G. K. v. Wawanesa Mutual Insurance Company, 2017 CanLII 46356

G. K. v. Wawanesa Mutual Insurance Company

Date: 2017-07-06 Tribunal File Number: 16-004479/AABS Case Name: 16-004479 v Wawanesa Mutual Insurance Company

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:

G. K. Applicant

and

Wawanesa Mutual Insurance Company Respondent

DECISION

ADJUDICATOR: Chris Sewrattan APPEARANCES: Counsel for the applicant: Warren Rigby Counsel for the Respondent: Anju Sharma HEARD: Written Hearing: May 8, 2017

Overview:

1The applicant was injured in a motor vehicle accident on January 30, 2015. She applied for accident benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). Wawanesa Mutual Insurance Company (“Wawanesa”) denied payment for two treatment plans for physiotherapy because of the application of the Minor Injury Guideline (the “Guideline”). The payment limit under the Guideline has been reached. The applicant appeals for payment to the Licence Appeal Tribunal – Automobile Accident Benefits Service.

Issues:

2Is the applicant entitled to $613.35 for a Treatment and Assessment Plan for physiotherapy dated September 1, 2015, submitted by Humber Family Chiropractic Rehabilitation and Wellness Centre?

3Is the applicant entitled to $520.00 for a Treatment and Assessment Plan for physiotherapy dated May 2, 2015, submitted by Humber Family Chiropractic Rehabilitation and Wellness Centre?

4Is the applicant entitled to interest on outstanding payments?

Result:

5The applicant is not entitled to payment for any of the two treatment plans for physiotherapy services. Payment for the applicant’s treatment is subject to the Guideline, and the Guideline’s limit has been reached.

Discussion:

6The applicant’s entitlement to the two physiotherapy treatment plans in dispute turns on the application of the Guideline. If the Guideline applies, the applicant is not entitled to either of the treatment plans. If the Guideline does not apply, the applicant may be entitled to both of the treatment plans.

7The applicant has two arguments for why the Guideline does not apply:

1. She suffers from a pre-existing medical condition that prevents maximal medical recovery under the Guideline; and
2. As a result of the motor vehicle accident, she suffers from an injury that is not predominantly minor.

Despite the applicant’s impressive submissions, I am not persuaded.

1. Pre-existing medical condition

8The applicant submits that she suffers from a pre-existing medical condition that prevents maximal medical recovery under the Guideline. The pre-existing medical condition arises from a motor vehicle accident in 2007. The applicant suffered substantially the same injuries as those sustained in the 2015 motor vehicle accident. The applicant has provided the clinical notes and records of her family doctor, Dr. DeVasser. The notes and records document chronic back spasms and lower back pain 5-6 years after the 2007 accident and prior to the 2015 accident.¹ The applicant submits that I should consider the evidentiary record as a whole and infer from it that she suffers from a pre-existing medical condition that prevents maximal medical recovery under the Guideline.

9I am unable to make this inference. Dr. DeVasser’s notes do not explain what he means when he uses the word “chronic”. The best that I can infer from Dr. DeVasser’s notes, and from evidentiary record as a whole, is that the 2007 accident caused the applicant to suffer back pain. This is the same type of back pain that the applicant suffered as a result of the 2015 accident.

10I find the Guideline applies in this case. The applicant has not proven that her pre-existing back pain will prevent maximal medical recovery if payment for her benefits is subject to the Guideline. The applicant did not provide a medical opinion commenting on her ability to achieve maximal medical recovery under the Guideline. She has failed to prove her case on a balance of probabilities.

11Although I would reject the applicant’s submission on this basis alone, I also consider the report of Dr. Khaled, MD, CCFP. Wawanesa commissioned Dr. Khaled to conduct an independent medical examination of the applicant. Dr. Khaled issued a report which concluded that the applicant does not present with any condition that would exclude her treatment from the Guideline. I accept this conclusion.

2. Injury that is not predominantly minor

12The applicant submits that she suffers from chronic pain and, as a result, the motor vehicle accident caused an injury that is not predominantly minor. In support of this submission, the applicant relies on Dr. DeVasser’s clinical notes and records and a chronic pain assessment by Dr. Getahum,² an orthopaedic surgeon.

13Dr. Getahum issued a report dated March 30, 2017 which diagnosed the applicant with the following injuries:

• Chronic myofascial strain of the cervical spine and aggravation of pre-existing degenerative changes.
• Chronic myofascial strain of the lumbosacral spine and aggravation of pre-existing degenerative changes.
• Chronic right shoulder strain and rotator cuff tear.

Assuming without deciding that a chronic pain diagnoses renders the Guideline inapplicable, I am not convinced that the applicant suffers from chronic pain. To explain why, I will examine the two pillars of evidence on which the applicant’s submission stands.

14First, for the reasons provided earlier, I am not prepared to afford much weight to Dr. DeVasser’s notes documenting chronic injuries.

15Second, I am unable to place much weight on Dr. Getahum’s report because he fails to provide a sufficient explanation of what constitutes a “chronic strain”. Without this, I am unable to conclude that the applicant suffers from chronic pain.

16The independent medical examiner, Dr. Khaled, did not find that the applicant suffers from chronic pain. Dr. Khaled diagnosed the applicant with grade 2 whiplash of the neck with associated right shoulder sprain/strain. These are in Dr. Khaled’s opinion uncomplicated soft tissue injuries without evidence of significant orthopaedic or neurological sequelae.

17Considering Dr. Khaled’s diagnosis and the material created by Doctors DeVasser and Getahum, the applicant’s submission is unpersuasive. I am not convinced that as a result of the motor vehicle accident the applicant suffers from an injury that is not predominantly minor. Payment for her benefits is subject to the Guideline.

Interest

18Given my decision, no interest is owing.

Conclusion:

19The applicant’s treatment is subject to the Guideline and the Guideline’s limit has been reached. As a result, the applicant is not entitled to either of the two treatment plans.

Footnotes

1. 1Wawanesa objects to the admission of Dr. DeVasser’s clinical notes and records. I find that the clinical notes and records are admissible.
2. 2The applicant submits that if the Guideline does not apply Wawanesa should pay for the outstanding portion of Dr. Getahum’s chronic pain assessment. This is not a formal issue in dispute. Given my decision, I do not need to consider the submission.