Tribunal File Number: 17-004541/AABS
Case Name: 17-004541 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: Christopher A. Ferguson
APPEARANCES: Gabriel Pignalosa, Paralegal for the Applicant James Schmidt, Counsel for the Respondent
Heard in Writing: December 13, 2017
OVERVIEW
1[The applicant] was injured in two separate motor vehicle accidents on February 26, 2015 and April 13, 2016 respectively. The applicant was insured by The Wawanesa Mutual Insurance Company ("Wawanesa") with respect to both accidents.
2[The applicant] sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
3[The applicant] applied to the Licence Appeal Tribunal (“the Tribunal”) when the disputed benefits were denied by Wawanesa. He filed two applications, one with respect to each accident. The Tribunal has consolidated his appeals into this hearing.
4Wawanesa contends that all of the [the applicant]’s 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 exactly the opposite.
5If the respondent’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 IN DISPUTE
6The issues before me are:
Are [the applicant]’s injuries considered predominantly minor injuries as defined in s. 3.1 of the Schedule, and therefore subject to treatment within the Minor Injury Guideline?
If [the applicant]’s injuries are not predominantly minor, is the applicant entitled to receive a medical benefit for services, recommended by In-Motion Rehabilitation for the following:
a. $1,352.76 for chiropractic and massage therapy services, detailed in a treatment plan dated July 7, 2015, denied by the respondent on July 15, 2015?
b. $1,352.76 for chiropractic and massage therapy services, detailed in a treatment plan dated August 5, 2015, denied by the respondent on August 17, 2015?
c. $1,352.76 for chiropractic and massage therapy services, detailed in a treatment plan dated September 18, 2015, denied by the respondent on October 1, 2015?
d. $1,352.76 for chiropractic and massage therapy services, detailed in a treatment plan dated October 20, 2015, denied by the respondent on October 26, 2015?
e. $1,352.76 for chiropractic and massage therapy services, detailed in a treatment plan dated November 17, 2015, denied by the respondent on November 27, 2015?
f. $1,352.76 for chiropractic and massage therapy services, detailed in a treatment plan dated December 17, 2015, denied by the respondent on December 31, 2015?
g. $2,305.52 for chiropractic and massage therapy services, detailed in a treatment plan dated January 22, 2016, denied by the respondent on February 1, 2016?
h. $1,352.76 for chiropractic and massage therapy services, detailed in a treatment plan dated March 28, 2016, denied by the respondent on April 6, 2016?
i. $1,132.76 incurred ($1,232.76, less $100.00) for chiropractic and massage therapy services, as detailed in a treatment plan dated July 7, 2015, denied by the respondent on July 15, 2015?
j. $172.76 representing the remainder of the chiropractic services from an OCF-18 submitted September 12, 2016 which was partially approved on September 16, 2016;
k. $2,094.14 for chiropractic services and massage therapy from an OCF-18 submitted September 30, 2016 and denied on October 6, 2016.
l. $1,995.52 for chiropractic and massage from In-Motion Rehabilitation submitted November 30, 2016 and denied on December 12, 2016.
m. $2,949.77 for chiropractic and massage from In-Motion Rehabilitation submitted April 3, 2017 and denied on April 17, 2017.
n. $2,644.38 for chiropractic and massage from In-Motion Rehabilitation submitted June 26, 2017 and denied on July 6, 2017.
o. $2,561.70 for a chronic pain assessment, recommended by Excel Medical, submitted January 17, 2017 and denied January 2017.
- Is the applicant entitled to interest for the overdue payment of benefits?
FINDINGS
7[The applicant]’s injuries are not predominantly minor, and governed by the MIG. His claim is dismissed.
REASONS
Are [the applicant]’s injuries predominantly minor?
8Section 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.” It also defines these injuries.
9Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.
10The onus is on the applicant to show that his injuries fall outside of the MIG3.
11Aviva argues that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline (“the MIG”). The applicant’s position is exactly the opposite.
12If Aviva’s position is correct, then the applicant is subject to the $3,500.00 limit on medical and rehabilitation benefits prescribed by the 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.
13If [the applicant] is right, and his injuries are not minor, I must determine his entitlement to the claimed treatment and assessment plans and the ACBs.
14[The applicant]’s submissions and evidence confirm that the injuries that he sustained as a result of the accident were predominantly minor, consisting of soft-tissue sprains and strains. His case for removal from the MIG is based on a pre-existing condition and on chronic pain which is recognized by the parties as a basis for removal from the MIG.
Did [the applicant] have a pre-existing condition that removes him from the MIG?
15Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. In order to do so, the applicant must provide compelling evidence that meets the following requirements in order to escape the MIG:
i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and
ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.4
16The standard for excluding an impairment on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG. The MIG requires compelling evidence to be provided using the Treatment and Assessment Plan (OCF-18) with attached medical documentation, if any, prepared by a health practitioner.
17I find that [the applicant] did not have a pre-existing condition that meets the prescribed test because:
i. A s.25 assessment5 by Dr. Romeo Vitelli, dated December 21, 2015 noted no pre-existing conditions.
ii. None of the OCF-18s submitted by [the applicant] indicate that he had a pre-existing condition, which is a prescribed requirement.
iii. [The applicant] offers no explanation or medical evidence of how the mild degenerative changes in his back, which were revealed by post-accident diagnostic imaging, would prevent maximal recovery within the MIG limits. In any event, [the applicant]’s condition was not documented by a health practitioner before the accident, as required.
Does [the applicant] suffer chronic pain syndrome?
18In assessing the applicant’s claim of chronic pain syndrome, I have applied the following criteria:
i. The applicant suffers severe and constant pain -- more than simple ongoing or recurrent, intermittent pain.
ii. The applicant’s pain has persisted well beyond the normal healing times for the injuries sustained.
iii. The pain is not a clinically associated sequela to minor injuries.
iv. The applicant’s pain cause functional impairment and disability.
19To support his claim of chronic pain, [the applicant] relies on reports by:
i. Dr. Wright, chiropractor, whose May 26, 2015 report indicated that she found that [the applicant] suffered chronic pain.
ii. Dr. Sebastian Rodriguez-Elizade, whose chronic pain assessment of March 1. 2017 found chronic pain.
20Wawanesa rebuts [the applicant]’s claim of chronic pain with the following evidence:
i. Surveillance evidence indicating that [the applicant] worked 12-hour shifts on October 12 and 13, 2017 (the applicant acknowledges returning to work full time). [The applicant] is a machine operator.
ii. Surveillance evidence indicating that [the applicant] went walking for two hours on October 14, 2017 in a conservation area during which time he was observed jogging for a short distance, moving up inclines and lifting a bench without apparent discomfort.
iii. The applicant’s employment file which indicates excellent performance and attendance, with minimal time off for vacations.
iv. A series of IE reports and addenda by Dr. Eric Silver, GP, which found no persuasive evidence of chronic pain.
21The surveillance and employment file evidence is not addressed by [the applicant].
22Wawanesa argues, and I agree, that this evidence strongly suggests that [the applicant] does not suffer from chronic pain. My reading of his medical evidence did not create a picture of a person prevented by pain from living a normal life. Certainly it would appear that the criteria ii. and iv. set out above in paragraph 10 have not been met.
23[The applicant] fails to address whether or not the ongoing pain he experiences is a sequela to the soft-tissue injuries he sustained in the accidents. The report by Dr. Rodriquez-Elizade characterizes his pain as such.
24I find that [the applicant] has failed to meet the onus on him to prove that he should be removed from the MIG on chronic pain grounds because I do not find that the evidence illustrates that [the applicant]’s pain has significantly disrupted or disabled his pre-accident activities of daily life. Furthermore, his evidence does not establish that his pain does not arise as a sequela to his minor injuries.
Duty to Mitigate Medical Issues
25[The applicant] states that he “relies on s.57(2) of the SABS6” which requires a person who is entitled to income replacement benefits to participate in treatment or rehabilitation that will enable him to return to employment or to shorten the period during which he cannot work.
26[The applicant]’s submits that he incurred $22,526.41 in treatment expenses as it was the temporary relief he received from the treatment that was allowing him to continue to work. He engaged in treatment in an effort to continue with the essential tasks of his pre-accident employment and was able to do so, which mitigated his losses.
27[The applicant] submits that the Tribunal should follow the principles of Michael Lynch v. The Halifax Insurance Company, FSCO 1994 A-004781 (“Lynch”) in which the arbitrator opined that the cost of the pain-related treatments for the claimant in that case were “properly the responsibility of this [sic] insurer.
28I find [the applicant]’s submissions unpersuasive because Lynch did not deal with the same issues before me: application of the MIG and exemptions from it. In Lynch the focus was on efficacy of treatment, maximum medical recovery and whether the claimed treatments were reasonable and necessary. I saw no analysis in Lynch explaining the nexus between the prescribed duty to mitigate medical issues and an obligation by the insurer to pay for those treatments.
CONCLUSIONS
29[The applicant]’s injuries are predominantly minor and governed by the MIG.
30[The applicant]’s appeal is dismissed. Accordingly, there is no interest on overdue payments owing to him.
Released: June 29, 2018
___________________________
Christopher A. Ferguson
Adjudicator
Footnotes
- O.Reg. 34/10
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
- Scarlett v. Belair, 2015 ONSC 3635 para.24
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, heading 4, “Impairments that do not come within this Guideline”.
- i.e. an assessment by a practitioner of [the applicant]’s choice, funded by the insurer under s.25 of the Schedule.
- i.e. the Schedule