17-007887 v Wawanesa Mutual Insurance Company, 2018 CanLII 112113

Date: 2018-08-28

Tribunal File Number: 17-007887/AABS

Case Name: 17-007887 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:

Applicant

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the applicant: Jeton Memeti, Paralegal

For the respondent: Emily Schatzker, Counsel

Written Hearing on: June 11, 2018

OVERVIEW

1The applicant was injured in an automobile accident (“the accident”) on February 18, 2017, and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). When his claims for benefits were denied by the respondent (“Wawanesa”), [the applicant] applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

2Wawanesa denied [the applicant]’s claims because it determined that all of his injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline² (“the MIG”). [the applicant]’s position is the opposite.

3If [the applicant]’s position is correct, then I must address if the medical treatment plans claimed are reasonable and necessary.

4If Wawanesa’s position is correct, then [the applicant] is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and in turn, a determination of whether claimed benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.

ISSUES

5Did [the applicant] sustain predominantly minor injuries as defined by the Schedule? Is his entitlement to benefits limited by the MIG?

6If [the applicant]’s injuries are not within the MIG, then I must determine the following issues:

i. Is the applicant entitled to receive the cost of an examination in the amount of $2,200.00 for a psychological assessment recommended by Pilowsky Psychology Professional Corporation in a treatment plan submitted on May 17, 2017, and denied by the respondent on July 25, 2017?

ii. Is the applicant entitled to receive a medical benefit in the amount of $3,129.48 for psychological treatment recommended by Pilowsky Psychology Professional Corporation in a treatment plan submitted on July 17, 2017 and denied by the respondent on July 27, 2017?

iii. Is the applicant entitled to receive a medical benefit in the amount of $1,353.40 for chiropractic services recommended by Spinal Touch Wellness in a treatment plan submitted on September 18, 2017 and denied by the respondent on September 20, 2017?

iv. Is the applicant entitled to receive a medical benefit in the amount of $1,800.00 for chiropractic services recommended by Spinal Touch Wellness in a treatment plan submitted on August 18, 2017 and denied by the respondent on August 22, 2017?

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

vi. Is the applicant entitled to an award pursuant to section 10 of Regulation 664, RRO 1990, for unreasonably withheld or delayed payments by the respondent?

RESULT

7Based on a review of the evidence before me, I find that [the applicant]’s injuries are subject to treatment within the MIG. It is therefore unnecessary to consider whether the disputed treatment plans are reasonable and necessary; and

8I find that [the applicant] is not entitled to an award under Section 10 of Regulation 664, or interest.

ANALYSIS

The Minor Injury Guideline

9Section 3(1) of the Schedule 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 and includes any clinically associated sequelae to such an injury.” The MIG also defines in detail what these terms for injuries mean.

10Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.

11The onus is on [the applicant] to show that his injuries fall outside of the MIG³.

Accident-related injuries – physical

12I find that the evidence establishes that [the applicant] sustained accident-related physical injuries, but that those injuries are defined as predominantly minor.

13In his Disability Certificate dated February 28, 2017, approximately one week after the accident, Dr. Dev Sarathy, Chiropractor, diagnosed [the applicant] with sprain and strain of the thoracic spine, lumbar spine and the shoulder joint as well as WAD-2 neck pain. In his Disability Certificate dated May 2, 2017, Dr. Samuel Lazare, Family Physician, diagnosed [the applicant] with a lumbar strain and cervical strain. All of these injuries are found under the MIG.

14[the applicant] has not provided me with compelling evidence that establish his physical injuries are anything but minor. To the contrary, I find that the evidence supplied is consistent with a minor injury or a different cause. For example, on a March 21, 2017 visit, just over one month post-accident, Dr. Lazare, notes [the applicant] has “increased back pain since changing tire”. At a November 13, 2017 visit, Dr. Lazare’s notes indicate that [the applicant]’s back pain is improving and that his spine examination was normal. An x-ray report dated July 13, 2017 concluded that [the applicant] sustained mild to moderate degenerative changes in his lumbar spine. A magnetic resonance imaging (MRI) report dated November 24, 2017 notes “no evidence of spinal stenosis at all lumbar levels...mild to moderate degenerative changes”. [the applicant] sought treatment and returned to work shortly after the accident on modified duties, then back to regular duties. Dr. Lazare cleared [the applicant] for a return to regular work without restrictions at a November 14, 2017 visit.

15Dr. Lazare provided no opinion to indicate the injuries sustained are not minor or that the injuries fall outside the MIG. Wawanesa’s assessor(s)⁴ are also of the opinion that [the applicant]’s injuries sustained in the accident do not fall outside the MIG.

16Based on the evidence before me, I find that [the applicant] sustained predominately minor physical injuries, as defined under the Schedule, as a result of the accident.

17Although [the applicant] submits that he experiences occasional back pain, I cannot conclude that the impairment is solely from the accident. [the applicant] has not directed me to any evidence that contradicts the back pain being due to the tire changing incident or any other physical activities he participates in. Whatever the cause, it doesn’t appear to have a significant impact on his life, or require further treatment.

18Despite this finding that [the applicant]’s physical injuries are minor as defined by the Schedule, I must now determine if [the applicant] suffered any psychological injuries that would remove him from the MIG.

Accident-related injuries – psychological

19[the applicant] has the onus to establish that he suffered psychological impairments from the accident, and that they are not considered sequelae of the accident-related injuries. For the reasons that follow, I find that [the applicant] did not suffer from any accident-related psychological impairment that is significant enough to remove him from the MIG.

20[the applicant] submits he suffers from accident-related psychological impairments. As a result of those impairments, [the applicant] claims that he should not be subject to the Schedule’s limitations set out under the MIG. Wawanesa’s position is that [the applicant] suffered, at most, minor accident-related psychological issues, but not any clinical level of impairment which would remove him from the MIG.

[the applicant]’s evidence - Dr. Pilowsky’s psychological report

21[the applicant] relies on an expert report to support the request for the disputed psychological treatment plans. The expert report of Dr. Judith Pilowsky, Psychologist, dated July 17, 2017, suggested that [the applicant] undergo a psychological assessment and receives counselling.

22From his submissions, it appears [the applicant] is advocating for his removal from the MIG due to psychological impairments. While he does not explicitly state this, [the applicant] reproduced portions of Dr. Pilowsky’s report, which advocate for [the applicant]’s removal from the MIG due to his reported psychological impairments.

23In this regard, [the applicant] emphasizes Dr. Pilowsky’s recommendation for removal from the MIG by citing a portion of her report outlining the diagnosis of depression and post-traumatic anxiety within his submissions. Dr. Pilowsky diagnosed [the applicant] with Major Depressive Disorder, Single Episode, Moderate (DSM-5 code 296.22), Post-Traumatic Stress Disorder (DSM-5 code 309.81) with Vehicular Anxiety as per DSM-5⁵ criteria and Excessive Alcohol Use (Pre-Existing and Exacerbated). She opined that a claimant diagnosed with a predominately psychological impairment cannot be treated within the MIG. Therefore, Dr. Pilowsky concluded [the applicant] does not fall within the MIG.

24I do not accept Dr. Pilowskys conclusion, as I find there to be contradictions between Dr. Pilowsky’s report, Wawanesas assessor`s report and [the applicant]’s self-reporting. Dr. Pilowsky makes a clinical diagnosis of [the applicant] noting significant psychological impairments; while on the other hand, Dr. Rubenstein concludes that [the applicant] does not suffer from significant psychological impairment. Both Dr. Pilowsky and Dr. Rubenstein conduct psychological testing, review medical documents, and consider the subjective complaints from [the applicant], and yet reach vastly different opinions on [the applicant]’s psychological well-being.

Wawanesa’s evidence - Dr. Rubenstein’s psychological report

25Wawanesa’s psychological assessor, Dr. Rubenstein, in contrast to Dr. Pilowsky, noted that although [the applicant] was worried about his recovery, he continued to drive, work full time, engaged in home-based exercises and played baseball every Friday night. Dr. Rubenstein’s opinion was that [the applicant] did not present with clinical levels of depressions or anxiety, and further, [the applicant] self-reported to be emotionally stable, optimistic and self-confident and self-reliant.

26Dr. Rubenstein concluded that [the applicant] presented as an individual who did not warrant a psychological diagnosis and as a result, [the applicant]’s injuries fell under the limitations of the MIG.

27[the applicant] argues that Dr. Rubenstein’s report did not address Dr. Pilowsky’s report. However, in his submissions, [the applicant] notes, “Why did the Applicant not send the psychological report of Dr. Pilowsky to Dr. Rubenstein for review”? Dr. Pilowsky’s report was completed on July 17, 2017, five days after Dr. Rubenstein assessed [the applicant] Wawanesa’s position is that it was not aware of Dr. Pilowsky’s report, at the time of Dr. Rubenstein’s assessment.

28With respect to Dr. Rubenstein not being aware of Dr. Pilowsky’s report, I agree with Wawanesa’s submission regarding Adjudicator Ferguson’s findings in 17-004357 and Aviva⁶. In that decision, Adjudicator Ferguson states that “the applicant offers no legal basis for the apparent assertion that the respondent, and not the applicant, bears the onus to explain discrepancies in test results, and offers no explanation or hypothesis for the discrepancy.” I find that there is nothing in [the applicant]’s submissions or any evidence that [the applicant] advised Wawanesa or Dr. Rubenstein that an assessment was conducted by Dr. Pilowsky.

29The onus remains with [the applicant] to provide me with evidence that any accident-related injuries, whether physical or psychological or a combination of both, establish that any accident-related injuries remove him from the MIG. I find [the applicant] has not satisfied that onus.

30[the applicant]’s submissions and evidence are insufficient to establish he suffered any accident-related injuries or impairments that would remove him from the MIG. While [the applicant] emphasized portions of Dr. Pilowsky’s reports, this is not sufficient to establish his accident-related injuries are not predominantly minor. Given there are two conflicting medical opinions, one in favour of the applicant and one against, I look for corroboration in the rest of [the applicant]’s medical evidence.

Dr. Lazare – clinical notes and records

31Dr. Pilowsky and Dr. Rubenstein offer conflicting reports, as a result, I find the clinical notes and records of Dr. Lazare to be particularly important. Dr. Lazare, as the Family Physician, would be most familiar with [the applicant] and his medical history; therefore, I am presented with a more fulsome history of [the applicant] from a medical treatment perspective. With respect to any psychological impairments noted by Dr. Lazare, I find that [the applicant] does not point me to any evidence that establishes that his psychological complaints amount to anything other than minor accident-related sequelae, which are covered under the MIG.

32During an April 4, 2017 visit, Dr. Lazare diagnosed [the applicant] with depression; however there is no recommendation for psychological treatment. During visits on May 2 and July 13, 2017 (a visit right after the assessment with Dr. Rubenstein), there are no psychological diagnoses made by Dr. Lazare or notes of psychological symptoms. During a September 27, 2017 visit, Dr. Lazare noted “ptsd-depression – improved” and “mood better”. It should be noted that the September 27, 2017 visit states that [the applicant] “declines psych referral or meds”, in addition to [the applicant] mentioning that his lawyer told him to see a psychologist.

33I also find that a recommendation from a legal representative, who is not a medical professional, to see a psychologist, does not establish the necessity for psychological treatment for [the applicant] From the evidence and self-reporting of [the applicant], it would appear that seeking psychological help was not something he was ever inclined to pursue. Further, from the clinical notes and records, Dr. Lazare also did not recommend any psychological treatment, which I find to indicate that psychological treatment was not required.

Summary

34The burden of proof is on [the applicant] to establish that his accident-related injuries are not predominantly minor. Based on the evidence before me, I find that [the applicant] did not suffer any psychological injuries from the accident or in its aftermath that would remove him from the MIG. As noted above regarding his social life, activities and work, [the applicant] appears to still participate in the regular pre-accident activities that he engaged in pre-accident. I agree with Dr. Rubenstein’s conclusions, and find he suffered from “sub-clinical” psychological issues that do not warrant a diagnosis.

35Because I find all of [the applicant]’s physical and psychological injuries/impairments to fall within the MIG, it is unnecessary for me to assess whether the claimed treatment plans are reasonable and necessary.

Award under Regulation 664:

36Section 10 of Regulation 664 (“the Regulation”) permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. [the applicant]) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. Wawanesa) has “unreasonably” withheld or delayed payments.

37Having found that [the applicant] is not entitled to any of the disputed treatment plans, I have no basis to conclude that Wawanesa unreasonably withheld or delayed any payments.

38I find that [the applicant] is not entitled to an award based on Wawanesa’s denial of the treatment plans. It was not unreasonable for Wawanesa to deny the treatment plans based on its interpretation of its assessors reports.

CONCLUSION

39For the reasons outlined above, I find that:

i. [the applicant] sustained predominantly minor injuries that are governed by the MIG. Accordingly, he is not entitled to the treatment plans claimed in this application;

ii. [the applicant] is not entitled to an award or interest; and

iii. [the applicant]’s application is dismissed.

Released: August 28, 2018

___________________________

Derek Grant

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 para.24
4. 4Assessment by Dr. Khaled dated July 25, 2017 and Psychological assessment by Dr. Arnold Rubenstein dated July 25, 2017
5. 5Diagnostic and Statistical manual of Mental Disorders (DSM-V)
6. 617-004357 and Aviva at para 26