JT v. Western Assurance Company, 2018 CanLII 130872

Licence Appeal Tribunal

Date: 2018-10-29

Tribunal File Number: 17-008140/AABS

Case Name: 17-008140 v Western Assurance 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:

JT

Applicant

and

Western Assurance Company

Respondent

DECISION

ADJUDICATOR:

Marisa Victor

APPEARANCES:

Counsel for the Applicant:

Matthew Wasserman

Counsel for the Respondent:

Ken Yip

Held in writing

July 30, 2018

I. OVERVIEW

1On July 3, 2015, J.T. (the "applicant") was driving through an intersection in the City of Toronto when a vehicle to her left made a right turn hitting the driver's side of her vehicle (the "Accident").

2As a result of the accident, the applicant sought statutory accident benefits from the respondent, Western Assurance Company ("Western") under the Statutory Accident Benefit Schedule - Effective September 1, 2010 (the "Schedule"). Western denied the applicant coverage for numerous chiropractic treatment plans and one massage plan (the "Treatment Plans") on the basis that her injuries fell within the Minor Injury Guidelines (the "MIG") as defined by the Schedule. The applicant contests Western's denial of the Treatment Plans and seeks dispute resolution by the Licence Appeal Tribunal (the "Tribunal").

3As a result of the case conference held on April 27, 2018, the issues to be determined in this appeal were identified and a written hearing ordered.

II. ISSUES

4The issues are:

(a) Do the applicant's injuries fall within the MIG as defined by the Schedule?

(b) Is the applicant entitled to a medical benefit in the amount of $916.10 for chiropractic services recommended by Revive Health Centres in a treatment plan submitted on December 24, 2015 and denied on January 6, 2016?

(c) Is the applicant entitled to a medical benefit in the amount of $916.10 for chiropractic and massage services recommended by Revive Health Centres in a treatment plan submitted on March 10, 2016 and denied on March 28, 2016?

(d) Is the applicant entitled to a medical benefit in the amount of $916.10 for chiropractic and massage services recommended by Revive Health Centres in a treatment plan submitted on March 10, 2016 and denied on March 28, 2016?

(e) Is the applicant entitled to a medical benefit in the amount of $1,186.01 for chiropractic services recommended by Revive Health Centres in a treatment plan submitted on May 11, 2016 and denied on May 19, 2016?

(f) Is the applicant entitled to a medical benefit in the amount of $1,071.41 for chiropractic services recommended by Revive Health Centres in a treatment plan submitted on July 26, 2016 and denied on July 28, 2016?

(g) Is the applicant entitled to a medical benefit in the amount of $956.81 for chiropractic services recommended by Revive Health Centres in a treatment plan submitted on September 14, 2016 and denied on September 27, 2016?

(h) Is the applicant entitled to a medical benefit in the amount of $1,300.61 for chiropractic services recommended by Revive Health Centres in a treatment plan submitted on November 9, 2016 and denied on September 23, 2016?

(i) Is the applicant entitled to a medical benefit in the amount of $114.60 for chiropractic services recommended by Revive Health Centres in a treatment plan submitted on July 12, 2017 and denied on October 11, 2017?

(j) Is the applicant entitled to interest for the overdue payment of benefits?

III. RESULT

5Based on a review of the evidence and submissions presented, I find that:

(a) The applicant's injuries fall within the MIG;

(b) The applicant is not entitled to receive the denied medical benefits; and

(c) The applicant is not entitled to interest.

IV. ISSUE A: DO THE APPLICANT'S INJURIES FALL WITHIN THE MIG AS DEFINED BY THE SCHEDULE?

LAW

6The onus is on the applicant to prove that the she does not fall within the MIG, as defined by the Schedule, based on a balance of probabilities.

7A "minor injury" is defined in the Schedule 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. The definition of minor injury does not include psychological symptoms or chronic pain. Subsection 18(1) of the Schedule limits recovery under the MIG to $3,500 in medical and rehabilitation benefits (the "Cap").

8Subsection 18(2) of the Schedule states that the Cap does not apply to an insured person with a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent them from achieving maximal recovery under the Cap.

EVIDENCE & ANALYSIS

9The applicant argues that her chronic pain and pre-existing conditions remove her from the MIG. I will deal with each of these in turn.

The applicant did not suffer functional impairment from chronic pain

10I find that the applicant has not established that she suffers from chronic pain. While she submitted medical evidence, these did not show any chronic pain diagnoses until one report three year post-Accident. Previous reports which were closer in time to the Accident did not show any chronic pain, nor did they show functional impairment in the appellant's work or life. As a result, I found the recent reports of chronic pain caused by the Accident were not credible.

11The applicant saw her family doctor, Dr. Bekhit, the day after the Accident and complaining of strain and whiplash, injuries that fall within the definition of minor injuries.

12The applicant began rehabilitation treatments at Revive Health Centres on July 9, 2015. She received physiotherapy, massage and chiropractic treatments between July 9, 2015 and May 4, 2017. She attended 76 times.

13The applicant claims her treatments immensely improved her condition, reduced her pain and allowed her to function at her kitchen/serving job. I do not find this claim credible as there is no support for her statements in either her health or employment files.

14Her full-time employment file notes various disciplinary issues prior to the Accident and several after the Accident. It makes no mention of the Accident or of any modified duties. She did not take any time off as a result of the Accident. The applicant also maintained a part-time job as a server at a nursing home. Similarly, her employment file at the nursing home makes no mention of the Accident, she did not take any time off and nor did she require any modified duties.

15The Insurer's Examinations ("IE") provide evidence that the applicant's injuries fall within the MIG.

16On April 14 and 21, 2016, the applicant underwent an IE with Dr. Elmpak, psychologist. While none of the denied Treatment Plans are for psychological services, I find the information reported by the applicant during the IE relevant as it relates to any post-Accident changes to her lifestyle, work and overall health.

17Dr. Elmpak stated that the applicant reported that her full-time job was very stressful. She did not report any major lifestyle concerns. She stated that she returned to all pre-Accident activities shortly after the Accident. The applicant did not mention any concerns with regard to her family or lifestyle. Dr. Elmpak found that she had no psychological symptoms as a result of the Accident. He did not suggest any treatment.

18On May 16, 2016, the applicant attended another IE conducted by Dr. Dharamshi, general practitioner. Dr. Dharamshi found that her injuries were minor in nature and that her prognosis was excellent.

19The applicant was also not assisted by another psychological assessment she underwent three years after the Accident. On April 16, 2018, the applicant saw Dr. Waxer, psychologist. She now stated that the Accident had caused her ongoing pain and affected her ability to sleep. She stated she is forgetful at work and is facing increased criticism. She stated that she is only able to take part in 30% to 40% of her pre-Accident life interests. She stated she is less patient with her family and reported a significant reduction in her social activity. She also stated she feels constantly nervous about everything.

20Dr. Waxer found that she suffers from severe depression and would be a candidate for antidepressant medication, if she were so inclined (the applicant expressed a reluctance to take medication). He also found that she suffers from acute anxiety. He recommended 12 to 16 sessions of cognitive behavioural physiotherapy.

21I do not find that the applicant's reported conditions to Dr. Waxer are credible. The applicant's employment file contains pre-accident disciplinary records that show forgetfulness. However, although there are disciplinary records post-Accident, none related to forgetfulness at work. Neither was there an increase in criticism noted in her employment records. Further, the applicant had previously stated that the Accident had not affected her lifestyle or family life.

22Dr. Waxer's report is in stark contrast to that of Dr. Elmpak which took place two years before – sooner after the Accident. The contrast is most striking in the reported symptoms by the applicant. Dr. Elmpak's IE was conducted only one year after the Accident, for that reason I find the applicant's self-reported issues more reliable in that assessment, particularly as they relate to symptoms caused by the Accident.

23The applicant also underwent a physician's medical assessment on April 18, 2018 with Dr. Fern, orthopedic surgeon. Again, this assessment did not provide credible evidence. Dr. Fern found her injuries to be minor in nature but as she had surpassed the normal healing period, he diagnosed her with chronic pain disorder. However, there was no evidence of functional impairment.

24I agree with the respondent's submissions regarding the appropriate test for chronic pain that there be some functional impairment.¹ The applicant has suffered from post-accident strain and whiplash, which fall within the definition of minor injuries. However, due to the lack of credible evidence of functional impairment, I cannot find that she has developed chronic pain such that her injuries take her out of the MIG. I prefer the information provided by the applicant one year after the accident where she did not report any changes in her relationship with her husband or children, or any effect on her lifestyle or work. She has maintained two jobs since the Accident. The records show that she has not missed work due to the accident, nor has she needed modified duties.

25I therefore find that the applicant has not established that she has chronic pain caused by the Accident that has functionally impaired her. Therefore, I find that the applicant's injuries are predominantly minor in nature and her condition does not remove her from the MIG.

The applicant's pre-existing conditions do not take her out of the MIG

26The applicant also argues that she has pre-existing issues, in particular, headaches, dizziness, and right shoulder pain, which should remove her from the MIG.

27In order for a pre-existing condition to remove her from the MIG, she must meet three criteria:

(a) A pre-existing condition must exist;

(b) It must be documented by a health practitioner before the accident; and

(c) The pre-existing condition must prevent maximal recovery from the minor injury if the applicant is subject to the $3,500 Cap.

28Prior to the Accident, the applicant had the following relevant pre-existing conditions:

(a) Episodes of headaches and dizziness on and off throughout her life and for at least 6 years prior to the Accident; and

(b) Right shoulder pain.

29Post-Accident, the applicant did not disclose these pre-existing conditions to those assessing her.

30In addition, her lack of disclosure of any pre-existing conditions to treating health practitioners also means that she does not have post-Accident evidence that establishes that these pre-existing injuries will prevent her from achieving maximal recovery within the MIG.

31I therefore find that the applicant's injuries are predominantly minor in nature and there is no compelling evidence that her pre-existing conditions will prevent her from achieving maximal recovery under the Cap.

V. ISSUES B to I: IS THE APPLICANT ENTITLED TO THE DENIED TREATMENT PLANS?

32Having found that the applicant's injuries fall within the MIG, there is no need for me to conduct an analysis on whether the treatment plans are reasonable and necessary. The applicant is not entitled to any medical or rehabilitation benefits that exceed the monetary cap.

VI. ISSUE J: IS THE APPLICANT ENTITLED TO INTEREST ON ANY OVERDUE PAYMENT OF BENEFITS?

33Having found that the applicant is not entitled to the denied Treatment Plans, the applicant is not entitled to any interest.

VII. CONCLUSION

34For the reasons outlined above, the appeal is denied.

Footnotes

1. 1See 16-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) at para. 27 and 17-002337/AABS v. Wawanesa Mutual Insurance Company, 2017 CanLII 99137 (ON LAT) at paras. 28 and 30.