Citation: Commisso v. Wawanesa Mutual Insurance Company, 2025 ONLAT 23-015708/AABS

Licence Appeal Tribunal File Number: 23-015708/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:

Domenico Commisso

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kenneth Nixon

APPEARANCES:

For the Applicant:

Christina Trotta, Counsel

For the Respondent:

Shamim Fattahi, Counsel

HEARD:

In Writing

OVERVIEW

1Dominico Commisso, the applicant, was involved in an automobile accident on May 2, 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 the respondent, Wawanesa Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The respondent, Wawanesa Mutual Insurance Company states that if the applicant sustained an injury as a result of this accident, which is not admitted but denied, this injury qualifies as a “minor injury” pursuant to section 3)1) of the Schedule.

ISSUES

3The issue(s) 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 limit? Note: The parties agree the MIG limits have not been exhausted with $26.57 remaining at the date of the case conference.

ii. Is the applicant entitled to $222.00 ($555.00 less $333.00 approved) for Chiropractic treatment proposed by Train for A Cure Inc., in an OCF-18 treatment plan (“plan”) submitted November 30, 2023, and denied on December 6, 2023?

iii. Is the applicant entitled to $2,966.00 for Chiropractic treatment proposed by Train For a Cure Inc., in a plan submitted February 16, 2024, and denied on March 11, 2024?

iv. Is the applicant entitled to an award for unreasonably held or delayed payments under s.10 of RR) 1190, Reg 664?

v. Is the applicant entitled to interest on any overdue payments of benefits?

RESULT

4I find that the applicant has not proven on a balance of probabilities that his accident-related impairment(s) warrant removal from the MIG.

5As the applicant is in the MIG, it is not necessary for me to consider if the treatment plan in dispute is reasonable and necessary.

6I find that the applicant is not entitled to an award or interest.

ANALYSIS

Minor Injury Guidline

7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the injured person 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 and injury”.

8An injured person 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 from any accident-related minor injury 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.

The applicant has not established injuries that warrant removal from the MIG

9I find that the applicant has failed to provide sufficient medical evidence to establish that he suffers from accident-related impairments as a result of the accident.

10The applicant argues that he should be removed from the MIG on the basis of the pre accident condition of Chronic Facet syndrome.

11The applicant also submits that he has suffered headaches, severe neck pain, dizziness, disorientation and lower and mid back pain which started to occur a few days following the accident.

12The applicant relies on the reports of Chiropractor Dr. Ashley Lee and family physician Dr. Justin DiDonato. Dr. Lee diagnosed the injuries as Chronic Postural Syndrome with Cervical, Thoracic and Lumbar Facet Dysfunction. The applicant visited Dr. DiDonato approximately six months later complaining of the same symptoms who recommended physiotherapy treatment, stretching heat packs and Tylenol.

13The records of section .44 assessor completed by Orthopaedic Surgeon Dr. Edwin Urovitz indicate several items which contradict the findings of the applicant’s submissions. Firstly, the notes of Dr. DiDonato indicate that during the applicants first consultation on April 4^th, 2023, the only pre-existing issues reported were obesity and kidney stones. Also, during the next visit on September 7^th, 2023, the records show that the claimant complained of occasional headaches and shoulder heaviness which was improving. A few months later on November 9, 2023, Dr. DiDonato’s notes show continued complaints of occasional headaches, and neck and back pain which the applicant mentioned could be a result of excessive heavy lifting at work. Upon examination Dr. DiDonato noted that there was full range of motion without spinal tenderness.

14My decision is based on the comments of the claimant whereas he noted during a subsequent visit to PhysioChiro and Wellness in December of 2023 that he had been playing soccer, running and stretching and appeared to be recovering. Also, the x-ray report of May 5^th, 2023, showed only mild degenerative disc disease and slight anterior subluxation of the flexion view.

15My decision is primarily based on the comments of Dr. Urovitz who after reviewing additional records, including x-rays of the chest and cervical spine dated March 18, 2024, as well as the clinical notes and records of PhysioChiro Wellness dated May 30, 2024 concluded that the applicant did not have any pre-existing injuries and/or medical conditions that were aggravated or made symptomatic by the accident and the opinion of Dr. Urovitz was that the applicant’s injuries fall within the MIG and were predominantly minor.

16My decision is also grounded in the fact that approximately six months following the accident the claimant complained to Dr. DiDonato of occasional headaches and shoulder heaviness which was improving and by comments by the applicant to Dr. DiDonato that his employment duties both pre and post accident require heavy lifting which I believe is a major contributing factor in his recovery.

17While I agree that a pre-diagnosis of Facet Syndrome could be grounds for removal from the MIG, Section 18(2) of the Schedule requires compelling evidence that the pre-existing condition “will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services authorized under the Minor Injury Guideline”. While this is clearly the opinion of the applicant’s Chiropractor Dr. Ashley Lee, there is no mention by the applicant’s family physician Dr. DiDonato which supports this diagnosis and is contradicted by Orthopaedic Surgeon Dr. Urovitz during his s.44 assessment. Given the applicant’s standard of proof being a balance of probabilities, the preponderance of the evidence does not persuade me that this condition would prevent maximum recovery from the minor injury if the claimant was limited to the MIG.

18As I have found the applicant to be within the MIG, it is not necessary for me to consider the reasonableness and necessity of the treatment plans in dispute.

Interest and Award

19As there are no benefits payable, interest and award is not applicable.

ORDER

20I find that

i. The applicant has not met the onus to prove that as a result of accident-related issues that the applicant should be removed from the MIG.

ii. As the applicant is in the MIG, it is not necessary for me to consider if the treatment plans in dispute are reasonable and necessary.

iii. Interest and award is not applicable.