D.B. v. Wawanesa Mutual Insurance Company, 2018 CanLII 133513

Licence Appeal Tribunal

Citation: D.B. vs. Wawanesa Mutual Insurance Company, 2018 ONLAT 18-000506/AABS

Date: December 7, 2018

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:

D. B.

Appellant(s)

and

Wawanesa Mutual Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Susan Mather, Vice Chair

APPEARANCES:

For the Appellant:

Nader Fathi, Paralegal

For the Respondent:

Paul Sykes, Counsel

Held in Writing:

September 24, 2018

REASONS FOR DECISION AND ORDER

OVERVIEW

1The appellant was involved in an automobile accident on June 28, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').The appellant was denied certain medical benefits recommended in five treatment and assessment plans (“treatment plans”) and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.

2The respondent (“Wawanesa”) refuses to pay for the treatment, assistive devices and assessment recommended in the disputed treatment plans on the basis that the appellant’s injuries are predominantly minor injuries as defined in the Schedule subject to treatment within the Minor Injury Guideline (the “Guideline”). Treatment within the Guideline is subject to a $3,500.00 limit (“the Cap”) and payment of the benefits in dispute would result in treatment costs beyond the Cap. Wawanesa also argues that the treatment plans are not reasonable and necessary.

3The appellant argues that the Guideline does not apply because he suffered more than predominantly minor injuries as a result of the accident, including chronic pain and psychological damage.

4Following a case conference on May 14, 2018, the application was scheduled for this written hearing.

5For the reasons provided below, I find that the appellant did not sustain more than predominantly minor injuries in the accident and is subject to the $3,500 Cap on medical and rehabilitation benefits. The five disputed treatment plans are denied.

ISSUES

6The issues I must decide are as follows¹:

1. Are the appellant’s injuries predominantly minor injuries as defined in s.3 of the Schedule, subject to treatment within the $3,500.00 Cap in the Guideline?

2. Is the appellant entitled to receive a medical benefit in the amount of $1,765.20 for Medical Services, recommended by Harry Grigoropoulos of Promed Rehabilitation Clinic in a treatment plan dated October 26, 2017, and denied by the respondent on November 3, 2017?

3. Is the appellant entitled to receive a medical benefit in the amount of $2,117.77 for Chiropractic Services, recommended by Dr. Thavaraja of Promed Rehabilitation Clinic in a treatment plan dated October 25, 2017, and denied by the respondent on November 3, 2017?

4. Is the appellant entitled to receive a medical benefit in the amount of $1,077.81 for Assistive Devices, recommended by Dr. Thavaraja of Promed Rehabilitation Clinic in a treatment plan dated November 28, 2017, and denied by the respondent on December 7, 2017?

5. Is the appellant entitled to payments for the cost of examinations in the amount of $2,200.00 for a Psychological Assessment, recommended by Dr. Vitelli of Promed Rehabilitation Clinic in a treatment plan dated September 26, 2017, and denied by the respondent on December 18, 2017?

6. Is the appellant entitled to receive a medical benefit in the amount of $3,671.48 for Psychological Services, recommended by Dr. Vitelli of Promed Rehabilitation Clinic in a treatment plan dated November 7, 2017, and denied by the respondent on December 18, 2017?

7. Is the appellant entitled to interest on any overdue payment of benefits?

8. Is the appellant entitled to costs?

BACKGROUND

7The appellant was the driver of a vehicle involved in a collision at a red light. The appellant had a seatbelt on and his air bag was not activated². He was ambulatory at the scene and showed no signs of obvious distress. He was taken to hospital by ambulance and walked into the emergency room. He had heart palpitations and mild shortness of breath. According to the hospital records, he had no loss of consciousness and no obvious trauma.

8At the time of the accident, he was employed as a baggage handler at Pearson Airport. In his submissions,³ the appellant states that he has received Income Replacement Benefits (IRBs) since the accident.

MINOR INJURY GUIDELINE

9The Guideline establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 3 of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

10Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for such injuries to $3,500 minus any amounts paid in respect of an insured person under the Guideline.

11Section 18(2) of the Schedule makes provision for some injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 Cap. To access the increased benefits, the injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the Guideline Cap. The burden of proof of establishing entitlement to medical benefits beyond the $3,500 Cap for minor injuries rests with the appellant⁴.

12The appellant claims that he suffered impairments as a result of the accident which include psychological impairment and chronic pain. He argues that his impairments are not minor injuries and do not fall within the Guideline.

13He also claims that he has a pre-existing condition that prevents him from achieving maximal recovery within the Guideline.

14The appellant relies on the Treatment and Assessment Plans in dispute, the Clinical Notes and Records (“CNRs”) of his family physician⁵ and the Emergency Room Record of Trillium Health Partners⁶ to establish his claim. He also relies on the Insurer’s Examinations (“IEs”) of psychologist Dr. Dumitrascu⁷ and a Medical and Rehabilitation Benefit Summary Report from the West Park Assessment Centre that summarizes the results of two IEs⁸ conducted by Dr. J.M.R. Malhoo, a physiatrist and Dr. T. Dumitrascu, a psychologist.

15I am not satisfied that the appellant has shown on the balance of probabilities that he sustained more than predominantly minor injuries in the accident that take him out of the Guideline. I am also not satisfied on the balance of probabilities that he has provided compelling evidence that he has a pre-existing medical condition, documented by a health care practitioner before the accident, that will prevent him from achieving maximal recovery from his minor injuries if he is subject to the $3500.00 Cap. The reasons for my decision are provided below.

Did the Appellant Sustain more than Predominantly Minor Injuries in the Accident

16Treatment under the Guideline is premised on the fact that a person who suffers predominantly minor injuries in an accident is expected to recover within twelve to thirteen weeks after the accident.

17After reviewing the appellant’s evidence, I am not satisfied on the balance of probabilities that he sustained more than predominantly minor injuries in the accident.

Family Physician’s CNRs

18The appellant visited his family physician 6 days after the accident complaining that his chest was hurting from the seat belt. He was sent for a chest and rib cage x-ray, both of which showed that his chest and rib cage were normal⁹. A second chest x-ray done over 6 months after the accident confirmed that there were no significant radiographic findings¹⁰.

19He visited his family doctor six times during the first twelve weeks after the accident. He complained of neck pain, body ache and lower back pain which in my view fall within the Schedule’s definition of minor injury. In early September 2017, his family physician ordered cervical, thoracic and lumbar spine radiographs to further investigate his neck and back pain.

20The radiology report¹¹ states that he had no significant bone or soft tissue abnormalities except for a mild foraminal narrowing at C2-3 and C4-5 on the left side. The family physician’s CNRs do not link the narrowing to the accident and do not indicate that any new/specific treatment was recommended as a result of this diagnosis.

21The family physician’s CNRs show that between September 9, 2017 and January 23, 2018 (the date of the last CNR in evidence), the appellant visited his family physician three times. On November 7, 2017, he complained of lower back pain which the family physician notes as a back strain. On January 16, 2017, his visit was not related to the accident. On January 23, 2018, the same day as he filed his application with the Tribunal, he complained of chest pain due to the accident. The January 23, 2018 chest x-ray confirms that there are no significant radiological findings.

22There is no reference in family physician’s CNRs to the appellant complaining of psychological issues or anxiety and no reference to the appellant suffering from chronic pain.

23I have not found any evidence in my review of the CNR’s that supports a finding that the appellant suffered more than predominantly minor injuries in the accident.

CNRs of Trillium Health Partners

24The appellant was taken to hospital by ambulance following the accident complaining of heart palpitations. The records from his emergency room visit, which include the Ambulance Call Report, indicate that the air bags in the car did not deploy and that he did not suffer a concussion.

25The appellant’s claim that he felt pain down his right side, right hip, a slight headache and had blurred vision is not supported by the emergency room records.

26According to the IE of Dr. Dumitrascu,¹² the appellant left the emergency room without being seen by a doctor as the wait was too long. He did not seek any further medical attention until he visited his family physician six days after the accident.

27While the emergency room record indicates that the appellant was anxious on the day of the accident, I am not satisfied that this anxiety was any more than a normal sequelae of predominantly minor injuries. I would expect a person suffering from heart palpitations after a motor vehicle accident would feel anxious.

28I find that there is nothing in the emergency room records to support a finding that the appellant sustained more than predominantly minor injuries in the accident.

IE Report of Dr. T. Dumitrascu

29Dr. T. Dumitrascu, a psychologist, conducted an IE of the appellant on November 24, 2017 to determine if treatment plans for a psychological assessment and psychological counselling were reasonable and necessary.

30Dr. Dumitrascu conducted several psychological tests and found that the appellant did not suffer from any psychological impairment. Her report does not support a finding that the appellant suffered psychological damage in the accident.

31I do not find any evidence in the treatment plans in issue that the appellant suffered more than predominantly minor injuries in the accident.

32The treatment plans describe the appellant’s physical injuries as “strains and sprains”. I give little weight to the fact some of the treatment plans describe the appellant as having an “internal derangement of the knee, unspecified” for the reason that the appellant has not provided any medical evidence to show that his knee injury was more than a strain or sprain.

33I do not place much weight on the treatment plan proposing a psychological assessment ¹³for the reason that I am not satisfied on the balance of probabilities that the appellant suffered from psychological issues to the extent described in the treatment plan.

34The treatment plan lists sleep disorders, headaches, nightmares, malaise and fatigue as injuries or sequelae from the accident. There is no mention of any of these symptoms in the CNRs of the family physician and the report of Dr. Dumitrascu does not corroborate these symptoms.

35The treatment plan also states that the appellant’s “severe multiple injuries” are a barrier to recovery. There is no evidence to support that the appellant suffered “severe multiple injuries in the accident.

36In my view, if the appellant were suffering from all of the issues described in the appendix to the treatment plan, he would have reported his symptoms/issues to his family physician who he saw on a regular basis in the first three months after the accident.

37For the same reasons, I also do not place much weight on the treatment plan¹⁴ recommending a course of treatment for mental health issues. This treatment plan relies on a “report” which was not submitted by the appellant as evidence.

Chronic Pain

38While the appellant’s submissions are not entirely clear, it appears that he is arguing that he suffers from chronic pain as a result of the accident that takes him out of the Guideline¹⁵. Paragraph 19 of his submission is confusing because it refers to the treatment plan for a psychological assessment rather than the treatment plan for the full body assessment¹⁶. In order for chronic pain to take him out of the Guideline, the appellant must prove on a balance of probabilities that his chronic pain is more than sequelae or symptoms arising from his soft tissue injuries.

39The appellant’s self-reports provide the only evidence that the pain the appellant suffered after the accident is more than a sequelae of his predominantly minor injuries.

40While the CNRs of the family physician record the appellant’s pain complaints in the 12 weeks following the accident, they do not, in my view, provide evidence that the pain he reported was more than sequelae from the minor injuries he suffered in the accident. The fact that there is no record of the appellant visiting this family physician after the date of his application to the Tribunal in my view supports this conclusion.

41While the IE report of Dr. Dumitrascu indicates that the appellant reported much pain on the pain test she administered, Dr. Dumitrascu subsequently¹⁷ provided the opinion that the appellant does not suffer from somatic symptom disorder. The appellant has not provided any evidence to refute Dr. Dunmitrascu’s opinion.

42I do not give the treatment plan for the full body assessment much weight in considering whether the appellant suffers from chronic pain as a result of the accident. The treatment plan is premised on the appellant having severe multiple injuries which I have previously determined is not supported by the medical evidence.

43Dr. Mathoo, the physiatrist who assessed the appellant and wrote the IE report with respect to the treatment plan for the chronic pain assessment, diagnosed the appellant with Whiplash Associated Disorder Type II with low back pain. He provides the opinion that the appellant’s injuries fall within the Guideline.

44In Dr. Mathoo’s opinion, from both a physical perspective and pain medical perspective, the appellant requires no further formal medical or physical treatment. He found that there was no contraindication to the appellant returning to normal activities of daily living.

45The appellant does not refute either Dr. Mathoo’s or Dr. Dumistrascu’s reports which he submitted as evidence.

46For the reasons provided above, I find that the appellant’s self-reports of pain issues do not prove on the balance of probabilities that the pain the appellant reported after the accident was more than the sequelae of the predominantly minor injuries he sustained in the accident.

47Having determined that the appellant did not sustain more than predominantly minor injuries in the accident, I must consider if the appellant had a prior existing condition which prevents him from achieving maximal recovery under the Guideline.

Did the Appellant Have a Prior Existing Condition that Will Prevent Him from Achieving Maximal Recovery under the Guideline?

48The appellant has not provided any evidence to support a finding that he has a prior existing condition that will prevent him from achieving maximal recovery if he is limited to the $3,500 Cap.

49The evidence is that prior to the accident, he suffered from diabetes, high blood pressure and high cholesterol. He has not provided any evidence whatsoever to link these prior existing conditions to his ability to recover from the predominantly minor injuries he sustained in the accident.

50While the CNRs of the family physician document these conditions, the appellant has not provided me with evidence from his health care provider that these conditions will prevent him from achieving maximal recovery from his minor injuries if he is subject to the Cap. For that reason, I find that he remains subject to the Cap.

51The appellant states in his submissions¹⁸ that as of September 11, 2018, he has received $3, 389. 67 in medical and rehabilitation benefits. This figure is not disputed by Wawanesa. It appears that the appellant may be entitled to a further $110.33 in medical and rehabilitation benefits.

52The Schedule¹⁹ requires an insurer to pay for reasonable and necessary medical and rehabilitation expenses incurred by or on behalf of an insured person except in certain circumstances where the insurer is obligated to pay despite the fact that an expense has not been incurred.

53The appellant has not provided me with any evidence that he has incurred any further medical or rehabilitation expenses beyond the ones that have already been paid. He also does not argue that he is entitled to payment of any benefits which have not been incurred.

54Without evidence that further medical or rehabilitation expenses were incurred, I need not determine if any of the treatment plans in issue are reasonable and necessary.

Interest

55Having found that no benefits are payable, I find that there is no interest payable.

Costs

56Rule 19 of the Tribunal’s Rules²⁰ allows a party to request costs in a proceeding if it believes that another party has acted unreasonably, frivolously, vexatiously, or in bad faith.

57The appellant’s claim for costs²¹ is denied because the appellant has not pointed to any behaviour of Wawanesa in these proceedings that would entitle him to costs.

ORDER

58For the reasons provided above I Order:

1. The appellant’s application is dismissed.

2. The appellant’s claim for costs is dismissed.

Released: February 4, 2019

Susan Mather

Vice Chair

LLL

Footnotes

1. 1The appellant lists six treatment plans in his written submissions. In its submissions, Wawanesa explains that one of the treatment plans listed by the appellant is a duplicate that was withdrawn by the appellant at the case conference. The Tribunal Order dated June 15, 2018 lists the five treatment plans identified by Wawanesa. I have relied on the Order as the appellant did not submit any reply submissions to refute Wawanesa’s explanation.
2. 2Tab C2 Appellant’s Submissions – Trillium Heath Care Centre records
3. 3Paragraph 15, Appellant’s Submissions
4. 4This burden of proof was confirmed by the Ontario Superior Court of Justice (Divisional Court) in the 2015 case of Lenworth Scarlett v. Belair Insurance Company Inc. (2015 ONSC 3635). The appellant is required to provide evidence to show on the balance of probabilities that he sustained more than predominantly minor injuries in the accident or that he has a pre-existing medical condition documented prior accident that will prevent him from achieving maximal recovery if his benefits are limited to the Cap.
5. 5Tab C1, Appellant’s Submissions
6. 6Tab C2, Appellant’s Submissions
7. 7Tab C4, Appellant’s Submissions
8. 8Tab C3, Appellant’s Submissions
9. 9Tab 4 Respondent’s Documents – X-ray report dated July 4, 2017
10. 10Tab 4 Respondent’s Documents – X-ray report dated January 23, 2018
11. 11Tab 4 Respondent’s Documents – radiography report dated September 2, 2017
12. 12Tab C4, Appellant’s Submissions
13. 13Tab A1, Appellant’s Submissions
14. 14Tab A3, Appellant’s Submissions
15. 15Paragraphs 18, 19, Appellant’s Submissions
16. 16The treatment plan for the full body assessment is not included in the appellant’s submissions. It is however found at Tab 17 of Wawanesa’s Submissions.
17. 17Tab C3 Appellant’s Submissions, Paper Review of Dr. Dumitrascu
18. 18Paragraph 5, Appellant’s Submissions
19. 19S. 14, 15 and 16 O. Reg. 34/10
20. 20Common Rules of Practice & Procedure, October 2, 2017
21. 21Paragraph 12 (f), page 8, Appellant’s Submission