Dhaliwal’s March 2021 records were not provided for review as part of Dr. McDowall’s section 44 IE.

24The respondent argues that despite providing medical records that span to January 2024 from the date of the accident, the applicant has only once (i.e. the March 2021 visit) consulted her family physician about accident-related symptoms, including psychological complaints. The respondent relies on Raduga v Economical Insurance, 2023 CanLII 122889 ON LAT (“Raduga”); Clarke v Economical Insurance, 2024 CanLII 28815 ON LAT (“Clarke”); and M.M. v Allstate Canada, 2020 CanLII 34440 ON LAT (“Allstate”) to show that the applicant’s section 25 assessment should be afforded little weight because it was actually Ms. Foujan Rahmati (psychotherapist)—and not Dr. Steiner—who interviewed and assessed the applicant. The respondent also takes issue with no referral for psychological evaluation or treatment being made by Dr. Dhaliwal and maintains that his clinical notes and records do not corroborate the applicant’s psychological complaints to Dr. Steiner.

25The respondent relies on the August 2024 section 44 IE by Dr. Sharleen McDowall (psychologist) to show the applicant’s mental health is affected by a combination of factors unrelated to the accident.

26The applicant’s section 25 report is unpersuasive, and I afforded it less weight because the applicant’s submissions point to little evidence that corroborates the report’s conclusions. In fact, the applicant’s submissions point only to one virtual and one in-person consultation with Dr. Dhaliwal on March 10 and 12 of 2021, respectively, as evidence of psychological difficulties contemporaneous to the accident. During those two interactions, Dr. Dhaliwal recorded the applicant’s complaints of anxiety. And the prescription history included with Dr. Dhaliwal’s records indicate the applicant was prescribed Cymbalta on March 12, 2025, to treat her symptoms of anxiety for just 30 days with no repeats. The applicant’s submissions do not point to any further medical evidence of ongoing psychological complaints or recurring treatments—made to Dr. Dhaliwal or any other health practitioner—until more than a year later when the applicant was assessed by Ms. Rahmati in May of 2022. The applicant’s submissions make no mention of follow-up on her psychological condition by Dr. Dhaliwal after March 2021, or a referral for psychological assessment by same.

27In my view, the lack of evidence to support ongoing psychological difficulties during this considerable post-accident period is more consistent with symptomology that abated or even resolved. It certainly does not support the applicant’s reports to Ms. Rahmati about feeling depressed and anxious most of the time since the accident. Similarly, without corroborating medical evidence of the applicant’s psychological condition during the bulk of the post-accident period, I place less weight on the applicant’s recollection of experiencing “severe” emotional distress and anxiety that prevented her from doing her pre-accident activities during this time.

28There are other reliability aspects of the information recounted by the applicant to Ms. Rahmati, and presumably Dr. Steiner in his “supervisory” role, which I find detract from the report’s persuasiveness. While the assessors rely on the appellant’s recollection of the accident and post-accident history to inform their conclusions, I find the applicant’s recollections are not wholly reliable. For example, the applicant tells Ms. Rahmati that she lost consciousness when the vehicle’s airbag deployed, but the Humber River Hospital records clearly indicate the applicant denied losing consciousness. This discrepancy is not addressed by the assessors despite indicating that they reviewed the hospital documents as part of the assessment. In contrast, the report indicates there was “no apparent effort on the part of the applicant to exaggerate or belabour themes of impairment or disability.”

29Further, the applicant’s submissions do not point to evidence of validity measures employed to confirm the reliability of psychometric testing conducted by Ms. Rahmati. As such, I further diminish the weight afforded to the section 25 assessment results. For what it’s worth, the report says that the applicant presented in a “candid fashion with no apparent attempt to mislead or be evasive” while engaging in the clinical interview. But I find this subjective observation by Ms. Rahmati does not extend to the applicant’s test responses, and would, in any event, serve as a poor validity indicator when compared to empirical measures that are otherwise available to assess the reliability of test results.

30Taken together on a balance of probabilities, I am persuaded this evidence does not support the applicant’s claim of an accident-related psychological impairment. I therefore find the applicant remains in the MIG on this basis.

31Given that the applicant’s own submissions and evidence fail to meet her onus, I have not addressed the respondent’s section 44 report or the applicant’s position on that evidence.

The applicant’s entitlement to the disputed OCF-18 treatment plans

32I find the applicant is not entitled to the OCF-18 treatment plans in dispute.

33To receive payment for an OCF-18 under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

34The parties were ordered, in the CCRO for this matter, to identify in their written submissions any amounts remaining in the MIG. The parties did not comply with this order. Given such in concert with my finding that the applicant remains in the MIG, I find it is unnecessary to determine whether the disputed OCF-18 treatment plans are reasonable and necessary.

Interest

35Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As there are no benefits owing in this case, no interest is not payable.

Award

36The applicant seeks an award under section 10 of Regulation 664. Under section 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.” [See, e.g., 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT); and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration]. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

37As there are no benefits that were unreasonably withheld or delayed in this matter, the respondent is not liable to pay an award.

ORDER

38The applicant remains in the MIG and is not entitled to the disputed OCF-18 treatment plans. Neither interest nor an award are payable. The application is dismissed.